ADA settlement shows risks of rigid policies

Rigid policies can oftentimes be a good way to insulate yourself from future legal troubles.  Sometimes, though, the rigidity of a policy can cost you.  And recently, it cost a grocery chain $3.2 million.


The Equal Employment Opportunity Commission (EEOC) sued a grocery chain for terminating 110 employees after their approved medical leaves had expired, alleging that the company’s disability leave policy violated the Americans with Disabilities Act (ADA).  The grocery chain agreed to settle for $3.2 million, rather than fight the allegation in court.


How was the policy viewed as having violated the ADA?


The EEOC alleged the disability leave policy violated the ADA because it:


  • required employees to prove they were 100% able to perform their job duties before returning to work
  • did not provide individualized analysis for each employee’s return – which did not afford opportunities to identify reasonable accommodation
  • only allowed employees who were injured on the job to take part in a “light-duty” program – which, the EEOC alleged, discriminated against disabled employees.


Besides the $3.2 million, the settlement also required the company to change its leave policies.  Be sure to review your company’s leave policies, to make sure you’re in compliance with ADA requirements.


Free handbook for I-9? I win!

It’s finally here – the U.S. Citizenship and Immigration Services’ (USCIS) updated I-9 Handbook for Employers, also known as Form M-274!  No need to be embarrassed – I teared up when I found out too.


This free updated handbook is available for download at the USCIS website.  In the book you’ll find loads of helpful I-9 tips and rules spelled out, such as:


  • Never begin the I-9 process until the job offer has been accepted.
  • The three business days the employer has to complete Section 2 of the I-9 does not include the day of hire.
  • What to do about employee name changes (Ochocinco, I’m looking at you).
  • Notes on special E-Verify adapatations.


Click here to download the handbook.

Check this: free EEO webinar

Knowing how to administer pre-employment screening in a way that keeps you safe from legal trouble is of great importance to employers right now.  I know this because I was going to write about this webinar last week – but registration had filled up.  Luckily for you, they’ve scheduled a second date!


Our partners at Fisher & Phillips LLC will be hosting “Background Screening and Testing:  Treacherous EEO Terrain,” a free webinar on March 17th.


You may have noticed that the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP) have been scrutinizing pre-employment testing and background screening as of late – saying it creates unintentional disparities in hiring rates between different groups, or “adverse impact.”


If you use pre-employment testing and background screening to find your employees, learn how to do so safely with Merrily Archer of Fisher & Phillips (formerly of the EEOC).


Participation in this webinar has been approved for one hour of Human Resource Certification Institute (HCRI) credit.  Click here to register

Let the whistle blow

When I think of “whistleblowing,” the first image that pops into my head is one of Fred Flintstone

shouting “Yabadabadoo!” and sliding down a dinosaur tail after a bird – that somehow sounded e

xactly like a steam whistle – releases him from work.


But what should come to mind is something like Fred reporting Mr. Slate to the SEC for insider

trading – and if Fred survived through March 2011, he might get paid by the SEC to do so.


The Dodd-Frank Act now authorizes the SEC to give incentive payments to whistleblowers if the

information they provide the SEC results in successful prosecution or civil suit.  What could this

mean?  Well, employees now have a monetary encouragement to report infractions to the SEC,

instead of reporting them in-house.


The incentive payments can be significant – between 10% and 30% of penalties paid by the

defendant in the relevant case.  The SEC must create rules to implement the Dodd-Frank

whistleblower program by March 2011.


And to see just how pre-historic the Flintstones seem now, watch this video.

NLRB status update: …

It’s finally here, the moment we’ve all been waiting for – the first National Labor Relations Board (NLRB) hearing on a firing brought on by Facebook activity is over.  And the legislative result is…




On February 7th, 2011, in an ending that must disappoint all those who have been paying attention to it, a settlement was reached in what could have been a groundbreaking case regarding social media sites and employment policy.


To give you an idea of just how important this case could have been if it hadn’t ended in a settlement…well, I’m still writing on it – isn’t that proof enough?


Really, though, there is currently no significant legislation in place regarding employee privacy on social media sites – which leaves social media policies with little authoritative guidance, and many thought this case was going to lay the foundation for it.


I guess we’ll just have to wait and see what happens when the NLRB tries again.


To read more on the settlement, click here or here.

Health care reform update webinar

Let’s face it – the health care bill is confusing.  Enough Said.


To help yourself sift through the sands of change, you can register for the “2011 Health Care Reform Regulatory Update” – a live webinar with Ogletree Deakins on March 22, 2011.


The webinar will review:


  • the bill’s developments since its enactment in March 2010
  • how those developments impact employer-sponsored health plans
  • the latest news from the courts, where the bill’s constitutionality is being challenged.


If you’re worried about, confused by, or just an avid observer of the health care bill, this webinar might be for you!

Hilton Hotels dodges discrimination lawsuit

I’m about to say a scary word:  terrorist.  And just like that, the HR Update is up to threat level orange.


Hilton Hotels recently escaped a retaliation suit in which a former employee claimed he was fired for reporting discrimination.  The employee, Walid El Sayed, an American Muslim of Egyptian descent, had complained to his supervisor that a co-worker called him a “Terrorist Muslim Taliban.”  Three weeks later, El Sayed was terminated.


Hilton Hotels was able to show they did not discharge El Sayed in retaliation for the complaint, but actually fired him because they discovered employment history omissions on his application – which El Sayed admitted to be true.  Hilton’s personnel policy holds such an offense as grounds for dismissal.


The court’s decision for dismissal stated that “proximity of events” is not enough to prove retaliation – thus, Hilton won the case without going to trial, giving another example of how important it is to be able to provide clear, documented, and non-discriminatory reasons for adverse employment actions.