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 30 and is sponsored by the Rotary Club of West Covina. For more information please go to my website. Other currently scheduled Labor Law Updates will be held on Feb 8, and Feb 21.

Employee Handbook Updates 2013: There have been significant changes to CA employment laws in the past two years. If you haven’t updated your Employee Handbook recently and you are interested in having me update your employee handbook, please contact me.

 
Bojangles’ Pays over $30,000 to Settle EEOC Sex Harassment and Retaliation Lawsuit
Charlotte NC-based Bojangles' Restaurants, Inc. has agreed to pay $33,426 and provide substantial additional relief to settle a sexual harassment and retaliation lawsuit filed by the EEOC.. The EEOC had charged that an employee at a Greensboro Bojangles' was sexually harassed and then fired for complaining about it.

The lawsuit further alleged that the female employee who was subjected to the sexual harassment, Shannie C. Norfleet, was fired by her male store manager who was allegedly harassing her, after she complained about the harassment to a higher-level manager and to human resources.

According to the EEOC's complaint, crew member Shannie C. Norfleet was subjected to sexual harassment by the store manager from around mid-2008 to July 2009. The complaint alleged the store manager made explicit, obscene sexual comments to Norfleet on several occasions, including requests for sexual favors and requests for oral sex in exchange for time off. The lawsuit further alleged that on one occasion, the store manager approached Norfleet in the restaurant's outdoor shed, exposed his private parts, and asked her to touch him. Norfleet complained about the harassment to the company's area director and its senior director of human resources, the EEOC said, but the harassment did not cease. Rather, the agency charged, Bojangles' discharged Norfleet in retaliation for her complaints.

The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process. In addition to providing monetary relief to Norfleet and agreeing to provide neutral references to Norfleet's potential future employers, the company agreed to conduct annual training which covers sexual harassment and retaliation for its employees and managers within the region where the violations occurred. The company will also make its anti-harassment policy available to all of those employees. Finally, Bojangles' will report all sexual harassment and retaliation complaints within that region to the EEOC for the next two years.

Dangers of Drug Testing for Prescription Medications by Employers 
An auto parts manufacturer (Dura Automotive Systems) has entered into a consent decree with the EEOC requiring it to pay $750,000 to a group of current and former employees at its Lawrenceburg, TN facility based on allegations that company drug testing practices violated the Americans with Disabilities Act.

The EEOC alleged that the company tested all of its Lawrenceburg employees in May 2007 for 12 substances, including certain legally prescribed drugs, in violation of the ADA. It alleged that the company required those employees who tested positive for legally prescribed medications to disclose the medical conditions for which they were taking the medications. The company also made it a condition of employment that the employees cease taking these medications, without any evidence that they affected the employees’ job performance. According to the EEOC, the company then suspended employees until they stopped taking their prescription medications and fired those who were unable to perform their job duties without the benefit of the medications. Finally, the EEOC alleged that the company effectively announced individual test results to all employees by informing workers of positive test results in common areas where others were waiting to be tested and requiring those who tested positive to remain in a separate group and away from their work stations.

In addition to the monetary settlement, the company also was enjoined from making medical inquiries and conducting medication examinations that are prohibited by the ADA, from conducting employee drug tests that are not job-related or consistent with business necessity, and from disclosing illegally, confidential information obtained through medical inquiries of employees.

This case highlights some of the dangers for employers in drug testing for prescription medications. Specifically:

• Unlike drug tests for illegal drugs, the EEOC considers tests for prescription medications to be medical examinations under the ADA, and therefore, such tests must be “job-related and consistent with business necessity.”
• Employers should not have blanket rules prohibiting employees from using certain prescription medications (even for good faith, safety reasons) without undertaking an individualized assessment of the particular employee’s situation, as required by the ADA.
• All positive drug test results for prescription medications should be reviewed by a Medical Review Officer (i.e., a licensed physician with expertise in analyzing drug test results) to determine whether the employee’s use of the prescription medication is legal and explain the positive test result. For employees in non-safety-sensitive positions, employers need not conduct further analysis once the MRO has verified the test result as positive or negative. 
• If there is a finding of legitimate use of prescription medication by an employee in a safety-sensitive position, the employer will need to conduct an individualized assessment to determine whether the particular employee can perform the essential functions of his or her job, with or without reasonable accommodations, and without posing a direct threat of harm to the health or safety of himself or herself or others.
• Drug test results are confidential and must be handled in the same confidential manner as medical records.

Factoids

• The average personal savings rate for families is 4.2%
• 83% of Americans believe that the condition of a workplace restroom is one indicator of how a company values its work force
• In 2011, job security was #1 factor for job satisfaction
• In 2012 it was “opportunity to use skills and abilities” 63% vs. 61% for job security

2013 Retirement Plan Limits

• 401(k) and 403(b) maximum is $17,500
• Catch-up contribution for those 50 and over is $5,500

Quote

“The way I see it, if you want the rainbow, you gotta put up with the rain”
~Dolly Parton~