As job market opens, a rush to retain talent: To many employees, a healthy workplace is as important as competitive pay.

By JOYCE M. ROSENBERG Associated Press

Star Tribune

October 6, 2014

   People are quitting their jobs at a faster clip, and that’s pushing small-business owners to work harder to hold onto top talent.

   Dance studio owner Andrea Bisconti has experienced the challenge firsthand. When Kellie Love, an instructor there, said she was planning to leave to start a business of her own, Bisconti decided to act. Love inspires students to keep coming back for more lessons and brings in more than a quarter of the studio’s revenue, says Bisconti, owner of a Fred Astaire Dance Studio in Willoughby, Ohio.

   “My most terrible fantasy was I would see students walk out the door in droves, and I would be scrambling,” Bisconti says.

   As the economy and job market improve, keeping the best employees is becoming vital for small businesses. Forty-three percent of owners are working to keep top staffers, according to a recent survey by Principal Financial Group. The reason: A growing number of employees are giving notice. The Labor Department reported more than 2.5 million people quit their jobs in July, up from 2.3 million a year earlier.

   The trend is expected to continue. Thirty-eight percent of workers plan to change employers in the next five years, according to a 2014 survey by the management consultancy Hay Group. That’s up from 30 percent in 2010.

   Bisconti figured out a way to keep Love. They are negotiating to make her a business partner. Other owners are using strategies such as communicating and coaching, creating a healthy environment and giving raises.

   Communicate and coach

   Jon Lal talks continually with the 25 employees of BeFrugal.com  , walking around the office at the start and end of the day and chatting about work and staffers’ personal lives. He brings lunch in for everyone once a month.

   The conversations give Lal a sense of whether staffers are satisfied or want to advance. He has kept one employee for eight years by giving her a series of new assignments to keep her motivated.

   The approach is critical to retaining employees and avoiding unexpected resignations at the Boston-based company, which runs a website with coupons and cash-back deals, he says.

   “If [a departure] comes as a surprise to you, very often it means you have not been in very close touch with what’s going on with that individual,” Lal says.

   Communicating regularly with employees also gives owners a chance to provide feedback, something staffers want, says Michael Timmes, a consultant with HR provider Insperity, based in Houston. And it’s an opportunity to teach employees new skills.

   “People want to be coached [and] want to be given guidance,” Timmes says.

   A healthy atmosphere

   At FutureAdvisor, head of recruiting Chris Nicholson polled the investment advisory company’s 30 employees about why they stay. Most said it was the positive atmosphere created by the San Francisco-based company’s owners. They mentor staffers, set realistic goals and promote a healthy balance between work and their personal lives, Nicholson says.

   “If the top management has their heads screwed on straight, the whole organization that grows out around them is going to be in a lot better shape,” Nicholson says.

   Legacy Publishing trains its managers to speak to the company’s 95 staffers in a positive way, to give constructive criticism and to pay attention to workers’ quality of work life, says Rhonda Tracy, director of human resources for the Westbrook, Maine, company, which makes instructional software.

   “We spent a portion of a meeting yesterday coming up with ways to make the employees’ days better,” Tracy says. One solution: Getting rid of some of the small, tedious tasks that can frustrate or bore them.

   Show them the money

   Owners and HR consultants say most people don’t leave a job solely because of pay unless another employer offers them so much money they can’t refuse. Job satisfaction is more important for many employees. But pay can be an issue at companies that slashed salaries during the recession, says David Lewis, president of OperationsInc, a human resources provider based in Norwalk, Conn. And workers at many of those businesses had to take on additional responsibilities as jobs were cut. They’re still carrying a heavy workload.

   “At some point, it’s no longer sustainable to give people 2 or 3 percent increases on a base salary you’ve already reduced in some cases by 20 percent in 2009,” Lewis says.

Supreme Court takes case about Muslim teen’s scarf Claims of religious bias at work doubled in 15 years.

By GREG STOHR Bloomberg News

   WASHINGTON – The U.S. Supreme Court will hear the case of a Muslim teenager who was denied a job at Abercrombie & Fitch Co. because she wore a head scarf, in a clash over religious discrimination in the workplace.
   The justices Thursday said they will hear an appeal from the U.S. Equal Employment Opportunity Commission, which is suing the retailer under a federal job-bias law on behalf of Samantha Elauf. A federal appeals court threw out the suit, saying Elauf didn’t explicitly tell Abercrombie that she needed a religious exemption from its dress code to work at a Tulsa, Okla., store.
   The court ruled in a separate case in June that corporations can claim a religious exemption from the Affordable Care Act’s birth-control coverage requirements. The new case aligns President Obama’s administration with religious organizations, potentially pitting them against business groups looking to fend off lawsuits over dress codes and work schedules.
   Claims of religious discrimination in the U.S. workplace are rising. The EEOC received 3,700 formal complaints last year, more than double the number 15 years earlier.
   The issue “is of enormous practical importance to a wide array of believers from numerous religious traditions, and its importance increases daily as the nation grows more religiously diverse,” according to a court filing by eight religious groups, representing Christians, Jews, Sikhs and Muslims.
   Federal law requires an employer to “reasonably accommodate” workers’ religious practices as long as the business wouldn’t suffer an “undue hardship.”
   The case stems from Abercrombie’s requirement that its in-store salespeople reflect the store’s style.
   Under Abercrombie’s “look policy,” salespeople must wear styles similar to the clothing sold in the store and are prohibited from wearing hats or anything black.
   Elauf, then 17, wore a black scarf, known as a hijab, when she met with an assistant manager about a job at an Abercrombie Kids store in 2008. The subject of her religion never arose during the interview, and the manager, Heather Cooke, was prepared to offer Elauf a job.
   Cooke then discussed Elauf ’s scarf with Randall Johnson, an Abercrombie district manager. Johnson said that, because Elauf would be in violation of Abercrombie’s dress code, Cooke should downgrade the girl’s interview score and deny her the job.
   Abercrombie, which is based in Ohio, agreed to pay $71,000 to settle two similar suits in California last year.

DSW to pay $900,000 over age discrimination accusations

From:  The Chicago Tribune.
By:  Ellen Jean Hirst
September 22, 2014

Shoe retailer DSW Inc. has agreed to pay $900,000 to settle an age discrimination lawsuit brought by the Chicago District Office of the Equal Employment Opportunity Commission that accused the company of unfairly firing older workers.

The EEOC had charged Columbus, Ohio­ based DSW with unfairly firing employees and managers over the age of 40 during a "reduction in force." The EEOC, the government agency charged with enforcing discrimination laws, said DSW fired older employees because of their age and retaliated against employees who refused to fire other workers based on their age. DSW has about 10,000 employees nationwide.

The plaintiffs in the case, filed in federal court Sept. 15 and settled Friday, included seven former managers and about 100 other former employees, an attorney said.

In addition to disbursing $900,000 to the former employees, DSW must report to the EEOC for the next three years regarding any employee complaints of age discrimination and revise its anti­discrimination policy.

Charges filed with the EEOC under the Age Discrimination in Employment Act have increased about 36 percent since 1997, from 15,785 to 21,396. Supervisory trial attorney Diane Smason said a spike in 2008 – to 24,582 – was likely due to the recession when many companies were forced to downsize, a common guise for age discrimination, she said.

“We see this often where it’s easy for employers to use a need for a reduction in force and financial problems as an easy excuse to let go of older workers,” Smason said. “We think that’s what happened here at DSW.”

DSW issued a statement “unequivocally” denying that it discriminated based on age. The allegations focus on events from 2008 and 2009, the statement said.

“Those difficult decisions were driven by economic volatility and were in no way influenced by the age of associates,” the company said. “Our decision to settle this case mitigates the costs associated with a lengthy legal proceeding and is in the best interest of our associates and shareholders

Men, women face different standards in work-related parenting requests

• Article by: HEIDI STEVENS , Chicago Tribune 
• • September 15, 2014
  • 
    
  • First, the good news: Men who ask for flexible work arrangements to care for their children are “very likely” to have their requests granted.
    As a bonus, these family-minded men are thought of as all-around admirable chaps.
    The not-so-good news: Women who ask for the same flexibility are significantly less likely to have their requests granted and are thought of as uncommitted to their jobs.
    A study by Furman University sociology Prof. Christin Munsch revealed that our cultural biases often don’t follow with our workplace policies.
    She asked 646 participants, ranging in age from 18 to 65, to read a transcript of a conversation between an employee and a human resource manager in which the employee asks to work from home two days a week or come in early and leave early three days a week.
    Participants were then asked whether they would grant the requests and how likable, committed, dependable and dedicated they found the employee to be.
    When the request came from a male employee, 69.7 percent of participants of both genders said they would grant his request, and 24.3 percent deemed the employee “extremely likable.”
    When the request came from a female employee, 56.7 percent of participants would grant her request and a measly 3 percent called her “extremely likable.”
    Fifteen percent of participants described women seeking flexibility as “not at all” or “not very” committed to their jobs, but only 2.7 percent of participants said the same of a male employee who asked for a flexible schedule.
    “These results demonstrate how cultural notions of parenting influence perceptions of people who request flexible work,” Munsch writes in the study, which she presented to the American Sociological Association.
    “We think of women’s responsibilities as including paid labor and domestic obligations, but we still regard breadwinning as men’s primary responsibility and we feel grateful if men contribute in the realm of child care or to other household tasks.”

EEOC Challenges Overbroad Medical Releases In Lawsuit Against Cummins Power

EEOC Press Release

September 9, 2014

Company Violated Two Federal Laws by Making Invasive and Irrelevant Inquiries Through Its Medical Releases, Federal Agency Charges

MINNEAPOLIS - Shoreview, Minn.-based Cummins Power Generation violated federal law by requiring an employee to submit overbroad medical release forms to have a fitness for duty examination, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today.

In its lawsuit, the federal agency contended that Cummins required an employee to sign various medical release forms that sought irrelevant information. Cummins informed the employee that he had to sign a release before taking a fitness-for-duty examination. When the employee objected to executing the releases presented to him, Cummins informed him that he had to sign a release or face termination. Cummins ultimately fired the employee for failing to sign the release, the EEOC said.

The EEOC maintains that by requiring the employee to execute an overly broad release, Cummins was making disability-related inquiries that were not job-related or consistent with business necessity. Such alleged conduct violates the Americans with Disabilities Act (ADA). Further, the EEOC asserts that the releases presented to the employee would have resulted in the disclosure of family medical history in violation of the Genetic Information Nondiscrimination Act (GINA). The EEOC argues that Cummins also violated the anti-retaliation provisions of the ADA and GINA by firing the employee for his good-faith objections to the releases.

The EEOC brought the suit under Title I of the ADA, which prohibits disability discrimination in employment, and under Title II of GINA, which prohibits the acquisition of genetic information, after first attempting to reach a pre-litigation settlement through its conciliation process. The case (EEOC v. Cummins Power Generation, Civil Action 0:14-cv-03408-SRN-SER) was filed in U.S. District Court for the District of Minnesota, and is assigned to U.S. District Judge Susan Richard Nelson.

"The EEOC doesn't challenge Cummins' request for a fitness-for-duty examination, but Cummins had an obligation to request only those medical records and information that actually pertained to that issue," said John Hendrickson, regional attorney for the EEOC's Chicago district. "Employees don't give up all rights to privacy of their medical information when they get a job. By asking for all and sundry medical information, Cummins went too far. The EEOC is here to make sure employers follow the requirements of ADA - and of GINA, which is a newer statute that everyone needs to understand and observe."

The EEOC's Chicago District Office is responsible for processing discrimination charges, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available on its website at http://www.eeoc.gov.

NLRB rules against Jimmy John's franchisee: Workers lost their jobs after placing posters that protested lack of sick leave.

From:  The Star Tribune, August 25, 2014
Article by:  Mike Hughlett
http://www.startribune.com/business/272613241.html

The National Labor Relations Board (NLRB) has ruled that a Twin Cities Jimmy John’s franchisee violated the union organizing rights of six employees after firing them for publicly protesting the company’s lack of sick leave.

The decision late last week by the NLRB upholds an April 2012 ruling by a federal administrative law judge, and also calls for the six workers allied with the Industrial Workers of the World (IWW) to be reinstated and given back pay.

MikLin Enterprises, which owns 10 local Jimmy Johns’s, had appealed the administrative law judge’s decision to the NLRB’s full board in Washington D.C. One member of the three-member board dissented, finding that MikLin didn’t violate labor law. MikLin can appeal the NLRB’s decision to a federal court.

“We’re reviewing the decision and our options at this time,” said Rob Mulligan, a MikLin co-owner, declining to comment further.

Erik Forman, one of the fired workers, said in a statement that “the NLRB has said what the public already knew: workers have the right to speak out about their working conditions, particularly when those working conditions mean that customers might get food served by a sick worker.”

The union’s protests emphasized that without paid sick leave, workers were forced to work sick, potentially contaminating food.

Jimmy John’s workers allied with the IWW tried to organize MikLin’s restaurants in 2010, falling just short of victory in an unusual union campaign. Unions rarely try to organize fast-food workers, largely because they are so transient in their jobs. And the IWW is a militant, grass-roots union outside of the mainstream of the labor movement.

In October 2010, Jimmy John’s workers rejected the union by two votes, 87-85.

After the election, pro-union Jimmy John’s workers continued their organizing campaign, often emphasizing their lack of paid sick leave, a common policy in the restaurant industry.

In early 2011, the union placed posters around town displaying two identical Jimmy John’s sandwiches, with one described as made by a healthy worker, the other by a sick worker. “Can’t tell the difference?” the poster said. “That’s too bad because Jimmy John’s workers don’t get paid sick days.”

MikLin fired six workers and issued written warnings to three others involved in the poster campaign. The company has argued that the posters were “disloyal,” and therefore were not protected speech under federal labor law. One of the three NLRB board members agreed. But not the other two.

The posters were not so “disloyal, reckless or maliciously untrue as to lose (the law’s) protection,” the NLRB ruling said.

“Indeed, any person viewing the posters . . . . would reasonably understand that the motive for the communications was to garner support for the campaign to improve the employees’ terms and conditions of employment.”

The Interactive Process

What is the Interactive Process?

This summer marks the 14^th anniversary of the Americans with Disabilities Act (ADA), the nation’s first comprehensive civil rights law prohibiting discrimination on the basis of disability. While the ADA has been around for many years, the issues surrounding disability discrimination and reasonable accommodation, including the interactive process, continue.

The ADA and the Minnesota Human Right Act, require employers to accommodate the disabilities of their employees.  To help determine effective accommodations, the EEOC recommends an “interactive process” between the employer and the employee.  This simply means that the parties work together to find an accommodation that works.

1. Request Accommodation

While there is no set formula for the interactive process, it typically starts when the employee or someone on their behalf requests an accommodation.  Requests for accommodation do not need to be in writing. 

Employers should be aware that some courts have suggested that if the employer knows that an employee needs an accommodation, it may have an obligation to provide it.  The EEOC’s guidance suggests that an employer should provide an accommodation when it:  knows of the disability; knows or should know that the employee is experiencing workplace problems because of the disability; or knows or should know that the disability prevents the employee from requesting a reasonable accommodation.

2.  Communicate

Once the request for accommodation has been made or the need for accommodation is obvious, the employer should initiate the interactive process.  Generally, courts have held that the interactive process requires employers to: analyze job functions to establish the essential and non-essential job duties; talk with the employee to learn their limitations; and explore the types of accommodations.

The interactive process imposes mutual obligations on both the employer and the employee. An employee is required to provide the employer with necessary information about their disability and needs for accommodation. Courts have held that an employer cannot be liable for failing to accommodate if a breakdown in the communication process is attributable to the employee.

Similarly, if the breakdown in the interactive process is attributable to the employer, courts have generally found this to be an adverse employment action.

3. Work Together To Identify Possible Accommodations

The employee and the employer should work together to come up with different potential accommodations that allow the employee to perform the essential functions of their job. 

Employers should remember that they must provide a reasonable accommodation unless doing so would pose an “undue hardship.”  The employer bears the burden of proving that it cannot provide the employee with a reasonable accommodation because it would cause an undue hardship.  Under the law, undue hardship means “significant difficulty or expense.”  See, 42 U.S.C. § 12111(10).  The EEOC’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act states: “Generalized conclusions will not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense.” See, 29 C.F.R. pt. 1630 app. §1630.15(d) (1996). The Enforcement Guidance also states that undue hardship cannot “be based on the fact that provision of a reasonable accommodation might have a negative impact on the morale of other employees.” 

If you have questions about the interactive process or are seeking help obtaining a reasonable accommodation, feel free to contact us at 612-278-9832.

Pregnancy and Accommodations: Pregnant women fight to keep jobs via ‘reasonable accommodations’

By Brigid Schulte August 4, 2014, Washington Post

At five months pregnant with her second child, Officer Lyndi Trischler found that the gun belt she was required to wear on her 10-hour patrol shifts pulled painfully on her expanding abdomen. Her heavy bulletproof vest was so tight that she struggled to breathe. She began having heart palpitations.

Months earlier, at her doctor’s recommendation, Trischler had asked her supervisors at the police department in the Florence, Ky., if she could do light-duty work in the office as her pregnancy progressed. That’s what she’d done the year before when, pregnant with her first child, she’d worked up until the day she gave birth.

But this time, the city said no: Either go out on patrol or go on unpaid leave.

So she strapped on her equipment and went out on the road, even as a new city policy granted officers who had been injured on the job the same light-duty desk work that she’d been denied. Last month, Trischler, one of only two female officers on a staff of about 60, was forced to go on unpaid leave.

“I just physically couldn’t do the job anymore,” Trischler said.

Trischler, 30, with a master’s degree in criminal justice, has just filed a pregnancy discrimination claim against the city with the federal Equal Employment Opportunity Commission. A growing number of cases like hers shows that, despite a long history of pregnant women working and a 1978 law to prohibit pregnancy discrimination, workplaces, courts and doctors still disagree on some pretty fundamental questions: What can expectant workers safely handle, particularly in physically demanding jobs such as Trischler’s? And what kind of accommodations are reasonable, legal and fair?

These disagreements can have devastating consequences: Pregnant workers who have been forced onto unpaid leave rather than receive accommodations have, according to a raft of recent discrimination cases, lost their health insurance and their income. Some, according to EEOC documents and court records, have been told by supervisors to choose — their babies or their jobs — and have either terminated their pregnancies or been fired.

“All I think about is how I’m going to take care of my daughter when I’m not making money,” Trischler said. The son she’s now carrying has a rare disorder and is not expected to live long after birth. “This is just a very, very, very, very, very stressful time.”

The mayor of Florence, Diane Whalen, said she could not comment on pending litigation. In April 2013, city officials sent a memo to all department heads saying that the city would no longer offer light duty to employees with injuries, illnesses or other medical conditions that are not work-related.

“This policy is ridiculous. It doesn’t even cover disabled people, which is required by the Americans with Disabilities Act,” said Dina Bakst, with A Better Balance, a legal and advocacy organization filing the claim on Trischler’s behalf.

While every pregnancy is different, hormone changes make women’s ligaments looser, which can lead to back pain and carpal tunnel syndrome. The expanding bulk of the belly can make it difficult to balance, bend and reach, and later in pregnancy, can compress the bladder and lungs, said Wendy Chavkin, a professor of public health and obstetrics and gynecology at the Columbia University Mailman School of Public Health, who has researched how pregnancy impacts women’s ability to work.

Pregnancy can also lead to gestational diabetes, hypertension, edema, fatigue and a host of other conditions.

“But all of that is relevant on the job only if it makes a difference in whether you can do it or not,” Chavkin said. “There is some data to show that some arduous, physically demanding jobs can collide with the needs of pregnancy. But that can often be reasonably accommodated. . . . And if we make work accommodations for men who have hernias and heart attacks, why not for pregnant women?”

Some pregnant workers need accommodations: ergonomic chairs for back pain, stools for those on their feet for hours, bathroom breaks and water for those with diabetes. And others don’t.

And while many employers do provide accommodations, others don’t. The number of pregnancy discrimination cases has been on the rise over the last decade, as have resolutions, settlements and monetary awards: $17.2 million in 2011, up from $5.6 million in 1997.

“It’s hard to think that more employers are discriminating against pregnant women,” said Chai Feldblum, an EEOC commissioner since 2010. “We’re not really sure why complaints are increasing. Perhaps more women are realizing that they have the right not to get fired if they get pregnant, and that they should get the same accommodations as Joe, who sits next to them.”

One central question in Trischler’s case — whether an employer can deny accommodations to pregnant workers while providing them to workers injured on the job — is at the heart of another case, Young v. UPS, that the Supreme Court recently agreed to hear.

Peggy Young, a former UPS driver in Landover, Md., sued UPS in federal court. She argues that the company refused to honor her midwife’s note recommending that she not lift more than 20 pounds, even though UPS routinely gave such modifications to workers with non-work-related injuries who were disabled.

Though she wanted to work light duty or continue driving her route while observing the lifting restriction, Young says in her brief that supervisors told her she was “too much of a liability” to keep on the job while pregnant.

UPS argues that its policies are “pregnancy neutral.”

The EEOC recently issued guidelines clarifying that employers that make adjustments for workers injured on the job must also grant reasonable accommodations to pregnant workers who need them.

One complicating factor in determining what’s safe for pregnant workers is that the medical literature is inconclusive.

So, erring on the side of caution, doctors have tended to prescribe broad restrictions for pregnant workers — limiting heavy lifting or requiring light duty, reduced work hours or bedrest — said Rebecca Jackson, chief of obstetrics and gynecology at San Francisco General Hospital and a member of a group at the Center for Work Life Law at the University of California Hastings College of the Law studying accommodations for pregnant workers.

Indeed, doctors put an estimated one in five pregnant women on bedrest or suggest that they curtail their activities, even though new studies are finding that bed­rest can lead to other problems, such as muscle atrophy and blood clots.

“There’s a lot of pressure on doctors to recommend work restrictions: The desire to have a healthy baby is incredibly strong and the consequences of an unhealthy pregnancy are devastating,” Jackson said. “In the face of not understanding much of what causes things like preterm birth, we are left with very little to offer women to prevent it.”

But new evidence is emerging that suggests that all but the most physically demanding jobs are safe for most healthy pregnant workers.

The National Institute for Occupational Safety and Health in a recent report recommended weight limits for healthy pregnant women that, except for advising against lifting from the floor and overhead, are compatible with guidelines for the general population.

Other studies have found a only a small or inconclusive risk for preterm or low weight births if pregnant workers stand for more than three hours on the job. A recent Danish study found an increased risk for preterm birth for a pregnant worker lifting at least 44 pounds 20 or more times a day.

Sometimes, Jackson said, the notes that doctors write to help their pregnant patients continue working end up getting them fired.

In recent years, a Wal-Mart sales associate was fired for insubordination for carrying around a water bottle, as her doctor advised to prevent a pregnancy-­related bladder infection. An activities director at a nursing home and an Old Navy stock supervisor were fired after their employers refused doctors’ requests that they avoid standing on ladders or lifting heavy objects.Their employers contended in court filings that they were fired for other reasons.

EEOC records show and advocates say pregnancy discrimination tends to hit women in low-wage and physically demanding jobs as well as women in professions such as law enforcement that have traditionally been dominated by men. Women make up 11 percent of all police officers, according to the most recent FBI statistics.

“I’ve had situations where a police department refused to give a very pregnant woman a bulletproof vest that would fit her, even though they gave them to guys with a gut,” said Joan Williams, a University of California law professor who tracks pregnancy discrimination cases.

As for that pregnant Kentucky police officer, Trischler is preparing to move back in with family and out of the apartment she shares with her 1-year-old once her income runs out. Her boyfriend works for another police department and lives 90 minutes away.

Her supervisors told her her health insurance will cut off once her leave becomes unpaid, and she worries how she’ll pay the hospital bill when she delivers in October. Her claim for short-term disability benefits was recently denied. And because she will have used up all her paid time off and her 12 weeks of unpaid leave covered by the Family Medical Leave Act, she won’t have any time to recover after the birth. “When I’m cleared to go back to work,” she said, “I’ll go back to work.”

Is Obesity a Disability?

It can be.

The Centers for Disease Control (CDC) outline that 35.7% of U.S. adults are considered obese.  The CDC defines obesity as a number 30 or higher on a BMI index.   In June of last year, the American Medical Association officially recognized obesity as a disease.

Before the passage of the Americans with Disabilities Amendments Act in 2008 (ADAAA), obesity was generally not considered a disability.  Since then, with the interpretation of what constitutes a disability under the law, courts have found obesity to be a disability.

In EEOC v. Resources for Human Development, Inc., 827 F. Supp. 2d 688 (E.D. La.  Dec. 2011), the EEOC brought suit on behalf of Lisa Harrison, alleging that her former employer, Resources for Human Development (RHD) regarded her as disabled when it fired her.

Harrison worked as a Prevention/Intervention Specialist overseeing a daycare program for the children of mothers staying at RHD.  At the time she was hired, she weighed over 400 pounds.  RHD terminated Harrison’s employment eight years later, claiming that her weight severely impaired her job performance.  At the time of her termination, Harrison weighed 527 pounds.

Harrison claimed RHD fired her because it “regarded” her as disabled.  Harrison also claimed that RHD failed to make reasonable accommodations (the case does not elaborate as to what accommodations Harrison requested that were not made.).

According to the EEOC, Harrison received “excellent” ratings in her performance evaluations. Harrison died two years after her termination.  The death certificate stated it was as a result of “morbid obesity.”

The Court found that Harrison was a qualified individual with a disability.  Significantly, the Court found that obesity – in and of itself – was an impairment under the ADAAA.  

In another case brought by the EEOC, EEOC v. BAE Systems Tactical Vehicle Systems, LP, Civil Action No.:11-cv-3497 (S.D. Tex.), the EEOC alleged that BAE fired Ronald Kratz because he was morbidly obese.  For seven years, Kratz worked as a materials handler.  Kratz weighed 680 pounds.  BAE alleged he could not do his job because of his weight.  Kratz disputed his could not perform his job but asked if there was another job he could transfer to.  BAE denied his transfer request and fired him.  The case settled without a court decision.

In an improving economy, is age discrimination getting better or worse?

From:  The Washington Post

By Jena McGregor July 25, 2014

Recent headlines haven't made it look easy to be over the hill at work.

Washington, D.C.,  power players are turning to plastic surgery to avoid a "use by" date for their careers. Silicon Valley firms are hiring high school students as interns. Twitter got hit with a lawsuit alleging age discrimination last week by a former manager.

And when veteran NFL sideline reporter Pam Oliver confirmed that she had been replaced by a younger Erin Andrews recently, some questioned whether ageism was at play. (In media reports, Fox has said age and race had nothing to do with its decision on Oliver, and Twitter has said the case is without merit. The company did not respond immediately to a request for comment.)

All of which made us wonder: In today's economy, is age discrimination getting better or worse?

The answer, as you might expect, is that it's complicated. While numbers point to a downward trend, and there is some evidence of a warming toward older workers, ageism remains a real issue that's among the hardest complaints by workers to prove.

Charges of age discrimination to the Equal Employment Opportunity Commission have actually declined slightly in recent years. The number of age-related filings went from 22,857 in 2012 (23 percent of all claims) to 21,396 in 2013 (22.8 percent of the total). Both numbers are down from a high of 24,582 in 2008 (or nearly 26 percent of all filings).

But those numbers only offer part of the picture. While charges are down, total monetary awards are up, reaching $97.9 million for 2013, the highest level since 1997. Some workers may file charges at a state Fair Employment Practice Agency, says Ray Peeler, a senior attorney adviser for the EEOC. And of course, many employees don't actually take action after facing age discrimination at work. "Our numbers don't necessarily reflect what all's going on out in the world," says Peeler.

There are at least two possible explanations for why the number of charges have started to fall. For one, the economy has been on an upswing. "It's a well-established phenomenon that if the economy is going down, the number of job discrimination claims in various categories goes way up," says Garry Mathiason, a senior partner with Littler Mendelson, a global employment law firm. Now, he says, "employment is getting better. So there's a little bit of a drop."

Another potential rationale is that years after the worst of the recession's cutbacks, more older workers are experiencing age discrimination as they try to get hired -- rather than on their way out the door. Older employees, says Laurie McCann, senior attorney with the AARP Foundation, are overrepresented among the ranks of the long-term unemployed. While they may suspect age is limiting them from getting interviews or callbacks, it's typically not enough for them to file an actual claim. "You're on the outside looking in," she says.

A 2012 AARP survey found that 77 percent of unemployed respondents aged 45 to 54 said workers face age discrimination in the workplace, based on their experience. Just 58 percent of those employed full-time said the same.

Increases in online job applications, McCann says, also create more stumbling blocks for older workers. Candidates who might have left the year they graduated from college off of a paper or e-mailed resume can't do that if a web-based application requires them to complete every field before it can be submitted. As a result of such practices, says Norman Matloff, a computer science professor at University of California, Davis who has studied age discrimination in the tech industry, many older workers "can't even get to first base. They can't get past H.R."

The tech industry has been under particular scrutiny recently for its youth-oriented culture. Big Silicon Valley firms have been called out for explicitly requesting "new grads" in job descriptions -- a no-no in the eyes of the EEOC. Bay Area venture capitalists have a reputation for bias against older founders. And plastic surgeons in San Francisco say they're getting queries from the under-40 crowd about Botox and baldness. In the tech industry, says Matloff, "it's a funny definition of old. We're not talking about 55. We're talking about 35."

But despite tech's reputation for valuing youth, some see a thawing in the attention given to older workers. Kris Stadelman, the director of NOVA, a work force development and training agency in the Bay Area, says she's watched an interesting shift happen over the past year or so. Top-tier tech companies still have a reputation among job seekers and recruiters as wanting younger workers, she says. "We still hear things like 'stale degree' used as a euphemism for age," she says.

That said, Stadelman has seen a "warming trend" toward older workers among more mid-tier firms. There's more hiring going on, for one. But she also believes the "feeding frenzy" for young tech whizzes and the high salaries they've commanded have produced some anecdotal evidence of a trend in reverse. At the more mid-tier companies, she says, "their impression is that they've created this false marketplace. Now, they're looking at the relatively less expensive older employees."

Whether age discrimination is actually rising or falling, one thing is clear: Proving these claims is particularly hard. With other types of discrimination, such as race, employees have to show that race was just one of the factors in, say, losing their job. But if the complaint is about age, the standard of proof is higher. Employees, says the EEOC's Peeler, have to show "it was the reason that tipped the scales."

President Obama Signs a New Executive Order to Protect LGBT Workers

From:  http://www.whitehouse.gov/blog/2014/07/21/president-obama-signs-new-executive-order-protect-lgbt-workers

July 21, 2014

"Many of you have worked for a long time to see this day coming."

Those were President Obama's words to the audience in the East Room of the White House this morning, before he signed an Executive Order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity.

At the signing, the President explained how, because of their "passionate advocacy and the irrefutable rightness of [their] cause, our government -- government of the people, by the people, and for the people -- will become just a little bit fairer."

Today's Executive Order amends Executive Order 11246, issued by President Lyndon B. Johnson, adding sexual orientation and gender identity to the list of protected categories in the existing Executive Order covering federal contractors.

"It doesn't make much sense," President Obama said, "but today in America, millions of our fellow citizens wake up and go to work with the awareness that they could lose their job, not because of anything they do or fail to do, but because of who they are -- lesbian, gay, bisexual, transgender. And that’s wrong."

The President also pointed out that workplace equality is simply good business. Noting that most of the Fortune 500 companies already have nondiscrimination policies on their books, he explained that these policies help companies attract and retain the best talent.

"Despite all that," he said, "in too many states and in too many workplaces, simply being gay, lesbian, bisexual, or transgender can still be a fireable offense. There are people here today who’ve lost their jobs for that reason."

I firmly believe that it’s time to address this injustice for every American.

— President Obama, July 21, 2014

"I’m going to do what I can, with the authority I have, to act," the President said. "The rest of you, of course, need to keep putting pressure on Congress to pass federal legislation that resolves this problem once and for all."

EEOC Issues Updated Enforcement Guidance On Pregnancy Discrimination And Related Issues

From the EEOC's website:  www.eeoc.gov
http://www.eeoc.gov/eeoc/newsroom/release/7-14-14.cfm

Press Release
July 14, 2014

WASHINGTON -- The U.S. Equal Employment Opportunity Commission (EEOC) today issued Enforcement Guidance on Pregnancy Discrimination and Related Issues, along with a question and answer document about the guidance and a Fact Sheet for Small Businesses.  The Enforcement Guidance, Q&A document, and Fact Sheet will be available on the  EEOC's website.

This is the first comprehensive update of the Commission's guidance on the subject of discrimination against pregnant workers since the 1983 publication of a Compliance Manual chapter on the subject.  This guidance supersedes that document and incorporates significant developments in the law during the past 30 years.

In addition to addressing the requirements of the Pregnancy Discrimination Act (PDA), the guidance discusses the application of the Americans with Disabilities Act (ADA) as amended in 2008, to individuals who have pregnancy-related disabilities.

"Pregnancy is not a justification for excluding women from jobs that they are qualified to perform, and it cannot be a basis for denying employment or treating women less favorably than co-workers similar in their ability or inability to work," said EEOC Chair Jacqueline A. Berrien.  "Despite much progress, we continue to see a significant number of charges alleging pregnancy discrimination, and our investigations have revealed the persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices.  This guidance will aid employers, job seekers, and workers in complying with the Pregnancy Discrimination Act and Americans with Disabilities Act, and thus advance EEOC's Strategic Enforcement Plan priority of addressing the emerging issue of the interaction between these two anti-discrimination statutes."

Much of the analysis in the enforcement guidance is an update of longstanding EEOC policy.  The guidance sets out the fundamental PDA requirements that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and that women affected by pregnancy, childbirth or related medical conditions must be treated the same as other persons similar in their ability or inability to work.  The guidance also explains how the ADA's definition of "disability" might apply to workers with impairments related to pregnancy.

Among other issues, the guidance discusses:

• The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman's potential to become pregnant;
• Lactation as a covered pregnancy-related medical condition;
• The circumstances under which employers may have to provide light duty for pregnant workers;
• Issues related to leave for pregnancy and for medical conditions related to pregnancy;
• The PDA's prohibition against requiring pregnant workers who are able to do their jobs to take leave;
• The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms;
• When employers may have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary; and
• Best practices for employers to avoid unlawful discrimination against pregnant workers.

In February, 2012, the Commission held a public meeting to hear from stakeholders about issues related to pregnancy discrimination and discrimination against individuals with caregiving responsibilities.  The Commission Meeting record was held open for 15 days following the meeting, to facilitate public comment.  The materials from that meeting, including testimony and transcripts, are available at www.eeoc.gov/eeoc/meetings/2-15-12/index.cfm.

The EEOC enforces federal laws prohibiting employment discrimination.  Further information about the EEOC is available on its web site at www.eeoc.gov.

What Do I Do If I Am Offered a Severance Package or Separation Agreement Under Minnesota Law?

Losing a job is devastating and scary. There are many decisions to be made, including whether to sign a severance or separation agreement. When you sign these agreements, you are giving up your right to pursue legal action against your employer in exchange for the money the employer is offering you.

In more than 35 years of experience, we have come across almost every situation and deciding whether to sign such an agreement should not be done hastily. While the employer may be pressuring you to make a decision right away, you have the right to talk to an attorney before signing the agreement. An attorney can help you figure out whether it makes sense to pursue additional benefits or give up your right to pursue legal action against your employer in exchange for the money offered in the agreement.

There are many things to consider, such as:

•           Do I have legal claims against my employer?   

A careful review of the agreement is important. When you sign the agreement, you are most likely releasing all employment law claims you may have against your employer. If you release claims, you cannot sue the employer for wrongful termination or for anything else related to your employment. It is important to take the time to review the agreement and to understand how signing it may impact you going forward. An attorney can help you determine whether you have potential employment law claims such as discrimination, harassment, retaliation, violations of leave laws, failure to accommodate, defamation, owed wages and others. If you do have legal claims, you may be able to negotiate with the employer to increase the package it is offering.

•           If I sign, will I be subject to a noncompete or other restrictions?

Before you started working for the employer or during your employment, you may have signed a restrictive covenant such as a noncompete agreement, a nonsolicitation agreement and/or a confidentiality agreement. In most cases, the language in these agreements continues for a period of time after your employment ends. 

However, if you did not sign any restrictive covenant, you should consider such restrictions carefully. Employers can and do place these restrictive covenants into separation agreements. If you sign an agreement with these restrictive covenants, they likely bind you. You should not take these obligations lightly. These provisions often restrict your ability to obtain new employment. Before you sign the separation agreement, you need to consider whether not being able to work in a certain field for a year – the length of many noncompete agreements - makes sense if the employer is only offering you a severance, for example, of two months' salary.

•           Is the agreement mutual?

You should review the agreement to consider if there is mutual language in terms of nondisparagement and confidentiality of the agreement. If the employer requires you to keep the agreement confidential and to not say bad things about it, you may want to also require the employer to do the same. Nondisparagement language may be important if you want to ensure that your reputation is protected - meaning there is specific language in the agreement outlining what the employer will say to a prospective employer that contacts it. 

•           If I sign, when will I receive the payment?

Review the agreement to determine the payment schedule. Will you receive a lump sum payment or payments over time? You want to make sure there is language in the agreement stating when you will be paid.

•           If I sign, will I have any ongoing obligations to the employer?

Some employers include language in the agreement stating that you will provide assistance to the employer with legal matters or other matters on which you have knowledge, even though the employer has ended your employment. Often, the agreement will not provide details that are favorable to you.

•           Will the employer pay me for outstanding business expenses?

The agreement may include language stating that you agree you have been paid all owed monies. Before you sign, make sure that you have been paid for all expenses owed to you. If not, you want to include language that ensures that the employer will pay you for any unreimbursed business expenses by a certain date. 

•           Will I receive payment for unused paid time off (PTO)? 

In Minnesota, whether you receive unused PTO upon the end of your employment is controlled by the employer’s policies. If the employer’s policy provides for such payment, you are entitled to that payment even if you do not sign the agreement.

•           Will my benefits continue?

When your employment ends, so do benefits such as medical, dental and life insurance. Under federal law, you are eligible to sign up for COBRA benefits. If the employer has not offered to pay part of your COBRA benefits, you may wish to try and negotiate for the employer to do so.

•           If I sign the agreement, can I still get long-term disability benefits?

If you suffer from a health condition that may entitle you to long-term disability benefits, you need to make sure that you are not releasing ERISA (Employee Retirement Income Security Act) claims. You also need to review the long-term disability policy. Some policies require an applicant for long-term disability benefits to be an employee at the time of application. Signing an agreement that ends employment may foreclose an opportunity to get long-term disability benefits.

•           Can I get unemployment compensation benefits?

In Minnesota, the state unemployment office determines whether you are eligible to receive unemployment benefits. Generally, if you lose your job through no fault of your own, you are entitled to unemployment compensation. How the employer designates the money you receive can affect the timing of when you are eligible to receive unemployment compensation.

•           If I find a new job, will I have to give the money back to the employer?

Beware of language in the agreement that states if you get a new job, you have to pay back some or all of the money you received for signing the agreement. 

•           Do I have to pay income taxes on the money I receive as a severance or settlement payment?

Generally yes. The amount you will be taxed depends on how the money is designated in the agreement. You should seek the advice of a tax attorney or tax adviser to learn how the money you receive will impact your taxes. 

•           Can I still bring a charge of discrimination with a government agency if I sign the agreement?

Yes. An employer cannot include language in the agreement that forbids you to file a charge of discrimination with a governmental agency. However, the employer can include language that says if you sign the agreement, you are releasing your right to receive any monetary damages if you do file a charge with a governmental agency.

•           I was terminated in a group layoff. What paperwork does the employer have to give me?

Employers that offer severance packages to laid off employees and require those employees to release all potential legal claims in exchange for receiving those benefits must comply with requirements set forth in various laws.

The Age Discrimination in Employment Act (ADEA) protects employees 40 and older from age discrimination. The Older Workers Benefit Protection Act (OWBPA), part of the ADEA, is designed to protect the rights and benefits of older workers and imposes requirements for waivers of ADEA rights.

The OWBPA was enacted to ensure that employees receive the information necessary to evaluate any potential age claim they may have before giving up that claim. Among other things, the OWBPA requires employers to include disclosures with the severance package that list the job titles and ages of the employees terminated and retained, the decisional unit from which employees were selected for termination, the criteria the employer used to select employees for termination, and, in some cases, if the employer has done prior layoffs, information about those layoffs. Failure to comply with the OWBPA makes it difficult to determine whether there is age discrimination and can invalidate a release.

In our experience, terminated employees often do not receive the required OWBPA disclosure information or the information they receive is inadequate.

•           What if I already signed the agreement?  Am I stuck?

Not necessarily. In Minnesota, you have seven days to rescind the agreement under the Age Discrimination in Employment Act (ADEA) and you have 15 days to rescind the agreement under the Minnesota Human Rights Act. Be aware of requirements in the agreement related to rescission.

We have experience in successfully challenging release agreements that do not comply with the OWBPA. In Peterson v. Seagate US, LLC, 2008 U.S. Dist. LEXIS 42179, No. 07-2502 (D. Minn. May 28, 2008) the court found that the release agreements were invalid as a matter of law because they failed to meet all of the OWBPA requirements.

•           Are there other issues to consider?

Yes, because each person’s employment situation is different. It is strongly advised that you consult with an attorney before signing any agreement.

Bertelson Law Offices, P.A., has more than 35 years of combined experience reviewing, evaluating and strategically negotiating severance agreements, separation agreements, buyout packages, executive agreements and noncompete agreements.

Corporate decisions to downsize or reorganize have hit employees hard. Many employees who receive news of their termination are in shock and believe that the language in the separation agreement they received is standard and that all legal requirements must have been considered. However, each individual's circumstances are different, making the reviewing attorney's job crucial.

Bertelson Law Offices has a successful history of reviewing, evaluating and strategically negotiating severance agreements, buyout packages, executive agreements and noncompete agreements. Because we practice exclusively in the area of employment law, we are able to provide you with knowledgeable and personal service for your individual needs and goals. We get to know our clients well. We can help you assess whether the package you were offered makes sense considering the specifics of your employment. If the package you were offered does not seem reasonable or adequate, we may be able to help you negotiate better terms. We offer a thorough review to help you determine how you would be impacted by signing or if it would be appropriate to move forward with legal claims. At Bertelson Law Offices, P.A., we are skilled at recognizing if a package was offered because you were wrongfully terminated, and we can help you protect your right to file a discrimination claim when necessary. We accomplish this through a deep understanding of the law and knowledge of the subtleties of the negotiation process and your goals.