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.

 

 

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.

 

Weak Response to Harassment Results in $3.5 Million Damages Verdict

Workplace harassment may occur over an extended time period in circumstances where it is difficult to identify the individual(s) responsible for the harassment. In these situations, an employer should increase its remedial efforts over time. Continuing the same ineffective measures could lead to a finding of recklessness and a punitive damages verdict.

 

Otto May, a pipefitter at one of Chrysler’s assembly plants, filed a hostile work environment lawsuit claiming he was victimized by co-worker racist and anti-Semitic harassment. At the conclusion of a seven-day jury trial, the jury awarded May $750,000 in compensatory damages and $3.5 million in punitive damages.

 

According to the Court, May was entitled to punitive damages if sufficient evidence established that Chrysler acted with reckless indifference to his federally protected rights. The Court found that the jury reasonably determined that Chrysler’s actions did not add up to a good faith effort to end May’s harassment, and, much less, that its actions were reckless. In the face of more than 70 harassment incidents over a period of more than three years, the Court characterized Chrysler’s response as “shockingly thin.” The record showed that Chrysler’s response included:

• Two meetings of skilled tradesmen to remind them that harassment was unacceptable 
• Reviewed plant entry and exit data to narrow the field of potential suspects 
• Retained a handwriting analyst in an effort to identify the person(s) responsible for graffiti and notes.

Chrysler, however, did not interview any of the 19 employees May suspected of being involved in the harassment. In the Court’s view, it was reckless for Chrysler to “not increase its meager efforts over a long stretch of time in the face of remarkably awful harassment.”

 

This decision serves as an important reminder that harassment complaints must be promptly responded to with appropriate remedial actions that are reasonably calculated to end the harassment. If the harassment continues after certain employer actions, those actions should be modified and intensified, rather than continuing with a strategy that is ineffective in ending the harassment. As the Court stated, “talking a good game will not immunize an employer from a judgment that it was reckless.”

 

Request for Straight Day Shift Not a Reasonable Accommodation

The Eighth Circuit Court of Appeals has ruled that the Americans with Disabilities Act (ADA) did not require a power company (Alliant Energy Corporate Servs) to grant a diabetic employee’s request to work a straight day shift. The employee was employed as one of several “resource coordinators” who monitor power distribution and schedule and route resources to respond to routine and emergency situations such as power outages. To provide 24/7 coverage, resource coordinators are required to work a schedule rotating between eight and 12-hour shifts, days and nights. As an insulin-dependent diabetic, the employee began experiencing erratic changes in her blood pressure and blood sugar which put her at higher risk for diabetic complications and death, a development her physician attributed to her work schedule. The employee asked to be accommodated with a straight day shift.

 

The employer argued that the ability to work rotating shifts was essential for a resource coordinator. It explained that working rotating shifts provides enhanced experience, exposure to other company personnel, and training, all allowing the company to handle emergency situations more effectively. It further explained that spreading less desirable shifts (nights and weekends) among all resource coordinators enhances employee morale. Finally, it pointed to its job description, which lists the ability to work rotating shifts as an essential job function. The court found that these were legitimate business reasons for the employer’s scheduling decision, and reiterated a prior ruling that “it is not the province of the court to determine what is the most productive or efficient shift schedule for a facility."

 

The court did not establish a per se rule that a straight shift is never a reasonable accommodation. Each ADA request for accommodation must always be evaluated on its own merits. However, this should serve as a reminder that employers with updated job descriptions that comprehensively describe essential functions will be better positioned to argue that a job function is in fact essential and cannot be re-assigned.

 

Factoids

• In 2009 there were 55 million lost work days resulting from on-the-job injuries. 
• In 2011 there were 4609 fatal work injuries, down from 4690 in 2010 
• 34% of participants in a one-on-one health coaching program moved from a high risk to a lower risk category 
• Women who sit for more than six hours a day were 94% more likely to die during the 13 year study period while men were 48% more likely to die (American Cancer Society)
• Americans spend 7.7 hours per day being sedentary (work, internet, TV, etc.).

Medical Care Factoids

29% of Americans would consider getting medical care outside of the U.S. This could result in 50% to 90% savings from U.S. costs

• Heart Bypass:             US $144,000              Costa Rica $25,000

• Hip Replacement:       US $50,000                Jordan $8,000

• Gastric Bypass:          US $32,000                 India $5,000

• Hysterectomy:             US $15,000                Colombia $2,000