Monthly Archives: February 2013

ADA’S REASONABLE ACCOMMODATION REQUIREMENT SHOULD MAKE UPDATING JOB DESCRIPTIONS AN “ESSENTIAL FUNCTION” FOR HUMAN RESOURCES PROFESSIONALS

It seems that as Human Resources professionals we have been inundated with information about the new definition of the term “disability” under the ADA Amendments Act (ADAAA) of 2008.  Furthermore, it has been burned into our psyche that an employer must go through an interactive process when determining if there is a “reasonable accommodation” that can be made to an employee with a disability as defined under the ADAAA.  While most companies have made changes to theirADApolicies to include these recent additions to the Act, there is one major step in theADAcompliance process that may be overlooked by many employers, and that is the addition of a designation of “essential functions” into all employees’ job descriptions.

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FOURTH CIRCUIT HOLDS EMPLOYERS DO NOT HAVE TO PROVIDE LIGHT DUTY WORK TO PREGNANT EMPLOYEES

The Fourth Circuit Court of Appeals, which covers West Virginia, Virginia, Maryland, and the Carolinas, recently held that maintaining a policy that provides light duty work for certain circumstances—but not pregnancy—is not sex discrimination under Title VII of the Civil Rights Act of 1964.  The court also held that the employer did not violate the Americans with Disabilities Act (ADA) by not granting the pregnant employee light duty work.

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VALENTINE’S VIEWS: WHY THIS HOLIDAY STINKS

Ah, the decapitation of flora, the enrichment of greeting card companies, and the fattening of loved ones.  Nothing says all of this like Valentine’s Day.  As I sit here munching on Heartlines – the awesome conversation hearts that are ubiquitous this time of year – I am dismayed to read TTYL, IM Me, Text Me, and ILU, which are the latest sentiments expressed on those heart-shaped yummies.  I feel like something classic has been lost.  Even the cards I help my children prepare for their classmates have lost their glamour.  They are more likely to give a parent carpal tunnel syndrome (write names in cramped spaces, insert fun tattoos into teeny-tiny slots, fold card and insert into yet another teeny-tiny slot, seal card with heart sticker, and repeat 23 times per child) than they are to express love and friendship.  The romance has gone out of this “holiday” if indeed it was ever there in the first place.  And, I suggest that Valentine’s Day should go out of the workplace, too. 

Why do I, with tongue-in-cheek, think this “holiday” stinks at work?  Let’s start with the stinky part.  Flowers are delivered.  New perfumes are worn.  Calming, aromatherapy candles are lit.  For allergic co-workers, these gifts are nightmares.  Many employers have workplace policies that prohibit the use of candles and the wearing of heavy perfumes.  This is a good time to re-circulate those policies as a reminder that not everyone wants to partake in your Valentine’s Day gift.  This is certainly the case with workers who may have disabilities triggered by scents.  The implementation and enforcement of a no scents policy may be a reasonable accommodation for those employees.

Of course, that’s just the tip of the iceberg. Workplace romances may spark into flame on Valentine’s Day, and employers already know that these relationships, if not handled properly, can lead to sexual harassment and discrimination claims.  Workplace relationships can also lead to complaints about favoritism and conflicts of interest where clients and customers are involved.  You may want to consider having a non-fraternization policy, but that can raise legal issues as well.  The NLRB will not look kindly upon any policy that could prohibit collective activity.  If you’re considering presenting one of these policies in honor of Valentine’s Day, make sure legal counsel reviews it first.

Finally, there are heart-shaped boxes of candy festooned with ribbons and bows.  Just picture the wellness committee throwing their hands up in surrender.  Maybe instead of strewing boxes and bowls of candy around the workplace, you should consider celebrating the holiday by circulating assorted nuts and fruits throughout the office.  A healthy workforce is a happy workforce!

So, what do you think?  Is Valentine’s Day all a box of chocolates for employers?  Please share your views with me.

 

NO RETROACTIVE APPLICATION OF THE ADAAA IN THE FOURTH CIRCUIT

On October 4, 2012, the United States Court of Appeals for the Fourth Circuit – based in Richmond, Virginia – held oral arguments on the road at the West Virginia University College of Law in Morgantown, WV.  While doing so, the Court heard, and later decided, a noteworthy Americans With Disabilities Act case, Reynolds v. American National Red Cross National Headquarters, et al. 

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STATE COURTS: BE HOSTILE TO ARBITRATION CLAUSES AT YOUR PERIL

For a long time now, employers have engaged in the practice of entering into arbitration agreements with their employees to arbitrate disputes that may arise during the employment relationship, including wrongful discharge claims stemming from the end of an employment relationship.  Although several state courts continue to be hostile towards arbitration agreements, the Supreme Court of the United States has issued a handful of significant decisions in the last few years reminding the states that the Federal Arbitration Act (“FAA”) “declares a national policy favoring arbitration” which will preempt state laws inconsistent with this policy. 

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THE FIRST RULE OF BOOK CLUB IS THERE’S NO TALKING ABOUT BOOK CLUB

Outside of a dog, a book is man’s best friend.

Inside of a dog, it’s too dark to read.

– Attributed to Groucho Marx

 

Yes, I actually am going to talk about book club.  I think it’s a fantastic idea for both the workplace and the home life.  My youngest and I are reading a book about all the Presidents of the United States.  Admittedly, I did not know that this endeavor was going to lead to written quizzes from my nine year old, testing my retention of information we just read; but that is, in fact, how I spent my Monday night (and seriously, does anybody really know that Thomas is Woodrow Wilson’s first name???)  I also began book 13 for 2013 yesterday, and it got me to thinking.  Reading certainly benefits me and my children.  Can’t that carry over to the workplace?

Many employers have experienced the benefits of voluntary book clubs at work.  It’s an inexpensive and entertaining way to build teamwork throughout all levels of your organization.  Titles and departments don’t matter in a book club.  It’s a great way to get to know each other better.  And, even if your employees aren’t reading books that relate directly to their jobs, their skill sets expand just as their minds do by reading.  A typical book club rotates the discussion leader, so everyone gets the chance to improve their leadership and communication skills.  Just being part of the group helps people become better listeners.  And, the attorney in me thinks that engaging in lively debates over the message intended by a book is a great way to hone your persuasive argument skills.

Your book club may decide collectively or on an individual rotating basis which book to read.  If you learn that your employees want to read a book that would be directly relevant to their performance at work (e.g. anything by Malcolm Gladwell), then you might want to consider purchasing the books for the group.  It’s a small price to pay for a potentially great benefit.

In my view, nothing can quite prepare you for success in life – however you personally define it – as much as a love of reading.  My parting recommendation: anything with “fifty shades” in the title or Fabio on the cover is NSFWB (Not Safe For Work Bookclubs).  Otherwise, READ ON!!! 

FEDERAL APPEALS COURT RULES OBAMA’S RECESS APPOINTMENTS TO NLRB INVALID

On January 25, 2013, the U.S. Court of Appeals for the District of Columbia Circuit released its decision in Noel Canning v. NLRB, which started as a seemingly routine review of an NLRB decision, but produced a result that was anything but typical. 

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