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Rules that force workers to only speak English may be illegal

 

By Ed Zalewski, editor, J. J. Keller & Associates, Inc.

 

In cases where employees come from diverse backgrounds and English is their second language, they may feel more comfortable speaking their native language. The U.S. Equal Employment Opportunity Commission (EEOC) specifically addresses company policies regarding the speaking of languages other than English in the workplace.

 

The EEOC generally takes a hard line against English-only workplace policies, and will presume that an “all English all the time” rule (including breaks and lunch periods) is discriminatory based on national origin. Where employers require that English be spoken at certain times, the policy must be justified by business necessity.

 

Examples of such a necessity include times where safety may be compromised if there is any lack of communication, such as when using dangerous equipment or working with dangerous substances, or working in a laboratory, refinery, mine, construction site or other location where accidents or emergencies are likely to occur. Typically, narrowly drawn rules justified by business necessity apply only to certain employees while they are performing specific duties or under specific circumstances.

 

Other justifications for English-only rules may include communication between employees and English-speaking customers, or communication between employees and supervisors (employers don’t have to hire a translator just so employees can communicate with a supervisor nor require the supervisor to become fluent in another language).

 

If there is business necessity for an English-only rule, the company must provide employees with notice of the rule. This notice should inform employees of the general circumstances in which speaking only English is required and of the consequences for violating the rule.

 

English as a job requirement

If the responsibilities of a job require the ability to read, speak and write in English, an employer can require that candidates possess those skills. For example, if the employee needs to be able to read and understand technical manuals and lengthy procedural documents, and these documents are only available in English, it’s reasonable to require proficiency in English. On the other hand, it is not reasonable to require proficiency in English if an employee will be doing primarily manual labor while having little contact with others.

 

The law does not require making accommodations for non-English-speaking employees in the same way employers are required to do so for qualified individuals under the Americans with Disabilities Act. For example, employers need not have documents translated to another language so the employee can read them, if reading is part of the job. An exception is Summary Plan Descriptions related to benefit plans, which may need to be translated if the company has a certain percentage of non-English speaking employees. The other exception is training.

 

If several employees’ primary language is Spanish and the company knows they are not very proficient in English, it’s a good bet they may not understand policies or procedures. Since the company is responsible for making sure employees are sufficiently trained, it may have to provide training, documents or translation for certain employees in their native language.

 

Consider, for example, a female employee who is being sexually harassed. If she doesn’t understand the procedures for registering a complaint, she has no way to address the situation except, perhaps, to quit. Be assured that the EEOC has a mechanism for Spanish-speaking individuals to file a complaint, however.

 

What the law says

To illustrate how strongly the EEOC addresses English-only rules, the following shows the complete text of the agency’s regulation, found under the national origin discrimination rules.

 

29 CFR §1606.7 Speak-English-only rules

(a) When applied at all times. A rule requiring employees to speak only English at all times in the workplace is a burdensome term and condition of employment. The primary language of an individual is often an essential national origin characteristic. Prohibiting employees at all times in the workplace from speaking their primary language or the language they speak most comfortably disadvantages an individual’s employment opportunities on the basis of national origin. It may also create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment. Therefore, the commission will presume that such a rule violates Title VII [of the Civil Rights Act of 1964] and will closely scrutinize it.

 

(b) When applied only at certain times. An employer may have a rule requiring that employees speak only in English at certain times where the employer can show that the rule is justified by business necessity.

 

(c) Notice of the rule. It is common for individuals whose primary language is not English to inadvertently change from speaking English to speaking their primary language. Therefore, if an employer believes it has a business necessity for a speak-English-only rule at certain times, the employer should inform its employees of the general circumstances when speaking only in English is required and of the consequences of violating the rule. If an employer fails to effectively notify its employees of the rule and makes an adverse employment decision against an individual based on a violation of the rule, the commission will consider the employer’s application of the rule as evidence of discrimination on the basis of national origin.

 

About the author:

Ed Zalewski is an editor at J. J. Keller & Associates, Inc., a nationally recognized compliance resource company that offers products and services to address the range of responsibilities held by human resources and corporate professionals. Zalewski specializes in employment law issues such as discrimination and harassment, overtime, exemptions, and labor relations. For more information, visit www.jjkeller.com and www.prospera.com.

 

SIDEBAR

Can I stop coworkers from speaking Spanish while on break?

An employee complains that she thinks her coworkers are saying disparaging things about her in Spanish during their break. She wants them to stop speaking Spanish at work. What should the manager do?

 

The EEOC frowns on English-only policies, especially when they include breaks and meal times. Employees can only be required to speak English during working time if the organization has a legitimate business justification for it, which would not normally be the case during breaks. Merely speaking another language does not constitute harassment, so the company can’t require those employees to stop speaking Spanish. A manager might explain to them how others might perceive this as isolating coworkers, but be clear that there is no threat of discipline for speaking another language. It might be a good idea to offer sensitivity training to all employees regarding respect for other cultures.

 

If employees feel uncomfortable when coworkers speak another language, the problem is not the presence of another language in the workplace. Rather, the source of the conflict lies in the mind of the employee who feels offended, even if that employee has no reason to feel targeted. Creating a rule that prohibits employees from speaking other languages only plays to the suspicions or prejudice of the offended employee.

Posted 12/30/12


 
NLRB takes issue with employment-at-will statements

Employee handbooks are often invaluable tools for employers. They allow companies to outline their expectations and policies, creating a solid reference for employees and a convenient communication tool. But most employers have also heard that an employee handbook has the potential to be seen as a contract of employment, and many have taken steps to ensure that is not the case.

A common best practice is to include a disclaimer to indicate that nothing within the handbook is meant to be construed as a contract of employment and/or that the handbook does not negate the “at-will” relationship between employer and employee (either party can discontinue the relationship at any time). However, recent activity by the National Labor Relations Board (NLRB) indicates that this kind of at-will disclaimer might be problematic.

The NLRB’s take

The NLRB, which enforces the National Labor Relations Act (NLRA), has expressed concern that certain at-will disclaimers could be interpreted to discourage employees from joining a union, since joining a union (and being covered by a contract / collective bargaining agreement) may change an individual’s status as an at-will employee.
 
In two different cases, the NLRB ruled that two separate companies’ at-will statements were “overbroad,” and were therefore a violation of the NLRA, which gives employees the right to form or join a union. A few of the statements with which the NLRB took issue included:
  • “I agree that the at-will employment relationship cannot be amended, modified or altered in any way.”
  • “I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and [specific company officers].”
  • “I understand my employment is ‘at will.’”

The third (and simplest) of these statements is likely found (or very closely approximated) in many employer handbooks. Worth noting is that all of the statements in question were not simply included within the companies’ handbooks, but on separate employee handbook acknowledgement forms that employees were to sign.

The companies whose policies were in question agreed to remove the identified statement from their handbook acknowledgement forms and add language specifically outlining employees’ right to organize under the NLRA.

At this point, it’s not clear whether the NLRB would take issue with at-will disclaimers within the pages of employee handbooks or just those that are part of employee acknowledgement statements.

Nothing in the NLRA requires employers to specifically inform employees of their rights under the law. However, doing so in an employee handbook may be one way to mitigate the risks of what the NLRB has identified as its next big enforcement focus. It may still be necessary for employers to consult legal counsel to determine the risk posed by their handbooks’ at-will statements.


About the author:

Katie Loehrke is a human resources subject matter expert and editor with J. J. Keller & Associates, Inc., a nationally recognized compliance resource firm. The company offers a diverse line of products and services to address the broad range of responsibilities held by HR and corporate professionals. Loehrke specializes in employment law topics such as discrimination, privacy and social media, and affirmative action. She is the editor of J. J. Keller’s Employment Law Today newsletter. For more information, visit
http://www.jjkeller.com/ and http://www.prospera.com/.

 

 
Posted 11/26/12

‘Just right’ or plain wrong: What some employers factor in to hiring decisions

Faced with rising healthcare costs, many employers routinely consider much more than applicants’ education and work history when hiring. In some states, for example, employers may legally discriminate based on whether an individual smokes.

This may make business sense. An employee who smokes costs an employer an average of $1,275 more per year than a nonsmoking employee, according to a recent study by the Journal of Occupational and Environmental Medicine.

But smoking isn’t the only health factor that comes at a substantial cost to employers, and like Goldilocks from “The Story of the Three Bears,” some employers are getting increasingly particular in their attempts to find something that is “just right.” In this case, it’s employees who possess all that the employer wants, but none of what the employer wants to avoid.

Looking for employees who are ‘just right’

Recently, a Texas hospital made headlines for its policy against hiring obese workers. It required all new employees to have a body mass index of less than 35, which, for a 5-foot 5-inch individual, would equate to 210 pounds or less.

While the hospital would no doubt benefit from employees’ better overall health, its given reason for the policy is that employees should “fit with a representational image or specific mental projection of the job of a healthcare professional.”

The healthcare costs associated with obese workers are even greater than those of smokers, according to the previously mentioned Journal study. Obese employees cost an employer about $1,850 more than their non-obese coworkers, and morbidly obese employees cost an average of $5,500 more per year.

Michigan is currently the only state with a law banning weight discrimination in hiring. Without such a law on the books in Texas, this practice may be within legal lines.

However, courts are increasingly considering morbid obesity to be a disability under the Americans with Disabilities Act. There have even been rumblings that the U.S. Equal Employment Opportunity Commission may take steps to make obesity a protected characteristic.

Even if the practice may be legal at this time, the hospital in question still has a bit of a public relations nightmare on its hands as the press and the public debate whether the hiring procedures unfairly encroach on individuals’ personal lives.

Where will the line be drawn?

If one applicant smokes too much, and the next is too big, we expect the next applicant — in line with the Goldilocks rule of threes — to be just right. Some will say that the hospital’s practice of rejecting obese applicants is within legal lines, and therefore perfectly acceptable, but others may see a slippery slope developing.

What happens when other personal factors make Goldilocks-employers’ wish lists for the perfect employee? Where will the line be drawn? Courts and legislators will eventually provide direction to shape this developing area of employment law. Until then, like determining the proper temperature for porridge or the proper bed firmness, it’s open to debate and, for some, individual preference.


About the author:

Katie Loehrke is a human resources subject matter expert and editor with J. J. Keller & Associates, Inc., a nationally recognized compliance resource firm. The company offers a diverse line of products and services to address the broad range of responsibilities held by HR and corporate professionals. Loehrke specializes in employment law topics such as discrimination, privacy and social media, and affirmative action. She is the editor of J. J. Keller’s Employment Law Today newsletter. For more information, visit www.jjkeller.com and www.prospera.com.
 

Posted 10/24/12


New Rule Could Hamper Employers in Age Discrimination Cases

On March 30, 2012, the U.S. Equal Employment Opportunity Commission (EEOC) published a final rule on disparate impact and reasonable factors other than age (RFOA) under the Age Discrimination in Employment Act of 1967 (ADEA). The final regulation goes into effect on April 30, 2012.

According to the EEOC, the final rule accomplishes two things:
 
1.       Amends the existing regulation consistent with the U.S. Supreme Court’s ruling in the 2005 lawsuit Smith v. City of Jackson. The regulations now state that the defense to an ADEA disparate impact claim is an RFOA; it needn’t be the harder-to-make business necessity defense.
 
2.       Explains the meaning of the RFOA defense to employees, employers, and those who enforce and implement the ADEA.

Some legal experts, though, argue that the final rule might have a third outcome: It could burden employers who try to make an RFOA defense.

The issue for employers

Those alleging discrimination are required to prove that a practice has caused disparate impact on older workers. If they’re able to do so, the employer must persuade the court that the practice was based on an RFOA. According to the EEOC, the defense requires more than merely showing that the employer’s action was not irrational or arbitrary. The organization must show that the practice was designed and administered to achieve a legitimate business purpose, with proper consideration for the potential harm to older workers.

The EEOC will take into account other solutions of which the employer knew, or should have known, that would not have sacrificed cost or effectiveness but would have reduced harm to older workers. Of course, in evaluating other solutions, “reasonable” factors would include increased costs or decreased effectiveness.

Some guidance on making the RFOA defense

The final rule states that an RFOA is a non-age factor that is “objectively reasonable” when viewed from the position of a prudent employer (one mindful of its responsibilities under the ADEA) under like circumstances. The regulation’s emphasis on evaluating the facts and circumstances in a particular situation means that, as with so many things in the human resources world, there is likely no one-size-fits-all defense.

The EEOC’s final rule does, however, include a five-part list of considerations relevant to deciding whether a practice is reasonable, including:

1. The relationship to the employer’s stated business purpose. To illustrate this, consider the following. A police department concerned about losing its employees to neighboring departments decides to raise officers’ salaries to match those in surrounding communities. The goal of retaining officers is not relevant to deciding whether raising salaries is reasonable, but the extent to which raising salaries for certain employees relates to the goal of retaining staff is.
 
2. Whether the employer defined and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination. Here is an example. A nursing home decided to reduce costs by terminating its highest paid and least productive employees. To ensure that supervisors accurately assessed productivity and did not base evaluations on stereotypes, the employer instructed supervisors to evaluate productivity based on objective factors such as the number of patients served, errors attributed to the employee, and patient outcomes. The employer could show that terminating these employees was based on an RFOA because assessments were accurate and decreased the potential impact on older workers.

Consider if the nursing home had instead asked managers to identify the least productive employees without providing any guidance about how to do so. According to the EEOC, in this situation, older workers might be disproportionately rated as least productive.

3. Steps taken to limit supervisors’ discretion to assess employees subjectively, particularly where the criteria are known to be subject to negative age-based stereotypes. An employer that wants its supervisors to evaluate technological skills might attempt to reduce possible harm to older workers by instructing managers to look specifically at objective measures of the specific skills that are actually used on the job.

4. Whether the employer assessed the adverse impact of its employment practice on older workers. The appropriate type of assessment will depend on the circumstances, including the employer’s resources and the number of employees affected by the practice. For example, a large employer that routinely uses sophisticated software to monitor its practices for race- and sex-based disparate impact may be acting unreasonably if it does not similarly monitor for age-based impact. Smaller employers, lacking the resources or expertise to perform sophisticated monitoring, might show that they acted reasonably by using informal methods of assessing impact.

5. The degree of the harm to individuals within the protected age group, considering both the extent of injury and the number of people adversely affected, and practical steps taken to reduce the harm. According to the EEOC, the greater the potential of harm to older workers, the more likely an employer would be expected to use available options to reduce that harm without unduly burdening the business.

Employers needn’t use all of the five considerations; an RFOA defense could be established using only one (or none) of the considerations. However, the defense is not automatically established merely because one or more of the considerations were made.

Legal experts have suggested that employers might use the five-part consideration list as a roadmap in their efforts to reduce ADEA liability. Showing that these factors were considered in advance will carry more weight in making an RFOA defense than after-the-fact rationales, according to the EEOC. Depending on the circumstances, relevant evidence might include documents describing the business purpose, copies of any written guidance given to decision makers, explanations of how the employer implemented the practice, and studies that the employer might have conducted related to the impact on protected workers.

About the author:

Rebecca Bentz is a human resources subject matter expert and associate editor with J. J. Keller & Associates, Inc., a nationally recognized compliance resource firm. The company offers a diverse line of products and services to address the broad range of responsibilities held by HR and corporate professionals. For more information, visit www.jjkeller.com and www.prospera.com.

Posted 9/11/12

Two Laws Provide Workplace Rights for Disabled Veterans

Many military service members have returned to civilian life and civilian jobs, and many more will follow. Some of these returning veterans may have service-related impairments. These individuals may have rights under the Americans with Disabilities Act (ADA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), or both. Employers should understand how these two laws apply.

 

USERRA applies to all employers, regardless of size, while the employment provisions of the ADA apply to employers with 15 or more employees.

 

The two laws have similar but different provisions when it comes to military service members with disabilities. The ADA prohibits employers from discriminating against applicants or employees because of a disability, and this includes not making reasonable accommodations to their known physical or mental limitations. Employers, however, do not need to provide an accommodation that would impose an undue hardship on the operation of the business. USERRA, on the other hand, has requirements for reemploying veterans with and without military service-connected disabilities.

 

Both USERRA and the ADA require employers to make certain adjustments (a.k.a. reasonable accommodations) for veterans with disabilities. USERRA, however, requires employers to go further than the ADA by making reasonable efforts to assist a veteran who is returning to employment to become qualified for a job, whether or not the veteran has a service-related disability.

 

USERRA entitles a returning employee to be reinstated to what’s called the “escalator” position. This is the position that the employee would have attained with reasonable certainty if not for military leave. For example, if an employer is fairly certain that an employee would have been promoted if he or she hadn’t taken military leave, the employee would return to the promoted position. The employer needs to consider such factors as the employee’s length of employment with the company, the employee’s qualifications, and the employee’s disability (if applicable).

 

The returning employee must be qualified for the reemployment position. In some situations, a returning employee may need some brushing up on job skills or requirements. The employer must make reasonable efforts, such as training or retraining, to help the employee become qualified for one of the following positions:
  • A position that is equivalent in seniority, status and pay to the escalator positions; or
  • A position that is the nearest approximation to the equivalent position, consistent with the circumstances of the employee’s case, in terms of seniority, status and pay. This position may be a higher or lower position, depending upon the circumstances.

Employees also have extra time to reapply for their employment position under USERRA, if they are hospitalized for or convalescing from a service-related illness or injury. In such a situation, they have up to two years after military service to submit an application for reemployment. This recovery period must be extended by the minimum time needed to accommodate circumstances beyond the employee’s control that make reporting within the period impossible or unreasonable.

 

To help illustrate, consider this example: Marissa was wounded while serving in Iraq and was ready to return home to her civilian life and job. She needed about eight months, however, to recuperate. Her military service ended in March, so she had until November to reapply for her job. By the time she was ready to return to work, her job skills as a welder needed refreshing, and her certification had lapsed while she was in the military. She talked to Cal in the company’s human resources department about her plans to return to work. Cal indicated that the company would help her get her certification current and began to look at which position Marissa would have been in if she had not gone on military leave. Cal noticed that Marissa was pursuing a welding inspector certification before she left, and he decided to talk to Marissa to see if she still wanted to pursue that and what training she would need. Marissa told Cal that she was interested in the inspector certification, particularly since her disability would be better accommodated in such a position. In response, Cal said he would work with Marissa to help her obtain the inspector certification.

 

It’s worthy to note that USERRA also provides for protection from termination except for cause. If an employee’s military service was more than 30 days but less than 181 days, the employee cannot be discharged for 180 days after reemployment. If the employee’s military service was more than 180 days, the employee cannot be discharged without cause for at least one year after reemployment.


About the Author:
Darlene M. Clabault, PHR, is a senior editor and human resources subject matter expert at J. J. Keller & Associates, Inc., a nationally recognized compliance resource firm. The company offers a diverse line of products and services to address the broad range of responsibilities held by HR and corporate professionals. Clabault researches and creates content on a variety of HR-related topics, including the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and the Health Insurance Portability and Accountability Act (HIPAA). For more information, visit www.jjkeller.com and www.prospera.com.
 
Posted 8/2/12
 

All work and no pay: Can companies legally not compensate interns?
 

More than 1 million Americans a year work as interns. Some of these work opportunities occur solely during the summer months; others are more open-ended in terms of calendar and duration. Surveys show that approximately one-half of all interns are unpaid. Do you know the rules on whether or not an internship requires paid compensation?

 

The kids are willing, but are you able?

In today’s economy, college-goers may be watching many of their fellow students graduate and then look around furiously for jobs that don’t seem to be abundant enough for everyone. As a result, you may find more and more eager graduates and pre-graduates willing to work as interns for your company, especially as summer rolls around. In exchange for a leg up in the job market, they might be willing to do any work, for any number of hours, for any kind of pay — or for no pay at all. But should you let them?

 

Regardless of whether or not they’re willing to work for free, interns whose work benefits your organization must be paid at least minimum wage for the time they put in. That is spelled out in the Fair Labor Standards Act, which is enforced by the U.S. Department of Labor. In order to be unpaid, an intern must receive training from your organization that benefits the student and is similar to the training he or she would find in a vocational school. However, that training cannot advance your company’s interests.

 

For instance, you might help an intern develop the skills to sort and route mail at your company, but if the individual is performing the tasks that a regular employee would normally perform, the intern must be paid. While an unpaid intern could work with another employee to learn a process, the intern may not actually perform the employee’s job.

 

As you can see, the standard to be unpaid is really quite high. In addition to not benefiting from an unpaid intern’s work, the company might actually have normal business operations hampered by the intern’s presence.

 

In the case that you might actually have an unpaid intern whose work does not benefit the company at all, the intern must understand that he or she is not entitled to wages. He or she must also not be guaranteed a job at the end of the internship. If the employee was entitled to a job, the training he or she received would be considered a benefit to the company, and the internship could not be unpaid.

 

Not free, but still valuable

While it’s possible for a company to have an unpaid intern (legally, that is), it’s not likely, but that doesn’t mean interns can’t be beneficial. Savvy businesses can still use interns as extra help at a low cost, and internships give you a chance to get to know an individual for a particular period of time.

 

While the hourly cost of interns can be small, remember that their contributions to your company don’t have to be. Instead of assigning menial tasks to interns and keeping them separate from your “real” employees, give them actual work, complete with challenges and opportunities for problem solving.

 

Your regular employees crave a sense of belonging and appreciation in addition to opportunities to grow and be challenged on a daily basis, and interns are no different. Treating them as you would other employees gives them a true taste of a career with your company. Even though you’ll probably need to pay them for their work as interns, your work with them now could translate into an investment in your company’s future.
 

 

About the Author:
Katie Loehrke is a human resources subject matter expert and editor with J. J. Keller & Associates, Inc., a nationally recognized compliance resource firm. The company offers a diverse line of products and services to address the broad range of responsibilities held by HR and corporate professionals. Loehrke specializes in employment law topics such as discrimination, privacy and social media, and affirmative action. She is the editor of J. J. Keller’s Employment Law Today newsletter. For more information, visit www.jjkeller.com and www.prospera.com.

Posted 7/20/12
 

Snapback can be huge when job applicants stretch the truth

Call it embellishment, exaggeration or an outright lie. Deviating from the facts in a resume or professional bio is not something that should be done to enhance job credentials.

That’s a lesson Scott Thompson, the former chief executive officer of Yahoo! Inc., learned the hard way. He left the digital media company May 13, just five months after he was hired, following the revelation that he had falsely represented his academic degrees.

The temptation to enhance accomplishments or academic degrees in an effort to win a job could well bring short-term benefits. It might help a person secure an interview and possibly land a position.

But as Thompson found out, there’s a very good chance the lie will be discovered. And when it is, characteristics that can’t be measured with job experience or a college degree are called into question.

A check of education credits not only verifies that a job candidate has the degrees he or she claims to have, but it is a measure of the candidate’s honesty. A willful misrepresentation shows a lack of integrity and character.

“A job application, resume or interview often does not tell an employer all the need-to-know information about a job candidate,” said Rebecca Bentz, an associate editor and background checks expert for compliance resource firm J. J. Keller & Associates, Inc. “We recommend that, at the very least, employers verify education and past employment. For some positions, criminal history and other types of background checks might be warranted or even necessary.”

The proliferation of online information makes it easier than ever to peek into someone’s past. A traditional check of education credentials called for contacting the educational institution for verification. However, some schools only release transcripts to graduates, leaving the documents open to tampering. 

Social media and online searches, however, considerably widen the breadth of available information. A search for an online bio may reveal resumes on LinkedIn and in other locations, making it fairly easy to see if a job applicant is consistent in portraying himself or herself, particularly in regard to stated institution, graduation and degree information.

This search is something an employer may not want to take on itself, since learning too much about an applicant can also be a problem. Finding out that a person has a disability or is in another protected class could put an employer at risk for a lawsuit if the person is not hired. The applicant could later claim that the employer discriminated against him or her for this reason.

But if an employer doesn’t want to take this risk, a background check company can be hired to verify information about a job applicant. Education, along with salary, positions, criminal and credit history, and past employers all can be fact-checked and verified.

“Using a background checking firm may help protect an employer from inadvertently learning that a job applicant belongs to a protected class, but the employer must first obtain authorization from a job candidate to run a background check,” Bentz said. “This doesn’t mean that job seekers are off the hook, though. An employer may refuse to hire someone who doesn’t provide authorization.”

Resume or bio discrepancies may not be discovered until after an applicant becomes an employee. Even if a misrepresentation allows an employee to get a job, however, it won’t help him or her keep it.

Most job applications contain a phrase similar to “I understand that misrepresentation or omission of information or facts may result in my rejection or dismissal.” This packs a powerful punch for an employer.

If an employee is terminated and a lawsuit arises, this can be used to show that the employer had a legitimate, nondiscriminatory reason for firing the employee.

Even if an application does not contain that statement, an employee could be fired for misrepresenting himself or herself.

When an employer terminates an employee, the dismissal should be based on facts rather than rumors or accusations, to protect the employer from liability. The verifiable dates and degrees and documented evidence from an educational institution or another source are a potent resource in favor of the employer doing the firing.

If a discrepancy is found, an employee may be given the chance to explain his or her side of the story, but if no plausible explanation of the discrepancy is supplied, the employee will likely be dismissed.

“This is a policy that should extend across an organization,” noted Bentz. “If one employee is fired for lying on a resume, the standard has been set for this indiscretion. An employee’s stature and standing with the company should not matter.”

The Yahoo! debacle serves as a good case study for both employers and employees. Thompson vacated the top job at that company after a shareholder questioned his degrees in both accounting and computer science that were mentioned in his bios and a filing with the Securities and Exchange Commission.

Thompson’s claim to have a computer science degree turned out to be false, making his tenure at the helm of Yahoo! short-lived. The damage his false claims did to his reputation and the company, though, will last considerably longer.

 
About the Author
 
Terri Dougherty is an associate editor at J. J. Keller & Associates, Inc., a nationally recognized compliance resource firm that offers a diverse line of products and services to address the broad range of responsibilities held by human resources and corporate professionals. For more information, visit www.jjkerller.com and www.prospera.com.
 
 
Posted 6/18/2012 

Dogs, bears and horseplay: Strange but true workers’ comp cases

 

A dog, a bear and a canoe trip gone awry might sound like the components of a comedy movie, but they’re actually the basis for separate, unusual and real workers’ compensation claims.

“Most employers take steps to prevent workplace injuries, but they can’t anticipate every situation that employees may get themselves into,” says Rebecca Bentz, an editor and author who specializes in corporate human resources issues for compliance resource firm J. J. Keller & Associates, Inc. “And some of those situations are bizarre, to say the least.”

Workers’ compensation laws differ from state to state, but there seems to be no limit to the odd ways that workers claim eligibility (and, for some, become eligible) for this benefit. Here are three cases that Bentz found intriguing:

A dog’s tale
A family pet has been implicated in an Oregon woman’s workers’ comp claim. The employee, who regularly worked out of her home, tripped over her dog while walking to the garage to replace fabric samples for work that were stored in her van. She ended up breaking a bone in her wrist.

 

The state Workers’ Compensation Board initially denied the employee benefits because she was at home, a location outside of her employer’s control. The Oregon Court of Appeals, however, reversed the board’s decision, asserting that her home was, at times, her work environment. At the time she was injured, in fact, she was walking to her garage for the work-related task of getting fabric samples.

“Employees who regularly work from home may be entitled to workers’ comp benefits if their injuries arose out of actions or duties reasonably related to their employment, even if the risks – or dogs – that led to the injury were outside the employer’s control,” Bentz says.

She suggests that employers train employees who work from home on injury prevention. A safety check is another good idea, as is a policy requiring employees to report injuries in a timely manner, as this may help prevent fraudulent claims.

 

Canoe chaos
An equally odd claim began with a group of employees who had finished a canoe trip celebrating the release of a new product. A number of them began to splash each other and tip over co-workers’ canoes. 

 

Two co-workers noticed an employee standing on the sidelines and tried to pull him into the river. When their efforts failed, one of the men grabbed the employee and slammed him to the ground. This caused a neck injury.

The Ohio Court of Appeals upheld a lower court’s decision that the employee was entitled to workers’ compensation benefits for injuries suffered during the mandatory team-building event.

“Horseplay doesn’t necessarily negate a workers’ comp claim,” Bentz says. “This case illustrates why it is so important to prohibit such activities in the workplace. Enforce this rule with disciplinary measures, and monitor manager and supervisor support of this policy.”

She adds that, in this case, the injured employee and the co-worker who threw him to the ground were both managers.

 

Up in smoke
An outdoor adventure of a different sort brought about a strange claim in Montana. Earlier this year, the state’s Supreme Court upheld a ruling that determined a man mauled by grizzly bears at a tourist park was eligible to receive workers’ compensation benefits, despite the fact that he smoked marijuana before feeding the animals.

The employer argued that the injured man was not an employee, but a volunteer. The employer also contended that because the man had smoked marijuana on the day of the attack, he was not eligible for benefits.

The Workers’ Compensation Court of Montana found that the injured man was not a volunteer, since he received money in return for completing tasks at the employer’s command. The Supreme Court affirmed this, as well as the lower court’s assertion that the use of marijuana was not the major contributing cause of the man’s injuries.

“When it comes to attacking humans, grizzlies are equal opportunity maulers, attacking without regard to race, creed, ethnicity or marijuana usage,” Judge James Jeremiah Shea noted in his decision.

The case offers a few lessons, Bentz notes. First, employers should be sure to accurately classify employees.

“In most states, independent contractors and volunteers are ineligible for workers’ comp benefits, but employers must be sure that these individuals are not actually employees,” she says.

In addition, employers should take steps to prevent alcohol and illicit drug use in the workplace.

“In many cases, a drug-free workplace policy can cut down on injuries,” Bentz says. “Some states even offer discounts on workers’ compensation premiums for employers who institute such policies.”

About the Author
 
Rebecca Bentz is tracking more intriguing workers’ compensation cases for Prospera, an online human resources management service from J. J. Keller & Associates, Inc. J. J. Keller, headquartered in Neenah, Wis., offers a diverse line of products and services to address the broad range of responsibilities held by human resources and corporate professionals. To learn more, visit www.jjkeller.com and www.prospera.com.
 
Posted 5/10/2012
 
 
 
 
     
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