Category: Legal

Posted on

Transfer Preferences to Vacant Positions as an ADA Reasonable Accommodation Continue to Baffle Courts

A disabled employee comes to you and asks for a transfer to an open and available position as a reasonable accommodation? Do you grant the request? For the time being, there is no clear answer to this difficult question.

The ADA includes “reassignment to a vacant position” as a possible “reasonable accommodation” for disabled employees. Courts have struggled, however, in deciding whether disabled employees are entitled to a transfer preference over more qualified, nondisabled co-workers. Five years ago, employers thought they were going to receive some clarity on this tricky issue, when the Supreme Court agreed to hear Huber v. Wal-Mart Stores. When Huber settled before the Supremes could have their say, the issue remained in limbo. Last week, in EEOC v. United Airlines [pdf], the 7th Circuit issued the latest pronounced by a federal appellate court on this issue, and its holding is diametrically opposed to Huber.

Huber held that an employer can hire the most qualified person for a position, even if means passing over a less qualified, disabled employee who requested a transfer to the vacant position as a reasonable accommodation. United Airlines, however, concluded that the ADA requires employers to provide a preference to the disabled employee, and pass over a more qualified individual in favor of providing the vacant position as a reasonable accommodation. In other words, this issue is more muddled and unsettled than ever, and remains ripe for clarification from the Supreme Court.

Going forward, employers are left with the following two very different options:

1) Hire the most qualified person and deny the open position to a less qualified disabled employee.

– or –

2) Automatically award an open position to a qualified disabled employee, if even a better qualified applicant is available and despite an policy to hire the best person for the job.

Employers must act cautiously if faced with this thorny issue. The answer, for now, will vary depending on the federal circuit in which your business operates. My advice from nearly five years ago rings as true today as it did then:

When you don’t hire the best person for an open position, it could lead a court to second-guess your judgment and question why a member of a protected class was overlooked in favor of the second/third/fourth/whatever best person. Recognize, however, that this issue is unsettled, and declining to accommodate a disabled employee by transferring that employee to an open position could result in a violation of the ADA.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Posted on

Kentucky Staffing Firm Settles EEOC Suit

A Lexington, Kentucky, staffing agency, agreed to provide back pay and $5,000 in compensatory damages to settle a religious discrimination lawsuit, the U.S. Equal Employment Opportunity Commission reported today. The suit alleged staffing firm The Patty Tipton Company denied employment to a woman because she refused to wear pants for religious reasons.

University of Kentucky student Megan Woodard is a member of a fundamentalist Baptist church whose members believe women should not dress like men, including refraining from wearing pants, according to the EEOC. Woodard applied for a temporary job at the 2010 World Equestrian Games held in Lexington, but was denied a position due to her request for the religious accommodation to not wear pants.

The settlement also provides for injunctive relief including anti-discrimination training, reporting of discrimination claims, and a prohibition against any discrimination or retaliation under Title VII.

Staffing Industry Analysts is a sister company of Workforce Management. Comment below or email editors@workforce.com.

Stay informed and connected. Get human resources news and HR features via Workforce Management’s Twitter feed or RSS feeds for mobile devices and news readers.

Posted on

No Penalties for Employers Not Offering Dependent Coverage: Employer Group

An employer benefits lobbying group has urged the Obama administration to make it clear that the health care reform law does not impose financial penalties on employers that do not offer coverage to dependents.

Under the Patient Protection and Affordable Care Act, employers are to be assessed $2,000 per full-time employee if they do not offer coverage to employees in 2014.

Regulators have yet to issue definitive guidance on the penalty. In the absence of such guidance, the ERISA Industry Committee said it is concerned that regulators might interpret the law as imposing the penalty on employers that do not offer dependent coverage.

“This interpretation is not consistent with the statute as a whole,” Scott Macey, ERISA Industry president and CEO, and Gretchen Young, senior vice president-health policy, wrote in a letter sent Tuesday to Jeanne Lambrew, deputy assistant to the president for health policy.

While the law’s shared financial responsibility provisions “refer to health coverage for full-time employees and their dependents, the penalties are based solely on the number of an employer’s full-time employees—dependents do not enter into the penalty calculation,” executives of the Washington-based group said in the letter.

“If Congress had intended to create a dramatic new mandate that penalized employers for failing to offer dependent coverage, Congress would have done so much more directly than the statute achieves with its parenthetical reference to dependents,” they said in the letter.

In fact, the benefits lobbying group said, the reference to dependents in the shared responsibility provisions of the health care reform law was simply a “drafting error” that regulators now should correct.

Jerry Geisel writes for Business Insurance, a sister publication of Workforce Management. To comment, email editors@workforce.com.

Stay informed and connected. Get human resources news and HR features via Workforce Management’s Twitter feed or RSS feeds for mobile devices and news readers.

Posted on

Wal-Mart Settles Employee’s EEOC Disability Discrimination Lawsuit for $50,000

Wal-Mart Stores Inc. and one of its units has reached a $50,000 settlement of a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission in which the retailer was charged with failing to accommodate a 22-year employee who suffers from cerebral palsy.

The EEOC said Wal-Mart fired Marcia Arney, a part-time clerk, from her position in its Carlsbad, New Mexico, store rather than trying to return her to her job after a medical leave related to her cerebral palsy. Arney had shown the store manager a note from her doctor requesting an accommodation involving periodic breaks off her feet, but the manager refused to return her to her job and instead demanded that she obtain a medical release with no restrictions, according to the EEOC’s statement.

“The EEOC alleges that the medical restriction could have easily been accommodated by the giant retailer. In fact, had the employer inquired further, it would have learned that her need for accommodation was temporary,” said the agency, which charged Wal-Mart with violating the Americans with Disabilities Act of 1990.

In addition to $50,000 in back pay and damages, provisions of the settlement with Bentonville, Arkansas-based Wal-Mart and its Wal-Mart Stores East L.P. unit include that Wal-Mart conduct annual live ADA training of management officials at its Carlsbad store.

Robert A. Canino, regional attorney for the EEOC’s Dallas district office, said in a statement, “Federal regulations explaining amendments to the (Americans with Disabilities Act) made it clear that many impairments, cerebral palsy among them, do not require a lengthy analysis to determine whether or not they are ‘substantially limiting,’ which is the standard for coverage. Employers who used to argue otherwise should get up to speed on the clarifications Congress made to the (Americans with Disabilities Act) to ensure that most people with disabilities will be covered.”

A Wal-Mart spokesman responded that this case involved a now-former local store manager who “was not fully in compliance with company policies.”

The spokesman said, “This was an unfortunate, isolated incident in our Carlsbad store and in no way reflects the manner in which we conduct business at our stores or treat our associates. Wal-Mart does not condone or tolerate discrimination of any type. We take it seriously any time allegations or questions are raised about our (Americans with Disabilities Act) compliance.”

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management. To comment, email editors@workforce.com.

Stay informed and connected. Get human resources news and HR features via Workforce Management’s Twitter feed or RSS feeds for mobile devices and news readers.

Posted on

Study: Disability Claims After Intermittent FMLA Indicate That Caregivers Are Finding It Hard to Cope

Here’s a heads-up to human resources pros: If you have employees using the Family and Medical Leave Act, don’t be surprised if they soon ask for short-term disability too.

In a forthcoming report, Westminster, Colorado-based Reed Group says employees who are granted FMLA leave are three times more likely to file short-term disability claims within six months than employees who don’t request FMLA. The report is based on analysis of 112,000 FMLA claims that were closed from 2008 to 2011.

The full report is set to be released in October, although Reed Group released excerpts in advance to the media this month.

Employees who care for sick family members shoulder a stressful, angst-ridden responsibility. Although the FMLA safeguards their jobs, the report suggests that many employees-turned-caregivers suffer a lingering emotional toll that ultimately sidelines them not long after they resume work.

“HR directors typically have viewed FMLA as a ‘have-to-do’ part of compliance, but they haven’t spent enough time focusing on the root causes behind subsequent disability claims,” says Kevin Curry, a senior vice president of Reed Group, which provides products and services for leave administration and return-to-work programs.

Employees sometimes get worn out by the physical labor of caring for another person, while stress and anxiety wreak havoc with their emotional well-being. As a result, employees often return to work but realize they have their own issues to deal with first, Curry says.

The report cites musculoskeletal conditions and behavioral health as the most common reasons employees seek disability following intermittent FMLA leave.

According to Reed Group’s analysis, 51 percent of the FMLA claims during the study period involved intermittent leave, in which an employee is granted time away from work, returns to work briefly, only to be away again, usually in connection with caring for a loved one who is ill.

Of employees who were granted intermittent leave, 21 percent were more likely to file for short-term disability, or STD, within six months than did employees on continuous leave (8 percent), Curry says.

Although Reed Group is still examining the financial impact, Curry says intermittent leave is a huge drain on profits and disrupts business productivity. The financial data will be released with the full report in October, along with demographic breakdowns to help HR administrators slice and dice the data.

Other research already indicates that planned absence remains an inveterate challenge to organizations, consuming nearly 9 percent of payroll costs, shows a joint survey of 276 organizations in 2010 by Kronos Inc. and Mercer.

The spike in disability claims by those coming off FMLA does not suggest employees have figured a way to scam the system, Curry says. Abusers typically don’t stay off work longer than the maximum period allowed, Curry says, because doing so requires a formal medical approval.

“The average length of a [post-FMLA] disability claim was 20 percent higher than it was for other claims,” reflecting the fact that a doctor has diagnosed the employee’s need for time off to rest and recharge, Curry says.

Reed Group says its findings underscore why companies should take an integrated approach to employee-assistance programs, health and wellness initiatives. The full report is expected to provide HR administrators with a detailed breakdown of FMLA-related impacts by gender, age and other demographics.

Garry Kranz is a Workforce Management contributing editor. Comment below or email editors@workforce.com.

Posted on

How Late Is Too Late for an FMLA Medical Certification?

Jon Hyman The Practical Employer

Under the FMLA, an employee requesting leave for a serious health condition must provide a medical certification for the leave upon request by the employer.

The employee has 15 days to return the requested certification, unless it is not practicable to do so under the particular circumstances. If an employee fails to provide certification, the employer may deny the FMLA leave.

What happens, however, if an employee returns the requested medical certification late—after the expiration of the 15-day time limit? According to the Northern District of Ohio, in Kinds v. Ohio Bell Telephone Co. (7/30/12) [pdf], an employer can lawfully deny FMLA benefits when an employee submits the medical certification beyond the 15-day deadline, even if the employee only misses it by a short amount of time.

Ohio Bell’s decision to deny Kinds FMLA coverage due to untimely certification is justified …. In spite of ample notification by Ohio Bell, Kinds did not submit certification by the 13th …. Ohio Bell would have been justified in denying coverage for this failure alone, but the company nonetheless granted Kinds an extension. Kinds failed to submit certification by the January 27, 2010, deadline as well. Finally, on February 16, 2010, Kinds submitted the medical certification, but it failed to provide an explanation—a request made by FMLA Operations as a condition for giving Kinds a third extension—as to why she failed to submit certification earlier. As a matter of law, it cannot be said that Ohio Bell’s refusal to accept Kinds’s twice late and still inadequate certification—submitted one month past the FMLA required 15-day period—constituted interference with Kinds’s FMLA rights.

To sum up:

  • How late is too late for an employee to submit a medical certification to support a request for FMLA leave? One day.
  • Can you extend the 15-day period and accept a late certification? Yes.
  • Do you have to? No.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Posted on

Indianapolis Law Aims to Curb Temp ‘Blacklisting’

A rule to prevent Indianapolis hotels from “blacklisting” workers from temporary staffing firms received approval July 16 from the Indianapolis-Marion County City-County Council, according to a report by Indiana Public Media. The rule now goes to the mayor for his signature.

The rule prohibits hotels from signing deals with contractors—such as staffing firms—that prevent the hotels from hiring the contractor’s employees directly, according to city documents.

The impetus for Indianapolis’ rule stems from complaints earlier this year about staffing firm employees who provided cleaning services at hotels. The claims were that hotels wouldn’t hire them on directly—even if they were applying at a different hotel from the one where they worked if both hotels used the same staffing firm, according to news reports.

Workers claimed they had to wait six months to a year after leaving the staffing service before being hired directly by hotels.

Workers at Indianapolis hotels earlier this year also sued a staffing firm, Hospitality Staffing Solutions LLC, seeking unpaid overtime, according to court records. Several Indianapolis hotels were initially included as defendants in the lawsuit but have been dropped from the case.

Filed by Staffing Industry Analysts, a sister company of Workforce Management. To comment, email editors@workforce.com.

Stay informed and connected. Get human resources news and HR features via Workforce Management’s Twitter feed or RSS feeds for mobile devices and news readers.

Posted on

Home Depot Reaches Settlement in Firing of National Guardsman

The Justice Department has reached a $45,000 settlement with Home Depot Inc. to resolve charges it violated federal law when it terminated an Army National Guard soldier’s employment.

The DOJ said May 21 the Atlanta-based home improvement chain violated the Uniformed Services Employment and Reemployment Rights Act of 1994 when it terminated Brian Bailey, an Iraq War veteran, because of his military service obligations.

According to the Justice Department, Bailey was removed from his position as a department supervisor after Home Depot management officials at his Flagstaff, Arizona, store “openly expressed their displeasure” with his periodic job absences because of his military obligations, and indicated their desire to remove him from his position because of his absences.

Under terms of the settlement, in addition to giving Bailey $45,000 in monetary relief, Home Depot has made changes to its military leaves of absence policy. The settlement also mandates that Home Depot review its military leaves of absence policy with managers from the district where Bailey worked.

Thomas R. Perez, assistant attorney general for the DOJ’s civil rights division, said in a statement, “The department is pleased that we were able to work cooperatively with Home Depot to resolve this matter without the need for contested litigation.”

A Home Depot spokesman could not be reached for comment.

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management. To comment, email editors@workforce.com.

Stay informed and connected. Get human resources news and HR features via Workforce Management’s Twitter feed or RSS feeds for mobile devices and news readers.

Posted on

Randstad to Pay $60,000 in EEOC Suit

Randstad US agreed to pay $60,000 to settle a disability bias lawsuit, the U.S. Equal Employment Opportunity Commission reported today. The company allegedly refused to hire Jason O’Dell at its Frederick, Maryland, branch because of his disability; O’Dell suffered from Asperger’s syndrome, according to the EEOC.

O’Dell had applied for a job at Randstad’s Frederick branch and was fast-tracked for a lab technician position, according to the EEOC. However, he was told that the lab technician position had been put “on hold” and not hired after informing the company of his disability, the agency said. However, recruitment for the position continued.

In addition to the $60,000, the settlement also requires Randstad to modify its anti-discrimination policy, provide two hours of on-site training to workers at the company’s Frederick branch, amend its nationwide employment law compliance training, post a notice in all Maryland branches regarding discrimination and permit O’Dell to take 10 classes through the Randstad University Online Training Center.

Filed by Staffing Industry Analysts, a sister company of Workforce Management. To comment, email editors@workforce.com.

Stay informed and connected. Get human resources news and HR features via Workforce Management’s Twitter feed or RSS feeds for mobile devices and news readers.

Posted on

Contingent Workers Settle Suit in California

A settlement has been reached in a wage and hour lawsuit by contingent workers against PrO Unlimited and staffing client Juniper Networks Holdings International Inc., a computer networking firm, according to court documents. The workers claimed they did not receive overtime for working more than eight hours a day.

The workers signed employment agreements with PrO and Juniper stating that they were classified as exempt from overtime and were required to track daily work in eight-hour increments, according to the lawsuit. However, the lawsuit argued plaintiffs regularly worked more than eight hours per day.

PrO Unlimited was not able to comment on the case.

The court was notified of the settlement last month, but the suit was first filed in July 2011. It sought to represent all contingent employees who worked at both PrO and Juniper in California.

Named defendants in the lawsuit include Michael Lazarin, who worked as a recruiter from March 2008 to November 2009; Stephen Kohler, who worked as a senior staffing manager from October 2008 through October 2009; and Paul Capano, who worked as a recruiter from August 2008 through January 2010. All three worked at a Juniper location in Sunnyvale, California.

Filed by Staffing Industry Analysts, a sister company of Workforce Management. To comment, email editors@workforce.com.

Stay informed and connected. Get human resources news and HR features via Workforce Management’s Twitter feed or RSS feeds for mobile devices and news readers.