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Termination and Pregnancy Discrimination

Issue: A pregnant part-time employee has refused your requests to return to a full-time schedule. Your company is about to embark on a significant and lucrative new project. Several new employees have been hired and her return to full-time work would round out the number of employees needed to complete the project. The employee explains that she has commitments to her children and a graduate program she enrolled in at the local college. Her supervisor has tried to sway her by offering to fill in for her one afternoon a week so she can leave early for her classes. She still refuses, despite being told that she will be terminated if she does not agree to return to a full-time schedule. You issue a written notice of termination and select a full-time worker to replace her. The employee claims you only fired her because of her pregnancy. What now?


Answer: You were aware of the employee’s pregnancy and the likelihood of an upcoming request for maternity leave. However, you can show that the employee was terminated because she refused to work on a full-time schedule when she was needed. Although she could argue that she was offered an opportunity you knew she would refuse so you could fire her, there are several factors which could prevent her from proceeding.


Prior accommodation.
It’s undisputed that your company has never denied any employee maternity or paternity leave. You didn’t oppose the employee’s previous maternity leaves and, after she returned to work, she wasn’t punished for having taken maternity leave. In fact, you granted her request to work on a part-time schedule so she could spend more time with her family.


Significant new project.
Your company is about to begin an important new project and had specifically hired several new employees for this project. The employee was deemed important enough to the project that you requested she return to a full-time schedule. It was clear you needed an individual working full-time in her position because the day the employee was discharged, you selected a replacement who was already working full-time and immediately started looking for someone to fill that worker’s position.


Reasons for refusing full-time schedule.
The employee was not prevented from returning to a full-time schedule by any disability associated with her pregnancy. Part of the reason the employee refused to return to a full-time schedule was due to her participation in a graduate program. She turned down the request for full-time work even after her supervisor offered to cover for her one afternoon a week.


Inference that discharge was due to pregnancy unlikely.
Although the employee could possibly establish a prima facie case because she was pregnant and qualified for her job at the time of her termination, it is unlikely that a court would infer from these facts that the employee was fired in order to avoid giving her maternity leave. The employer was able to clearly demonstrate that the employee previously had been accommodated for pregnancy; that an important new project was about begin and the employee was considered important enough to repeatedly seek her to return to a full-time schedule; and that part of her refusal to return to a full-time schedule was due to her own agenda stemming from her participation at a local college.


Cite: Gleklen v Democratic Congressional Campaign Comm, Inc (DDC 1999) 75 EPD P45,774.



SOURCE: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health care and small business professional. CCH offers human resource management, payroll, employment, benefits, and worker safety products and publications in print, CD, online, and via the Internet.


The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.

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Maximize Your Technology Investments

Here are a few ways to maximize the return on technology investments you make:


  1. Strive for a corporate culture that embraces change.
  2. Create incentives for employees to maintain and upgrade skills.
  3. Provide training, but don’t view it as the catch-all, end-all. Make sure employees understand the strategic advantages of the system.
  4. Provide training appropriate to an employee’s job function. General one-size-fits-all instruction burdens employees with information they probably don’t need.
  5. Make sure there’s a payoff for employees. If they can do their work better, faster or easier, than they will more willingly upgrade their skills.
  6. Ensure that systems provide maximum simplicity and usability.
  7. Provide appropriate training at all levels of the company.

SOURCE: Sam Greengard, Workforce Magazine, December 1998.

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English Language Ability Can be Valid Job Qualification

Issue: A car rental company employs hundreds of workers, and a number of these employees speak Spanish as a primary language. One employee’s understanding and use of English was very limited. The company refused to promote this employee by denying his job bid for the position of “Courtesy Bus Driver,” admittedly due to the employee’s inability to understand and communicate in English. The employee filed a grievance against the company, claiming that he was discriminated against because he was not proficient in English, and the matter was eventually submitted to arbitration. Was the employee entitled to the requested promotion?


Answer: No. The employee, a full-time service agent, was properly denied his job bid because his inability to understand English greatly diminished his capacity to competently perform the essential tasks required of a Courtesy Bus Driver.


Management has the right to assess qualifications.
The parties’ collective bargaining agreement reserved to management the right to determine whether an applicant possessed the “ability” to qualify for consideration as a bus driver, and the evidence clearly established that drivers “must have the ability to speak and understand English.”


English language ability was an essential qualification.
Although the job bid itself contained no qualifications and there was no written job description or written “English-only” requirement, English was used almost exclusively by drivers, managers, and in all written documentation affecting the bus driver position. This documentation included “all recorded announcements to customers, printed location directions, signs, rental agreements, memos from management, and the training manual.” Finally, all oral communication between bus drivers, base-dispatch, and supervisors was conducted in English. Therefore, the employer established that the understanding and usage of English was “an essential qualification vital to the efficient operation of the bus.”


Employer’s obligations:
Nonetheless, the employer potentially could have prevented the grievance had it clearly defined the job qualifications in writing. Moreover, the arbitrator noted that the employee was to be allowed the opportunity to re-bid under certain conditions:


  1. The employee must first complete English language lessons and/or otherwise “demonstrate” that he has improved his English language ability.
  2. The employee may request such a demonstration at any time within six months from the date of the decision.
  3. The demonstration must consist of driver job-related English materials and questions, and may involve actual interaction on a bus.


Cite: Avis Rent A Car System, Inc and Freight Drivers, Warehouseman and Helpers, Local Union No 390. 99-1 ARB P5502. Robert B. Hoffman.


SOURCE: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health care and small business professionals. CCH offers human resource management, payroll, employment, benefits, and worker safety products and publications in print, CD, online, and via the Internet. For more information and other updates on the latest HR news, check our Web site at http://hr.cch.com.


The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.

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Tips for Effective E-mail

Here are ten tips that will and your employees help you deliver effective e-mail — and avoid being fired.


  • Never send (or forward) racist, sexual or pornographic materials.
  • Never assume that e-mail is confidential. Employers generally have the right to review their employees’ e-mail.
  • Never assume that e-mail is permanently deleted. It rarely is!
  • Don’t send spam or chain letters via e-mail. It can be illegal.
  • Don’t gossip or criticize others in an e-mail because it may come back to haunt you in the form of defamation or libel charges.
  • When responding to an e-mail, make sure you reply only to the sender, and not everyone on the cc: list, unless that’s your specific intention.
  • Refrain from sending angry e-mail. It may embarrass you later.
  • Don’t write in all caps. It’s the online equivalent of SHOUTING.
  • Avoid misspellings that can make you look careless or sloppy. Not all e-mails have spell-checkers, so you might consider composing your mail in another text-editing program, and then cut and pasting it into e-mail.
  • Remember that e-mail is international. When sending e-mails to another country, always use a polite address and avoid using acronyms and idioms that may be particular to American culture.

SOURCE: Corpedia Training Technologies, Mesa, AZ, January 5, 1999.


 


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Getting a Waiver from DOL Compliance Reviews

Issue: A corporation having multiple facilities was notified by a local district office of the Office Federal Contract Compliance Programs (OFCCP) that one of its facilities had been selected for compliance review. The review involved the facility’s affirmative action program and supporting documents. OFCCP, a division of the US Department of Labor, has authority to conduct compliance reviews of those corporations having contracts with the federal government in the amount of $50,000 or more and which employ 50 or more persons.


While conceding that OFCCP’s affirmative action reporting requirements applied generally to its operations, the corporation claimed that OFCCP lacked jurisdiction to conduct a review of this particular facility because the facility itself was not connected with any government contract work. Accordingly, the corporation requested an exemption or waiver for the facility. The local district office replied that it did not have the authority to grant such a request and directed the corporation to contact the Deputy Assistant Secretary of Labor, who is the head of OFCCP. The corporation took no further action to obtain the waiver and did not supply the requested affirmative action information. Was the corporation’s facility entitled to a waiver?


Answer: No. Even though the facility was “autonomous and entirely divorced” from work relating to the corporation’s federal government contracts, the facility was subject to the reporting requirements absent an express waiver or exemption from the Deputy Assistant Secretary of Labor.


DOL, not company, determines whether a facility is autonomous and entitled to waiver. The Rehabilitation Act of 1973, Executive Order 11246, and regulations implementing the Vietnam Era Veterans Readjustment Assistance Act of 1974 show that the Labor Secretary is not required to grant waivers; rather she may in her discretion grant waivers. Neither case law nor federal regulations supported the corporation’s position that it had authority on its own to determine if one of its facilities was “autonomous” and not subject to OFCCP reporting requirements.


Separate incorporation not controlling; “actual control” is. Moreover, the corporation mistakenly relied on a 1972 Comptroller General opinion stating that a separately incorporated subsidiary was not subject to reporting requirements because its parent corporation did not exercise “actual control” over it. In the present case, the corporation admitted that it operated the facility, set the personnel policies implemented by the facility, and controlled certain aspects of hiring, promotion and discharge decisions at the facility.


What should you do? Apply directly to the Deputy Assistant Secretary of Labor for a waiver. Absent the waiver, the employer must supply the affirmative action information pertaining to the facility that is requested by the OFCCP.


Cite: Trinity Indus, Inc. v Herman (4thCir 1999) 75 EPD P45,808.


SOURCE: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health care and small business professionals. CCH offers human resource management, payroll, employment, benefits, and worker safety products and publications in print, CD, online, and via the Internet. For more information and other updates on the latest HR news, check our Web site at http://hr.cch.com.


The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.


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Table of Contents

Cover Story


Employee Sabotage: Don’t Be a Target!
By Jennifer Laabs
Angry employees are sabotaging employers’ technology and operations in increasingly sophisticated and creative ways. At the heart of the destructive behavior are anger and resentment. Find out why workers aren’t always on your side and what action you should take.


Features


The Power of Personal Recognition
By Linda Davidson
Recognition that’s personalized and done with a flair of celebration carries an important message to employees: You make a difference. When employees feel they’re valued and respected, they’re less likely to be open to offers from competitors—even if those offers come with bigger paychecks.


Moving Jobs to Offshore Markets: Why It’s Done and How It Works
By Charlene Marmer Solomon
Moving labor offshore is traditionally thought of as a negative solution to staffing shortages. Understanding that there are benefits can help position it in a more positive light.


Building the Perfect Workforce
By Thomas O. Davenport
This excerpt from Human Capital: What It Is and Why People Invest It will help you learn how to create and deliver the best return from your selection process.


Departments


Putting It Together
Filling Jobs Is Only the Beginning


News Angle
Supreme Court Hands Down Decision in ADA Case


The Buzz
How to Deal With Gen-X Workers; Flattery Gets You Everywhere


Forté
HR Helps Build First U.S.-based LEGOLAND Theme Park


Legal Insight
Pre-employment Testing Can Be Unlawful


Money Matters
Tax Incentives Can Offset the Cost of ADA Compliance


Personal Best
Volunteer Program Is a Springboard for Career Advancement


Trends & Resources


The Hard Case for Soft Skills
By Shari Caudron
Current research on emotional intelligence reveals evidence that investing in “soft-skills” development has big payoffs. Learn why emotions matter in the workplace and how to develop emotional intelligence at your company.


Emotional Intelligence at Work
By Jennifer Laabs
When emotional-intelligence training is done right, the results can be dramatic. Find out what sets EI training apart from all the others, and how to use it effectively.


Internal Resources: American Express Taps Into the Power of Emotional Intelligence
By Scott Hays
American Express Financial Advisors learned to appreciate the role of emotion in the workplace. See how they used emotional-intelligence training to increase sales revenue and improve performance.


More Information: Increase Your EQ
Check out seminars, Web sites, articles and books that will give you more insight about soft-skills training and emotional intelligence.

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Expert Q&A on Workplace Romance

Christine Amalfe, is a member of Gibbons, Del Deo, Dolan, Griffinger & Vecchione’s Litigation and Employment and Labor Law Departments. She has been extensively involved defending claims under the State and Federal Employment Laws, including claims for sexual harassment, race discrimination, sexual discrimination, disability discrimination and the Conscientious Employee Protection Act. She has also been involved in matters alleging breach of express or implied employment contracts, intentional infliction of emotional distress, battery, breach of fiduciary duty, and violation of restrictive covenants.


Ms. Amalfe has represented corporate defendants as well as individual officers, directors or employees who have been sued personally for sexual harassment, negligent supervision, fraud or negligent misrepresentation. She has negotiated termination severance packages, drafted employee handbooks and employment agreements, and has provided employment and other counseling to clients on a regular basis. She has consulted with clients regarding diversity initiatives and audits and has conducted sexual harassment training. She has consulted with clients regarding diversity initiatives and audits and has conducted sexual harassment training.


Q: A sales representative complains that her manager is having a romantic relationship with another sales representative and as a result the other sales representative is getting preferential treatment, including better leads on prospective buyers. Do you have a duty to investigate?
A: Yes. If the allegations are true, you must separate the two involved in the romantic relationship so that the manager no longer has any control over the assignments, promotion or pay of the sales representative he is involved with. Although many courts confronted by this issue have ruled that “isolated” instances of paramour favoritism do not violate federal and state laws barring sex discrimination, contrary decisions have been reached where workplace favoritism is so widespread that it creates a hostile work environment.


Q: Should you also separate the manager from the complaining sales representative?
A: Yes, if possible. Retaliation claims often stem from situations where an employee complains about his/her supervisor and the two continue working together because if the supervisor takes any adverse action against the subordinate, the subordinate will view it as retaliation regardless of whether it is performance based. Moreover, juries often view retaliation claims as more serious than the original claim. The best option is to separate all involved. However, if you move the complaining sales representative, make sure it is not a less desirable territory, product, etc. because that too could be viewed as retaliation.


Q: How can you attempt to prevent preferential treatment in the workplace?
A: Draft an effective nepotism policy which states that family members and those involved in a close personal relationship with an existing employee will not be hired. In addition, consider drafting a policy which acknowledges that workplace romance may occur. This policy should require the senior person in any workplace relationship to disclose the relationship to human resources or be in violation of the policy. The company should also reserve the right to transfer one or both of the individuals if it turns out that they are in the same chain of command. This information enables you to staff employees so that preferential treatment can be avoided.


Q: What should I take into account when drafting a workplace romance policy?
A: Initially, you must consider the culture of your company. If your culture can accept workplace romance, draft a policy which allows it under the appropriate circumstances. If your culture will not accept workplace romance, draft a policy which prohibits relationships, but recognize that there probably will be employees who violate the policy. Also, decide what action the company will take for violations of the policy and realize that this may mean dealing with employees who choose to resign rather than terminate their relationship. The policy should be applied in a non-discriminatory fashion and therefore if some of your best employees are involved, it will mean disciplining or terminating them pursuant to the policy. Consider whether you want to lose well-trained, performing employees in today’s labor shortage market.


Q: Why would a company choose to allow or condone workplace romance?
A: Companies are simply accepting the reality of work life in the 1990’s. Romance and relationships will happen whether they are prohibited or accepted. The difference is that if they are prohibited, they will most likely be secret and the parties involved will deny the existence of the romance in order to protect their jobs. It then becomes difficult for management to make staffing and supervisory decisions. If relationships are allowed, they will be more open and you will be able to staff so that no preferential treatment occurs. You can also interview the participants to make sure the relationship is voluntary and not coercive, thereby protecting the company from a potential sexual harassment claim in the future.


Q: How can you protect the company from a workplace romance forming the basis for a sexual harassment case?
A: Many sexual harassment cases arise from workplace romances after one party seeks to terminate the relationship. The other party to the relationship may seek to continue the romance by making continued sexual advances and overtures. If the subordinate employee in the relationship terminates the relationship, the more senior employee may retaliate against the more junior person through work assignments, salary increases and promotion opportunities. Certainly, the junior employee will claim any adverse employment decision by the senior employee related directly to the termination of the sexual relationship. You can protect the company by implementing a policy which requires parties involved in a workplace relationship to disclose that relationship to management or human resources. You can then make appropriate staffing decisions to assure that the more senior person involved has no control or influence over the work assignment at any time. You can also require employees to advise the company if the relationship terminates or if it changes to an involuntary situation. This can protect the company if a claim is later made by an employee that the relationship was forced or coerced thereby forming a claim for sexual harassment.

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Workers’ Compensation Average Return-to-Work Time

There are no standards for how long it usually takes a person with an industrial injury to return to work. Keeping accurate records helps in tracking return-to-work averages and will yield an experiential record that helps determining averages for individual cases. The following is Steelcase’s experience over the past 10 years. Although workers used to go out on workers’ compensation from injuries and complications of the back, now they’re sustaining more injuries to the upper extremities in the wrist, elbow, and arm.


Surgery for:

1982

1987

1992

Back

9-12 months

3-4 months

6-8 weeks

Carpal Tunnel

*

3-4 weeks

3-7 days

Shoulder

4-5 months

3-4 months

2-4 weeks

Elbow

3-4 months

2-3 months

4 weeks

Knee

4-6 months

3-4 months

1-2 weeks

Hernia

6-8 weeks

5-6 weeks

3 weeks

* No one was treated for carpal tunnel injury in 1982.


SOURCE: Steelcase Inc.


Personnel Journal, February 1993, Vol. 72, No. 2, p. 78.


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Levi’s Aspiration Statement

We all want a Company that our people are proud of and committed to, where all employees have an opportunity to contribute, learn, grow and advance based on merit, not politics or background. We want our people to feel respected, treated fairly, listened to and involved. Above all, we want satisfaction from accomplishments and friendships, balanced personal and professional lives, and to have fun in our endeavors.


When we describe the kind of LS&CO. we want in the future, what we are talking about is building on the foundation we have inherited: affirming the best of our Company’s traditions, closing gaps that may exist between principles and practices, and updating some of our values to reflect contemporary circumstances.


What Type of Leadership Is Necessary To Make Our Aspirations a Reality?


New Behaviors:
Leadership that exemplifies directness, openness to influence, commitment to the success of others, willingness to acknowledge our own contributions to problems, personal accountability, teamwork and trust. Not only must we model these behaviors, but we must coach others to adopt them.


Diversity:
Leadership that values a diverse work force (age, sex, ethnic group, etc.) at all levels of the organization, diversity in experience, and a diversity in perspectives. We have committed to taking full advantage of the rich backgrounds and abilities of all our people and to promote a greater diversity in positions of influence. Differing points of view will be sought; diversity will be valued and honesty rewarded, not suppressed.


Recognition:
Leadership that provides greater recognition—both financial and psychic—for individuals and teams that contribute to our success. Recognition must be given to all who contribute: those who create and innovate and also those who continually support the day-to-day business requirements.


Ethical Management Practices:
Leadership that epitomizes the stated standards of ethical behavior. We must provide clarity about our expectations and must enforce these standards through the corporation.


Communications:
Leadership that is clear about Company, unit, and individual goals and performance. People must know what is expected of them and receive timely, honest feedback on their performance and career aspirations.


Empowerment:
Leadership that increases the authority and responsibility of those closest to our products and customers. By actively pushing responsibility, trust and recognition into the organization, we can harness and release the capabilities of all our people.


Personnel Journel, December 1992, Vol. 71, No. 12, p. 38.


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Guidelines for Relationship Policies

A Recommended Framework


  • Employers should have written policies on dating and family relationships in the workplace to promote uniform treatment of all employees and reduce the likelihood of claims of discrimination or favoritism. Supervisors should hold question-and-answer sessions with employees upon initiation of the policies to avoid any misunderstandings. All new employees should receive the policy upon being hired and should be given the opportunity to ask questions.
  • Employers generally cannot discriminate based on marital status, so workplace rules should apply to close relationships between co-workers, whether married or not.
  • Employers should require employees who are in a close personal relationship to report the relationship if the employees work together as part of their jobs. Supervisors should treat this information as confidential.
  • Employers should generally prohibit employees in a close personal relationship from working in supervisor/subordinate rules. If a transfer or change in responsibility isn’t feasible, other supervisors should handle or participate in performance reviews of the subordinate employee. It should be clearly stated that the subordinate employee has the option of going to the most senior supervisor to discuss any workplace issue.
  • Employers may require that employees in a close personal relationship refrain from public displays of affection or excessive conversation.
  • Workplace relationship rules should apply to all employees, even senior executives.

Guidelines and policies regarding dating and close relationships in the workplace need legal review to ensure compliance with federal, state and local laws.


Source: Michael D. Karpeles, partner with the Chicago law firm of Goldberg, Kohn, Bell, Black, Rosenbloom & Moritz, Ltd.


A Sample Policy


Policies concerning workplace relationships aren’t only good for employees, they’re good for the bottom line. They decrease the chance for costly lawsuits and help create a more productive work environment.


The following policy combines good judgment with practical policies:


“Consensual personal relationships between individuals in the Firm are not prohibited by the policy. Those who engage in such relationships, however, should be aware that concerns may later arise regarding the actual freedom of choice of one of the parties, particularly when a superior/subordinate relationship exists between them. In these cases, the Firm requires the senior-ranking person in the relationship to disclose the relationships to the Co-Chairs of the Diversity Committee, so that appropriate staffing and/or supervisory decisions can be made. The Firm also requires that employees involved in a consensual personal relationship notify the Co-Chairs if the relationship terminates or is not longer consensual.
“The Co-Chairs shall have discretion to recommend staffing changes to the Staffing Committee. Efforts will be made to separate the parties’ business interactions to avoid any real or perceived conflict of interest. A lateral move will be attempted whenever possible; the couple’s recommendation will be considered as to which person will be reassigned to a new team or position. Any such move will be kept as discrete as possible, and will not be considered punitive in any way. In the event that a lateral move isn’t possible and an actual conflict of interest exists, the Firm reserves the right to ask one of the individuals to leave.

“Failure to disclose the existence and/or the termination of a consensual relationship which causes a real or perceived conflict of interest will be considered a violation of this Policy, subject to disciplinary measure.”


Ask Yourself: When Does Office Romance Require Management Intervention?


Three issues are relevant to HR taking action regarding office romances. But remember, one can’t simply presume there will be a problem. Focus on the behavior, not the motivation behind it. The questions below were posed in an article titled “Work and Love Can Become a Volatile Mixture” by Leilani Allen. It appeared in the February 3, 1997 issue of Computerworld.


  • Are there displays of affection or emotional outbursts that are inappropriate in a business environment? If so, there should be immediate intervention.
  • Does the relationship affect the group’s performance, creating unnecessary friction, errors or blame-laying? The [manager] should focus on solving the problem, not on exploring the presumed source of the problem. [HR] shouldn’t even ask whether a relationship exists because that’s a violation of privacy.

Does the individual’s performance review appear to reflect a bias? Again, the bias can be positive or negative and still be against established policy.