Employment Questions Asked and (Not Yet) Answered

Scenario #1:  Let's say your company is having some financial difficulty and implements a reduction in force (RIF).  After the fact, a group of employees who are age 40 and above allege that your RIF was unlawful in that it impacted a greater percentage of employees age 40 and above than were represented in your workforce before the RIF.  Your position is that your company used reasonable factors other than age (productivity, performance) as a basis for its RIF selection process. So who bears the burden of persuasion with repsect to the "reasonableness" of the factors you used?  The 2nd U.S. Circuit Court of Appeals held that the plaintiffs bear that burden.  The case has been appealed to the U.S. Supreme Court which agreed on January 18th to hear the case. We should have a decision on or before June 30th. Meacham v. Knolls Atomic Power Laboratory

Scenario #2: Of course you know that it is unlawful to discriminate against any individual (employee or applicant) because s/he has made a charge, testified, assisted or participated in an investigation, proceeding, hearing or litigation under Title VII, the ADEA, the EPA or the ADA. The assistance or participation includes in federal or state administrative or court proceedings. But does that same legal protection apply when an individual cooperates in an internal workplace investigation? The 6th U.S. Circuit Court of Appeals recently dismissed this case ruling, "No" the employee who alleged she was fired for participating in a internal sexual harassment investigation was not protected under Title VII.  The U.S. Supreme Court also agreed on January 18th to hear this case as well so we should again have a ruling on or before June 30, 2008. Crawford v. Metropolitan Gov't of Nashville

Scenario #3:  Now don't hold your breath for an answer to this one but here's the fact pattern. Let's say your company has a policy that it will always strive the hire the most qualified candidate for each and every position.  Unfortunately, one of your employees has a serious accident that results in a permanent disability as it is defined under the Americans with Disabilities Act (ADA).  You have a vacant position in another department for which this employee meets the minimum qualifications.  You also have a more qualified candidate for that same position. Does the ADA require you to fill the vacant position with the minimally qualified employee with the disability as a reasonable accommodation?  Or does the ADA permit you to offer the employee with a disability the opportunity to bid and compete for that position?

The U.S. Supreme Court has agreed to hear this case as well.  But on January 14th the Court dismissed the case after a settlement was reached. So we will not have a definitive answer to this question anytime soon. Huber v Wal-Mart

So what's an employer to do?  Consider the decisions, if any, that have been rendered by the federal Circuit Court covering your state(s) of operation. In this case, the 8th U.S. Circuit Court (covering ND, SD, MN, NE, IA, MO AR) agreed with an earlier decision in the 7th Circuit (covering IL, IN, WI)  and held the ADA was "not an affirmative action statute" and permitted the employer to invite the employee to compete for a vacant position.  The 10th U.S. Circuit Court of Appeals, however, (covering CO, KS, NM, OK, UT, WY) has ruled that the ADA requires an employer to place the employee with a disability into the vacant position, including in lieu of a more qualified individual. If your federal circuit has not yet addressed this matter, then consider the federal ADA regulations.

The federal ADA regulations do expressly state that a "reasonable accommodation may include but is not limited to...reassignment to a vacant position..." (emphasis added) 29 CFR 1630.2(o)(2)(ii) 

In the "Interpretive Guidance" of the Appendix to Section 1630 the regulations go on to explain, "In general, reassignment should be considered only when accommodation within the individual's current position would pose an undue hardship...Employers should reassign the individual to an equivalent position, in terms of pay, status, etc., if the individual is qualified, and if the position is vacant within a reasonable amount of time." (emphasis added) 

In yet another section that addresses reasonable accommodation for employees with communicable diseases in food handling positions the regulations read, "However, if the individual with a disability is a current employee, the employer must consider whether he or she can be accommodated by reassignment to a vacant position not involving food handling." (emphasis added)

So what's an employer to do? Here we go again, "It depends." Each and every instance will need to be assessed on its own merits given the specific and particular facts and circumstances of each situation, the potential impact of your placement decision to business operations, whether you have a collective bargaining agreement, your past practice, policy, procedure, etc. 

 Hot Hits!! Education Corner

Public Presentations

Tuesday, February 12th, "2008 Legal Update" sponsored by the Lehigh Valley SHRM, 8:30 - 3:30, Allentown, PA.

Tuesdays and Thursdays, February 19, 21, 26 and 28: "Human Resource Academy" presented for the ABC Baltimore Metro Chapter, 3:00 - 5:00 p.m., Towson, MD.

Thursday, February 21st, "Employment Law, Legislative & Regulatory Update" presented for the Howard County HR Society, 8:00 - 10:30 a.m., Columbia, MD

Saturday, February 23rd, "Employment Issues for Small Business" presented for the Ohio Physical Therapy Network, Columbus, OH.

NEXT WEBCAST!

Wednesday, February 27th, "Workplace Harassment Post 9/11" 10:00-11:00 a.m. EST. Did you miss last month's or the 2007 webcasts? They are archived and you can access them from the website as well!

All webcasts are pre-approved by HRCI for 1.0 Strategic credit!

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February's Client Training Programs

"Leadership Development & Workplace Communications"

"Enhancing Working Relationships"

"HR and the Law for Managers"

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OSHA Alerts (2)

First, if your company is not otherwise exempt from OSHA's recordkeeping requirements, be sure to post your OSHA Form 300A by February 1st and keep it posted through April 30th. Not sure whether your company is exempt or not?  Call FiveL today with your company's SIC or NAICS Code for a quick check or visit www.osha.gov.

Next, you should be aware that OSHA recently published a revised workplace labor posting.  OSHA has announced a scam that some vendors are using to intimidate employers into purchasing the new poster. OSHA reports that some companies have reportedly sent employers threatening notices, messages, or telephone calls requiring the employer to purchase OSHA documents from them in order to remain in compliance with OSHA rules and regulations. The agency has also received complaints that individuals, falsely identifying themselves as Department of Labor or OSHA employees, contact employers threatening fines if they do not purchase specific materials.

What you should know. Employers are not required to replace their existing OSHA poster with the new one (blue and gold) but should do so when they next update their posters.  These posters are available free of charge and can be downloaded directly from OSHA's website (or FiveL Company).