“This & That” Tuesday 12.10.30 by Martin Levy
Nov 4 12
October 30, 2012
Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.
Announcements
You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners. More details about the events and Human Resources 4U can be found on my website.
Labor Law Update 2013: If you are interested in having me give a “Labor Law Update for 2013” presentation to your organization early next year, please contact me so we can schedule the event.
HR4U 101 for 2013Workshop
My next full day workshop will be held on January 9, 2013. This is a practical workshop that focuses on all the things you need to know to comply with California employment law and some guidance on best practices for all your employee related efforts. Download the flyer for all the workshop details.
IRS Issues New COBRA Audit Guidelines
Recently, the Internal Revenue Service (IRS) published new Audit Guidelines for use by IRS auditors in examining group health plans for COBRA compliance. The Guidelines appear to be the start of a new COBRA compliance audit effort by the IRS.
The Guidelines provide a general overview of the requirements, limitations, and exceptions of COBRA and the excise tax. One notable highlight from the Guideline is that they provide that when an employer contends that an employee was ineligible for COBRA rights because he was terminated for “gross misconduct,” an auditor may consider whether the employee was granted unemployment compensation benefits, whether the employee grieved his termination under a collective bargaining agreement and the results of any proceedings related thereto, and in some circumstances witness accounts regarding the alleged gross misconduct. If the employee was awarded unemployment compensation benefits and/or won an arbitration regarding his termination, the Guidelines note that the employer may have failed to comply with COBRA.
COBRA penalties and related damages may arise in two ways. First, potential notice-related penalties of up to $110 per day, per violation, that may be imposed by the federal courts under ERISA’s civil enforcement provisions, plus attorneys’ fees, and possible recovery by the complaining individual in the main enforcement action. Second, the employer or administrator may be subject to COBRA’s excise tax of $100 for each day that a violation continues. These excise taxes may be substantial – and are effectively capped at $500,000 for employers and $2 million for third party administrators.
Employers and administrators should prepare now to structure their COBRA compliance practices and procedures to avoid getting bitten by COBRA’s civil penalties and/or excise tax.
Employers should be especially wary of disqualifying someone for COBRA for gross misconduct and should probably seek legal advice before doing so. Getting this wrong can cost a company significant sums.
Resources for Human Development Settles EEOC Disability Suit for $125,000
Resources for Human Development, Inc. (RHD), doing business as Family House of Louisiana, a treatment facility for chemically dependent women and their children, will pay $125,000 to settle a disability discrimination suit filed in September 2010 by the EEOC.
The court-approved settlement resolves the charge of Lisa Harrison, who worked as a prevention / intervention specialist at RHD’s Family House facility in Louisiana from 1999 until she was fired in September of 2007. In its suit, the EEOC charged that RHD violated the Americans with Disabilities Act (ADA) when it fired Harrison because of her disability, severe obesity, even though she was able to perform the essential functions of her job. Before the EEOC filed suit, Harrison died.
During the litigation, the court denied the defendant’s motions for summary judgment in an order holding that severe obesity is an impairment within the meaning of the ADA. The court concluded that severe obesity may qualify as a disability regardless of whether it is caused by a physiological disorder, rejecting RHD’s argument to the contrary.
The EEOC had offered the expert testimony of a renowned obesity researcher that Harrison’s obesity was the result of a physical disorder or disease, and was not caused by lack of character or willpower. But the court reasoned that “neither the EEOC nor the Fifth Circuit have ever required a disabled party to prove the underlying basis of their impairment.”
Employers cannot rely on unfounded prejudices and assumptions about the capabilities of severely obese individuals. Despite performing her job for years, Ms. Harrison was terminated without warning and without any evidence that she could not perform the essential functions of her position. This case highlights the fact that severely obese people who can do their jobs are every bit as protected by the ADA as people with any other qualifying disability.
Under the court-ordered consent decree settling the suit the company will provide annual training on federal disability law to all human resources personnel and corporate directors of RHD nationwide. RHD will also report to the EEOC for three years on all complaints of disability discrimination and all denials of a request for reasonable accommodation of a disability. The nationwide training and reporting will benefit RHD’s employees in its more than 160 programs, as well as applicants who seek employment with the company. RHD will also name a children’s room at the Family House facility, and permanently install a memorial plaque, in honor of Harrison, who taught at the facility for almost eight years.
ABCO West Electrical Will Pay $23,000 to Settle EEOC Disability Discrimination
A Phoenix electrical construction company will pay $23,000 and furnish other relief to settle a disability discrimination and retaliation lawsuit filed by the EEOC.
The EEOC charged in its lawsuit that ABCO West Electrical Construction and Design / ABCO Electrical Construction and Design discriminated against Bill Hackney, who has an amputated leg, when it laid him off because of his disability and because he requested a reasonable accommodation. In addition, the EEOC charged that ABCO West refused to rehire Hackney due to his disability, and in retaliation for requesting a reasonable accommodation and reporting ABCO West's discriminatory actions to his labor union and the EEOC.
Such alleged conduct violates Title I of the Americans with Disabilities Act (ADA), which prohibits employers from discriminating against qualified individuals with disabilities and from retaliating for complaining about discrimination or requesting an accommodation. The EEOC filed suit after first attempting to reach a voluntary settlement through its conciliation process.
In addition to the monetary settlement of $23,000, the consent decree settling the suit requires that ABCO West must provide training for employees on disability discrimination and retaliation, develop policies prohibiting disability discrimination and retaliation, and post a notice that discrimination against ABCO West employees is unlawful.
Federal law prohibits employers from denying employment opportunities to disabled individuals because they request reasonable accommodations. It is in the best interest of employers to educate themselves about the ADA and take steps to prevent disability discrimination in the workplace.
Attention: Have you taken the HR4U mini-Human Resources audit, yet?
Factoids
- 95% of the “mobile” workforce has a smartphone
- 18% report working on portable devices from home
- 25% check email while on a sick day
- 34% check email on vacation
- 75% never turn off their Blackberries
- 50% check/send emails and texts while driving
What are your pay and driving policies reguarding these?
Quote
My wife and I were happy for twenty years. Then we met.
~ Rodney Dangerfield ~
~ Rodney Dangerfield ~