The Practical Employer – Page 16

August 2, 2018June 29, 2023

The 14th Nominee for the Worst Employer of 2018 Is … the HR Pimp

The Federal Emergency Management Agency, the agency charged with responding to natural disasters, appears to have a disaster of its own to respond to.

It appears that its former HR chief offered creative “bonuses” to his male employees — he’s accused of hiring women to be possible sexual partners to men working for the agency.

I’ll pause to let that one sink in.

Slate.com fills in the salacious details:

A former head of human resources for the Federal Emergency Management Agency is under investigation after being accused of hiring women as possible sexual partners for male employees….

That accusation was one of many leveled against Corey Coleman, who led the HR department from 2011 until June, that depicted him as creating a toxic workplace for the 20,000-person agency, pushing out qualified employees, allowing sexual harassment to occur unchecked, and filling the agency with unqualified employees, many of whom are still there.

Coleman himself has been accused of sexually harassing female employees, and two employees have said they had inappropriate sexual relationships with him….

These findings came from a seven-month internal investigation that wrapped up Friday….

Coleman, who resigned in June before being interviewed by investigators, has also been accused of hiring friends, college fraternity brothers, and women he met on dating sites and at bars, starting in 2015…. He also allegedly promoted them within the agency without going through the formal hiring and review processes, and, most shockingly, transferred some women to offices and departments to be closer to friends who wanted sexual relationships with them.

For his part, FEMA Administrator Brock Long, in a formal statement, called the allegations “deeply disturbing,” stated that “harassment of any kind will not be tolerated at FEMA,” and outlined his five-point plan to address allegations of employee misconduct within the agency. Words are nice, but these problems, which seem to be deep and organizational, will take a long time to fully correct.

Indeed, if your head of HR is hiring women to serve as sexual partners for his male employees, not only is your HR, your culture, and your organization broken, you also might be the worst employer of 2018.

Previous nominees:
The 1st Nominee for the Worst Employer of 2018 Is … the Holy Harasser

The 2nd Nominee for the Worst Employer of 2018 Is … the Arresting School Board

The 3rd Nominee for the Worst Employer of 2018 Is … the Camera Creep

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

July 19, 2018June 29, 2023

Employees With Intermittent Explosive Disorder — Your Workplace IED

Most every workplace has had THAT employee. The hothead. Someone who loses their cool at the drop of a hat. Yells, screams and is prone to fits of rage.

It should go without saying that no one should be required to be subjected to this degree of misconduct. For this reason, you may (should?) decide to separate Hothead’s employment.

What happens, however, if Hothead delivers a doctor’s note advising you that he or she is being treated for “intermittent explosive disorder?”

Believe it or not, intermittent explosive disorder (IED), is a legit mental disorder, covered by the DSM-V (the psychiatric bible of mental disorders).

According to the Mayo Clinic, IED “involves repeated, sudden episodes of impulsive, aggressive, violent behavior or angry verbal outbursts in which you react grossly out of proportion to the situation.” Outbursts can include temper tantrums, tirades, heated arguments, shouting, slapping, shoving or pushing, physical fights, property damage, or threatening or assaulting people. Not surprisingly, complications include job loss and other problems at work.

Which brings us back to Hothead and his doctor’s note. What do you do?

Thankfully, the ADA is not overly sympathetic to employees with IED, or other mental disorders, that cause misconduct.

The EEOC’s guidance on Applying Performance And Conduct Standards To Employees With Disabilities makes it clear that an employer may discipline an employee for violating a conduct rule even if the employee’s disability causes the violation, as long as the conduct rule is job-related and consistent with business necessity and other employees are held to the same standard.

Certain conduct rules will always meet this standard, such as prohibitions against:

violence and threats of violence.
destruction of property.
insubordination toward supervisors and managers.
disrespect towards clients and customers.
inappropriate behavior between coworkers (yelling, cursing, shoving, or making obscene gestures, for example).
sending inappropriate or offensive emails or other electronic communications.
Courts (such as the 1st and 6th Circuits) have upheld the right of employers to hold accountable employees with mental disorders for their violations of workplace conduct standards.

There you have it. You don’t have to put up with an a-hole employee, even if that a-hole claims a disability caused their a-holeness.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

July 9, 2018June 29, 2023

No, You Can’t Require Your Employee to Work During an FMLA Leave

Let’s examine a question I receive all too often — can an employer require an employee to work during an FMLA leave?

So as not to bury the lede, the answer is pretty strong no.

To examine this issue, let’s take a look at Lay v. Louisville-Jefferson Cnty. Metro Gov’t (W.D. Ky. 5/29/18).

Justin Lay, a packer in the Solid Waste Management Division of the Louisville-Jefferson County Metro Government, applied for, and won, a promotion to an equipment operator. The new position required Lay to hold a commercial driver’s license, which the collective bargaining agreement provided three months to obtain.

During that three-months period, however, Lay suffered a broken leg in an off-duty accident. As a result, he took an FMLA leave. During that leave, however, the employer terminated his employment because he had failed to obtain his CDL as required by the position.

Lay sued, claiming that his termination — specifically, the expectation and requirement that he obtain his CDL while out on an FMLA leave — violated his rights under the FMLA.

The court agreed that “requiring an employee to work while on leave from work is the definition of interference with an employee’s FMLA rights,” and that requiring an employee to complete the requirements for a CDL and take the driver’s test while on FMLA leave constituted this mandatory work. It concluded that a jury should determine whether the employer violated Lay’s FMLA rights and set the case for trial.

What can employers learn from this case? If an employee is out on FMLA leave, leave the employee alone.

There is a distinction to be made between “fielding occasional calls about one’s job while on leave [as] a professional courtesy” (which a New York federal court, in Reilly v. Revlon, concluded was not an FMLA violation), and requiring one “to continue to perform work-related tasks while ostensibly on medical leave” (such as providing updates on accounts and pending sales, which the 6th Circuit, in Arban v. West Publishing, concluded was an FMLA violation).

Generally, speaking, however, anything more than routine questions that can be fielded in a quick phone call or email will likely constitute a violation of your employee’s FMLA rights.

Make sure your managers, supervisors, and the co-workers left behind know and understand that an employee out on FMLA is not to be working. Otherwise, you just might be buying yourself an FMLA lawsuit.

January 6, 2014July 16, 2019

It’s Time to Update Your Severe-Weather Policy

How bad is the weather going to be in Cleveland today? It’s so cold that even the Horseshoe Casino is closed. You can’t even get hot at the tables.

In light of these historically frigid temperatures, I’m re-sharing a post I ran all the way back in 2010 on workplace severe-weather policies, including including how to handle issues such as attendance, wage and hour, and telecommuting:

Communication. How will your business communicate to its employees and the public whether it is open for business or closed because of the weather? Are there essential personnel that must report regardless of whether the facility closes? Phone chains, email blasts, text messages, and even social media updates are all effective tools to communicate this essential information.
Early closing. If a business decides to close early because of mid-day snowstorm, how will it account for the orderly shut-down of operations? Which employees will be able to leave early and which will have to remain to ensure that the facility is properly closed? Is there essential crew that must stay, or is there an equitable means to rotate who must stay and who can leave?
Wage and hour issues. To avoid jeopardizing exempt employees’ status, they should be be paid their full salary when a company closes because of weather. For non-exempt employees, however, it is entirely up to the company whether to pay them for a full day’s work, for part of the day, or for no hours at all. Will employees have to use vacation or other paid time off if they want to be paid for the day, or will the company consider it a freebee? If your company closes but an employee does not get word and reports to work, will the company pay that employee anything for reporting?
Attendance. Will the absence be counted against employees in a no-fault or other attendance policy, or defeat any perfect attendance bonuses?
Telecommuting. If your area has frequent bouts of severe weather, consider whether you want to allow employees to telecommute. Even if your business does not typically permit employees to work from home, exceptions for exceptional weather could potentially save you lost productivity.

Please be safe and stay warm.

Jon Hyman is a partner in the Labor & Employment group of Kohrman Jackson & Krantz. Comment below or email editors@workforce.com. For more information, contact Hyman at (216) 736-7226 or jth@kjk.com. Follow Hyman on Twitter at @jonhyman.

April 25, 2012June 29, 2023

EEOC Pronounces Protections for Transgendered Workers

Title VII does not, on its face, protect transgendered workers from discrimination.

Increasingly, however, courts have extended its protections under the umbrella of Title VII’s protections against sex-stereotyping-as-gender-discrimination, as first explained 23 years ago by the U.S. Supreme Court in its landmark Price Waterhouse v. Hopkins decision:

“In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman. In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”

Earlier this week, the EEOC made what might be the most significant pronouncement to date on the issue of the protection of the transgendered as gender discrimination. Macy v. Holder [pdf] involved a transgender woman, Mia Macy, who claimed that the federal Bureau of Alcohol, Tobacco, Firearms denied her a job after she announced she was transitioning from male to female.

In reinstating Macy’s Title VII claim, the EEOC concluded:

“That Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important…. Title VII prohibits discrimination based on sex whether motivated by hostility by a desire to protect people or a certain gender, by assumptions that disadvantage men, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort. …

Thus, we conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination “based on … sex,” and such discrimination therefore violates Title VII.”

While this opinion is not binding on courts, one cannot overstate the significance of the fact that the agency responsible for enforcing the federal EEO laws has made this broad pronouncement. Many employers operate under the belief that they are free to discriminate on the basis of sexual orientation or gender identity because Title VII lacks no facial prohibition. As this case illustrates, that belief, no matter how commonly held, might be mistaken.

The EEOC and I disagree on a lot. (See criminal background checks as hiring criteria). Yet, on this issue, we are on the same page. It strikes me as appalling that in 2012 there are still minority groups against whom it remains facially legal to discriminate.

Already, 21 states prohibit sexual orientation discrimination in employment, 16 of which also prohibit gender identity discrimination; another 140 cities and counties have similar laws. Many companies have also made the private decision to prohibit this type of discrimination in their individual workplaces.

For the uncovered, this EEOC decision signals that the time is coming when this type of discrimination will no longer be an open issue. I suggest you get on the bandwagon now, and send a signal to all of your employees that you are a business of inclusion, not one of bigotry and exclusion.