The Equal Employment Opportunity Commission (EEOC) announced in January that 93,277 workplace discrimination charges were filed nationwide during 2009 — the second-highest level ever — and monetary relief obtained for victims totaled more than $376 million. The 2009 data show that private-sector job bias charges alleging discrimination based on disability, religion, and national origin hit record highs. The number of charges alleging age-based discrimination reached the second-highest level ever.

Continuing a decade-long trend, the most frequently filed charges with the EEOC in 2009 were those alleging retaliation (36%) and discrimination based on race (36%) and sex (30%). “The latest data tell us that, as the first decade of the 21st century comes to a close, the Commission’s work is far from finished,” said EEOC Acting Chairman Stuart J. Ishimaru. He added, “Employers must step up their efforts to foster discrimination-free and inclusive workplaces, or risk enforcement and litigation by the EEOC.”

Basic Training for Supervisors - easy-to-read guides to avoid legal hazards, covering more than 17 areas of supervisor training

Training works
It’s obvious that when the economy is weak, the number of discrimination claims increases. Perhaps less obvious, but equally true, is that in bad economic times, budgets for workplace training are often cut (or eliminated altogether), especially by smaller employers. Yet compliance training can prevent claims and thus save employers money. Historical data support a link between effective compliance training and a decline in discrimination claims.

For example, sex-based claims used to make up 65 percent of all harassment charges. Now they comprise 43 percent of all harassment charges. More specifically, sexual harassment claims accounted for 20 percent of the total charges in 1999.

Currently, they represent only 15 percent of all charges. Many people credit antiharassment training as a significant factor in the decline. It follows that if employers expand the scope of training to emphasize national origin, age- and disability-based, and other types of harassment, they will see a decline in those charges, also. Moreover, in the event of a claim, training provides employers with a critical defense.

A number of factors point to the likelihood that equal employment opportunity (EEO) claims will rise in 2010. The recent amendments to the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) have expanded employee protections, and the U.S. Supreme Court’s recent opinions in retaliation cases have expanded the scope of protected activity. Thus, training is more important than ever.

First Line of Defense: Employment Law Training for Supervisors on 12 areas of employment law

Added value of training
EEO compliance training can have less tangible, but equally important, value. Many clients believe that if employees and customers see that you value compliance and diversity, you’ll be better positioned to retain — or obtain — their loyalty when economic activity increases.

For employers that have had to implement layoffs, remaining employees may be eager, or at least willing, learners. Training lets employees know they are valued, which can quell job security anxiety and increase employee retention.

A recent study by the Society for Human Resource Management found that despite the fact that unemployment is at a 15-year high, 25 percent of employees will look for a new job in 2010. Research shows that training and professional development opportunities improve employee satisfaction. Recessions put a premium on good employees, and they are more likely to stay if they are receiving training and development.

Additionally, trimming compliance training can be a factor counted against you when you’re facing a discrimination charge. The EEOC or a jury may conclude that you think training isn’t important. That’s not a good thing when you’re facing a discrimination charge.

What’s an HR manager to do?
Commitment to EEO compliance training makes good business sense, but management often fails to understand the connection, especially in tough times. HR personnel have to be proactive and efficient. To be better prepared, consider taking the following steps:

• Make sure discrimination and antiharassment policies (and related training) address more than just sex (there are several jokes I could insert here, but I’ll exercise some judgment).
• Focus training on ADA compliance, reasonable accommodations, FMLA implementation, immigration compliance, and wage and hour issues — areas that are all expected to see increased claims.
• If you have to cut back, focus on supervisory training — they need it most.
• Make EEO compliance part of supervisory evaluations; it can increase pressure to comply, making training more effective and reducing the amount of training needed.
• Take advantage of technology by implementing Internet-based training for distant locations and conducting Webinars to eliminate travel and reduce lost work time.
• Retain counsel to audit training programs, but conduct the training yourself.
• Consider “pooling” or sharing training and related materials with other similar employers.

Or you can just eliminate EEO training altogether and hope for the best in 2010. When an operations executive suggests that, ask him if that’s how he runs his part of the business. He may get the point.

Training Today: Online training for supervisors

Bottom line
Employers are aware of the bottom line now more than ever. Hopefully, shortsighted business planning won’t lead to the elimination of EEO compliance training. You would be wise to implement efficient training strategies now and to marshal the evidence in support of the economic impact EEO compliance training can have on your bottom line.

Because one of the most difficult tasks HR professionals face is determining whether their employees are exempt, each time a decision is issued on the topic by an appeals court, it’s worth noting and taking guidance from. The latest decision from the Second Circuit relates to the administrative exemption, which applies to certain employees who are afforded substantial discretion in their jobs.

Audit your wage and hour and employee classification policies and practices with the Employment Practices Self-Audit Workbook

The FLSA
The Fair Labor Standards Act (FLSA) and Connecticut law both require that employees be paid time and a half for all hours worked over 40 in a given week. However, exceptions are made, including those for employees working in bona fide executive, administrative, or professional roles.

If you misclassify an employee as being in one of the exempt categories, she may be entitled to recover damages, including unpaid overtime, an equal amount in liquidated damages, plus attorneys’ fees and court costs.

If the misclassification is found to be willful, punitive damages are possible, and the court can base its damages award on three years of unpaid overtime, rather than on two years as in nonwillful cases.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including overtime and FLSA employee classifications and exemptions

Selling ads isn’t administrating
In September 2002, Lynore Reiseck began working as a regional director of sales at Universal Communications of Miami in New York City. She was responsible for generating advertising sales from the travel and finance sectors in the northeastern United States and Canada for Universal’s magazine publication, Elite Traveler. She was paid a base salary plus commission, but no overtime.

She was fired from Universal in February 2004. Three months later, in May, she filed a lawsuit claiming, among other things, that Universal violated the FLSA and New York’s state wage and hour laws (which are very similar to the FLSA).

Universal asked the court for a ruling before trial that Reiseck was an exempt administrative employee or, alternatively, that she fell under the FLSA’s “outside salesperson” or “commissioned salesperson” exceptions. The court found that she was an exempt administrative employee and threw out the case. Reiseck appealed to the Second Circuit.

State-by-state comparison of 50 employment laws in all 50 states

Court’s decision
The Second Circuit explained that the FLSA’s administrative exemption applies to employees who perform work directly related to management policies or general business operations and who customarily and regularly exercise discretion and independent judgment in their job. However, the court found that Reiseck’s sales work, which consumed more than half of her time, wasn’t directly related to management policies or general business operations.

In reaching its conclusion, the court considered the U.S. Department of Labor’s (DOL) nonbinding interpretive regulations. The Second Circuit sent the case back to the trial court for a determination of whether the “outside salesperson” or “commissioned salesperson” exceptions, which the trial court never decided, applied. Stay tuned.

Lesson
This is the second decision from the Second Circuit in the past few months making clear that not every employee who exercises discretion in carrying out her job duties will meet the requirements of the administrative exemption.

The FLSA’s exemptions are construed generously in favor of the employee, and sales and work related to production will not qualify. To determine whether an FLSA exemption is applicable, you must carefully analyze the employee’s job duties or, better yet, consult with an attorney with expertise in wage and hour matters. Misclassifying employees is serious business and can result in substantial liability if you make the wrong call, even if it’s unintentional.

In fact, the perception might be that HR actually costs money — a reasonable accommodation here, additional leave for an employee there, more training, more evaluations, more record keeping, and more consultations with expensive lawyers. But having HR ensure compliance with myriad employment laws is a small price compared to the potential costs of employment litigation.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics

An ounce of prevention is worth a pound of cure
There’s no question that employment litigation is a huge and growing problem for employers. Race, sex, and age discrimination claims have increased between 20 and 40 percent, depending on the category, in the past five years. Disability discrimination claims are up 10 percent from last year alone.

On top of factors such as the poor economy and high unemployment rates, the Obama administration has announced its intention to increase both awareness and enforcement of employment laws. Its plans include a national awareness campaign of key labor laws, increased enforcement of wage and hour laws, and additional staffing at the Equal Employment Opportunity Commission (EEOC).

Not only have the number of claims increased in recent years, but the median award for employment-related claims has also increased. In 2008, the median award was $326,640. In 2009, that number skyrocketed by 60 percent — and that doesn’t include the cost to litigate an employment discrimination case, generally a minimum of $150,000, and the possibility that you, as the employer, may have to pay the employee’s attorneys’ fees if you lose.

In the end, an employment law mistake could easily cost your company well over a half million dollars. And given that employers win jury cases only about 38 percent of the time, litigation is an extremely costly gamble.

Audit your policies and practices with the Employment Practices Self-Audit Workbook

Case in point
This year, the First U.S. Circuit Court of Appeals decided a retaliation case that cost the U.S. Department of Justice more than $600,000 in damages alone. The employee, who was terminated after telling the FBI about prisoner abuse, was awarded actual damages of $360,000.

To add to the Justice Department’s woes, the jury then tacked on an additional $250,000 in punitive damages. The First Circuit upheld the punitive damages award as reasonable. Other recent big-dollar employment payouts include Texaco ($176 million), Coca-Cola ($192 million), and Shoney’s ($105 million) to settle race discrimination claims, and Home Depot ($104 million), State Farm Insurance ($157 million), and Publix Markets ($81 million) to settle sex and gender discrimination claims.

State-by-state comparision of 50 laws in all 50 states

Consider reconsidering
Considering that an HR generalist makes an average of $33,000 to $73,000 depending on years of experience and location, an ounce of prevention really is worth a pound of cure.

The employment law field is constantly changing. In 2009 alone, we saw employee-friendly changes to the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and COBRA as well as new federal laws relating to fair pay and genetic nondiscrimination.

Last year also brought a slew of state laws designed to help employees, including protections for nursing mothers and an extended period to file discrimination claims. The list doesn’t even begin to touch the many changes brought about by the hundreds of new court decisions and administrative regulations and guidelines that were issued.

Most busy managers don’t have time to keep on top of the ever- shifting sands of employment law. If you weigh the burden of protecting your company from successful employment suits against the cost of failure, HR is looking like a better deal than ever!

And while female-male sexual harassment certainly makes up some portion of those claims, it’s evident that male-male harassment claims are also on the rise. These claims are resulting in costly settlements to resolve alleged behaviors that some employers may not even believe are illegal. Read on for more details.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including the sexual harassment

Cheesecake Factory has big portions, big settlement
Just one example of the rising number of male-male sexual harassment claims is the 2008 case of EEOC v. Cheesecake Factory, Inc . Since the first EEOC settlement for male-male harassment was reached in August 1999 (for a hefty $1.9 million), the EEOC has filed similar suits in recent years against Carmike Cinemas, Inc., Haydon Brothers Contracting, and Fleming’s Prime Steak House. Just this past December, a male-male harassment suit was filed against the upscale New York restaurant Sparks Steak House.

In the Cheesecake Factory case, six male employees alleged that they were subjected to repeated sexual harassment by a group of male kitchen workers at a Phoenix restaurant. The employees who filed suit with the EEOC claimed they were subjected to egregious sexually abusive behavior, including sexually charged remarks, genital groping, and even simulated rape. The EEOC alleged that managers had witnessed the acts, which included employees being dragged forcibly into the walk-in refrigerator, but had made no efforts to curtail the behavior. Eventually, one employee called the police for assistance.

The company denied the allegations, settling the suit this past November for $345,000 and agreeing to specifically provide sexual harassment training to employees and managers.

Stop Sexual Harassment DVD-based training series for supervisors 2009 edition

Oncale opened doors for male-male claims
Before 1998, many federal courts held that a male couldn’t file a sexual harassment claim against another male. However, the U.S. Supreme Court’s ruling in Oncale v. Sundowner Offshore Services, Inc. , held that same- sex harassment could be a violation of Title VII of the Civil Rights Act of 1964. In the case, a male employee working on an oil platform was first verbally and then sexually assaulted by three other male coworkers, one of whom was a supervisor.

The key question in the case was whether the employee had been harassed “because of” his sex, and the court identified three avenues through which same-sex harassment may occur. Specifically, male-male sexual harassment may be found if the alleged harassment:

1. is a result of sexual desire;
2. is motivated by general hostility toward fellow men; or
3. occurs as a result of fellow men being treated differently than women in the workplace.

Same-sex harassment may also occur if an employee is mistreated because of perceived nonconformance with gender stereotypes, e.g., male employees bullying other male employees they believe are “effeminate.”

Note that sexual desire is only one of three possible causes for the harassment. As a result, the sexual orientation of the parties isn’t relevant to whether the event is sexual harassment. The Oncale case set the precedent for same-sex harassment as well as sexual harassment without motivation of sexual desire. In many sexual harassment cases, the aggressors’ behavior is a form of intimidation rather than exhibition of sexual attraction. In fact, in the Cheesecake Factory case, for example, no allegations were made that the harassers were acting out of sexual desire.

Basic Training For Supervisors, easy-to-read guides on employment laws, including preventing and dealing with sexual harassment

Bottom line

You have a responsibility to ensure that your workplace is free of sexual harassment. Title VII requires supervisors and employers to act promptly to investigate and remedy sexual harassment once they become aware of it. Failure to do so can lead to employer liability.

Thus, you should take harassment complaints seriously — no matter who makes them. If a male employee complains about the actions of another male employee, you should investigate and respond in the same manner you would respond to a female’s complaint about a male or vice versa.

You also should review your harassment policies to ensure that they apply to all actions “based on sex,” including actions between men. Your preventive program should include an explicit policy against sexual harassment that’s clearly and regularly communicated to your employees and effectively implemented as well as a specific procedure for resolving sexual harassment complaints.

Typically, your policy should appear in your employee handbook, which employees must read before beginning their employment, and the policy should also be posted in a conspicuous place in your workplace. Finally, your policy should include an antiretaliation provision assuring employees who make good-faith complaints that they won’t be retaliated against.

Audit your policies and practices with the Employment Practices Self-Audit Workbook

Distribute, distribute, distribute
To be an effective management tool, personnel policies and employee handbooks must be distributed to all employees. Employers all too often overlook the need to communicate handbook and other policy changes to their employees and underestimate the importance of requiring employees to acknowledge their receipt of a revised policy. A signed acknowledgment is important proof that employees have received and are aware of your current policies — thus negating any claim that an employee “didn’t know” about your rules.

Consequently, whenever you implement a policy change, you should distribute the changed policy to all employees and require some type of written acknowledgment that they have received it. The signed acknowledgments should be kept in employees’ personnel files.

Changes in policies and employee handbooks must also be communicated to your supervisors, and they must be trained on the meaning and impact of the policy changes. Without knowledge of the changes or training on how to properly apply new policies, supervisors are much more likely to enforce your rules incorrectly or make decisions that result in inconsistent treatment — which often leads to claims of discrimination.

Basic Training for Supervisors - easy-to-read guides to avoid legal hazards, covering more than 17 areas of supervisor training

Case study
Myriad problems can arise when an employer fails to inform employees of policy and handbook changes. For example, assume that when Employee A was hired, he received an employee handbook and signed an acknowledgment that he received it. At the time he was hired, the handbook stated that vacation pay accrues day by day and carries over year to year, and employees are paid for accrued but unused vacation when they leave the company.

At some later point, the employer revised its vacation pay policy to state that vacation time accrues only after an employee completes an anniversary year of employment, vacation does not accrue day by day, unused vacation cannot be carried over to the next year, and employees are not paid for earned but unused vacation days upon termination. However, the employer failed to distribute the revised policy to its current employees; it merely provided the updated policy to new hires.

When Employee A is discharged for falsifying his timecard, he demands to be paid for all of his unused vacation time up to the date of his termination. Because he was never put on notice of the change to the vacation pay policy, it’s unclear whether the employer would be able to prevail in asserting that its current vacation policy doesn’t permit him to receive vacation pay. Given that uncertainty, the employer would likely have to fight its way through a lawsuit. If the employer had clearly communicated its policy change to all employees and received an acknowledgment from Employee A that he had received and read the new policy, there would be little question that it would prevail in the dispute.

That confusion isn’t limited to vacation pay policies. It’s especially problematic when an employer changes its disciplinary rules or scheme but doesn’t alert employees to the change. If the employer attempts to discipline someone under the new rules or procedures, it would have a difficult time defending itself from allegations that its actions were improper or discriminatory because employees weren’t on notice of the changes.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including discipline

Bottom line
It may seem simple and self-evident, but employers frequently overlook the necessity of communicating rule changes to their employees. Failing to inform employees about policy changes can lead to confusion, inefficiency, and, unfortunately, litigation. Consequently, whenever you change your policies, it’s essential to promptly distribute the changes and require employees to acknowledge their receipt.

As Lewis soon found out, Cullinan expressed doubts that she was a “good fit” for the front desk position because she was less feminine than her predecessor and lacked the “Midwestern girl look.” Predictably, a lawsuit resulted. Of course, basing an employee’s future on a stereotypical “look” or “fit” instead of ability or performance is a bad idea — but is it actually illegal? Read on to find out.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including discrimination

Too much like Ellen DeGeneres?
Lewis worked for Heartland for a year and a half before her problems with Cullinan began. She received two merit-based pay increases and worked as an auditor and front desk clerk on the night shift. Lori Stifel, Lewis’ manager at the Ankeny location, lauded her performance and received permission from Cullinan to offer her the front desk day position. Cullinan said nothing of a second interview at the time.

After seeing Lewis at work, however, Cullinan told Stifel that the hotel had taken “two steps back” when Lewis took over the front desk job from her predecessor, who dressed in a more stereotypically feminine manner. Lewis, who has been called “tomboyish,” wears loose clothing, including men’s button-down shirts and pants. Stifel described her style as “an Ellen DeGeneres kind of look.” Cullinan, on the other hand, had previously boasted about the appearance of female Heartland staff members and told another hotel manager not to hire an applicant because she wasn’t pretty enough.

Cullinan ordered Stifel to return Lewis to the night shift. When she refused, Cullinan insisted on her resignation. Stifel ultimately resigned, but before she did, she instituted a requirement that all front desk applicants undergo a second interview before hire. In addition, video equipment was purchased so that a Heartland representative — specifically, Cullinan or the HR director — could see the applicant before making an offer.

Cullinan met with Lewis a month after she approved her for the day shift position. At the meeting, she told Lewis she would need to participate in a second interview to “confirm” the position. Because Stifel had told Lewis about Cullinan’s “pretty” comments, Lewis objected to the interview and said she believed she was being subjected to the interview only because she lacked the “Midwestern girl look.”

Cullinan asked her if Stifel had told her about the comment. She then discussed the need for changes in management because of decreased revenues at the Ankeny location. When Lewis stated that policy changes such as a no-smoking policy and ban on pets might explain revenue losses, Cullinan asked for her opinion on other recent policy changes. Three days later, Lewis was fired for “thwart[ing] the interview procedure” and expressing “host[ility] toward Heartland’s most recent policies.”

Lewis sued, claiming that Heartland required female employees to conform to gender-specific stereotypes to work on the day shift. Heartland asked the court to dismiss the case, arguing that Lewis couldn’t show that she was discriminated against because of her sex. The district court agreed and dismissed the case, and Lewis appealed.

Basic Training for Supervisors, easy-to-read guides on employment law, including discrimination

Eighth Circuit checks in
The Eighth U.S. Circuit Court of Appeals reversed the district court and ruled that Lewis’ case could continue to trial. The court noted that sexual stereotyping — such as the requirement that female front desk staff be “pretty” — may violate Title VII of the Civil Rights Act of 1964.

The Eighth Circuit noted that the U.S. Supreme Court held in 1989 that a female manager who was denied partnership in an accounting firm because she was “too macho” and in need of “a course at a charm school” was discriminated against because of her sex. Under this, the so-called Price Waterhouse standard, an employer may not make adverse employment decisions based on an employee’s failure to conform to gender stereotypes regarding behavior and appearance.

Because a reasonable juror could find that Cullinan’s requirements that Lewis — and other female front desk staff — be “pretty” and have the “Midwestern girl look” applied only to women and were because of sex, Lewis’ case must be allowed to go to trial. Brenna Lewis v. Heartland Inns of America, LLC , No. 08-3860 (8th Cir., Jan. 21, 2010).

State-by-state comparision of 50 laws in all 50 states including discrimination laws

Practical pointers
Inquiring readers may want to know what, if anything, this case has to do with sexual orientation. The answer is “nothing.” The Eighth Circuit, appropriately, didn’t discuss the issue of sexual orientation in its opinion, nor did it provide any inkling about Lewis’ sexual orientation.

Federal law doesn’t expressly protect individuals from discrimination based on sexual orientation, but as this case indicates, federal law does provide protection based on gender-based stereotypes of behavior and appearance applied to one sex regardless of sexual orientation. Thus, even though neither federal law nor some states’ laws provides protection based on sexual orientation, the following tips could keep employers out of trouble the next time they are faced with gender-based stereotypes:

• Discrimination “because of” sex is unlawful! Employment decisions, rules, and discriminatory attitudes that disadvantage one sex over another because of gender, including sexual stereotypes (i.e., that women should be feminine and men masculine), are illegal under Title VII.
• Men and women are protected. It is equally illegal to discriminate against a male firefighter who isn’t stereotypically masculine as it is to discriminate against a female front desk clerk who isn’t “pretty” enough.
• Dress codes with comparable burdens are lawful. This wasn’t a dress code case. Nevertheless, dress codes that impose standards of professional appearance on males and females are typically lawful and enforceable, even if they impose different but comparable burdens on the sexes.
• Listen to your inner voice. This case has yet to go to trial, and we don’t know who will ultimately prevail. But it seems from the court’s opinion that there were probably several times when Cullinan’s “inner voice” — that internal alarm that warns us of unwise and dangerous situations — should have alerted her that the matter was headed for trouble. Lewis had received rave reviews from her direct supervisors and was already working in the position when the second interview was sprung on her. She received compliments from patrons on her outstanding customer service. Stifel felt so strongly about the situation that she resigned rather than return Lewis to the night position because she wasn’t “pretty” enough. Importantly, this was plainly a case dealing with sensitive sex-based stereotypes that appear to have been unrelated to performance. Cullinan’s inner voice should have been screaming. If your inner voice tells you that you’re headed for trouble, listen.

Now imagine that despite the employee’s peculiarity, he’s an above-average worker and his job performance is otherwise acceptable. What should an employer do? Is this the type of person capable of committing heinous acts of workplace violence, or is he just socially awkward? Should you terminate his employment for fear that he may commit a violent act at work? What if his unusual behavior is the result of a mental illness protected under the Americans with Disabilities Act (ADA)?

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including the Americans with Disabilities Act and workplace violence

Background
Workplace violence accounted for 16 percent of all work-related fatalities in 2008. Homicides are consistently among the top four causes of workplace fatalities for employees. In addition to the bad PR, employers often are held accountable for episodes of workplace violence — sometimes for millions of dollars — in the form of lawsuits filed by the victims, lost business and productivity, or regulatory penalties from the Occupational Safety and Health Administration (OSHA).

In fact, workplace violence costs businesses more than $36 billion annually. In an era in which highly publicized episodes of catastrophic workplace violence are becoming more common, it would seem that employers should be carefully scrutinizing their workforce for potentially violent employees — and ousting them in the hopes of being safe rather than sorry.

While it’s true that employers should be vigilant in monitoring their employees, they must be careful not to discriminate against the mentally ill and violate the ADA. For example, taking action against an employee based only on the presumption of mental or emotional instability or failing to accommodate a mental illness can subject an employer to liability under the Act. The ADA can be harsh, punishing employers that so much as mention a worker’s mental or emotional problems to fellow employees or fail to engage in the interactive process of determining whether a worker’s mental illness can be accommodated.

What should you do? First, remember that it is not a violation of the ADA to terminate an employee for violent behavior. The Act doesn’t protect employees who exhibit or threaten violence on the job. While you must be cautious in dealing with employees you fear may engage in violent behavior, the courts have generally allowed employers some flexibility under the ADA.

An Employer’s Guide to Workplace Violence, Terrorism, and Natural Disasters

Taking action
If you become aware that an employee is making threats or has acted in a violent manner, act immediately by placing the employee on leave, preferably with pay, until you complete a thorough investigation. Your first concern should be protecting the safety of your staff. However, be aware that the investigation itself can subject you to potential claims of libel, slander, and invasion of privacy. Unfortunately, there’s no magic formula for balancing those risks. You simply must evaluate each situation objectively, keeping in mind the potential exposure from both the possibility of workplace violence and liability under the ADA.

So what steps should an employer take to effectively balance the rights of the disabled with the fear of workplace violence? First, remember that workplace violence is best prevented by early detection and intervention. Consider the following:

• Screening applicants. Probably the best way to prevent workplace violence is to avoid hiring violent employees in the first place. Conduct careful preemployment investigations of applicants. Follow up on job references, talk to former employers, check on academic credentials and licensure, and ask about gaps in employment. Consider performing background investigations, bearing in mind the limitations of investigations under the Fair Credit Reporting Act (FCRA). In other words, take preemployment screening seriously, and give deference to the objective criteria described above.
• Requiring health exams. While you generally may not ask job applicants about the existence of a mental impairment or ask them to submit to a health exam before making a job offer, you may condition a job offer on the successful completion of a health exam. Consider requiring health exams across the board for all applicants who are offered jobs. Note also that you can require a physical or mental health exam of a currentemployee only when there is a need to determine whether the employee is still able to perform the essential functions of his job. In other words, you must be careful when requiring a health exam of a current employee. Before making the request, you must have a good-faith, objective belief that health problems are having a substantial and injurious impact on the employee’s job performance.
• Creating and enforcing a zero-tolerance policy. If you don’t already have one, implement a zero-tolerance policy for workplace violence and publish it to employees and applicants. Your policy should include a complaint procedure for all employees to report concerns about potential or actual threats or intimidation without fear of reprisal. Also consider implementing a strict no-weapons policy, a drug and alcohol policy, and a conflict-resolution policy. Your policies should be applied as consistently as possible, and your policy should be “zero tolerance,” meaning any offending employees are discharged promptly. When practice doesn’t follow policy and you make exceptions, you dilute your defense.
• Preparing for changes in the workplace. Be aware of workplace events that may trigger violent behavior (e.g., layoffs, restructuring, changes in benefits, terminations, disciplinary actions, or changes in pay). If you are planning any of these events, take precautions to prevent violence before you implement the action.
• Taking threats seriously. In the vast majority of serious violent workplace incidents, the employee displayed antisocial, aggressive, or other disturbing behavior at work. Train employees to make reports under your zero-tolerance policy and to take threats seriously.
• Instituting an EAP. If you don’t already have one, consider implementing an employee assistance program (EAP). EAPs allow troubled employees to seek free counseling for stress, substance abuse, or mental health problems.
• Analyzing the safety of your workplace. Consider making improvements or additions to your workplace such as alarms, additional exits and lighting, visitor check-in procedures, or furniture rearrangement.

State-by-state comparision of 50 Employment Laws in 50 States, including guns in the workplace laws, drug testing, and background checks

Bottom line
There’s no doubt that balancing the possibility of workplace violence with the requirements of the ADA puts employers between a rock and a hard place. However, by becoming familiar with these issues, implementing certain procedures, and educating your workforce on workplace violence and the ADA, you can protect your workplace and comply with the ADA.

Supervisors can be an employer’s frontline of protection against costly discrimination claims — if they’re armed with the right information and training. Here are 11 important things every supervisor needs to know.

Basic Training for Supervisors - easy-to-read guides to avoid legal hazards, covering more than 17 areas of supervisor training

1. Discrimination. Supervisors should understand that federal law prohibits unlawful discrimination in six primary areas: race, sex, national origin, religion, age, and disability. There are state laws that also prohibit various forms of unlawful discrimination.

2. Hiring — the interview. Job applicants are protected from discrimination under the federal law Title VII of the Civil Rights Act of 1964. Supervisors participating in the hiring process should be careful to ask only appropriate questions when interviewing candidates, focusing on applicants’ credentials and matters that are specifically related to the job. They should understand that any notes taken during an interview can be used as evidence.

Preparation for an interview is a must. Interviewers should review the job requirements, the job description, and any information available on the candidate in advance. A list of questions should be prepared, and those questions should be asked of all candidates. The questions should be related to the job and geared toward determining if the applicant is a good fit for the job. Questions related to ethnicity, national origin, the applicant’s religious beliefs or practices, family planning, children, and dating or sexual orientation should not be asked. Questions related to an applicant’s primary language should not be asked unless language requirements are part of the job duties.

3. Employee performance evaluations. Accurate performance evaluations can be important tools in making a variety of personnel decisions, including merit pay raises, transfers, and selections for reductions in force. Employers should develop and adopt an evaluation system that includes job descriptions, implementation of the system, an evaluation form, and how to conduct meetings with the employees. Supervisors should be thoroughly trained on the employee performance evaluation system.

First Line of Defense: Employment Law Training for Supervisors on 12 areas of employment law

4. Dealing with problem employees. You should deal with problem employees — through your supervisors — up-front and with a systematic approach. Problem employees should be dealt with as soon as the problem comes to light. The fact that an employee is in a protected class should have nothing to do with how you deal with him. Supervisors should consider handling a problem employee by:

• reviewing in advance the company’s disciplinary system;
• having a one-on-one meeting with the employee;
• explaining their responsibility for getting work done and their responsibility to evaluate employees;
• explaining to the employee that they are being honest and need to tell the employee whether he is doing a good or poor job;
• if the employee’s previous evaluations have been good, exploring any reasons for a change in performance and discussing the current situation honestly with the employee; and
• following the company’s disciplinary system and documenting the meeting.
• Above all, don’t reward bad behavior by allowing it to continue.

5. Discipline. The company, through its supervisors, should investigate employee misconduct before implementing any disciplinary measure. The investigation should include reviewing the employee’s personnel file, interviewing coworkers, witnesses, and the offending employee, securing any physical evidence, documenting all interviews, and determining the appropriate discipline, if any.

6. Termination of employment. Terminating an employee is a serious decision. Before implementing your decision, ask yourself the following questions:

• Have I reviewed the company’s policies and procedures on terminations?
• Has a thorough investigation been completed?
• Will the termination come as a surprise to the employee?
• Has the employee’s file been appropriately documented?
• Is the employee a member of a protected class?
• If the employee is being replaced, is the replacement a member of a protected class?
• Is there a potential claim for retaliation?
• Is the reason being given for termination true and accurate?

The decision to terminate an employee should not be made lightly. When the time comes, be sure to meet with the employee in a private setting with another company representative, and be straightforward regarding the reasons for termination.

Training Today: Online training for supervisors

7. Harassment. Part of a supervisor’s job is to prevent harassment in the workplace. Harassment is a form of discrimination and an unlawful employment practice. It is any verbal or physical conduct that denigrates or shows hostility or aversion toward an individual based on his race, sex, national origin, religion, age, or disability. Harassment can include jokes, banter, or horseplay. Supervisors should understand that harassment can occur between employees of the same protected class (e.g., sex, race, national origin, or age).

8. Investigations. Employers should always investigate alleged employee misconduct before implementing any discipline. If disciplinary action results in discrimination or becomes a factor in litigation, your thorough, fair, and documented investigation will be critical in convincing the agency, judge, or jury that you acted legally. Sloppy, incomplete, or abbreviated investigations can suggest that the reason given for a disciplinary action was an afterthought and perhaps the result of some ill motive. Thus, the investigation should be conducted carefully and be well documented.

Supervisors participating in an investigation should understand that interviews with witnesses should be documented and take place in the presence of two company representatives. Interviews should be conducted of witnesses, coworkers, the alleged offending employee, and anyone identified by the accused. Each person should be interviewed to show that the investigation was thorough and impartial. If the investigation involves monitoring of e-mail, Internet use, or voice mail, the supervisor should follow the company’s written policy on monitoring electronic communications systems.

9.  Retaliation. Supervisors should understand that federal and state laws make it illegal to retaliate against an employee who has filed a charge of discrimination, testified, assisted, or participated in an investigation, proceeding, hearing, or trial, or opposed an unlawful employment practice. Supervisors should understand that employees cannot be fired, demoted, transferred to a less desirable position, or otherwise suffer an adverse employment action for engaging in protected activity. Further, employment decisions must be based on legitimate nondiscriminatory reasons.

10.  Employee threats. Employee threats must be taken seriously. Threats can lead to violence and other negative consequences in the workplace. Supervisors should not allow threats, bullying, fighting, or jokes that are disguised as threats to go on in the workplace. When those incidents occur, supervisors should be encouraged to involve HR — and if necessary, security — immediately.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including workplace investigations

11. Family and Medical Leave Act (FMLA). This complicated federal law should be explained to supervisors, although matters involving leave under the Family and Medical Leave Act (FMLA) should be referred to HR or the appropriate department. Supervisors must understand that (1) no magic words are needed from an employee to trigger FMLA coverage and (2) it is unlawful for an employer to interfere with, restrain, or deny the exercise of any right provided under the FMLA. You cannot retaliate against an employee for exercising his FMLA rights.

Americans with Disablities (ADA) Compliance Manual

Are ’scent’ allergies protected under the law?
For employees to be protected under the Americans with Disabilities Act (ADA), they must have a mental or physical condition that substantially limits a major life activity. Before the ADA Amendments Act (ADAAA) took effect in early 2009, courts considering whether an allergy to odors in the workplace qualified a person as “disabled” analyzed the following criteria:

• the nature and severity of the impairment;
• the duration or expected duration of the impairment; and
• the permanent or long-term effect of the impairment.

Significantly, courts did not consider a person disabled if mitigating measures (e.g., allergy shots or medicine) prevented the impairment from substantially limiting a major life activity.

When the employee’s allergy was unrelated to his work environment, courts typically found that the employee wasn’t disabled under the ADA. For example, a Pennsylvania court ruled that while an employee’s allergy to cats and dogs was a “physical impairment,” it didn’t substantially limit a major life activity and therefore wasn’t covered under the Act. In fact, even when the allergy stems from exposure to an aroma at the workplace, courts have been reluctant to find an individual “disabled” under the ADA.

In one noteworthy Minnesota case in 2001, an employee suffered from a condition known as “multiple chemical sensitivities,” which caused him to experience sinus and respiratory difficulties while working as a chemical engineer. Again, although the judge found that the condition qualified as an impairment, the employee wasn’t “disabled” because his symptoms were “ameliorated or eliminated by avoiding the environment at work.”

However, in January 2009, Congress enacted extensive changes to the ADA. One of the most significant changes involves determining whether an impairment substantially limits a major life activity. Under the ADAAA, that question must now be answered without regard to mitigating measures (except “ordinary eyeglasses or contact lenses”). In addition, even if the individual’s impairment doesn’t currently limit a major life activity in a substantial way, he may still be disabled if he is limited when the impairment is “active.”

Taking its cue from Congress, the Equal Employment Opportunity Commission (EEOC) has issued proposed regulations addressing the issue. The proposed regulations state in part:

An individual with asthma who is substantially limited in respiratory functions and breathing compared to most people, as indicated by the effects experienced when exposed to substances such as cleaning products, perfumes, and cigarette smoke, is an individual with a disability.

Thus, it appears that if the employee’s allergy is “severe” when he comes in contact with the odor or substance, he is likely “disabled” under the ADA.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including ADA

How do employers accommodate scent allergies?
If allergies and sensitivity to odors are in fact disabilities, the issue becomes whether you can reasonably accommodate an employee with a scent allergy. As we all know, the ADA provides that reasonable accommodations may include “job restructuring, part-time or modified work schedules, reassignment to a vacant position . . . and training materials or policies.” However, an accommodation isn’t reasonable if it imposes undue financial or administrative burdens on the employer or requires a fundamental alteration to the nature of the job.

Ten years ago, the Eighth U.S. Circuit Court of Appeals decided an important case. An employee suffered from severe sinus attacks that were triggered by common workplace irritants (e.g., heavy perfumes, smoke, nail polish, glue, and adhesives). According to the court, the employer “made great efforts” to accommodate the employee, prohibiting the use of nail polish in his department and creating a workstation for him in a room with better ventilation. It also allowed him to stop working if he was sensing an irritant so he could wait for the problem to be remedied by his supervisor.

The appeals court ruled that the employer’s accommodations were sufficient to meet its obligations under the ADA. Significantly, the court refused to require the employer to go so far as to provide the employee with “an irritant-free work environment.” Buckles v. First Data Resources, Inc.

Other appeals courts have issued similar decisions. Recently, the Third Circuit in Pennsylvania determined that an employer reasonably accommodated an employee’s disability of being allergic to various scents by instituting a perfume-free workplace policy, providing the employee with a fan and a new air filter, and changing old air filters throughout the workplace. Like the Eighth Circuit, the Third Circuit concluded that the employer didn’t have to ban all odors from the workplace, explaining:

It is unreasonable to expect [the employer] could have prevented all violations of its perfume policy, but when employees were suspected of wearing scented products, [the supervisor] responded appropriately, reminding employees, individually and collectively, of the importance of keeping a perfume-free environment.

When faced with employees claiming sensitivity to odors, you should remember that the first order of business is to engage in what the EEOC calls “the interactive process” — discussing the problem the complaining employee is having and talking with him about possible resolutions. That includes reviewing medical information and investigating the feasibility of various accommodation options.

Employers should be careful not to get hung up on semantics. In a recent Michigan case, the employer rejected a request for a “scent-free policy” because it would impose an undue hardship. However, upon closer inspection in court, it appeared that the employee was simply seeking a “perfume-free” policy and had provided the employer with a sample of such a policy. The sample policy provided that “mild scents may be worn in moderation, but strong or offensive scents that become detrimental to the work unit will not be tolerated.”

The court observed that this type of policy doesn’t require a completely scent-free environment, nor does it address the public or those outside a department. Because the employer failed to evaluate the actual accommodation that was requested and didn’t introduce any evidence showing why the perfume-free policy would create an undue burden, the court held that it was “unreasonable” in failing to accommodate the employee.

Can an employee insist on telecommuting as an accommodation?
One final issue is whether working at home is a reasonable accommodation that must be considered in response to scent allergies. The Eighth Circuit has found that “regular and reliable attendance is a necessary element of most jobs” and therefore is reluctant to require telecommuting as an accommodation. Other courts have issued similar rulings, such as the Seventh Circuit in Chicago, which explained:

Most jobs in organizations[,] public or private[,] involve team work under supervision rather than solitary unsupervised work, and team work under supervision generally cannot be performed at home without a substantial reduction in the quality of the employee’s performance. This will no doubt change as communications technology advances, but is the situation today. Generally, therefore, an employer is not required to accommodate a disability by allowing the disabled worker to work, by himself, without supervision, at home.

However, the EEOC is not convinced. Guidance from the commission on reasonable accommodation suggests that allowing an employee to telecommute might be a reasonable accommodation that has to be considered. The guidance states in part:

Changing the location where work is performed may fall under the ADA’s reasonable accommodation requirement of modifying workplace policies, even if the employer does not allow other employees to telework. However, an employer is not obligated to adopt an employee’s preferred or requested accommodation and may instead offer alternate accommodations as long as they would be effective.

It is reasonable to expect that with increasing numbers of employees working at home on a regular basis, and as technology increasingly overcomes physical distance, the EEOC will scrutinize refusals to offer the option to telecommute.

Audio Conference: New Ways to Make Telecommuting Work: A Win-Win for Employees and Employers

Bottom line
In light of court rulings on the issue, employers are advised to view allergies to odors and sensitivity to chemicals as disabilities in most cases and to anticipate that accommodation may be necessary. As in previous cases, instituting a perfume-free policy, providing fans or other ameliorative devices, and adjusting the air filters and air flow in the work area will probably be viewed as sufficient to meet your obligations under the law. Rules mandating completely fragrance-free environments are likely not going to be required by the courts because of the virtual impossibility of enforcing them.

In addition, employers shouldn’t reject telecommuting options. Although it might seem reasonable that an employee’s physical presence is a necessity, it’s best to at least review the possibility during the interactive process and make sure that old assumptions about telecommuting remain valid in your current way of doing things. In short, it makes sense to address scents in the context of disability accommodation.

Each year thousands of Americans resolve to quit smoking, but most will be unsuccessful. Some employers have begun implementing financial incentives to motivate their health plan participants to stop using tobacco. One type of reward may be a discount on health insurance premiums for employees who don’t use tobacco or are actively trying to quit smoking.

There are several names for such a program: tobacco cessation program, tobacco surcharge, or tobacco premium, to name a few. Federal law, as set out in the Health Insurance Portability and Accountability Act (HIPAA) regulations, provides specific criteria for employers that want to embark on such a plan. The following is a guide for those of you who are interested in encouraging workplace wellness.

Audio Conference: Making Your Employees Shape Up or Ship Out: How to Legally Control Benefits Costs

Help employees kick the habit
The Centers for Disease Control and Prevention reports that more deaths are caused each year by tobacco use than by all deaths from HIV, illegal drug use, alcohol use, motor vehicle injuries, suicides, and murders combined. Smoking increases the risk of dying from cancers of the lung, esophagus, larynx, and oral cavity, and smokeless tobacco causes cancer and may increase the risk for sudden death from ventricular arrhythmias. In addition to the diseases directly caused by smoking, smokers face increased health risks for conditions like coronary heart disease, stroke, bronchitis and emphysema, vascular diseases, numerous types of cancers, and aortic aneurysm.

As health care costs continue to rise, employers can save money in the long run by implementing health and wellness programs for their employees. After instituting a wellness program, you might see other long-term benefits such as increased productivity, reduced absenteeism, and improved employee morale and loyalty. Likewise, having employees who don’t use tobacco could save your company a substantial amount of money, including costs related to your group health plans.

Employers with group health plans and group health insurance issuers may wish to implement wellness programs that set specific health targets. Although this type of program may sound like prohibited discrimination against smokers and other tobacco users, the federal rules interpreting HIPAA permit some limited exceptions for properly designed “wellness programs.” Employer wellness programs aren’t limited to tobacco cessation initiatives and may include fitness programs such as gym memberships, diagnostic testing programs for health problems, and rewards for attending health education classes or weight-loss programs or following healthy lifestyle recommendations.

Audio Conference: Employee Wellness Programs: How to Minimize Your Legal Risks

Be aware of HIPAA regulations
One option for encouraging tobacco cessation available to employers is a premium differential between smokers and nonsmokers. In order for that plan not to be considered discriminatory and thus a violation of HIPAA, however, employers must be cognizant of the federal requirements for wellness programs.

In December 2006, the U.S. Department of Labor’s (DOL) Employee Benefits Security Administration, the U.S. Department of Health and Human Services, and the Treasury Department issued final regulations on the nondiscriminatory provisions of HIPAA. The regulations, which describe how the nondiscrimination provisions apply to wellness programs, are applicable to plan years beginning on or after July 1, 2007. An exception to the HIPAA nondiscrimination provisions in the regulations permits group plans to vary benefits and premiums/contributions based on whether a plan participant has met the standards of a wellness program that complies with the regulations.

While the regulations prohibit a plan from charging similarly situated individuals different premiums or contributions based on a health condition, the DOL has crafted an exception permitting a plan to establish wellness programs that allow discounts, rebates, or other incentives when a participant adheres to a program that promotes wellness or prevents disease.

To clarify the conditions of the nondiscrimination requirements, the DOL has issued further guidance in the form of a checklist, reproduced below. The checklist is intended to educate employers about what types of health promotion or disease prevention programs offered by group health plans comply with the regulations and how to determine whether your programs comply.

Wellness program checklist
A. The first day of the current plan year is ___________.
Is the date after July 1, 2007? __Yes__No

The wellness program rules are applicable for plan years beginning on or after July 1, 2007.

B. Does the plan have a wellness program? __Yes__No

The plan does not have to be entitled “wellness” to qualify, but must be a program that promotes health or prevents disease subject to the regulations.

C. Is the wellness program part of a group health plan? __Yes__No

The program is only subject to Part 7 of the Employee Retirement Income Security Act (ERISA) — the HIPAA nondiscrimination regulations — if it is part of a group health plan. If the employer operates the program as an employment policy separate from the group health plan, it is not subject to the rules discussed here.

D. Does the program discriminate based on a health factor? __Yes__No

A plan discriminates based on a health factor if it requires an individual to meet a standard related to a health factor in order to obtain a reward. Rewards can be a rebate or discount on a premium or contribution, a waiver of all or part of a cost-sharing mechanism (deductibles, copayments, or coinsurance), the absence of a surcharge, or the value of a benefit not otherwise available under the plan.

If you answered “No” to any of the above questions, stop. The plan does not maintain a program subject to the group health plan wellness program rules.

E. If the program discriminates based on a health factor, is the program saved by the benign discrimination provisions? __Yes__No

Discrimination in favor of an individual based on a health factor is permitted. The program may offer a reward to individuals based on an adverse health factor. However, this benign discrimination exception is not available if the program asks diabetics to meet a standard related to a health care factor in order to get a reward, such as requiring maintenance of a certain body mass index.

If you answered “Yes” to the previous question, stop. There are no violations of the wellness program rules.

If you answered “No” to the previous question, the wellness program bases the receipt of a reward on satisfying a standard related to a health factor and it must meet the following five compliance criteria.

F. Compliance Criteria

1. Is the amount of the reward offered under the plan limited to 20 percent of the applicable cost of coverage? __Yes__No
   If only employees are eligible to participate, the amount of the reward must not exceed 20 percent of the cost of the employee-only coverage. If employees and dependents are eligible to participate, the reward must not exceed 20 percent of the cost of coverage in which an employee and dependents are enrolled. When more than one reward is offered, all wellness programs are combined in calculating this 20 percent limit.
2. Is the plan reasonably designed to promote health or prevent disease? __Yes__No
   The program should have a reasonable chance of improving the health of or preventing disease in participating individuals. It may not be overly burdensome, a subterfuge for discriminating based on a health factor, or highly suspect in the method chosen to promote health or prevent disease.
3. Are individuals who are eligible to participate given a chance to qualify at least once per year? __Yes__No
4. Is the reward available to all similarly situated individuals? __Yes__No
   Does the program offer a reasonable alternative standard? __Yes__No
   There must be a reasonable alternative standard or waiver that provides the reward for any individual for whom: (a) it is unreasonably difficult due to a medical condition to satisfy the otherwise applicable standard; or (b) it is medically inadvisable to attempt to satisfy the otherwise applicable standard. The reasonable alternative standard may be tailored to each individual on a case-by-case basis. It is permissible for the plan or issuer to seek verification, such as a statement from the individual’s physician, that a health factor makes it unreasonably difficult or medically inadvisable for the individual to satisfy or attempt to satisfy the otherwise applicable standard.
5. Does the plan disclose the availability of a reasonable alternative in all plan materials describing the program? __Yes__No
   “If it is unreasonably difficult due to a medical condition for you to achieve the standards for the reward under this program, call us at [telephone number] and we will work with you to develop another way to qualify for the reward.”

If you answered “Yes” to all of the five questions on wellness program criteria, there are no violations of the HIPAA wellness program rules.

If you answered “No” to any of the five questions on wellness program criteria, the plan has a wellness program compliance issue.

Testing for nicotine use
Before implementing a tobacco cessation program, you may have questions about your options for enforcing the policy. Some states don’t have specific case law or regulations governing nicotine testing. Some states do, however, have statutes governing how drug testing may be conducted. Those laws must be followed for nicotine testing as well.

State-by-state comparison of 50 employment laws in all 50 states

Bottom line
Employers can encourage good health and wellness in their workplaces by implementing tobacco cessation programs that give health insurance premium discounts to nonsmokers. However, you must ensure that your wellness programs comply with federal law. Consequently, it’s wise to have competent legal counsel review your plan before you implement it.

In addition, nicotine testing may be part of your wellness program, but if it is, you must have a clear and comprehensive written policy in your employee manual or handbook and your group health plan documents.