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Monthly Archives

September 2008

EEOC ISSUES GUIDANCE ON RELIGIOUS HARASSMENT AND DISCRIMINATION UNDER TITLE VII

By Your Employee Matters | No Comments

On July 23, 2008, the EEOC updated its pronouncements on the meaning of “religious discrimination” under Title VII, how to manage and address competing employee rights in the area of religion, and how to avoid engaging in religious discrimination in the workplace.

The EEOC issued three documents: an update to its Compliance Manual Section on religious discrimination; a “Question and Answer” document addressing basic issues in that area; and a “Best Practices Manual” that provides suggested strategies for legal compliance. The documents are intended to provide guidance to employers, employees, and legal practitioners, as well as EEOC investigators addressing religious claims under Title VII. Broadly speaking, the documents address definitions (e.g. what is religion), fundamental legal questions (e.g. what is religious harassment or discrimination and what is required to accommodate religion); and compliance guidance (e.g. how to avoid claims, how to balance demands to engage in religious expression versus demands to be free from workplace proselytizing).

What is ‘Religion’?
As the EEOC Q&A document explains, “For purposes of Title VII, religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. An employee’s belief or practice can be ‘religious’ under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few — or no — other people adhere to it. Title VII protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs.” Under this broad view of “religion” adopted by the EEOC, an employer has virtually no ability to question an employee’s assertion that he/she is “covered” with respect to asserted religious beliefs (or non-beliefs).

The same Q&A document identifies a “religious practice” that might trigger the accommodation duty: “Religious observances or practices include, for example, attending worship services, praying, wearing religious garb or symbols, displaying religious objects, adhering to certain dietary rules, proselytizing or other forms of religious expression, or refraining from certain activities. Whether a practice is religious depends on the employee’s motivation.”

The EEOC notes, however, that mere personal preferences are not “religious beliefs” even if they are strongly held. Thus, a person who personally espouses or adheres to vegetarianism would not in most cases be espousing a religious belief. Similarly, using an example from the Compliance Manual, an employee’s tattoos and body piercing would not be deemed religious (such as to require an exemption from a company dress code) where it was advanced as a form of self-expression through body art (as compared with rooted in a religious tradition or belief).

Religious Harassment and Discrimination
The EEOC explains that discrimination includes treating individuals disparately because of their religion in the terms and conditions of employment (e.g. interviewing, hiring, firing, promoting, and the like). It also includes differential treatment generally. As the EEOC Q&A document explains, “For example, if an employer allowed one secretary to display a Bible on her desk at work, while telling another secretary in the same workplace to take the Quran off his desk and out of view because co-workers ‘will think you are making a political statement, and with everything going on in the world right now we don’t need that around here,’ this would be differential treatment in violation of Title VII.” Similarly, adopting different security requirements for adherents of some religions (e.g. Muslims) as opposed to others would be religious discrimination.

The Compliance Manual has this to say about harassment: “Religious harassment in violation of Title VII occurs when employees are: (1) required or coerced to abandon, alter, or adopt a religious practice as a condition of employment (this type of ‘quid pro quo’ harassment might also give rise to a disparate treatment or denial of accommodation claim in some circumstances), or (2) subjected to unwelcome statements or conduct that is based on religion and is so severe or pervasive that the individual being harassed reasonably finds the work environment to be hostile or abusive, and there is a basis for holding the employer liable.” Permitting or tolerating harassment of employees by customers is equally illegal as is permitting such conduct by managers or employees.

Compliance Guidance
Perhaps most useful is the EEOC’s guidance on how to avoid claims and fulfill obligations under the law. The EEOC Best Practices Manual suggests that employers ensure that their policies explain the legal obligations in this area. Supervisors and managers should also be trained to understand when an issue of religious discrimination and/or a duty of accommodation arises and how to respond to it. The Manual and the other EEOC documents provide examples that can help employers balance the rights of employees to express religion against the right to be free of undue religious pressure in the workplace.

(Courtesy, Shaw and Rosenthal of the Worklaw® Network)

EMPLOYEE CONDUCT AND THE ADA

By Your Employee Matters | No Comments

Most employees with disabilities can maintain acceptable conduct on the job. However, on occasion, some employees with disabilities might exhibit unacceptable conduct at work. These situations leave employers with concerns about discipline, accommodations, and the ADA.

The Job Accommodation Network (JAN) consulting service provides job accommodation ideas helping employees with disabilities perform their jobs. Although it might seem challenging to identify such accommodations, following these guidelines can help resolve these workplace issues quickly:

First, create a workplace policy on conduct. Provide clear explanations of expected, and prohibited, behavior. Specific behaviors to address might include: destruction of property, using profanity at work, insubordination, or leaving one’s work area. Vague statements such as “employees must act professionally” might be interpreted many ways, and it can be difficult to determine whether or not an employee’s behavior complies with such a statement. Precise wording of your policy can help ensure that employees understand the policy. Provide your policy to employees and offer training and periodic reviews to ensure compliance.

Next, train managers and supervisors to apply your policy in a consistent and reliable manner to all employees. Applying a policy often means “counseling” employees on conduct issues, using “performance plans,” or disciplining employees for conduct violations. The ADA does not require employers to withhold or rescind disciplinary actions from employees with disabilities, nor to lower standards of conduct. Furthermore, the ADA does not prevent employers from maintaining safe workplaces (free from violence or threats of violence). Require managers and supervisors to apply your policy equally to all employees.

Then, encourage employees with disabilities to request job accommodations that ensure compliance with your conduct policy. Job accommodations can help minimize the likelihood of employees with disabilities violating your conduct policy, such as attendance rules or computer use guidelines.

Some examples of job accommodations that help employees with disabilities comply with conduct policies are:

  • A sales manager with anxiety is required to participate in staff meetings by sharing one thought or idea with the group. Due to her disability, she has difficulty speaking in front of groups. The employer allows her to submit her idea or thought via e-mail soon after the staff meeting.
  • Due to chronic pain, a retail employee experiences irritability during long work shifts when medications wear off. Thus, it becomes difficult to maintain satisfactory customer service. As a job accommodation, the employer shortened the employee’s work shift, which helped manage pain, lessened irritability, and improved the employee’s customer service.
  • A claims processor who had ADHD frequently disrupted teammates with impulsive communication and socialization. To help control his behavior, the employer provided a job coach to teach strategies for managing impulsiveness and reinforcing appropriate workplace conduct.
  • An employee with depression enjoyed reading inspirational phrases on various Web sites to help her manage her mood at work. However, using office computers to surf the Internet violated company policy. The employer suggested bringing inspirational books to work, and allowing her to read short portions throughout the day.

Finally, if job accommodations don’t prevent conduct violations, or if employment separation is imminent due to the severity of the conduct violation, proceed with termination. Be prepared to show that the conduct standard was job-related and consistent with business necessity. According to the EEOC Guidance on ADA and Psychiatric Impairments http://www.eeoc.gov/policy/docs/psych.html, some conduct standards might not be job-related for a specific position, and if not, imposing discipline or termination could violate the ADA.

Some JAN users are concerned about the outcome of a recent court case called Gambini v. Total Renal Care, Inc., 486 F.3d 1087 (9th Cir. 2007). The case, from Washington State, involved the discipline and subsequent termination of an employee with bipolar disorder. Washington’s State Human Rights Commission issued guidance on this case: http://www.hum.wa.gov/DisabilityMatters/Gambini.html

JAN strives to help employers understand their responsibilities under the ADA, and hopes that this article will help you succeed in writing and implementing conduct policies in your business.

Suzanne Gosden Kitchen, Ed.D.
Senior Consultant

(Courtesy of the Job Accommodation Network)

EDITOR’S COLUMN: ‘I’M SICK — SO TAKE CARE OF ME’

By Your Employee Matters | No Comments

The Los Angeles Times recently ran a series of articles about how cutbacks in sick pay were leaving unhealthy employees stuck in the workplace. One article lamented the reduction or elimination of paid sick days. This has a great impact on low-wage earners. It also protested the collapsing of sick pay and vacation pay into what’s known as “paid time off.”

Here are some ways of looking at the situation that these articles didn’t discuss:

  • Most employees get sick because they don’t take care of themselves. It’s their responsibility to take care of themselves — not the employers.
  • Most sick days are abused and generate little “white lies.” According to CCH, less than one-third of all sick days taken are for people who are truly sick!
  • According to another L.A. Times article, the average worker takes off 3.9 days per year for their own illness and 1.3 days to care for ill family members. It would seem fair for an employer to allow an employee five sick days, or to add those five sick days to a vacation schedule. I’m not sure why an employer would be obligated to do otherwise (some employers cited give weeks of sick leave and allow full accumulation).
  • Many employee support groups have successfully begun legislating for mandated sick pay benefits. This is but one way to get around minimum wage requirements.

Of course, employers lament they only have so many choices in an ever-tightening economy. They can cut or eliminate healthcare costs, sick pay, salaries or job positions — or just go out of business. Not surprisingly, some employers still have well-run businesses and remain generous with their benefits and employee perks.

There are garment manufacturers paying above minimum wage and offering healthcare coverage and vacations. There are employers who allow an incredible amount of flexibility so long as employees are accountable and get their jobs done. So, in the end, it shouldn’t be legislation, but rather business competition that settles this issue.

The best companies to work for will be the ones that offer the greatest amount of employee benefit, while creating a never-ending stream of profits.

As a final note, one of the articles gave recommendations on how to call in sick. Without repeating their standards, here is what I’d recommend:

  • Be clear about your attendance requirements.
  • Show up on time unless you are, in fact, sick.
  • Give as much advance notice as possible.
  • If your boss won’t let you watch your kid’s championship soccer game, maybe you should consider another boss. If you think you’re somehow obligated to attend every one of your child’s soccer games, regardless of business demands, then maybe the company needs a new employee.
  • Know that if you’re out for more than a few days you ought to show up with some kind of medical documentation. Don’t make an employer drag it out of you.
  • Don’t show up sick and infect others. Even if you’ve already used up your vacation and sick days.
  • Finally, see how you can mitigate your absence. Perhaps you can obtain permission to work a few days from home or make yourself available for emergency phone calls.

POWER TOOL SAFETY: DOS AND DON’TS

By Risk Management Bulletin | No Comments

Power tools are handy helpers — and a significant source of injuries in the workplace that can deliver paralyzing, even deadly shocks, cut off fingers, and slash, cut, and mangle flesh and bones. When employees use power tools they have to think about safe work procedures, as well as such personal protective equipment (PPE) as a dust mask, gloves, a face shield, safety shoes, and hearing protection. If they’re not sure which type of PPE they need, have them read the manufacturer’s safety instructions or check with a supervisor before using a power tool.

To keep safe when using power tools on the job (or at home, ) train employees in these essential do’s and don’ts:

Do:

  • Use the right tool for the job.
  • Inspect tools before each use.
  • Make sure there are guards around points of operation and on/off switches.
  • Be sure that tools are switched off before you plug them in.
  • Turn off and unplug tools before cleaning or changing parts.
  • Use three-prong grounding extension cords with equipment requiring three-prong plugs. Don’t use three-prong cords with two-prong adapters!

Don’t:

  • Put a power tool down until it has completely stopped running.
  • Use cords to raise or lower equipment.
  • Fasten cords with staples, nails, or other fasteners that could damage cord insulation.
  • Plug or unplug equipment with wet or sweaty hands.
  • Use any tool that has a damaged casing, cord, or plug.
  • Continue to operate a power tool that sparks, smokes, gives a shock, or smells like it’s burning.
  • Get clothes or body parts near the point of operation.
  • Use electric power tools in wet areas unless the tools have been specially approved for.

CLOSE CALLS CALL FOR QUICK ACTION

By Risk Management Bulletin | No Comments

On a summer morning in 2006, in Brooklyn, N.Y., OSHA compliance officer Bob Stewart requested that six construction employees be removed from a deep excavation because of a hazardous 10-ton concrete abutment hanging above it. Fifteen minutes later, the overhang collapsed and fell, landing in the exact spot in which the employees had been working. That is an unusually dramatic example of a workplace close call, made rarer still in that an OSHA inspector happened to be on hand just moments before. But close calls, or “near misses,” are a part of everyday life.

Most employers take care to remind workers of the dangers that can lead to accidents and injuries and provide training on how to avoid accidents. And when an accident does occur, there’s an immediate response, followed by an investigation, so that similar accidents can be prevented in the future.

Failure to take these incidents seriously is begging for trouble, because it’s almost inevitable that, sooner or later, a tripping worker will fall, another will be struck by that door, the damaged rung of a ladder will cause a serious fall, and improper handling of strapping will result in dire injury.

Use these close calls an opportunity for instructive and preventive action. Begin by making it clear that workers are expected to report near misses — not to place blame, but to figure out how to prevent an accident next time.

Because the training opportunity will likely be greatest while the close call is still on everyone’s mind, right after the incident, deliver a toolbox or tailgate talk on what did happen, what could have happened, and how to make sure it doesn’t happen again.

Conduct a training session on close calls in general. The trainer or safety committee member should start by mentioning examples that have occurred in your operation and ask workers to add examples from their own recollection. The session should then focus on causes and, finally, on corrective action. By recognizing the “almost-accident” as a warning and encouraging safety awareness on everyone’s part, you’ll not only reduce the number of near misses but — far more important — also the number of real accidents.

SMALL BUSINESSES TAKE BIG HIT FROM FRAUD

By Risk Management Bulletin | No Comments

Your business might well be a target for internal fraud. Fraud costs American businesses an estimated 7% of their annual revenues — and small businesses take an especially heavy hit, according to the latest Report to the Nation on Occupational Fraud & Abuse, based on 959 cases of occupational fraud investigated by Certified Fraud Examiners between January 2006 and February 2008. The most common scams among businesses with fewer than 100 employees were fraudulent billing and check tampering, with phony checks alone accounting for more than one out of four rip-offs (a far more common method of fraud than in larger organizations). To identify and curb fraud losses, The ACFE recommends these guidelines:

  • Be proactive. Establish and maintain internal controls to prevent and detect fraud. Adopt a code of ethics for management and employees. Set a tone at the top that your company won’t tolerate any unethical behavior.
  • Establish hiring procedures. Every company, regardless of size, can benefit from formal employment guidelines. When hiring staff, conduct thorough background investigations. Check educational, credit and employment history, as well as references. After hiring, incorporate evaluation employee compliance with company ethics and antifraud programs into regular performance reviews.
  • Train employees in fraud prevention. Are they aware of procedures for reporting suspicious activity by customers or co-workers? Do workers know the warning signs of fraud? Ensure that your staff know basic fraud prevention techniques.
  • Conduct regular audits. High-risk areas, such as financial or inventory departments, are obvious targets for routine audits. Surprise audits of those and all parts of the business are crucial. ACFE’s Fraud Prevention Check-up can help to identify fraud risks and establishing a strategy to prevent such losses.
  • Call in an expert. For most firms, fraud examination isn’t a core business component. When you suspect or discover fraud, enlist the anti-fraud expertise of a Certified Fraud Examiner (CFE).

You can download The Report to the Nation from the ACFE Web site: www.ACFE.com/RTTN. For more information on developing and managing a comprehensive fraud control program, feel free to contact one of our risk management professionals.

UPWARD TREND IN PRESCRIPTION DRUG USE CONTINUES

By Employment Resources | No Comments

Prescription drug use in the United States is on the rise, both for acute and chronic conditions, according to data from two pharmacy benefit managers. Express Scripts reports the number of people with at least one prescription increased from 67% to 74% between 2000 and 2006, while Medco Health Solutions estimates that more than half of the insured U.S. population took prescription medication in 2007 for a chronic health condition.

According to Express Scripts’ Geographic Variation in Prescription Drug Utilization study, in addition to the increase in the number of Americans using prescribed medications, the intensity of use rose, too. In 2000, the number of prescriptions per person using a prescribed medication was 10.8, and this increased to 14.3 by 2006. The drug therapy classes experiencing the most growth were antihyperlipidemics (for controlling cholesterol and triglyceride levels), antidiabetics (diabetes) and antihypertensives (blood pressure).

Medco’s study found that 51% of insured U.S. adults and children were being treated with prescribed medication for a chronic condition in 2007. Additionally, this study reports that 20% of the population uses three or more prescription drug treatments for chronic conditions. The most widely used drugs were those prescribed to battle high blood pressure, high cholesterol and diabetes.

Both reports point to obesity as a key factor in explaining their findings. For example, the Express Scripts report, which examines geographic variations, found a high correlation between state level obesity rates and use of medications for diabetes and high blood pressure, and a medium correlation between obesity rates and use of medication for high cholesterol.

Other factors that could be contributing to increased prescription drug use, as suggested in the Express Scripts report, include greater compliance rates, more dual therapy, higher screening rates for certain conditions, earlier initiation of drug treatment, and growing willingness on the part of physicians to use drug therapy instead of other types of treatment. Additionally, due to various advances in medical care, many once-fatal conditions have evolved to become chronic conditions, treatable by maintenance medications. Add the growing number of drug therapies now available for conditions that previously went untreated (erectile dysfunction, sleeping disorders, a variety of mental health-related issues), along with direct-to-consumer advertising by drug makers, and this trend of increased prescription drug usage seems sure to continue.

Need assistance in assessing your prescription drug benefits? Contact our office today.

REVIEW YOUR EMPLOYEE RIGHTS NOTICES FOR COMPLIANCE

By Employment Resources | No Comments

Look on the walls of any business and you’ll find one thing in common: Whether in the employee cafeteria or lunchroom, near the punch clock where workers begin and end their day, or in some other conspicuous place, employers have posted the various legal notices required by law that inform workers of their rights. The federal government requires this of most employers for a handful of employee rights, depending on the size of the business and whether it is a private or public enterprise; additional postings might be required in some circumstances, for example, if the business has federal contracts. State laws also may require separate additional postings.

As a business owner you’re bound to be familiar with the posting requirements, but did you realize that in order to ensure your compliance, you should review these requirements from time to time? That’s because changes to a law can require changes to the required notices. For example, increases in the minimum wage, either at the federal or state level, can mean that it’s time to replace the Fair Labor Standards Act (FLSA) poster currently on your wall.

Here’s a list of the required postings with a brief explanation of each:

  • “Equal Employment Opportunity Is the Law” — Every employer covered by nondiscrimination and equal employment opportunity (EEO) laws must post this notice on its premises. The poster consolidates the EEO requirements under the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Equal Pay Act, effectively covering employee rights based on race/color/religion/sex/national origin, disability, age, and sex (wages). The notice must be posted prominently, both for employees and applicants for employment. The posting requirement applies to employers with 15 or more employees, with some additional requirements for federal contractors.
  • “Employee Rights under the Fair Labor Standards Act” — This poster sets out the minimum wage, and information on overtime pay, youth employment, and tip credit. Because the minimum wage has undergone some changes recently, this is one of the posters you should check for compliance.
  • “Job Safety and Health — It’s the Law!” — All employers must display this required posting from the Occupational Safety and Health Administration that guarantees employees a safe workplace and spells out their rights if they believe there are workplace hazards or health issues.
  • “Your Rights Under the Uniformed Services Employment and Reemployment Rights Act” — All employers must post this notice, which describes the re-employment rights, nondiscrimination guarantees, and health insurance protection for military service personnel and reservists.
  • “Notice — Employee Polygraph Protection Act” — Most private employers must post this notice, which sets out restrictions on employer use of lie detector tests and employee rights under the limited circumstances in which a polygraph would be allowed.
  • “Your Rights under the Family and Medical Leave Act of 1993” — Employers with 50 or more employees must display this poster, which sets out reasons for taking FMLA leave, employee notice and medical certification requirements, job and benefits protection guaranteed by the law, and enforcement. With the recent FMLA expansion that added leave events to care for an injured or ill service member and to tend to an exigency caused by the active duty or call to duty of a service member, this is another poster that you should check for compliance.

As noted above, additional postings might be required, particularly for federal contractors, or based on state-by-state law. Also, you might want to go beyond the legal requirements and also post notices of employee rights under other laws, such as those related to jury duty, COBRA, ERISA, etc.

Most of these posters are available free of charge from the government agency responsible for enforcing the applicable law. There are also vendors who publish these posters, and some make available a single poster that consolidates the basic required notices, so that you can meet your compliance requirement with a single posting.

EXAMINE AND REVISE BENEFITS PACKAGE TODAY FOR GOOD ENROLLMENT RESULTS

By Employment Resources | No Comments

End-of-year benefits enrollment demands huge amounts of time and energy from a company. Because a quality benefits package is critical to a company’s ability to compete for talent, it can be devastating, come enrollment time, to realize that the benefits being offered are met with less than an enthusiastic response from employees. Why not work to avoid this result by closely examining the “fit” of your current benefits package and taking steps well in advance of open enrollment to prepare for benefits renewal?

Sometimes it will be very clear that your benefits package is in need of an overhaul; other times the hints are more subtle. Any of these occurrences can signal that it’s time to make changes to your benefits offerings:

  • Changes in workforce demographics. A shift in your employee population can call for changes to the benefits you offer. Sometimes merely the passage of time triggers this: for example, yesterday’s college grad new hires are today’s parents, interested in flex time schedules, day care accounts and supplemental life insurance options.
  • A significant change in the number of employees. If your company has acquired a competitor, or opened up a new location, your larger workforce can mean that you might qualify for better pricing on some of your benefits options.
  • Grumbling by employees, or poor enrollment numbers. You might hear through the employee grapevine that your workers are dissatisfied with their benefits choices, or this sentiment could make itself known through enrollment results. Either way, you need to find out why, or your investment in employee benefits isn’t being put to the best use.
  • Your benefits costs rise annually, and you aren’t sure you’re getting the best value for your money. If your company is in any of the above situations — or if you just have a gut feeling that the investment you’re making in benefits isn’t delivering the desired results — now is the time to take action, well in advance of the open enrollment/benefits renewal period.
  • Determine what benefits employees want by conducting employee surveys and focus groups. Chances are you can’t satisfy every employee whim, but you’ll build goodwill through this communication process, and will be better able to craft a benefits package that’s on target with your workforce’s needs.
  • Benchmark your benefits offerings against those of your competitors. The benefits you offer should help attract new employees and engender loyalty among those already on your payroll. It’s hard to achieve these goals if your competition offers a selection of well-priced, diverse benefits and your company does not.
  • Benchmark your benefits costs. Your benefits advisor should be able to supply data that will give you a sense of whether what your company pays for medical, dental, etc. is in the ballpark of competitively priced benefits. If you find that your costs are too high — or if you simply want to see whether you can do better — it’s time to begin the Request for Proposal process.
  • Consider adding benefits you have not offered before. This doesn’t have to be a costly proposition. You can bring in supplemental benefits on an employee-pay-all basis, or add pre-tax flexible spending accounts for health care and/or dependent day care. Surveys show that employees appreciate when employers make these types of benefits available to them, even if the employer isn’t contributing to the cost.

In addition to examining the content of your benefits program, a midyear review of “how” your company conducts open enrollment can help to make this process run more smoothly in future years. Consider your communications; how you can help employees make the best enrollment decisions; and whether you are using enrollment technologies and outside resources as efficiently and cost-effectively as possible. All the planning you do now will make for a smoother enrollment experience, both for your company and for your employees.