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Monthly Archives

June 2012

AGE DISCRIMINATION

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Finding that a 41-year-old former tree-trimming foreman had presented sufficient evidence that a jury could find his employer’s stated reasons for his termination pretextual, the U.S. Court of Appeals for the Sixth Circuit has reversed a lower court’s grant of summary judgment for the employer, and allowed the employee’s age discrimination claim to proceed to trial. In Brooks v. Davey Tree Expert Company, the plaintiff, after working for the employer for 12 years, was assigned a new supervisor who almost immediately began making negative age-related comments to him. For instance, he allegedly told the employee that he was too old to be doing the kind of work he was doing, and, on one occasion, called him an “old fart.” The plaintiff was eventually terminated over an incident in which a crew member at the site where the plaintiff was working was injured by a falling tree. The plaintiff had been in his truck, and not out with his crew, at the time of the accident. The supervisor, determining that the accident might not have occurred if the employee had been out with the crew, reported his conclusion to the area supervisor, who terminated the employee based on the supervisor’s report.

After the plaintiff lost his age discrimination case on summary judgment, he appealed. In reversing the grant of summary judgment, the Court of Appeals noted that the age-based comments by the supervisor could be considered “probative of pretext,” even though the supervisor did not make the ultimate termination decision, because the area supervisor based his termination decision on the supervisor’s recommendation. In addition, the Court noted that the employer could not prevail on summary judgment based on the contention that it honestly believed that the plaintiff was responsible for the accident, because the employer had failed to articulate how or why it concluded that the accident would have been prevented if the plaintiff had been out with the crew, rather than in his truck.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).

NATIONAL LABOR RELATIONS ACT UPDATE

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The U.S. Court of Appeals for the D.C. Circuit has found that an employer was required to reinstate an employee who the NLRB determined had been terminated unlawfully, despite his subsequent statements reflecting disloyalty to the employer. In Stephens Media, LLC v. NLRB, the employer appealed the NLRB determination that the employer, a newspaper publisher, violated the NLRA in connection with its termination of two employees.

One employee had been terminated after confronting a manager over the discipline of a co-worker for allowing a union representative onto the premises without management’s prior approval. After his discharge, the employee attended a public event at which he spoke critically about the employer, claiming that the employer failed to staff its newsroom adequately and that he had considered starting a rival newspaper.

In a separate incident, another employee was terminated after making a surreptitious recording of a meeting with management in which he expected to receive discipline but was denied the right to union representation.

With respect to the first employee, the D.C. Circuit upheld the Board’s determination that he engaged in “protected activity” when he confronted the manager over what he reasonably believed was the impermissible discipline of a bargaining unit employee (it did not matter whether he was correct in his belief). Despite the employer’s argument that the employee’s post-discharge comments showed blatant disloyalty, the Court held that his post-discharge comments did not absolve the employer of its obligation to reinstate the employee. The Court noted that where an employer seeks to avoid its obligations based on post-discharge conduct, the employer must demonstrate that the misconduct was so flagrant as to render the employee unfit for further service or a threat to efficiency at the plant. The Court found that the employee’s comments failed to meet this standard. With respect to the second employee, the Court deferred to the Board’s ruling that the surreptitious recording was protected activity because the employee reasonably believed that he was about to be disciplined and that the employer violated his right to have union representation. The Court noted that the company did not have a policy prohibiting audio recordings and that the recording was legal under state and local law.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).

Editor’s note: if employers don’t get by now what the administration is up to when it comes to protecting disgruntled employees, cases such as this should be a resounding wake-up call! Do yourself a favor and watch our recent NLRB webinar.

INCORPORATE REASONABLE ACCOMMODATION PRACTICES INTO YOUR ‘ONBOARDING’ PROCESS

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Spring is in full swing — and a number of signs are indicating an increase in hiring of people with disabilities in both the Federal and private sectors. With Federal Executive Order 13548 – Increasing Federal Employment of Individuals with Disabilities and the potential changes for Federal contractors in the Office of Federal Contract Compliance Programs’ (OFCCP) Notice of Proposed Rulemaking (NPRM) for Section 503 of the Rehabilitation Act, employers would be wise to review their “onboarding” processes.

The purpose of this process is the smooth integration of new employees into their positions and company culture. If you already have an onboarding process, does your process consider reasonable accommodation issues for your new employees who might have a disability? It should. Take a look at your process and see if you need to incorporate these reasonable accommodation considerations.

A key to the success of any process, including the accommodation process, is education and training for those responsible for implementing it. Know who these players are in your organization. Who sets up a new employee’s workstation? Who provides access to the facility and parking? If a new hire with a disability needs an accommodation to be an effective member of your team, who will make sure the accommodation is in place for the individual’s first day of work? Key players will certainly include your human resources (HR) department, as well as managers and supervisors. Don’t forget to include staff from information technology (IT), facilities, and security departments in this training. Also, when conducting training, be sure to make everyone aware of the need and requirement to keep all medical information confidential.

Once your staff is educated about your company’s accommodation process for new hires, the next step is to make sure new hires know that they can and should ask for an accommodation if they know or think they might need one. Many individuals who know they need an accommodation to do the job successfully will choose to make an accommodation request. However, others might fear the job offer will be rescinded if they do so, and some might not be sure if they need an accommodation, or know how to request what they need. To deal with these issues, the individual who makes the job offer can share information about the company’s desire to facilitate a smooth transition and integration for the new employee — and explain employment policies, including that for implementing effective reasonable accommodations.

Whoever is responsible for responding to an individual who has accepted a job offer should be prepared to describe to the new employee the office location and the type of equipment the company will provide. This need not be detailed, but should include information about the work location and work area, such as: Parking is provided onsite or no parking at the site; standard computer, telephone, cell phone provided; ID card needed to access building; desk workstation/cubicle environment, etc. Also, if the new employee needs to fill out forms before the start date, or to go to a location to obtain an ID, etc., explain this in advance, giving the employee the opportunity to address other potential needs. Having all this information enables new employees to consider if they need to request a reasonable accommodation.

Effective onboarding of employees might require these accommodations:

You don’t need to have all of these accommodations in place for the first day of work; however, an awareness of the potential need and a willingness to implement accommodations as part of your company culture will help you onboard new employees successfully. To help you update your onboarding process if needed, here’s a sample onboarding accommodation assessment form.

Anne Hirsh, M.S., JAN Co-Director

THE ABCs OF RIGHT-TO-WORK LAWS

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The term “right to work” often confuses HR executives, business owners, and employees alike. Roughly half the states in nation are “right-to-work” states, while the other half are not. In a right-to-work state, an employee does not have to join a union (where there is one) in order to obtain work. In non-right to work states they do. Proponents of right-to-work laws point to the fact that employment rates are higher in right-to- work states that allow for individual contracts. In non-right to work states, which have stronger union lobbying efforts, the argument is that employees in right-to-work states take advantage of the hard work of unions, but don’t have to pay any dues for the effort. It’s a fact that wages are higher in non-right-to-work states. However, if you look at geography, Northeastern and West Coast states tend to be the non-right to work jurisdictions where wages are higher in the first place.

State legislatures throughout the nation are continuing to introduce right-to-work laws. A lot has to do with the political balance of power in that state. Of course, conservative Republican states tend to favor right-to-work laws and Democratic pro-union states prefer what some call “forced unionism.” If you enter “right-to-work” in a search engine, you’ll see plenty of arguments both for and against these laws. To a read an excellent Wikipedia article on this topic, go to http://en.wikipedia.org/wiki/Right-to-work_law.

STUPID BOSS TRICKS

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Peter Drucker and Dr. Edward Deming reminded us that poor performance is a management issue, not an employee one. Most managers receive little management training, and some are capable of such brilliant exploits as:

  • Bringing somebody on your team going 45 mph. If your team is going 75 mph, what happens when you bring someone onto it who’s going 45 mph? I guarantee there will be crashes, upset, injuries, and fingers pointed. Make sure that you bring employees up to speed before you thrust them onto a team. Unless it’s an emergency, there’s no excuse for not having an excellent “onboarding” process. Remember that who you hire is the most important part of your job; not simply something to get over.
  • Focusing on what people don’t get right. All of us screw up every day. Sometimes it’s a basic thing like accidentally deleting a document. At other times, we make some huge mistakes. Either way, when you’re a boss running 75 mph, it’s easy to nitpick. If you find yourself making more negative deposits than positive ones, cut it out.
  • Never giving an “atta-boy.” As a corollary, if managers aren’t giving negative jabs, they’re not saying anything at all. There are no positive offsets. They make no time to show they care. Not a five-minute conversation, not a thank-you note, not a pat on the back, nada. How long does anyone want to work for a boss like that, even if they know they’re doing a good job?
  • Taking credit for positive results and pointing fingers at the negative ones. We’ve all been around people like this — and not for long. The job of a boss is to make every person on his or her team a better player. When the team wins, the boss shares credit. When there are losses, the buck stops with the boss. When I search for an example of this behavior, Jets football coach Rex Ryan comes to mind. It’s all about “look at me” and, of course, when things go wrong, it’s not his fault; simply poor play by his players. Right.
  • Setting employees up to fail. In my litigation days, I met plenty of bosses who went out of their way to create an employee’s failure, whether out of fear, revenge, or stupidity. Managers like this are a cancer on any organization. If an employee isn’t performing and ownership won’t let you fire them, call ownership out on it. If management still fails to make necessary changes and you can’t be at peace with it, then work someplace else.
  • Running their own fiefdoms, detached from corporate objectives. I’ve seen many bosses build a bureaucratic wall around them to guarantee their personal survival. I’ve talked to executives who have run multi-million dollar departments more interested in protecting their retirement savings than growing the company. These managers will damage the company eventually. One reason why companies are smart to move managers around every few years is to keep them from building a moat around their department.
  • Failing to keep their mouths shut. Managers learn things about people’s personal lives, job histories, medical problems, family problems, nasty little habits, and more. A manager who shares this information with more people than those who “need to know” is a manager who will get employees upset and the company sued. I remember one manager who was so curious about a subordinate’s possible breast enhancements that he snuck into her personnel files, reviewed her medical records, and proved himself “right.” Then the idiot chose to share thus information with his buddies at the company. When the employee got wind of the situation, you can understand her outrage. What this manager didn’t know was that she had undergone a double mastectomy due to breast cancer two years before, which is why she eventually had the enhancements. How does an employee relationship recover from a situation like that?

Of course, there are more horror stories, but that’s plenty for now. The answer: Promote only qualified people into management and train them constantly so they keep improving.

ORGANIZING THROUGH ENFORCEMENT OF STATE EMPLOYMENT LAWS

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In doing online research, I came across an interesting white paper that discusses how vigorous (and perhaps manipulative) use of non-union laws can help with organizing efforts. Employers must realize that there are many stakeholders in the compliance game — perhaps including those some never thought of! Note: this is relevant to employers in any state, even though this campaign is targeting California employers.

EDITOR’S COLUMN: “I’M DISABLED…SO TAKE CARE OF ME”

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I read recently that a record 5.4 million workers and their dependents have signed up to collect federal disability checks since President Obama took office. Many unemployed apply for disability benefits as soon as their unemployment benefits run out. There are now a record 10.8 million Americans on disability — double the number since Obama took office. The EEOC has stated a clear agenda to protect the disabled, with an ever-expanding definition of what the term means. The commission is even suggesting that government contracts include hiring of a minimum of 7% disabled.

Politics aside, that’s a lot of disability going on. The ultimate proof of victimology comes from the government labeling people disabled. Uncle Sam classified an astonishing 54 million people as “disabled” in 2005. That’s 19% of the population, or nearly one in five Americans. The U.S. Census Bureau has classified Disabled Americans as the nation’s largest “minority population segment.” Given obesity and longevity trends, we can expect a growing number of disabled, placing considerable strain on the government and employers alike. The crazy thing is most of this “disability” is not due to accident or genetic pre-disposition, but primarily to individual’s lack of exercise, poor diet, and mental attitude.

Of course, the recent jump in disability filings is largely due to current unemployment and poverty levels. The Obama administration is also encouraging it. To see the Department of Labor’s overall approach to this issue, visit http://www.dol.gov/odep/

Employers need to bone up on ADA regulations, take advantage of the resources on HR That Works and from sites such as JAN (http://askjan.org/).

As a final note, I believe that we should help the truly disabled, especially those who can’t help themselves. On the other hand, people who make poor lifestyle choices and then claim disability as result garner little sympathy from me, as do those who “work the system,” taking precious dollars away from those in the disability community who deserve help. Unfortunately, I don’t see the administration making this distinction.

WOMEN IN ALL FAMILY SITUATIONS NEED TO HAVE A LIFE INSURANCE POLICY

By Life and Health | No Comments

There are innumerable incentives to having Life insurance. For example, a Life insurance policy offers financial protection for remaining family members when a primary breadwinner passes away. This will help ensure that beneficiaries have enough income to maintain their standard of living and not struggle to make ends meet. Life insurance funds can also be used for expenses like a child’s or widow’s college tuition, attorney and probate fees associated with the estate, mortgage payments, burying the deceased loved one, childcare and housework expenses left unattended by the deceased loved one dying, and so forth. It’s obvious that Life insurance offers invaluable protections for the entire family. So, why is it that more Life insurance policies are purchased by men? Contrary to the assumptions made by some, women in all types of family structures need to have a Life insurance policy.

Married Women Working Outside or Inside the Home. Modern women are often making as much, if not more, of a financial contribution to the family as their male counterparts. It needs to be determined if the wife’s financial responsibilities will still need to be met or be moot with her death. It also needs to be determined whether or not the deceased wife’s absent income will affect the family’s ability to maintain their lifestyle.

Aside from direct financial contributions that many women make to a household, there are also all the various childcare and household chores and responsibilities that the female, whether holding down a job or not, attends to inside the home. The value of such contributions are often significantly undervalued until the wife is actually gone and the husband discovers how costly it is to pay someone for the services.

Historically speaking, men have typically purchased a Life insurance policy on themselves to protect the family, possibly adding a much smaller policy for the wife. Everyday life has given women a firsthand view of just how difficult it can be for a widowed husband to maintain the same standard of living for his family after his wife passes away without Life insurance. As women have a growing need for assurance that their children will still be able to live in the same home, go to the same school, eventually attend college, and so forth if they were to pass away, they’re starting to realize what a misguided and dangerous approach it is to only insure the male. Many women are taking the initiative to research and purchase their own Life insurance policies and/or have an equal say in the family’s overall Life insurance portfolio.

Single Mothers. In some cases, the woman is the sole head of household. Often the full brunt of responsibility is on the single mother’s shoulders. Life insurance can provide monetary assurance that the child will not be left financially destitute. Remember, even if a family relative or friend has agreed to assume responsibility for the child, it will still cost money to raise and educate the child.

Single Women without Children. One of the biggest insurance misconceptions is that single, childless women don’t need any Life insurance. This simply isn’t true. First of all, someone would be responsible for the inevitable costs of death, such as probate fees, attorney fees, and the cost of the burial. Additionally, many single women are purchasing their own homes. Some might share their homes with their aging parents eventually. Another concern would be from parents expecting to entirely or partially depend on their child for financial help. Should the child die, the funds from a Life insurance would provide the aging parents with any financial support they’d lose and the ability to finish paying for the child’s home.

In closing, a woman’s value, both inside and outside of the home, should never be forgotten or diminished. The need and importance of insurance is just as, if not more, substantial for women as men. Don’t procrastinate on Life insurance needs; Life insurance policies are easiest to qualify for and are most affordable the younger and healthier the woman is when she applies.

HOW MUCH LIFE INSURANCE DO YOU NEED?

By Life and Health | No Comments

Unpredictable job and investment markets make it difficult to determine how much Life insurance to buy. The standard formulas for buying coverage to match a specific percentage of income are inadequate solutions. Online calculation tools usually tell everyone to raise their coverage by $1 million. However, Life insurance is a personal issue. For example, a married couple with three children and a mortgage will need more coverage than a childless couple without a mortgage. When the markets are down, many people are tempted to shirk their Life insurance needs. Major life changes also affect how people deal with their individual needs. It is best to take a systematic approach to buying coverage instead of relying on standard rules and formulas.

One Simple Strategy. The main purpose of Life insurance is to provide survivors with enough funds to pay the final expenses and continue life comfortably. This is why most calculators are programmed to suggest a chunk of money equal to at least 20 years of regular income. With overall longer life expectancy and a lower savings yield, this might be too high of a goal for most people. There is a much simpler strategy for figuring out exactly how much insurance is needed. It is also better to buy from a plan that is easy to update. After projecting personal needs from the following four categories, assess the situation to see if extra coverage or different policies are needed.

  1. Debts & Mortgages. Write down the total of all auto loans, mortgages, student loans and any other debts. All of these debts might be a serious burden for survivors to handle. However, survivors might choose to keep up mortgage payments. Be sure to allow enough money to make this possible.
  2. Final Expenses. Traditional funerals can cost between $10,000 and $20,000. Although pre-planning a funeral is beneficial, it is even more important to ensure enough Life insurance funds are available to pay the final bill. For a reasonable funeral figure, aim for $15,000.
  3. Income Replacement. Families will not need 100% of the policyholder’s current income. Be sure to deduct final expenses, education costs and debts. As a rule, it is best to plan on replacing 50% of pretax income until retirement. This amount can be placed in a lump sum by dividing 50% of annual income by 0.05.
  4. Education Expenses. This might be one of the most difficult calculations. Each school varies in tuition costs, and the tuition rates may be much different by the time children are ready to enroll in college. The average cost of college tuition has been rising by about 5% each year. This is the same rate Life insurance is expected to grow over time. Calculate the future cost of tuition at the desired colleges, and add the amount to a Life insurance policy.

To determine how much Life insurance is needed, add all four of these categories’ totals. If there is no pension, it is beneficial to increase the amount. However, if a spouse earns a considerable salary, it might be feasible to decrease the total. For family members with unique or troublesome medical conditions, add between $100,000 and $250,000. The overall total usually adds up to a six-figure amount or slightly more than $1 million. Increasing a death benefit on a Term Life insurance policy usually costs several hundred dollars each year, so the premium amount should not be impossible to pay. To get a better idea of what to expect for a premium, discuss the figures with our agents.

Getting married, having children, buying property and retiring are all life steps that require more Life insurance. There are many different options for this coverage. Young and healthy individuals can usually lock in a low price for many years. Some policies also come with the option to convert to permanent coverage, which can be kept regardless of future health conditions. Term Life becomes expensive after age 65, so it is a smart idea to consider Whole or Universal policies. To determine the best option, discuss personal details with one of our agents.