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 or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

January 31, “How to Build a Hiring System for Consistent Performance” sponsored by Capstone Pacific Investment Strategies

 

February 11, “Leave Me Alone! An Overview of Leave Laws in California” workshop sponsored by Industry Manufacturers Council

 

Employee’s Threatening Behavior May Justify Mandatory Medical Examination

When is it appropriate to require an employee to complete a medical examination?  A federal court of appeals recently issued a decision that helps clarify an employer’s rights to seek a medical opinion when it is concerned about workplace safety. In Owusu v. Coca-Cola Company, the Eleventh Circuit found that an employee’s threatening comments and behavior during a meeting with a supervisor were legitimate reasons to mandate that the employee pass a fitness-for-duty examination before returning to work. 

 

Owusu was a quality assurance specialist for Coca-Cola at its customer call center. During a routine meeting with his supervisor, Owusu complained that certain co-workers had been harassing him for the past nine years because of his Ghanaian national origin. The supervisor observed Owusu becoming physically agitated, banging his hand on the table where they were sitting, and proclaiming that someone was “going to pay for this.” Concerned that Owusu might harm other employees, the supervisor reported the conversation to human resources and security.

 

The company retained a consulting psychologist to assess the situation, and Owusu agreed to speak with him. After the meeting, the psychologist expressed concern to the company about Owusu’s emotional and psychological stability and suggested that Owusu may be delusional.

Based on the psychologist’s recommendation, the company informed Owusu that he must complete a fitness-for-duty evaluation in order to return to work. Afraid of losing his job, Owusu agreed to another psychiatric evaluation, including a personality test. The test showed that Owusu’s profile was within normal limits, and he was cleared to return.

 

Owusu subsequently filed a lawsuit against Coca-Cola alleging that the company’s mandatory medical examinations violated his rights under the ADA. At issue in the lawsuit was the ADA’s provision that employers shall not require medical examinations or otherwise inquire about an employee’s disability unless the examination or inquiry is job-related and consistent with business necessity. The district decided that Coca-Cola’s mandatory fitness-for-duty exams were lawful in Owusu’s case, and the Eleventh Circuit affirmed.

 

The court found Coca-Cola’s medical exam requirements were job-related because “an employee’s ability to handle reasonably necessary stress and work reasonably well with others are essential functions of any position.” It also found that the company’s concerns about safety were objectively reasonable because they were based on the unbiased observations by Owusu’s supervisor and an independent psychologist.

 

In spite of the Owusu decision, employers should continue to exercise caution before requiring an employee to pass a fitness-for-duty examination. These decisions should be based on objective facts and/or observations by unbiased witnesses.  In the Owusu case, the supervisor’s concerns arose during a meeting where Owusu was complaining about harassment by others. Employees can be understandably become emotional and angry in those situations, and a knee-jerk reaction by the employer could be construed as retaliatory. 

 

Egg Giant National Food to Pay $650,000 to Settle EEOC Sexual Harassment Lawsuit

National Food Corporation, a major supplier of eggs to the Pacific Northwestern and Midwestern United States and East Asia with headquarters in Everett, Wash., will pay $650,000 to five workers and provide other relief to settle a sexual harassment lawsuit filed by the EEOC.

 

The EEOC's suit charged that a supervisor at National Food's egg farm in Lind, Wash., repeatedly demanded sexual favors from a female laborer, who worked alone in a henhouse, in order to keep her job. Taking advantage of her isolated workplace, the supervisor would physically grab the barn worker and demand sex from her on a weekly basis, from 2003 to 2010. The EEOC also alleged that when her co-workers raised complaints about sexual harassment to company management, they were fired or forced out of their jobs.

 

"For almost seven years, I tried to just survive these demands from my boss, because I needed to support my mother and my daughter," said the worker. "I hope my case will help other workers to speak out against sexual harassment. It's important to know that that you have a right to say no to sexual demands even from a supervisor, and that the law protects you when you protest harassment."

 

"This lawsuit is another in an unfortunate pattern of employers taking advantage of female agricultural workers who often work in isolation and are unaware of their rights," said David Lopez, general counsel of the EEOC. "It is one of the EEOC's national priorities to combat discrimination against vulnerable workers, and we hope that this settlement sends a message to other employers that they need to be vigilant to prevent sexual harassment and other abuse."

 

Under the consent decree resolving this lawsuit, National Food has also agreed to issue EEO policies in English and Spanish to employees throughout Eastern Washington and South Dakota; institute changes to ensure that its complaint procedures are accessible; and train its management and to hold supervisors accountable for any discrimination, harassment or retaliation under their watch. In addition, National Foods will report harassment complaints to the EEOC for four years, and will not rehire the alleged harasser in any capacity.

 

This case fits within two of the six national priorities identified by the Commission's Strategic Enforcement Plan (SEP): protecting vulnerable workers who may be less familiar with their rights under equal employment laws, and addressing workplace harassment through systemic enforcement and targeted outreach.

 

Factoids

On average, do you believe people are paid the right salary?

• Business owners: 58% believe employees are paid sufficiently or too much
• Employees: 66% of employees believe they are not paid enough

 

Retirement

• 48% aren’t confident they will save enough
• 34% of the middle class say they will work until 80 in order to have enough (up from 25% in 2011 and 30% in 2012)
• 69% of people between 40 and 59 do not have a plan to save for retirement
• According to a UNUM survey, the average retirement age is now 67.1, 2.6 years longer than 5 years ago
• 24% of workers say saving for retirement is their biggest worry, up from 18% in 2011

Quotes

"If you do not know how to ask the right question, you discover nothing."
~W. Edwards Deming~