Monthly Archives: March 2014

ACCOMMODATIONS FOR PREGNANT EMPLOYEES: WHEN LABORING MEANS MORE THAN JUST HARD WORK

Most employers probably know that they cannot discriminate against employees on account of pregnancy or childbirth.  The right of a pregnant employee to be free of discrimination arises from the federal Pregnancy Discrimination Act (PDA), which makes such treatment a form of gender discrimination under Title VII of the Civil Rights Act of 1964.  Other employment laws, including the Family Medical Leave Act (FMLA) and various state laws, may also come into play when dealing with an employee’s pregnancy. 

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GINA STRIKES AGAIN

A few months ago, we told you about the EEOC’s first lawsuit alleging a violation of the Genetic Information Nondiscrimination Act of 2008 (“GINA”). A week after settling that case, which was brought on behalf of an individual, the EEOC filed another complaint.  In this new action, the EEOC alleged for the first time a systemic, or class-wide, violation of GINA.  In January, the EEOC and the employer entered into a consent decree, where the employer admitted no wrongdoing, but agreed to pay a total of $110,400 to a group of 138 employees who it hired during the time it used a medical form that asked for family medical histories. 

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DON’T START THE ADA INTERACTIVE PROCESS UNLESS YOU’RE GOING TO FINISH IT!

In Spurling v. C&M Fine Pack, Inc, 2014 U.S. App. LEXIS 660, the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin) reversed, in part, a district court’s entry of summary judgment in favor of an employer in a FMLA discrimination and ADA failure to accommodate suit. 

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GAME ON! ARE YOU READY TO HAVE FUN AT WORK?

Last time, I introduced the topic of gamification in the workplace.  If you want a refresher on the topic, click here.  This time, I’d like to talk about what I think are some of the best uses of gamification for employers – based on where I believe the most value could be obtained for the employer.  To be clear, I am not advocating gamification as a one-size-fits-all idea, and the last thing employers need is to turn the workplace into a second Facebook account where working with and socializing with your peers becomes entirely digital.  However, there’s no denying that gamification presents an interesting route for achieving common workplace goals.

Recruiting:  Gamification is already a common tool used in tech recruiting, but in my view, the application of the idea in this context could benefit more than just high tech companies.  Within gamification, a subset of tools exist called “serious games.”  These “games” can simulate real-life scenarios that test the skills actually used on the job.  Those candidates who score well in the game are more likely to be better candidates for the job.  Used properly, the potential employee gets a chance to see if your job is really a fit for him or her, too.  Also, if you’re already using gamification internally, reward your employees for referring solid candidates through that medium.  Your current employees are one of your best sources for recruits because they know your business, your culture, and the potential recruit.  Plus, it’s free! 

Training:  Many companies have a variety of trainings which must be completed on an annual basis.  With gamification techniques, you can turn mundane training into a lively, competitive experience.  Who has completed the most modules?  Who received the highest score on the test?  Recognition of these achievements encourages prompt completion of training.  Even better, it generates an electronic record you can use to monitor your employees’ training.  You will know whether their training is complete and up-to-date at a glance.  And, if someone takes several attempts to pass a module, you can identify and act on what is likely a need for additional training. 

Education:  This area is slightly different from training.  You can use gamification to educate employees or recruits on your industry, business, product lines, and processes.  You can use it to teach new skills, particularly where repetition and practice are necessary to solidify the skill.  You can also use it to teach employees how to cope with unusual scenarios they might otherwise not get to experience until crisis descends.  For instance, the U.S. Department of Homeland Security uses gamification to help emergency personnel learn how to deal with disasters. 

There are some applications of gamification which have more questionable utility to employers than others.  For example, certain research suggests that gamification is useful for enhancing workplace culture by encouraging certain behaviors from employees.  In my view, I’m not sure rewarding smiles or participation is the best use of this resource.  Also, applying gamification to workplace wellness programs – while intuitively appealing – is probably not going to get employers any more bang for their buck than the incentives already used (ex. water bottles, t-shirts, or reduced deductibles), and I’d be willing to bet that no employer wants to present the test case in court involving gamification of what might very well be protected health information.  

Are you using gamification?  Tell us your views on how it works for you.

DID THE FLSA’S DE MINIMUS RULE SURVIVE SANDIFER v. UNITED STATES STEEL CORP.?

Recently the Supreme Court addressed the ability of a union contract, custom, or practice to dictate when the putting on or taking off of personal protective equipment constitutes “changing clothes” and thus constitutes non-compensable time.  In Sandifer, the Court held that when the vast majority of such preliminary or postliminary time is consumed in donning-and-doffing of what clearly are clothes, then the entire period, including the time related to personal protective equipment which is not clothing, falls under the collective bargaining agreement’s exception to compensable work time.  The Court acknowledged that some personal protection equipment does not meet the definition of clothes, yet the amount of time spent in donning or doffing these items may be so small and difficult to track that such time need not be counted for purposes of computing compensable work time.  

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