July 1, 2010
Assessing your job descriptions and making them compliant with FLSA (Fair Labor Standards Act) should be done on a regular basis. This will assist a company in not only protecting themselves, but also allowing the employee to know what is expected of their position. For example:
1. Job A Has no FLSA Job Description, and hiring of an employee that you believe can do the job, can cause issues down the line when it is not clearly and legally stated that the job requires certain things, such as lifting, bending, stooping, and the percentage of the time of each of these.
2. Job B Has a FLSA Job Description that is presented to the candidate or current employee so that they know what exactly is required of them. Is this a way to get rid of an employee? No. Would this be a safety mechanism for the employer, Yes.
3. Job C Has no FLSA Job Description, and the company states that pregnant women cannot work in this position due to chemicals that may cause birth defects in unborn children.
In and amongst these three jobs there are dangers, cautions, and positives. They are:
– Dangers FLSA allows for an employer to only write a job description that informs the employee, not restrict the employee (i.e. Cannot work inside of a building, Cannot work in a certain area) Under no circumstances should an employer re-write a job description in order to cause an employee to be either re-assigned or terminated.
– Cautions Perfect example is Job C, as writing in the FLSA that there is a possible danger to Pregnant Women who work around chemicals that cause birth defects. You cannot keep a pregnant woman from working in that position, but even a waiver is loose for protection of the employer in case of litigation. One of the numerous chemicals is Ethylene Glycol Ether, checking your properly written Safety Manual and MSDS will tell you which ones are dangerous to this protected class of worker.
– Positives If the FLSA job description states clearly that there is repetitive lifting of 50 pounds of more, then an applicant that cannot do that, could be by-passed for one that can. For instance, John Doe applies and John has no ability to constantly lift 50 lbs or more, and Jane Doe applies for the same position and she can lift the weight, Jane is the obvious choice.
FLSA Job Descriptions can be confusing and if not done correctly be pages and pages long, to where if done correctly after an audit of these descriptions, simple and clean. There should be no or very little grey area in the description because that grey area is where employers get in trouble.
Call People Wise of Missouri, Inc. to complete this task, it is something that can give you as the employer a safety net, or a benchmark for issues that may arise.
November 11, 2008
On September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008 (ADAAA), which will amend the Americans with Disabilities Act of 1990 (ADA) and directly overturn several decisions of the U.S. Supreme Court interpreting that landmark law. The ADAAA sends an unmistakable message to the courts that the concept of disability is to be more broadly, rather than narrowly, construed. The primary consequences of these amendments to employers are that far more people will fall within the definition of disability under the ADA. Specifically, the measures will increase coverage and strengthen employee protections under the ADA by:
1. Rejecting the strict interpretation of the ADA that defines disability to be an impairment that prevents or severely restricts an individual from doing activities that are of central importance to one’s daily life;
2. Prohibiting the consideration of almost all measures that reduce or mitigate the impact of an impairment in the determination of whether an individual is disabled (i.e. hearing aids, prosthetic limbs);
3. Allowing persons who are discriminated against on the basis of a perceived disability to pursue a claim under the ADA regardless of whether the perceived impairment limits or is perceived to limit a major life activity.
The ADAAA Rejects the Supreme Court’s Strict Interpretation of the ADA As Setting a High Standard to Qualify as Disabled
The major goal of the ADAAA is to undo current case law that, for the most part, creates a restrictive interpretation of the statute’s definition of disability. The amendments
specifically direct courts to instead construe the law in favor of “broad coverage of individuals under the ADA.”
Congress Tells the Courts How to Interpret the ADA
For example, in the Murphy case, Murphy had severe high blood pressure, but with medication, could function normally and engage in a full range of activities. Before the ADAAA, the law did not consider him to be disabled under the ADA because the use of medication controlled the effects of his high blood pressure. Murphy was prevented from pursuing an ADA claim after UPS found him unfit for his driver position because of his high blood pressure. The ADAAA now mandates that in determining whether an individual is disabled under the ADA, the person must be evaluated as if untreated, without considering the ameliorative effects of high blood pressure medication.
As a result of this change, the ADA will protect people whose cancer is in remission, whose diabetes is controlled by medication, whose seizures are prevented by medication, and who can function at a high level with learning disabilities. Employers will need to concentrate less on the threshold issue of disability, and focus more on their duty to provide reasonable accommodations. The ADAAA makes an exception for those who wear ordinary eyeglasses or contact lenses to correct vision to full acuity. These devices are not to be ignored in considering whether a person is disabled. Rather, they are to be taken into account, in all but rare cases. The purpose is to exclude from the definition of disability persons who simply need ordinary glasses to read, drive, etc.
The Scope of “Regarded as” Claims Has Been Both Clarified and Broadened
The ADAAA further expands the ADA’s definition of disability, specifically the “regarded as” prong of that definition, by now including persons that have been discriminated against because of an actual impairment or a perceived impairment “whether or not the impairment limits or is perceived to limit a major life activity.” This is in stark contrast to the previous requirement expressed in the U.S. Supreme Court’s opinion in Sutton that the perceived impairment must, like any actual impairment, substantially limit a major life activity. If a person is treated adversely (in regard to job application procedures, hiring, advancement, discharge, compensation, job training, and other terms, conditions, and privileges of employment) because of an actual perceived impairment, that is a violation of the law, irrespective of whether the impairment actually limits or is perceived to limit a major life activity. However, the ADAAA excludes from the “regarded as” definition of disability those impairments that are transitory and minor. Transitory is defined as impairment with an actual or expected duration of 6 months or less.”
The ADAAA, however, limits the application of the ADA by clarifying that an employer’s duty to accommodate does not extend to those individuals who make discrimination claims under the “regarded as” prong of the definition of disability. Before the ADAAA, there was a split among the federal courts as to whether the ADA’s reasonable accommodation requirement applied to the “regarded as” category of disabled individuals. The ADAAA makes clear that employers have no duty to accommodate these individuals.
In short, the ADAAA clearly prohibits adverse employment actions based on myths, fears and stereotypes when the person being discriminated against may not actually have impairment, but is simply perceived to have one. As it is logically inconsistent to require reasonable accommodation of a misperceived impairment, the ADAAA clarifies that employers need not engage in the reasonable accommodation process with persons regarded as impaired, who are not actually impaired.
The ADAAA Clarifies Other Aspects of the Definition of Disability
To further the goal of broadening the definition of disability, the ADAAA adopts several other provisions to guide the interpretation of the term disability. These include:
The ADAAA specifically adds a nonexclusive list of examples of major life activities to the language of the statute, and, in addition to the activities recognized in the regulations promulgated by the Equal Employment Opportunity Commission (EEOC), it adds the following: eating, sleeping, bending, reading, concentrating, thinking, and communicating.
The ADA is also amended to now include a listing of examples of major bodily functions, which are considered major life activities. The ADAAA specifically rejects the restrictive interpretation of major life activity used by the U.S. Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v.Williams, 534 U.S. 184 (2002).
The ADAAA specifically includes as disabled those persons who have an impairment that is episodic or in remission, if the impairment would substantially limit a major life activity when active.
The ADAAA rejects the definition of “substantially limits” in the • Toyota case, and in EEOC regulations that define “substantially limits” as “significantly restricted,” and directs the agency to revise its regulations to be consistent with the amendment’s goal of broadening the class of persons covered by the ADA. However, unlike some initial proposals regarding the amendments and at least two current state laws, the ADA does not apply to persons who are simply “limited” due to a major life activity.
There Is No Reverse Discrimination Under the ADA
The ADAAA states that there can be no claim of “reverse discrimination” under the ADA. Specifically, the ADAAA states that the ADA does not provide for a claim that an “individual was subject to discrimination because of the individual’s lack of disability.” “Reverse discrimination” claims have arisen in the context of an employer providing reasonable accommodation. This means that non-disabled persons cannot claim discrimination because they were treated less favorably or were not given the same accommodations.
Practical Steps for Employers
The ADAAA will be effective January 1, 2009. Overall, this law will not require major changes by most employers, but some practical steps for employers to take are listed below.
1. Review their policies to make sure any definitions they use track the new law. Any handbook changes made should be communicated clearly to all employees. Most of the changes made in the amendments are legal clarifications of points that had been sources of controversy among lawyers, so it is unlikely that employers will need any major rewrites of policies.
2. Make sure that those in the organization who make decisions about accommodations, and human resources executives in particular, receive training to educate them about the changes in the ADA. These individuals need to understand the implications of the change in the definition of disability, and they should be highly aware of the “regarded as disabled” source of liability, so they avoid behaviors that might fall into this category.
3. Train persons in the company or organization who will be involved in the interactive discussions with employees potentially covered by the ADA. Those persons need to understand the comparative ease under which many additional people may now be covered by the law. They also need to know more about reasonable accommodations as many additional employees and applicants will have to be accommodated due to the amendments.
3. Expect more lawsuits to be filed. The ADAAA makes it easier for applicants and employees to make claims of disability discrimination. The defense of these suits will be more difficult, as the more expansive construction of the meaning of disabled will limit some frequently used defenses available to employers.
4. Discuss the effects of these legal changes with legal departments and/or outside counsel. Through early discussion, inadvertent problems can be avoided. Time is of the essence as these amendments become effective January 1, 2009.
Stated simply, planning avoids lawsuits.
October 13, 2008
With immigration law heating up, it is imperative that businesses small and large alike understand their responsibilities. This video tutorial gives an overview of the history, proper completion, storage, and destruction regulations, of the Form I-9.
October 3, 2008
I recently came across an article titled “30 Interview Questions You Can’t Ask and 30 Sneaky, Legal Alternatives to Get the Same Info” on HR World, which caused quite a stir. Check out the article and the comments at http://www.hrworld.com/features/30-interview-questions-111507/.
Why all the outrage in the HR community? The article, although filled with good information, was presented as a way to use legal questions in order to try to trick the applicant into revealing information that we can only assume would allow the interviewer to make a hiring decision based on discriminatory criteria.
The bottom line is this, the EEOC does not mandate what questions can be asked in an interview. The interview (and its questions) is not the issue; it is what criteria you use to make the hiring decision that matters. You should hire the most qualified person for the position using only criteria that makes sound business sense for the position in which you are hiring.
Here are five quick tips to keep your hiring legal and to get the right person for the job.
- Take the time to create a detailed job description. This should include the physical requirements for the job, the hours and travel needs, the required skills, experience, and education needed to perform that job, and the personal attributes that are aligned with the business’s desired value and culture (to ensure organizational fit).
- Use the job description to create a structured interview. A structured interview simply means one in which every applicant is asked the same questions. This is a best practice because it ensures consistency which can help to keep the interviewer on the right track, and gives you consistent criteria to compare in order to make the best decision in the end.
- Take notes. These notes should be kept for one year. If you are ever questioned about a hiring decision it is imperative that you are able to look back at the notes from every candidate for that position to show why you made the decision that you made, again, based on business need. One word of caution – only write notes that have to do with the business criteria. Do not jot down things that could be construed as discriminatory such as; has three kids, will be ready for retirement in three years, overweight, etc.
- Don’t go it alone. Always have more than one interviewer present during an interview. This will not only protect you in a he-said/she-said situation but can also negate the affects of stereotyping or hiring from your gut. The other person will help to balance you out by giving you another perspective.
- Don’t stereotype. Everyone does it to some extent or another but in an employment decision it can get you in trouble and will not yield you the best employee for the job in the end.
Here’s an example: you are hiring an account supervisor who needs to be available to travel with very little notice. You interview Sue who mentions her six kids during idle chit-chat with the receptionist and you overhear. Next, you interview Bob who is a 20 something bachelor. You assume that Sue might have a hard time picking up at the drop of a hat where Bob will be available whenever you need him. However, the reality is that Sue’s husband is a stay-at-home dad and Bob is responsible for his elderly mother and can not travel overnight.
If a job has a particular requirement such as travel, heavy lifting, long hours, physically challenging environments, or whatever. Make them clear during the interview and ask (every applicant) if they can meet that requirement. When they answer, take them at face value.
Remember, interviewing is not easy. Even the most seasoned of HR professionals makes a bad hiring decision from time to time. However, by taking a systematic approach and using tools such as the job description, structured interview questions, pre-employment tests, and background and reference checks you can increase your chances of a good hire by up to 80%.