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Posted on June 2, 2009June 27, 2018

Driving as a ‘Major Life Activity’ Rejected

Marsalette Winsley worked as a nurse for Cook County, Illinois, from 2001 until she resigned in October 2007. Due to her involvement in a car accident, Winsley’s psychiatrist diagnosed her with post-traumatic stress disorder, and beginning in April 2004, she took a series of medical leaves of absence for that condition. In April 2005, Winsley provided the county with a letter from her doctor, stating that she could return only if she did not have to drive during the workday. Winsley’s job required her to visit clients, and thus it was necessary that she drive. The county agreed to reassign Winsley closer to home if her doctor cleared her to do two hours of driving per day. After eight weeks of a regimen that altered Winsley’s position to exclude driving, she received a performance review rating her unsatisfactory in attendance and timeliness.


Winsley sued the county in U.S. District Court for the Northern District of Illinois, alleging the county had discriminated against her in violation of the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964. The district court dismissed Winsley’s claims on summary judgment. On appeal, the U.S. Court of Appeals for the 7th Circuit agreed with the district court’s decision that Winsley had no ADA-protected disability because she was not substantially limited in a major life activity.


The 7th Circuit ruled although the EEOC’s list of major life activities “does not purport to be exclusive, the items on the list have several things in common with each other that driving does not share with them,” and that driving is not so important to everyday life that anyone would consider himself limited if he could not drive. If Winsley’s limited ability to drive impaired her ability to work, she might be covered under the ADA. Winsley v. Cook County, 7th Cir., No. 08-2339 (4/22/09).


Impact: Employers are advised to engage in an interactive process with employees seeking job accommodation. Although the inability to drive is not a major life activity, it could create a disability if it caused an impairment of a major life activity like “caring for oneself, performing manual tasks, walking, seeing, hearing, learning and working.”


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. Also remember that state laws may differ from the federal law.

Posted on June 2, 2009June 27, 2018

Dispatcher Has No ADA or FMLA Claim

Charlene Wisbey worked as 911 emergency dispatcher for the city of Lincoln, Nebraska, from 1980 until she was terminated in April 2007. In February 2007, Wisbey was granted intermittent leave for six months under the Family and Medical Leave Act because of her chronic anxiety, depression and problems with concentration and her energy level.


Because of her condition, in March 2007 the city required Wisbey to undergo a psychiatric evaluation to determine her fitness for duty. As a result of that examination, the doctor determined that Wisbey’s depression, together with her fatigue and inability to concentrate, rendered her unfit to perform her job duties. Wisbey was placed on paid leave on March 29, 2007, and terminated on April 3, 2007, based on the doctor’s findings.


Wisbey filed suit in the U.S. District Court for Nebraska, alleging that the city terminated her in violation of the FMLA and the Americans with Disabilities Act. The court ruled in favor of the city on those claims. With respect to her ADA claim, the court found that Wisbey failed to show as pretext the city’s claim that it terminated her because she was unfit for duty. The court reasoned that “when an employee’s termination is based upon the recommendations of a physician, it is not based upon myths or stereotypes about the disabled and does not establish a perception of disability.”


With respect to her FMLA claim, the court also found that “the FMLA does not require an employer to retain an employee who has not made a valid FMLA leave request; is not seeking temporary leave to recover from a disability or impairment, but rather ongoing and intermittent leave; and cannot perform the essential functions of her job.” Wisbey v. Lincoln, D. Neb., No. 08-3093 (4/10/09).


Impact: Employers should rely on opinions and recommendations of health care providers in considering possible accommodations, as well as in determining if an employee has the ability to perform essential job functions.


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. Also remember that state laws may differ from the federal law.

Posted on June 2, 2009June 27, 2018

Temp Execs Gaining Favor in a Troubled Economy

Many employers today are finding the need to shift course given the changing economy, but they don’t have the leadership they need to do so. In hard times, firms want executives who can make difficult decisions and not worry about relationships, experts say. And that’s why more employers are turning to temporary executives.


Los Angeles-based Business Talent Group, which has more than 1,500 temporary executives and 100 clients, has seen its business grow 47 percent year over year since its inception 2½ years ago. “We hear a lot from companies that want to bring in an interim executive to deal with a turnaround or crisis and who can make tough calls and be the bad guy,” COO Amelia Warren Tyagi says. “And then the next person can come in and rebuild loyalty and culture.”


Workforce Management New York bureau chief Jessica Marquez recently spoke to three temporary executives who work with BTG—William Kuehn, who often temps as an interim CEO; Philip Deming, who temps as a head of HR; and Sydney Drell Reiner, who temps as a chief marketing officer—about their experiences.


William P. Kuehn
Consultant, interim CEO


Workforce Management: How did you get involved in temporary executive work?


William Kuehn: I had my own business, Bolstad Industries, for several years through the mid 1980s. I decided to close that down during what was really in the middle of an industrial depression. Then I decided to go into turnaround consulting. And I found that doing that kind of work as an interim executive was preferable to being a consultant because you have the authority to make the tough decisions. Since then, I have worked as an interim CFO and CEO and interim COO at a number of companies in health care and technology.


WM: Do you prefer this to a permanent position?


Kuehn: There is always a permanent job that I would enjoy, but the danger in a permanent job is that it could become stale and you could become a caretaker. One of the things that I find very attractive about interim executive work is that you are constantly learning and growing as a person.


WM: What are the advantages for employers in hiring temporary executives?


Kuehn: Often when a company wants to bring in a new CEO, they don’t want to wait four to six months to conduct a search and find the ideal person, so this is a way of addressing that. The other thing is if you have nasty things that need to get done, you want someone who is willing to take the rap from employees or shareholders for making the difficult decisions. Then the new person doesn’t get tagged with having made those decisions.


WM: What are the challenges for employers in bringing on interim executives?


Kuehn: The biggest challenge is finding someone who is qualified. Companies also need to make sure that the other executives are on board with the hire, and that the hire has the authority to make decisions. Finally, interim executives don’t have the benefits of knowing all of the personalities and the culture of the company, so it’s important that someone makes him or her aware of those issues.


WM: What are the challenges for the interim executive?


Kuehn: Again, there is the challenge of coming into a company that you don’t know. Also, the executive needs to make sure that they are well-received by other executives so that they can work together as a team.


Philip Deming
Consultant, interim HR chief


WM: How did you get involved in doing interim HR work?


Philip Deming: I was at a company where the chief administration officer got caught embezzling money, and so we terminated that person and I took on the role along with my existing responsibilities as head of HR. That was 15 years ago.


WM: Being the head of HR requires having a good understanding of the organization and the employees. When is it appropriate to have an interim head of HR?


Deming: I usually get involved where a company is getting out of a crisis. For example, one client I just worked with had come out of bankruptcy and terminated their chair of the board and the CEO. People were devastated and they needed someone. So I came in and handled the human capital issues and helped establish some stability.


WM: Isn’t it challenging though to come in as an interim HR executive when you don’t know the employees?


Deming: Most HR people don’t like to lay off people and do restructurings. After you do something like that, it permanently affects your relationship with the existing employees. So in that kind of situation it’s helpful to have an interim HR executive.


WM: What are the challenges that a company may face in bringing on an interim HR executive?


Deming: HR always needs the full support of senior management. Companies need to make sure that is the case.


WM: What are the advantages for the company in hiring an interim HR executive?


Deming: I remember being called in by a CEO at one client who told me that they wanted the best and brightest. I told them, ‘No one is going to work for this organization.’ So having the advantage of an interim executive is that we can say things that are politically threatening. I have no political agenda.


Sydney Drell Reiner
Interim chief marketing officer


WM: After years of working in top marketing positions at large companies, you decided to go temp. Why?


Drell Reiner: For me it was a lifestyle decision. I have a little girl, Hayley, and I loved my career, but I was working 80 hours a week. Being an interim executive allows me to do what I love doing but I don’t have to commit to a long period of time.


WM: What are the advantages to employers in bringing on an interim chief marketing officer?


Drell Reiner: I think there is a certain advantage in having someone with complete objectivity. You don’t have a vested interest. It’s not your stock options on the line.


WM: But couldn’t that be a double-edged sword for hiring companies?


Drell Reiner: Well, you still have a reputation to protect. And you are being brought in for a specific purpose, so to that extent the accountability is very high.


WM: What are the challenges for employers in hiring an interim marketing executive?


Drell Reiner: One thing companies need to really think about when hiring an interim marketing executive is how well they will work with the product development people and the research people. That’s still important even if it’s a short-term position.


WM: Other interim executives have said that they are often brought in to deal with a crisis. Is that true for you?


Drell Reiner: Well it’s a little bit of a case of the chicken and egg. If a company is looking to hire an interim chief marketing officer, it often means that they aren’t ready to pull the trigger on hiring a permanent person. They know they are going through some big change and they don’t know if they will keep that role.

Posted on June 1, 2009August 3, 2023

GM in Bankruptcy, With Thousands to Lose Jobs; U.S. Providing $30.1 Billion in Financing

The Obama administration took General Motors into Chapter 11 bankruptcy Monday, June 1, and moved quickly get the carmaker out with $30.1 billion in bankruptcy financing, the White House said in a statement.


The federal government will have the right to replace GM’s current board of directors with its own trustees, except for one director who will be picked by the Canadian government and another selected by a United Auto Workers-administered retiree health care trust.


But the White House vowed to exercise its ownership stake in GM “in a hands-off, commercial manner.” That is, to let it operate as a car company, not a government agency.


The Obama administration said it didn’t intend to provide funding beyond the $30.1 billion in bankruptcy financing. The government has already assisted GM with $19.4 billion since late December.


The $30 billion will give the government a 60 percent stake in a reorganized GM. The governments of Ontario and Canada will provide another $9.5 billion in financing to GM for a 12 percent stake in the new GM.


Dealerships that GM plans to discontinue will be offered an agreement to phase out their stores over the next 18 months.


More pain is in store for the UAW members as well.


GM intends to announce that it will close 11 plants and idle three others. The carmaker had aimed in February to cut 21,000 more hourly workers. GM employs about 54,000 workers represented by the UAW.


With the necessary reductions in capacity and a cleaned-up balanced sheet, a reorganized GM will be able to break even on its operations at 10 million annually in industrywide U.S. vehicle sales, the administration said. The previous break-even point was 16 million sales, according to the White House.


Contract concessions approved by the UAW last week will save GM about $1.2 billion annually. That agreement calls for elimination of bonuses and cost-of-living increases as well as more flexible factory rules.


The UAW also agreed to accept GM equity instead of cash for most of the funding of the retiree health care trust known as a voluntary employee beneficiary association.


Filed by David Barkholz of Automotive News, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.



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Posted on June 1, 2009August 3, 2023

General Motors’ Workforce Faces Big Cuts at an ā€˜Unadulterated Speed’

Minutes after General Motors filed for bankruptcy protection, CEO Fritz Henderson in a 45-minute videoconference attempted to raise the spirits of a beleaguered workforce even as he announced the company would lay off an additional 4,000 salaried employees, most by year’s end.


On Monday, June 1, Henderson spoke of the “new GM” that would emerge from bankruptcy with more competitive labor contracts, reduced operating costs, fewer plants and a leaner production capacity focused on small, fuel-efficient cars.


Henderson later spoke during a news conference, evoking a sober optimism and saying that the bankruptcy was a “defining moment” for the 101-year-old automaker.


“The new GM will have a significantly healthier balance sheet,” he said.


He spoke of the salaried and hourly workforce reductions and plant closures as “extraordinarily difficult steps.”


Henderson said he expected the bankruptcy to be completed within 90 days.


By 2010, GM said it expects to have a salaried workforce of 23,000 in the U.S., down from the 29,000 salaried workers GM had at the end of 2008.


Hourly U.S. workers will drop to 40,000 in 2010 and 38,000 by 2011. GM says it will close 14 plants by 2010. GM had 61,000 hourly workers at the end of 2008.


In a note to employees, the company said, “General Motors is working with the U.S. Treasury to reduce some retiree benefit obligations by roughly two-thirds. This reduction will impact salaried retiree life insurance, salaried retiree health care, executive non-qualified pension, executive retiree life insurance and non-UAW hourly life insurance and we are still working on how to accomplish this in the most appropriate way.”


The company said it will reduce the number of dealers to 3,600 by 2010 from the 5,969 it counted at the end of 2008.


“We need to move fast. Speed is of the essence,” Henderson said during the news conference. “Not with a sense of urgency. I’m talking about pure, unadulterated speed.”


As GM attempts to rebuild, its workers describe an atmosphere resembling the TV show Survivor.


“It’s dog eat dog,” said one GM worker on Monday who asked for anonymity because workers are not allowed to speak to the media. “You have to watch your back. People who were friends are no longer.”


Employees describe an atmosphere of low morale and anxiety that has been heightened by a deterioration in work conditions. Salaried workers describe lawns that have not been mowed in weeks and bathrooms not adequately stocked with toilet paper or soap.


A spokesman said the deterioration is to be expected at a time of extreme austerity for the company.


For employees who once referred to their employer affectionately as “Generous Motors,” the swift change has been upsetting. A kind of shock, mixed with gallows humor, has set in, workers say.


Employees say GM stands for “Government Motors” now that the Treasury Department is the major stakeholder, followed by the unions and union’s retiree health care trust.


The bankruptcy filing of General Motors represents a new chapter for the storied American carmaker, and Henderson, in his talk with employees, tried to convey a sense of renewal by focusing on the distinction between the “old GM” and the “new GM” that would emerge from bankruptcy to reclaim its position of prominence in the global auto industry as a leader in 21st century green technology.


Workers, however, have already begun to refer to his talk as “the eulogy.”


—Jeremy Smerd


Workforce Management’s online news feed is now available via Twitter


Posted on May 29, 2009June 27, 2018

Contech Defined Benefit Pension Plan to Be Overseen by PBGC

P&I  May 26  Doug Halonen


The Pension Benefit Guaranty Corp. has taken over the defined-benefit pension plan of Contech US of Portage, Michigan, according to a PBGC news release.


The Contech plan, which covers 532 workers and retirees, is 38 percent funded, with assets of $8.4 million and liabilities of $22 million, the news release said. The PBGC expects to cover $12 million of the $13.6 million shortfall.


The plan was frozen on December 31, 2007, according to the release.


Contech, which is under Chapter 11 bankruptcy protection, is selling its divisions and subsidiaries to several third parties in deals that do not include the pension plan, the news release said.



Filed by Doug Halonen of Pensions & Investments, a sister publication of Workforce Management To comment, e-mail editors@workforce.com.


Workforce Management’s online news feed is now available via Twitter


Posted on May 29, 2009June 27, 2018

TOOL June Health Observances

Because of the economy and related problems, stress levels are no doubt higher among workers this summer. Employers can help their people deal with some of their anxiety with information and strategies from the National Headache Foundation, the Wellness Councils of America says. It’s National Headache Awareness Week on June 7-13, but the month also is significant for other observances, including Home Safety Month, Vision Research Month and National Cancer Survivors Day (June 7).

Posted on May 29, 2009June 27, 2018

Another of Obama’s Fundamental Changes: Training Policy

You need a scorecard to keep up with President Barack Obama’s plethora of priorities. On the domestic policy side, he has vowed to make sweeping changes in health care, energy and education.

An important subset of education–workforce training–tends to fly under the radar in Washington, but it will require more presidential and congressional leadership than it has received in a long time.

Obama appears set to provide guidance. On May 8, he announced that the Departments of Labor and Education would work with states and educational institutions to allow recently laid off workers to receive unemployment payments while they are enrolled in training programs and to have easier access to educational grants.

ā€œThe idea here is to fundamentally change our approach to unemployment in this country, so that it’s no longer just a time to look for a new job, but is also a time to prepare yourself for a better job,ā€ Obama said.

Now Obama will have to follow through in an area that has languished from neglect in Washington.

The federal law that undergirds training programs, the Workforce Investment Act, has been up for renewal for nearly six years but has been stymied by a variety of policy and political issues. Congress is under way with another attempt.

Most experts and users of the system agree that it needs to be more flexible to respond to local labor market needs. Too many programs are run in silos and fail to communicate with one another.

Determining what kind of training is offered for what kind of jobs is a huge question that can elicit many different answers. The Obama administration wants to focus on so-called ā€œgreen jobs.ā€ The $787 billion stimulus package included $500 million for training in that area.

Republicans caution that federal training should be improved for all kinds of occupations and worry about artificial demand being created by government fiat.

Democrats also question whether job training priorities have been set correctly. Rep. David Obey, D-Wisconsin and chairman of the House Appropriations Committee, expressed concern at a May 12 hearing on the Department of Labor budget.

He noted that the stimulus bill included $250 million for training for health care industry jobs. But the administration’s budget request for the agency didn’t contain similar funding.

ā€œIf we’re serious about significant health care reform, we need to build the capacity of the system, and we’re falling short in this area,ā€ Obey told Labor Secretary Hilda Solis.

The thousands of jobs that Dollar General Corp. will have to fill over the next couple years aren’t necessarily ā€œgreen.ā€ But they could offer a path out of the recession for thousands of workers–if they are qualified.

As Dollar General Stores become more automated in tracking and managing inventory, employees have to be more fluent with technology, according to David Bere, president and chief strategy officer.

They don’t have to have bachelor’s degrees, but they should have training beyond high school. ā€œYou need a higher skill set in our stores and distribution centers,ā€ Bere said in an interview after a recent House hearing on the Workforce Investment Act.

Dollar General has long been an advocate of federal training programs.Ā Bere urges other companies to join in the effort to reshape the system.Ā 

ā€œThe business community has to step up,ā€ Bere said. ā€œOnly by partnership is this going to get done.ā€

When it comes to job training, many constituencies want to see improvement. But it will take firm leadership from Obama and Congress to make sure that they work together to set priorities that make sense for workers and the economy.

Posted on May 29, 2009June 27, 2018

Union OKs Benefits Reductions for GM Retirees

Members of the United Auto Workers have ratified an agreement that will allow financially troubled General Motors Corp. to shave billions of dollars in contributions to a retiree health care trust and cut certain retiree benefits, union officials announced Friday, May 29.


The agreement, approved by nearly 75 percent of UAW members, also requires GM to continue its defined benefit pension plan offered to UAW members.


The agreement on the eve of GM’s expected bankruptcy filing next week modifies a 2007 accord between GM and the UAW that would have capped GM’s burgeoning retiree health care liabilities. That agreement called for GM to transfer assets—currently valued at $10 billion—from an existing voluntary employees’ beneficiary association to a new VEBA controlled by the UAW. For about $20 billion in cash and other contributions to the trust, GM no longer would have been responsible for retiree health care benefits as of Jan. 1, 2010. The accumulated value of those assets was estimated at roughly $50 billion last year.


The new agreement maintains that VEBA-to-VEBA transfer arrangement. However, instead of GM contributing about $20 billion in cash and other contributions, the new VEBA will receive a note, payable in cash, with a principal amount of $2.5 billion. The note will make cash payments of $1.38 billion, including accrued interest, in 2013, 2015 and 2017.


The VEBA also will receive preferred stock in the restructured company with a face value of $6.5 billion. The stock will pay an annual cash dividend of $585 million for as long as the VEBA holds the stock.


Finally, the VEBA will receive 17.5% of the common stock issued by the restructured GM and warrants giving the VEBA the right to purchase an additional 2.5% of the reorganized company’s common stock.


Like an earlier agreement the UAW reached with Chrysler L.L.C., GM’s deal will eliminate retiree vision and dental benefits effective July 1. The UAW said further adjustments of retiree health benefits are likely in 2010 and 2011.


While an exact figure of how much the latest agreement will save GM is not available, GM said the savings will eliminate the wage and benefits gap with its competitors.


Filed by Jerry Geisel of Business Insurance, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.


Workforce Management’s online news feed is now available via Twitter.


 

Posted on May 29, 2009June 27, 2018

Union Group Protests Warehouse Temp Worker Conditions

A union group called Warehouse Workers United blocked an intersection in Southern California on Thursday, May 28, by handcuffing people around a forklift in the middle of the road in an effort to focus attention on warehouse workers. In a press release, the group said it wants to persuade companies in the warehouse district to end the system of temporary employment.


It said temporary workers hired through unions are “paid meager wages, have no access to affordable health care and are denied the right to choose to form a union, and suffer the additional burden of being unable to collect unemployment benefits when they are let go.”


The group said the intersection was a central point for trucks heading to warehouses used by companies such as Wal-Mart, Target and Home Depot.


A report in the San Bernardino Sun newspaper said about 200 people blocked the intersection of Van Buren Boulevard and Etiwanda Avenue in Mira Loma, California. A fight also broke out between some protesters and a motorist who tried to drive past the blockade, according to the report.


The Riverside County Sheriff’s Department reported that traffic was obstructed for more than an hour and that 11 people were arrested for creating a public nuisance.


—Staffing Industry Analysts


Workforce Management’s online news feed is now available via Twitter.


 

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