Oddly enough, the graying guard would fit right in with the 70sish members of the band currently on their 50th anniversary tour. The Beach Boys may not be hitting all the same high notes they once did, but their harmonies and well-known songs are still greatly appreciated.

Not so with Jay Lieberfarb, it would seem.

The Equal Employment Opportunity Commission filed suit on behalf of the dethroned lifeguard, and Nassau County, Long Island, has been ordered to pay him $65,000 to settle the matter.

Lieberfarb, who’s been monitoring the surf for 50 years, was suspended when he failed a swim test. He was let go before having the opportunity for a re-test.

Younger lifeguards who failed the same swim test weren’t suspended or discharged.

The way this was handled violated the Age Discrimination in Employment Act, the EEOC said.

The long-time lifeguard was awarded $65,000 in back pay.

A consent decree was issued as well, barring Nassau Country from further age discrimination or for retaliation against those who take part in EEOC investigations. The county was ordered to post notice of the suit and report to the EEOC.

They’re not suspending any members of The Beach Boys for being old, you’ll note.

Wouldn’t It Be Nice if this is the last we hear of this situation?

The post Bad vibrations for 71-year-old lifeguard, until … appeared first on HR Daily Report.

The case, EEOC v. Dillard’s, Inc., involved an employee who brought in a doctor’s note indicating the employee needed a week off for health-related reasons, but the note didn’t specify the reasons.

The employer’s attendance policy stated that proper documentation for sick leave must include “the nature of the condition being treated.” When reminded of the policy, the employee refused to provide further information. As a result, she was fired.

The Equal Employment Opportunity Commission brought suit against the employer, claiming the attendance policy violated the Americans with Disabilities Act prohibition against disability-related inquiries. A provision of the ADA prohibits employers from “mak[ing] inquires of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”

The decision of the court: The employer’s policy was illegal because it invited intrusive questions regarding employees’ medical conditions that would tend to elicit information about an actual or perceived disability. The employer argued that the policy was necessary to verify the legitimacy of medical absences and to ensure that employees can safely return to work without posing a threat to themselves or others.

The court rejected that argument, noting that none of that justified a requirement to know the exact nature of an employee’s medical condition.

The post Court: Careful about asking employees to explain sick days appeared first on HR Daily Report.

With that in mind, the Equal Employment Opportunity Commission has issued two guides — Employer Best Practices for Workers with Caregiving Responsibilities  and Unlawful Disparate Treatment of Workers with Caregiving Responsibilities – that can help employers and their supervisors avoid problems.

Among the information in the guides are the definitions of “caregiver” and “family” that will at the very least help employers understand which employees fall into what has become a new protected category of workers.

Also, the guides warn against a host of prohibited behaviors, including:

• assuming that female workers’ caretaking responsibilities will interfere with their ability to succeed in a fast-paced environment
• assuming that female workers who work part-time or take advantage of flexible work arrangements are less committed to their jobs than full-time employees
• assuming that male workers do not, or should not, have significant caregiving responsibilities
• assuming that female workers prefer, or should prefer, to spend time with their families rather than time at work
• assuming that female workers who are caregivers are less capable than other workers
• assuming that pregnant workers are less reliable than other workers
• asking female applicants and employees, but not male applicants and employees, about their childcare responsibilities
• making stereotypical comments about pregnant workers or female caregivers
• treating female workers without caregiving responsibilities more favorably than female caregivers, and
• denying male workers’, but not female workers’, requests for leave related to caregiving responsibilities.

The post EEOC issues guides to avoiding ‘caregiver discrimination’ appeared first on HR Daily Report.

Let’s parse some of the sections and explain their practical effects:

• Item: a focus on “systemic discrimination cases”

What it means to you: The EEOC will be looking at alleged violations that run across the industry, company and geographic levels. For instance, you may be in an industry that uses a common working title – “engineer,” for example. EEOC will be looking to see that the title is fairly applied to employees, and not just used to keep from paying employees overtime for work done in excess of 40 hours weekly.

What you can do: Stay in touch with your counterparts, possible through industry conferences and meetings, to see how they’re handling tricky employment situations. If there’s a difference between you and another employer in the industry, you may want to find out why.

• Item: Creation of an “integrated, holistic approach to enforcement from beginning to end, without separating the investigation and conciliation state of the EEOC’s work from its litigation stage.”

What it means to you: The agency will probably focus on more paperwork-gathering at an early stage of an investigation of a complaint.

What you can do: Make sure your documentation – for hiring, firing, promotions, punishments – is in order. Periodic self-audits of paperwork wouldn’t be the worst idea in the world.

• Item: A focus on “targeted, equitable relief.”

What it means to you: The term is generally interpreted to mean going beyond simply giving relief and compensation to the complaining individuals. That means after a violation is uncovered, the agency probably will demand that supervisors receive training to make sure there are no repeat violations.

What you can do: Preempt EEOC by making sure your supervisors are up to date on training to prevent discrimination, harassment and other targeted behaviors.

The post How EEOC’s enforcement plan affects you appeared first on HR Daily Report.

Suppose you found out an applicant had been arrested four times. Would that enter into the decision about whether to hire? Should it? The answer was revealed in a celebrated Equal Employment Opportunity Commission case.

In the case, the employer, Pepsi Beverages, got dragged before the EEOC to defend the company’s hiring policies on applicants who had arrest records. Some managers with the company flatly refused to hire anyone who had been arrested, especially anyone who had been arrested more than once.

‘There’s smoke — there’s fire’

The managers used the “where there’s smoke, there’s fire” argument — that anyone who’d been arrested multiple time must have been guilty of something, and not worth the risk.

The policy starting turning sour when an African American applicant who had been arrested and had been refused a job by Pepsi went to the EEOC and complained. That got the commission’s attention, and Pepsi was ordered to submit records on which applicants had been denied a job because of the  arrest-record policy.

Turns out, the overwhelming numbers of refused applicants were African American — some 300 in all.

EEOC’s ruling on the case (which Pepsi accepted rather than take the fight to court) was that the company:

• was in violation of the Civil Rights Act
• has to pay $3.13 million, most of which will be divided among the black applicants who had been turned down, and offer jobs to such applicants if they’re still interested in working at Pepsi
• must adopt a new criminal-background-check policy
• will supply the EEOC with regular reports on its hiring practices under its new criminal-background-check policy, and
• will conduct Title VII training for its hiring personnel and all of its managers.

What went wrong, what to avoid

There’s nothing wrong, as such, with conducting criminal background checks for applicants. In f act, a survey by the Society for Human Resource Management shows that about 90% of employers conduct such checks at some level.

But companies enter a danger zone when hiring decisions are based on arrests — even multiple arrests — and not convictions. Strictly speaking, arrest records without convictions generally cannot be used as a basis for refusing to hire. And courts are getting touchy even about employers who refuse to hire people who’ve been convicted if there seems to be little relationship between the the crime and the job at hand. For instance, courts ask, why is a conviction for theft grounds for refusing to hire a truck driver?

What’s going on in the background: Studies of public records show that African Americans get arrested (not necessarily convicted)  in numbers exceeding their proportion to the population. Thus, a policy taking into account arrest records is deemed to be almost automatically discriminatory.

The bottom line:

• You can conduct criminal background checks and use convictions — not arrests — as a basis for hiring decisions
• To be on the safe side, your decision to refuse to hire should show some relationship between the crime and job; for example, you’d probably be perfectly justified in refusing to hire as a cashier someone convicted of theft, and
• To be on an even safer side, periodically check on the numbers of African Americans who have been refused jobs because of the conviction policy; if the number’s uncommonly high, be certain you have solid documentation to back your decisions.

Related story: Why EEOC wants employers to ignore criminal records.

The post The cost of a sloppy criminal-background check: $3.1M appeared first on HR Daily Report.

These come from the employment lawyers at the firm of Constangy Brooks & Smith:

• (In a harassment case) “I don’t remember when we had our last harassment training.” In tough economic times, employers tend to let training slip. That can be a killer if a case goes to court or is reviewed by the Equal Employment Opportunity Commission. Judges see ignored training as the equivalent of ignored problems.
• “We have an internal grievance procedure that’s investigated and upheld every one of my decisions.” So, what the person is saying is (in the minds of judges), “We have an internal system that rubber-stamps all management systems.” It’s not the worst thing in the world when your internal system finds that a manager made a mistake. That’s part of what internal systems are supposed to do.
• “Well, no, nothing’s documented, but she knows. I’ve told her a million times.” Informal warnings – about performance, behavior, etc. – are fine and have their place in the supervisory scheme of things. But if there’s no documentation, there’s no evidence. Sending your lawyer into a legal battle with no documentation is somewhat like sending your lawyer into a legal battle with no clothes on. In either case, the judge is likely to laugh you out of court.

The post Tell your managers: ‘Don’t say this’ appeared first on HR Daily Report.

These come from the law firm of Constangy Brooks & Smith:

You should check with your IT manager to make sure all documents, electronic and otherwise, are preserved as soon as any of the following occurs:

• You have a credible threat of legal action (for example, a letter from an attorney or a court document)
• An administrative complaint or charge, such as a discrimination charge with the Equal Employment Opportunity Commission, is filed against you, or
• You receive notice that your company is being sued.

How long should you hold onto the documentation? Generally, you can get rid of it:

• when the case is settled
• when the losing party has exhausted all appeal rights, or
• when the losing party has let the deadline for an appeal expire.

The post The rules of evidence when an employee sues appeared first on HR Daily Report.

The case involves Craig Burns, who had been hired by United Insurance, pending a drug test. United rescinded its offer after Burns tested positive for methadone.

Hold on, Burns protested. Then he produced a doctor’s note certifying he was in a supervised methadone program as part of his treatment to overcome drug addiction. Therefore, Burns noted, he tested positive for a legally prescribed substance — and shouldn’t be disqualified based on detection of that substance.

United wouldn’t budge. The company refused to address the appeal or hire Burns. He then contacted the EEOC.

The EEOC’s argument: The company’s action violates the Americans With Disabilities Act, which protects employees and applicants from discrimination based on their disabilities, including drug addiction so long as the person is in a valid treatment program.

The post EEOC: Firm must hire recovering addict appeared first on HR Daily Report.

There are two driving factors behind the hearings:

• Unemployment among African Americans is at 16.2% — the highest for any racial group in the nation and about 60% higher than the national average. For African-American males, it’s 17.5%, and for African-American teenagers, it’s about 41%.
• According to the Society for Human Resource Management, the number of companies that do criminal-record checks has increased dramatically in the last 15 years. SHRM reports that in in 1996, about 51% of all employers screened applicants for criminal backgrounds. In 2010, the figure was 92%.

The EEOC contends there’s a connection between the two — that stepped-up checks result in qualified applicants being shut out because employers make a hard-and-fast decision based purely on a criminal record that could be old and irrelevant. Or that the criminal record resulted because a lack of legal-defense resources available to poor minority defendants.

The EEOC guidelines regulating employers’ use of criminal records goes back to 1987 when the agency surmised that “an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population.”

Three years later the commission issued another guideline: Under certain circumstances, employers may not base an employment decision on a conviction record.

The post Why EEOC wants employers to ignore criminal records appeared first on HR Daily Report.

Straight from the horse’s mouth: In a public meeting, a top attorney for the Equal Employment Opportunity Commission warned about four mistakes companies often make when granting leave as an ADA accommodation.

EEOC regional attorney John Hendrickson reviewed recent lawsuits and described what puts companies on the losing end:

1. An “inflexible period” of leave will not satisfy ADA requirements. Too many companies have policies that dictate “automatic” termination if the employee’s leave exceeds  some maximum designated period of time. Quite simply, you can’t do that. If the employee needs, say, two years plus two weeks, but then will be able to return to work, you have to consider granting that additional two weeks — or show good reason why you can’t.

2. “Appropriate leave” requires an “individualized assessment” when the designated leave period expires, if not before. See #1. The individualized assessment would include determining whether the employee needs additional leave beyond the official company maximum, and whether the employee can come back to work with a reasonable accommodation. Many employers still require employees returning from medical leaves of absence to be able to return to work without restrictions. These requirements have arguably violated the ADA. If an employee has restrictions, the employer is supposed to assess whether the employee can return to work with a reasonable accommodation. If not, then it may be OK to terminate. But if so, then the employer should allow the employee to return to work.

3. If possible, keep your decisionmaker on leave administration in house or stay in close contact with an outsourced decisionmaker. Many employers outsource leave administration to a third party. Meanwhile, the person making decisions on ADA accommodations is usually someone in HR, in consultation with the employee’s supervisors and managers, and possibly legal counsel. That’s OK, as long as the leave administrator stays in close contact with HR or legal counsel, and knows how to identify potential ADA issues. In all cases however, the decision to terminate, extend leave, or bring back to work with or without reasonable accommodations should be made in house by HR in consultation with the appropriate management and legal counsel.

4. Stay in touch with the employee. Many jurisdictions require that the employer and employee conduct an “interactive process” when discussing possible ADA accommodations, and the EEOC takes this position as well. In some instances, failure to use the interactive process is an ADA violation in itself.

The post Feds warn about ADA leave blunders appeared first on HR Daily Report.