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.

 

My next engagement is entitled "Labor Law Update: 2013" It will be held on January 23 and is sponsored by the Irwindale Chamber of Commerce. For more information please go to 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.

 

Foley Products Company Settles Race Discrimination Lawsuit

Foley Products Company, a Columbus, GA.-based concrete products company, will furnish significant injunctive relief to settle a race discrimination lawsuit filed by the EEOC.

The EEOC had charged that Foley failed to promote Fred Pharham, who is African-American, and then subsequently fired him, both because of his race. Pharham was the only black single leadman (direct supervisor of a crew within a department) working at Foley's Clanton, Ala., facility.

 

Title VII of the Civil Rights Act of 1964 prohibits race discrimination. The EEOC filed the lawsuit against Foley Products after first attempting to reach a pre-litigation settlement through its conciliation process.

 

The court issued a two-year consent decree finally resolving the suit. Pursuant to the decree, Foley agreed to implement new policies and practices designed to prevent further harassment; employee training on anti-discrimination laws; posting of notices at the work site; and other injunctive relief. Foley is enjoined from engaging in any further employment practice which has the purpose or effect of discriminating against anyone on the basis of race and from retaliating against employees for opposing discriminatory practices. Foley also agreed to provide reports to the EEOC on complaints of alleged race discrimination.

 

The EEOC sought monetary relief for Pharham as part of its lawsuit. The claims for monetary relief were resolved by Foley and Pharham with the advice of separate counsel. In the court's order, the court recognized this resolution of part of the case and therefore denied the case from proceeding through a jury trial.

 

According to the EEOC, "Under the decree, the revisions of Foley's policies, procedures, and protocols on race will have a positive effect on the entire work force and advance racial equality there."  And "Race too often continues to be a key factor in denying employees access to rights and advancement."

 

Attendance Policy Enforcement and ADA Compliance

In recent years, the EEOC has been aggressively investigating and litigating claims involving the application of local and national company attendance policies. In 2011 alone, the EEOC recovered $27.1 million for ADA claimants. Employers thus find themselves between a rock and a hard place, trying to balance those operational needs associated with ensuring that their employers report for work as scheduled and running afoul of the ADA.

 

Regular and Reliable Attendance may be an Essential Job Function!

 

Many employers have learned the hard way that “no-fault” does not mean “no-risk” when it comes to disability discrimination claims challenging the application of attendance policies. Under these types of policies, employees accumulate occurrences of absences from work regardless of the employee’s reason for the absence (excluding FMLA leave, jury duty leave and other required exceptions). Once an employee exceeds the maximum allowable number of absence occurrences, his or her employment is terminated—no questions asked. Many employers believe that these no-fault policies are the best way to implement an evenhanded approach for rewarding employees for good attendance and disciplining employees for poor attendance.

 

The EEOC, however, has taken a dim view of such policies under a theory that employers have affirmative duty under the ADA to accommodate qualified individuals with disabilities who for one reason or another cannot reliably report to work. To comply with the ADA, the EEOC often contends that employers may need to grant additional absences or leave time beyond the maximum amount otherwise permitted by company policy to those employees who are unable to comply with the policy. The EEOC thus instructs employers to modify their policy language to allow for such flexibility.

 

In Samper v. Providence St. Vincent Medical Center, the plaintiff was a neo-natal intensive care unit nurse with a disability who often exceeded the policy maximum—sometimes for reasons unrelated to her condition. Providence made exceptions to its policy on multiple occasions and generally bent over backwards to accommodate her.

 

When Samper asked Providence to accommodate her disability by exempting her from the attendance policy altogether and providing her with an unlimited number of absences, Providence declined, and it eventually terminated her employment for repeatedly exceeding the number of permitted unplanned absences. Samper sued, claiming Providence failed to provide her with a reasonable accommodation, in violation of the ADA.

 

In the case of a neo-natal intensive care nurse the court held that regular attendance was an essential function of Samper’s job because her physical presence was required for teamwork, face-to-face interaction with patients and their families, and working with on-site medical equipment. The court further asserted that Samper’s “regular predictable presence to perform specialized life-saving work in a hospital context” was particularly essential.

 

According to the job description, the position required strict adherence to the attendance policy and specifically identified “attendance” and “punctuality” as essential job functions. Given that Samper could not perform these essential functions—with or without a reasonable accommodation—she was not a “qualified” individual with a disability, and therefore she was not protected by the ADA. As to her request to simply be exempt from the attendance policy, “Providence was under no obligation to give Samper a free pass for every unplanned absence.”

 

Employers in a variety of industries can glean important lessons from Samper:

• Employers must remember that the EEOC and the courts may still expect some level of flexibility in attendance policies. No-fault policies should be updated to allow for exceptions when appropriate under the ADA. 
• If regular, dependable attendance and punctuality are truly essential to a particular position, a written job description should accurately reflect that fact. 
• Even if attendance is an essential job function, employers should still engage in a good–faith interactive process to determine if they can provide a reasonable accommodation to a qualified employee with a disability without undue hardship to the employer. However, as the Ninth Circuit stated, “an accommodation that would allow the employee to simply miss work whenever she felt she needed to and apparently for as long as she felt she needed to as a matter of law is not reasonable.”

 

Factoids

• 15% of all student loan debt is owed by people 50 and older!

 

Top 5 Attraction Drivers

• Base pay/salary
• Job security
• Career advancement opportunities
• Convenient work location
• Learning and development opportunities

 

Top 5 Retention drivers

• Base pay/salary
• Career advancement opportunities
• Relationship with supervisor/manager
• Trust confidence in senior leadership
• Manage/limit work-related stress

 

Quote

“Anyone who has never made a mistake has never tried anything new.”

~Albert Einstein~