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My Uncommon Experience with a Mental Health Condition at Work By Andy Imparato

Posted By Cindy Hesch, Tuesday, May 26, 2020
Updated: Monday, May 25, 2020
My Uncommon Experience with a Mental Health Condition at Work
By Andy Imparato

As the 53-year-old executive director of a national non-profit in Washington, D.C., I have been living with the symptoms of bipolar disorder for almost 30 years. I have also been “out at work”—meaning open about my diagnosis—since the beginning of my career as a disability rights attorney, policy wonk, and eventually senior manager in a variety of government and non-profit roles. (In fact, I am proud to say that, in one of these positions, I played a part in launching the Campaign for Disability Employment, nearly 10 years ago.) But, sadly, my story is uncommon.

My first professional job after law school and a federal judicial clerkship was at the Disability Law Center in Boston, where I worked with other attorneys with visible and non-apparent disabilities. They modeled for me the value of incorporating our lived experiences with disabilities as a source of strength, connection and credibility in our work. I also learned from disability leaders in Boston the idea that disability is a natural part of human diversity and not inherently negative or limiting. They encouraged me to be proud of myself and have the same high expectations for what I could accomplish before I started experiencing the symptoms of my condition.

Almost three decades later, I am so grateful to the people I met in those early stages of my career. They helped me to see my psychiatric disability as a positive differentiator as I competed for jobs. My annual bouts of depression help me to slow down and reflect on my work and priorities, create space for others to step up and lead, and understand the experience of many people with disabilities who may lack self-esteem and initiative. My annual bouts of hypomania help me dream big, accomplish large tasks, and connect with new allies who can advance our work. I experience these two modes—depression and hypomania—as “low energy” and “high energy.” The high-energy mode helps me believe in myself, push myself and my colleagues, initiate new projects and innovate. The low-energy mode helps me recharge, slow down and reflect. Both modes have helped me build a successful career. My work, my marriage to my college sweetheart, my two grown sons, my co-workers and my many dear friends in the disability movement have helped create the structure and context that makes it easier to weather the ups and downs of my moods.  My dog Sally helps too.

As we commemorate Mental Health Month in May, I encourage employers to recognize that there are already significant numbers of people with depression, anxiety, bipolar disorder, obsessive compulsive disorder, autism, ADHD and other long-term conditions that affect mental health in your workplaces. Do these individuals feel comfortable being “out at work” with their conditions? Do they feel comfortable asking for accommodations that can help them perform their best? Do they know their rights under the Americans with Disabilities Act (ADA) and other applicable laws? Has anyone ever encouraged them to see their lived experience with a mental health condition as something that can make them better qualified for certain jobs or tasks than someone without that experience?

If not, I encourage you to try to foster a work culture where your own employees can answer all of these questions, affirmatively and without hesitation. When you succeed, you will have helped create a workplace where mental health conditions are viewed not as a negative, but for what they are—a natural part of human diversity. Your workplace culture will improve, your staff retention will increase and your employees will be proud to work for you. With your support, my uncommon story can become more common over time.

Tags:  #ADA  #Human Resources  #mentalhealth 

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COVID’s Impact? Populations We Often Forget in Employment Written by: Veronica Lieb Crawford, MA

Posted By Cindy Hesch, Friday, May 8, 2020

COVID’s Impact?  Populations We Often Forget in Employment

Written by:  Veronica Lieb Crawford, MA

Board Certified Sr. Disability Analyst/Executive Theracoach

HR Director/Business Owner

SHRMGP Board Member & SHRMGP Workforce Development Chair

 

Over the last six weeks while talking to many individuals, those considered essential workers, soon to be graduating seniors in college, individuals entering college, college freshman, some who were at the time of crisis just turning the corner to entering the workforce, high school students hoping for summer jobs, a college internship so difficult to obtain even with a 4.0 and in IT from ASU.  It occurred to me that even the university itself understanding the difficulties facing students trying to complete requirements to graduate, are getting creative, because let’s face it, as we all know employment at all levels even unpaid internships cannot be found. And worse yet, what I learned and was confidentially disclosed by a colleague, was that they observed individuals with disabilities at the beginning of the crisis were some of the first individuals to be let go. 

 

1.      This of course not a total surprise to me working both as an HR professional and a Disability Analyst, caused me to ponder and decide to write this blog, looking at a specific population often forgotten, especially in the postsecondary and employment sector.  This population is not of just  Autism, but it is that of Learning Disabilities (LD) (estimated population of 10 percent), Attention Deficit Hyperactivity Disorder (ADHD) (estimated population of 5 percent) and (ASD) Autism Spectrum Disorder (estimated population of 1 percent), and some Mental Health Conditions, specifically Bipolar Disorder (estimated population of 2 percent), but specifically those who are considered Twice Exceptional .  So, I began to do research during this current time, and though I have found information on physical and sensory disabilities during this crisis, (still much is lacking in terms of collaboration especially) there is virtually nothing on the population that is or has been addressed. http://www.2enewsletter.com/article_2e_what_are_they.html

 

 

Therefore, this blog, has a primary  objective and that is to bring about awareness for further discussion and consideration, what we as HR professional might want to sincerely consider now, and  consider moving forward during this crisis and following this crisis regarding this misunderstood population? 

 

What I can tell you, without going into writing a book is that we have known about this since the 70’s but ,there has not been much consideration in the areas of research either at the adult level, with exception to ASD (Autism Spectrum Disorder) yet even still that focus is with children, at the Twice Exceptional Level (gifted with a disability) and now if one looks online, there is much about 2e (Twice Exceptionality) and kids, but again not much about adults (however, call it what you like) twice exceptional people have been around since the beginning of man.  There are some sites about college students with 2e (twice exceptionality). But again, not much about that, or transition into work.  

 

You might ask, why is this so important right now during this crisis, well because you have many of these individuals working for you now.  As you continue reading the blog and the stories provided in this blog, is my hope to give you some curiosity to explore this population further.  So now, with the changes in the workplace – what impact does it have on these individuals?  If they are experiencing stress prior to entering the workplace, or are in it now and afraid to speak up, do we risk losing a highly talented population of individuals in the future?  Are you at risk for loosing them now in their new working environment?  Just a thought.

 

In my own life, being an individual with multiple non-apparent disabilities, it is always a risk to “come out” as a professional and disclose to your employer that you have non-apparent disabilities. But in my life, I have always been a non-conformist. I also knew that with the severity of my disabilities and even with advanced education, without some of the accommodations and lots of clarifying questions, I would not have gotten as far as I have in my career had I not taken that risk. As a professional with a disability I also know the price that I have paid along the way, and of course the personal cost as well.  The questions I have asked and the answers I have had to provide myself through deep introspection and learning along with way with the blessing of being a twice exceptional individual afforded me opportunities to see and do things that without these gifts might have been the end to my life. And as a younger person almost was.  I was one of the lucky ones.

 

In my role and in listening to the individuals, I work with in both of my businesses, I have heard their concerns, their fears, and high levels of anxiety. Working with, in some cases (four of them being essential workers, all in different industries, health care, packaging, and grocery, and post-secondary education), my involvement has increased in a variety of areas. With three of them, it has increased around having communication assistance with HR or many discussions about their workplace related COVID concerns. The good news is that each of these individuals, all who have non-apparent disabilities, are top performers. However, due to COVID, additional support and/or one case changes have been made to their accommodations and assistance was needed in those changes.  

 

As for the other individuals (there are many), focus is on those who were about to enter the workplace, or those who are currently in the workplace, or the soon to graduate ASU student who is needing an internship, the honors student entering the university this fall, and those looking to enter the workplace. Their concerns are again not all that different from what you hear from other young adults, 18 to 30, in a general statement. Frustration, concern about their future, uncertainty. They expressed not wanting to have to live at home with their parents, wanting to have their own independence, have a career, all very clear and normal responses, all healthy responses, right? 

 

Another factor they all expressed was that so many are experiencing what most people in the world are experiencing right now related to high levels of stress, some with differing levels of anxiety, others with differing levels of depression. However, what is critical to understand as HR professionals about individuals with non-apparent disabilities in general, is that the impact with working virtually, from home and when furloughed or laid-off, is their reality. As both an HR professional and a professional in the field for over 30 years working with individuals with non-apparent disabilities as well as having these conditions, this is the hard fact of having these conditions and below this will help you to understand further what their conditions are, and what they went on to disclose. 

 

Each one of them expressed that they, as individuals with these types of disabilities, felt HR professionals and employers needed to know. 

 

Types of Disability of Individuals Interviewed:

 

1.       Autism Spectrum Disorder – Type 1 (High Functioning)

2.       Autism Spectrum Disorder – Type II (Moderate Level Functioning)

3.       Learning Disabilities – (Dyslexia – Dysgraphia – Dyscalculia)

4.       Learning Disability – Working Memory – Processing Auditory 

5.       Executive Functioning Disorder

6.       ADHD (without hyperactivity)

7.       Bipolar Disorder

8.       Non-Verbal Learning Disability (not yet in the DSM) submitted for DSM 6 recognized by most professionals’ symptoms similar to Asperger’s

9.       Neurocognitive Disorder – Sequencing – Visual Processing

10.   Generalized Anxiety Disorder

11.   Social Anxiety Disorder

12.    Communication Disorder

13.   PTSD

 

·       Keep in mind that almost without exception all these individuals have co-morbidity (meaning more than one condition), which is almost always the case in adults with Autism Spectrum Disorder, LD, and ADHD. https://www.verywellmind.com/what-is-comorbidity-3024480

 

Key Points:

 

2.       They are often more afraid to disclose to their employer that they have a disability because they experienced so much retaliation as children, adolescents, and for many it continues as adults. They also want to prove they can do the job.  It is a pride thing for many of them. 

3.       Those living at home again with their parents or isolated from college and school, working from home, are experiencing a lot more symptoms with their mental health issues. Being connected to people, no matter what their diagnosis, it is critical. Even though most admit they do not socialize a lot at school/work/college, that is not the point. They draw energy from others, and it helps them to obtain motivation and energy to get work completed. They like the synergy even if they are not fully part of the team.

4.       Even though most admit they love gaming and computers, the majority admit they get frustrated with all the updates and changes on the computer. With these disabilities, the issue is the lack of consistency and uniformity in systems with long wait times for IT support. (This is researched and supported for individuals with these types of disabilities.) This creates possible big concerns for ADAAA accommodations and even enters how accessible company websites are, tools for customers, and workers’ online tools. Remember if they are not disclosing, they still have the right to disclose later (under ADAAA guidelines). Also with most of these individuals with the types of disabilities having had old school records, (most would be under the age of 40) listed above (except perhaps mental health) so they may likely have a history of records for these many of these birth to 18 conditions.

5.      They all feel that once the workplace reopens, they will be even less inclined to disclose because there will be job shortages. Individuals who have disabilities and are connected to their groups are already aware of threats to IDEA (Individuals Disabilities Education Act) as well as changes to ADAAA guidelines under the EEOC. Further, most of individuals I interviewed are Twice Exceptional (Gifted with Disability). This population is aware of the COVID Medical treatment of those with disabilities. These individuals are critical thinkers and connect dots based on legal fears companies will have with legislative changes.

6.       Most importantly are the myths these individuals fear from employers. The things that have been going on for years and now with the recognition that so many jobs can be done from home. As mentioned above, these individuals, all of them, want to work with others. I think one of these individuals who is an individual with High Functioning Autism put it best. “I don’t mind working alone on my projects, I get a lot done, but working alone in my apartment all day, each day is depressing. I need to be in an office at least some of the time during the week. I need to be around people, see them, say hello, be a part of life”

7.       Fear of being the highly creative person for fear of stepping on another’s toes. Knowing when to engage, what to say, when to present an idea, what the politics of an organization (hidden meanings/agenda) understanding social interactions/non-verbal’s (even harder virtually).

8.       Misinterpreting written responses, texts, emails, also their own black and white writing styles. Need to get to the point – other’s interpretations of their style.  Not having ability to “just get person to person clarification” creates a concern. Also, their own misinterpretation of written responses from others.

 

The suicide rate for individuals with learning disabilities and high functioning autism, bipolar, is unfortunately higher than most mental health conditions in general. Yes, when a crisis occurs people are at higher risk in general of suicide ideation and suicide in general. The reality is that most that do, have a pre-existing condition.  When human interaction on a person to person basis is removed, (which is what I have been observing for 30 years with this population in a one on one practice, as an HR professional as the ADA company specialist in a corporate role, and as the owner of a school specializing in this population, as well as growing up in this world, and working in this world as a person with these conditions, so many thoughts, so many ideas, so many challenges occur daily, (even ones you do daily can present issues).

 

Without having another human being as a direct contact, many lose their hope.  This is in part due to a lack of consistency, structure, and issues related to the neuro-cognitive and neurodevelopmental conditions they have worked so hard to manage. 

 

We must also remember something incredibly important about this population. Without many of these people today and throughout history, we would not have the music, art, inventions, philosophers, and entrepreneurs we have that keep us glued together.

 

Please take a moment and review this list of famous people who are twice exceptional click the link below, it is astounding what we can envision from recognizing through the eyes of others – how to find and utilize the gifts in those we are working with, and those we are around daily in our lives.

 

https://www.hoagiesgifted.org/2e_exceptional.htm

 

 

 

Tags:  #AAPD  #ADHD  #Autism  #Human Resources  #learning disabilities  #SHRM  #Twice Exceptional 

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Creating HR Resolutions HR Compliance Items for your radar By Scott Mara, SHRM-CP, PHR-CA

Posted By Cindy Hesch, Wednesday, January 15, 2020

Creating HR Resolutions HR Compliance Items for your radar

By Scott Mara, SHRM-CP, PHR-CA

            Happy 2020! It is a brand-new year and a new decade. Where did the last ten years go? Lots of people start the new year off by making new year resolutions such as: get in shape, eat better, read more, get more sleep, etc. I think as HR professionals we should do the same thing, take a morning or two and think about what you want to do this year - examples could include: learning about an area of HR that has been a challenge for you such as: FMLA, ADA, Compensation or Benefits, become a mentor or a mentee, complete 20 hours of recert training this year, increase your professional network, volunteer with an HR professional group, offer to lead a special project or read 2-3 HR related books. Whatever resolutions you choose, write them down and develop an action plan to complete them and then hold yourself accountable. HR is a challenging field we need to continue to improve ourselves and strive to be better leaders of our organization.

            The beginning of each new year is a good time to review and update your organization’s HR and Payroll Calendar. The calendar will help you stay organized and help you maintain compliance. Below are three excellent online calendars. Please take a moment to check them out. You can use this information to help build your 2020 calendar making sure to include key dates for your organization as well such as: merit awards, bonus pay outs, team member evaluations, etc.

https://www.fuseworkforce.com/blog/2020-hr-and-payroll-compliance-calendar-key-dates-for-hr-and-payroll-managers

https://www.zenefits.com/workest/7-must-know-2020-hr-compliance-dates/

https://www.shrm.org/resourcesandtools/tools-and-samples/exreq/pages/details.aspx?erid=289

Besides getting the calendars in place, HR should have some of these items on the radar:

·       Make sure all employees impacted by minimum wage increases have received their adjustment. Pay attention to any retro-pay issues if you missed the adjustment on their first check or two.

·       Does your new hire packet need to be updated?

·       Do you have the data in place to help you complete your annual EEO-1 report which is due March 31st?

·       Review and update your labor posters.

·       Do you have any required training that needs to be completed?

·       Review how 2019 went with your team members and see how you can make 2020 even better.

·       Do you have an HR Plan in place?

·       Are your employee handbook and policies current?

·       Review your internal procedures to see where improvements can be made.

·       Review your on-boarding process for new hires.

·       Background check process, Ban the Box. Are your processes current?

·       Review your HR vendor contracts.

·       Review the benefits package make sure you fully understand it and can communicate to others.

·       Does your organization conduct team member surveys? If not, it might be a good idea to roll one out.

·       Find ways to improve your organization’s social media presence.

·       What HR areas can be automated? Also, think about an electronic filing system, get rid of paper.

 

Disclaimer: I am not an attorney and this blog is not legal advice. Rather, I am an HR professional like most of you and when I write these blogs; I try to write them from an HR perspective.  Thank you for reading and I wish you a very happy and wonderful 2020!

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Avoiding Holiday Party Blues

Posted By Cindy Hesch, Monday, December 9, 2019

Avoiding Holiday Party Blues

 

By Helen R. Holden

Spencer Fane LLP

 

More than three-quarters of employers plan to hold holiday parties in 2019, according to a recent survey by outplacement consulting firm Challenger, Gray & Christmas, Inc.[1] In its annual survey of 250 human resources representatives, Challenger, Gray found the percentage of companies holding holiday parties had increased by 10% over 2018. The uptick in parties may be seen as a positive development as employers are working hard to engage employees and thank them at the end of the year. Even so, holiday events at work inevitably raise questions about employer liability. Here are a few timely tips for HR professionals to avoid risk at your company’s celebration:

 

·       Make sure that attendance at holiday gatherings is truly voluntary. If employees are required to attend, then the time is compensable as “hours worked” under the Fair Labor Standards Act. Additionally, some employees may be uncomfortable with certain kinds of events for religious or cultural reasons. To avoid any suggestion of discrimination, parties should be entirely voluntary.

 

·       Ensure inclusivity at the celebration. Many companies have strong programs to foster diversity and inclusion in the workplace, with good reason. The benefits of diversity are well-known. Diversity and inclusion efforts, however, do not stop at the office door, and months or even years of work can be undone by a lack of sensitivity to differences at a holiday party. For example, inclusive parties will be sure to avoid favoring one religious tradition over another. Rather, the focus should be on celebrating the season and the end of the year.

 

·       Take steps to control alcohol consumption and to avoid employees drinking and driving. Drinking and driving don’t mix; where there is drinking there is an increased risk of alcohol-related traffic incidents. As a result, employers should emphasize drinking responsibly, such as by providing drink tickets to employees. Employers may also want to consider taking steps to have employees avoid drinking and driving, such as by providing discounted or free rides to the party from a ride-hailing service such as Uber or Lyft.

 

·       Party time is work time. Even though parties may take place off-premises, managers should understand that any conduct at a company-sponsored party is the same as conduct that occurs during working time. As a result, any behavior that is considered inappropriate for the workplace will be considered inappropriate for the party, including off-color jokes, foul language, or other discriminatory or harassing comments or behavior.

 

Even while avoiding risk, it is also important to remember the overall goal of holiday parties: to celebrate employees, enjoy the season, and to ensure that everyone has a great time. Cheers to your great holiday party!  

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U.S. Department of Labor issued a long-awaited final rule updating the compensation requirements

Posted By Cindy Hesch, Tuesday, October 29, 2019

Last week, the U.S. Department of Labor issued a long-awaited final rule updating the compensation requirements for the FLSA’s executive, administrative, and professional exemptions. You can view the Department’s memo here. The 2019 Final Rule goes into effect January 1, 2020. Let’s discuss the important changes and what steps employers should consider moving forward.

A Brief Overview

Generally, the FLSA exempts most executive, administrative and professional employees from overtime so long as the employees satisfy three tests: (1) the duties test; (2) the salary basis test; and (3) the salary level test.

The current rule, promulgated in 2004, has been in place despite the issuance of a 2016 Final Rule. The 2016 Final Rule would have increased the salary requirement to $913 per week ($47,476 per year); raised the highly compensated employee threshold to $134,004 per year; and provided for automatic updates to these levels every three years without further notice-and-comment rulemaking.

I say “would have” because the 2016 Final Rule never saw the light of day. It was hotly contested and ultimately enjoined in November 2016. Since the injunction, the 2016 Final Rule lingered on appeal until the appeal was stayed pending further rulemaking by DOL. The 2019 Final Rule also strikes the final blow to the 2016 Final Rule by formally rescinding it. Thus, even if a judge enjoins or invalidates the 2019 Final Rule, the regulations would simply revert to their 2004 version.

The New Rule

Key changes to the 2019 Final Rule include:

  • The new minimum salary for the exemption has increased from $455 per week ($23,660 annually) to $684 per week ($35,568 annually).
  • The new minimum annual compensation threshold for the highly compensated employee will increase from $100,000 to $107,432. Of this amount $684 per week must be paid on a salary or fee basis.
  • The new rule allows employers to use commissions, non-discretionary bonuses, and other incentive compensation to satisfy up to 10% of the salary requirement so long as the payments occur annually. These payments are also subject to a single “catch-up” payment within one pay period of the close of the year.

The 2019 Final Rule also sets specials rates applicable in only certain situations:

  • The minimum salary for workers in Puerto Rico, Guam, the Virgin Islands, and the Commonwealth of North Mariana Islands minimum is set to $455 per week.
  • For workers in American Samoa the minimum shall be $380 per week.
  • Workers in the motion picture industry must be paid a minimum of $1,043 per week.

The 2019 Final Rule does not change the duties test. Moreover, the rule fails to include any provision for automatic adjustment in the future. Instead, the DOL has stated it will revisit the minimum salary and compensation levels periodically. DOL estimates 1.2 million employees that would have previously been considered exempt will now be eligible for overtime.

Next Steps

January 1, 2020 is right around the corner so the time to plan for the new rules is now. Employers should start identifying all employees who earn below the new thresholds but were previously exempt. The employers should then decide whether the reclassify those workers or raise their pay over the new minimum threshold amounts.

Employers electing to increase employee pay should still apply the duties test to make sure the workers qualify for the exception (its never a bad idea to audit employee classification).

Employers who choose to reclassify the employees should ensure they have sufficient funds available to pay overtime or, in the alternative, shift the extra work elsewhere.Employers engaging in reclassification of workers will also need to make sure to properly train employees on timekeeping. This choice may also require an amendment to the employer’s current policies or contracts.

Finally, employers reclassifying employees must be mindful of the impact such changes will have on employee morale and retention. Employees attach intrinsic value to being exempt so employers should be very careful when making changes to employee classifications and consider h

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Document, Document and Document!

Posted By Cindy Hesch, Friday, May 24, 2019

Document, Document and Document!

 

By: Scott Mara, SHRM-CP, PHR-CA 

 

HR professionals hear this a lot: “I want to fire John he is not working out I want to term him immediately.” HR then asks the manager why John needs to be terminated and can we see all the documentation that is relevant to John’s performance issues. It is usually at that moment the manager pauses and gives you that look, and we know there is probably no documentation or very little documentation in John’s file to justify a termination. However, that doesn’t stop the manager from wanting to press the termination button. HR is now put into a tough position. I am sure we’ve all been in this situation before at some point in our HR career.

 

Documenting employee performance and behavior is an important skill that every HR professional should have but more importantly, HR should help promote a culture of documentation within in our organizations. Documentation is the process of creating a written record of an event, process or a situation. It is a way to memorialize things so they can be referred to at a later point in time, like when you are being cross-examined by the Plaintiff’s lawyer three years later explaining why John was terminated. Proper documentation will stand the test of time unlike our memories. The specifics of John’s termination three years later maybe had for you to recall especially if you moved on to another company.

 

Keeping good documentation will help you stay in compliance; help promote a positive work environment, treat employees fairly, enforce desired work behavior/performance. Some common mistakes people make when documenting employee issues:

 

·       Waiting too long after the incident.

·       The write-up is too short, vague and too generalized.

·       The manager attacks the employee in the write-up.

·       Manager does not fairly document all employees the same way.

·       The manager does not tie the issue(s) to performance or the appropriate company policy.

 

So how can you make documenting better? The first thing you need to remember is why are we documenting in the first place, it is because we want to create written record of what happened. Ultimately our documentation may be used in a legal or an administrative proceeding and most likely it will be viewed by outside third parties (lawyers, judges and juries); doing the prep work upfront will save you and your managers a lot of headaches later. Here are a few helpful tips when documenting employee issues:

 

·       When documenting, be specific and make sure you include all the relevant information to explain what happened. Make sure you link the performance or behavior to company policies and performance standards. Include how the performance and/or behavior impacted the company.

·       Make sure you are concise, clear and detailed in your documentation. Remember this document may be used in court years later.

·       If the employee has had other discipline issues, you can list those in the write-up as well to help illustrate this is an ongoing issue and the employee needs to improve.

·       Explain the consequences if the behavior or poor performance continues.

·       Make sure you are consistent in your write-ups.

·       Include a realistic deadline for improvements and build in proper check points to monitor the employee’s progress.

·       Have the employee acknowledge the write-up if they refused to sign make a note of that, provide a copy to the employee. Always good to have a witness present.

·       Only attach the relevant supporting documentation that is needed to help support the write-up.

·       Have an HR professional review the write-up; if it is a “sticky” matter then have counsel review it as well.

·       Finally make sure the documentation is filed properly and all loops are closed.

 

Proper documentation should be timely, concise and include all relevant information and linked to the appropriate company policy. Remember what is written now might be that one piece of important evidence down the road. Thanks for reading! I hope you enjoyed. Please note: I am not an attorney, and this is not legal advice. 

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Fourth Circuit Rules That Failure to Properly Address Workplace Gossip Can Give Rise to Employer Liability for Gender Discrimination under Title VII

Posted By Cindy Hesch, Wednesday, April 24, 2019

Fourth Circuit Rules That Failure to Properly Address Workplace Gossip Can Give Rise to Employer Liability for Gender Discrimination under Title VII

By J. Alexander Dattilo, Labor & Employment Attorney at Quarles & Brady

Employers know all too well that workplace gossip can cause numerous problems. And now, their failure to properly handle it can even result in liability under Title VII. The Fourth Circuit Court of Appeals recently held in Parker v. Reema Consulting Servs., Inc., 915 F.3d 297 (4th Cir. 2019) that a female employee adequately alleged a claim for gender discrimination under Title VII, based on her employer’s handling of a rumor that she had obtained promotions by having sex with a male supervisor. The Fourth Circuit concluded that this rumor that she had “slept her way to the top” supported her sex-based hostile work environment claim, as it tapped into sexist stereotypes.

The Case

The plaintiff, Parker, worked for Reema Consulting Services, Inc. (“Reema”) in a warehouse facility in Virginia. In less than two years, she was promoted six times and ultimately rose from “low-level clerk” to Assistant Operations Manager. One of Parker’s male co-workers, Jennings, had started working for Reema at the same time that she did. Jennings started a rumor that Parker had obtained her management position by having sex with a higher-ranking male manager, Pickett. The highest-ranking manager at the facility, Moppins, actually helped to promote this rumor. Moppins once asked Pickett if he was divorcing his wife due to his rumored relationship with Parker. Moppins even discussed the false rumor at a staff meeting. Parker later met privately with Moppins to discuss the rumor, and during this meeting, he blamed her for the rumor’s origination and told her that he would no longer recommend her for promotions because of it.

After Moppins failed to act, Parker complained to Reema’s Human Resources (“HR”) Manager of sexual harassment by Moppins and Jennings. Jennings then complained to this same HR Manager that Parker was creating a hostile work environment “through inappropriate conduct.” The HR Manager instructed Parker to have no contact with Jennings, yet he allowed Jennings to spend time in her work area, where he distracted employees whom she managed and stared, smirked, and laughed at her. Parker also complained about this conduct to the HR Manager, but the HR Manager never addressed it. Days later, Moppins called Parker into a meeting and fired her, allegedly because of insubordination towards him and Jennings’ complaint about her.

Parker filed a lawsuit in the District Court of Maryland, and alleged, among other things, that Reema violated Title VII when it: (1) subjected her to a hostile work environment because of her gender, and (2) retaliated against her for complaining about the rumor. The district court granted Reema’s request for dismissal of both claims. Although the court acknowledged that the workplace rumor about Parker was offensive, it concluded that this rumor was “not…harassment based upon gender,” but rather “based upon false allegations of conduct by her.”

Parker appealed these rulings to the Fourth Circuit Court of Appeals, which reversed the district court’s ruling and revived both of her Title VII claims. The appellate court framed the issue as “whether a false rumor that a female employee slept with her male boss to obtain promotion can ever give rise to her employer’s liability under Title VII for discrimination ‘because of sex.’” It then concluded that this rumor tapped into “a deeply rooted perception…that generally women, not men, use sex to achieve success” and that “with this double-standard, women, but not men, are susceptible to being labelled as ‘sluts’ or worse, prostitutes for selling their bodies for gain.” The Fourth Circuit stressed the importance of Parker’s allegations that: (1) males in the workplace had started the rumor about her; (2) management had failed to remove Jennings from her workplace; (3) she was sanctioned for complaining about a male employee, Jennings, but Jennings was never sanctioned for complaining about her; and (4) she was sanctioned for her rumored relationship, while the alleged male partner in the relationship – Pickett – was not. The Fourth Circuit concluded that Parker’s allegations adequately supported her claim that she had suffered harassment due to her gender and endured a hostile work environment. The appellate court took issue with the district court having characterized the rumor’s effects as merely “a few slights,” and it found that Parker had endured continuous harassment because the rumor had preoccupied her, management and her co-workers. The appellate court also held that because Parker had alleged a plausible hostile work environment claim, she could pursue a retaliation claim based on her allegation that she was disciplined as a result of having complained about the rumor.

Important Takeaways

Parker is a textbook example of how not to handle workplace gossip. Employers confronted with complaints about a damaging workplace rumor should be mindful of the following:

  • Quickly investigate and respond to complaints about rumors. Employers should not take a passive approach to complaints about offensive workplace gossip. In Parker, Reema’s management knew about the rumor and did nothing stymie it, which ultimately exposed the company to liability. Complaints about such rumors should be investigated quickly, but thoroughly. Employees should be warned as soon as possible to stop spreading false information about a co-worker before it becomes too difficult to contain.
  •  Apply equal standards in responding to complaints about rumors. Employers should always be cognizant of the need to treat similarly-situated employees consistently, and responding to a complaint about a rumor is no exception. In Parker, the HR Manager who investigated the rumor appeared to give the benefit of the doubt to the male employee who started the rumor and complained about Parker, while applying a different standard to Parker when she complained about that same employee. Employers should also remember that complaints about rumors may be “protected activity.” Therefore, punishing an employee for complaining about a rumor could potentially give rise to a retaliation claim. Protect confidentiality in responding to workplace rumors. Employers should exercise discretion when handling complaints about rumors. The management in Parker publicly discussed the rumor during at a group meeting, which only caused it to spread.

What Employers Should Consider

In light of this decision, employers can take the following steps to help minimize their liability:

  • Request a legal review of policies regarding workplace cordiality or employee privacy.
  • Train management on how to properly respond to damaging workplace rumors.
  • Ensure that employees are aware of how and to whom they can report damaging rumors.

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Arizona Law Prohibiting Municipalities From Enacting Employee Benefits Ordinances Held Unconstitutional

Posted By Cindy Hesch, Friday, March 8, 2019

 

AUTHOR

Tibor Nagy Shareholder Ogletree Deakins DATE

February 7, 2019 TITLE

Arizona Law Prohibiting Municipalities From Enacting Employee Benefits Ordinances Held Unconstitutional

 

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The Arizona Court of Appeals, Division One, has ruled that the Arizona State Legislature overstepped its authority in 2016, when it prohibited Arizona cities and other municipalities from enacting their own employee benefits ordinances. The ruling reinstates a portion of a 2006 law that permits Arizona municipalities to pass local ordinances requiring employers to provide employment benefits more favorable than those provided under statewide laws. However, federal law, such as the Employee Retirement Income Security Act of 1974 (ERISA), still imposes limits on how much these local ordinances may compel employers to do.

 

In November 2016, Arizona voters passed Proposition 206, which quickly raised the Arizona minimum wage to $10 per hour, implemented annual minimum wage increases through 2020 (as well as compulsory cost of living increases each year thereafter), and mandated paid sick leave for employees of all private and municipal employers.

 

Proposition 206 actually amended an earlier Arizona voter initiative (Proposition 202), which in 2006 created the Arizona Minimum Wage Act (MWA). The MWA not only established a state minimum wage law but also included language that empowered Arizona cities and other municipalities to enact separate minimum wage and employee benefits ordinances more favorable to employees than state law and presumably outside of state control. (“A county, city, or town may by ordinance regulate minimum wages and benefits within its geographic boundaries but may not provide for a minimum wage lower than that prescribed in this article.”)

 

However, earlier in 2016, the Arizona legislature enacted House Bill (H.B.) 2579, which limited some of what the MWA sought to grant to Arizona municipalities by stating that “[t]he regulation of employee benefits, including nonwage compensation, paid and unpaid leave and other absences, meal breaks and rest periods, is of statewide concern. The regulation of nonwage employee benefits pursuant to this chapter and federal law is not subject to further regulation by a city, town or other political subdivision of this state.” Thus, H.B. 2579 did not limit the power to pass local minimum wage ordinances, but it did directly restrict local regulation of employee benefits.

 

Almost immediately after H.B. 2579’s enactment, a labor union, city council members from several Arizona cities, and Democratic Party legislators sued the State of Arizona in superior court claiming that the law is unconstitutional because its passage violated Arizona’s Voter Protection Act (VPA). The VPA (the product of yet another voter-initiated referendum) amended the Constitution of the State of Arizona in 1998 to prohibit the legislature from repealing or amending voter-passed initiatives, unless the change furthers the purpose of the initiative and passes with at least a three-fourths vote in both the Arizona House of Representatives and Senate. H.B. 2579 did not pass either chamber of the legislature with a three-fourths vote.

 

On a motion for summary judgment, the superior court ruled that “H.B. 2579 impliedly repealed a portion of the [MWA] and therefore violated the VPA.” The state appealed and Division One of the Arizona Court of Appeals affirmed the lower court’s judgment, concluding, “It is clear from the text [of the MWA] that by granting a county, city or town the ability to ‘regulate minimum wages and benefits,’ the intent of the electorate was to grant these bodies the ability to regulate wages and nonwage benefits.” Unlike other states, such as Florida, which successfully struck down a Miami Beach minimum wage ordinance (despite a Florida state constitutional amendment with a provision similar to that of the MWA), the Arizona legislature’s authority to amend a duly-enacted voter referendum, such as the MWA, is limited by the significant hurdles erected by the VPA.

 

Whether the legislature’s definition of “nonwage benefits” will survive after other parts of H.B. 2579 were found unconstitutional remains to be seen, but for now the legislative legacy leaves us with a broad spectrum of potential non-wage benefits that local governments are free to legislate, including “fringe benefits, welfare benefits, child or adult care plans, sick pay, vacation pay, severance pay, commissions, bonuses, retirement plan or pension contributions, other employment benefits provided in [the Family and Medical Leave Act] and other amounts promised to the employee that are more than the minimum compensation due an employee by reason of employment.”

 

Unless the Arizona Supreme Court reverses or limits the scope of the court of appeals’ decision (something not predicable in light of the VPA’s strict constitutional restraints), Arizona municipalities will be free (again) to enact ordinances that may be more “employee friendly” than other applicable statewide laws. However, this week’s decision does not necessarily mean that Arizona municipalities can mandate employers to provide a wide array of employee benefits. In the private sector, most plans providing non-cash benefits are governed exclusively by a federal law, ERISA. An ordinance mandating the establishment of a typical benefit plan likely would be preempted by ERISA. Thus, the uncertainty regarding which employee benefits local governments in Arizona can mandate employers to deliver is far from resolved.

 

 

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Key Compliance Topics for the First Quarter of 2019 & Ban the Box

Posted By Cindy Hesch, Monday, January 28, 2019
Updated: Saturday, January 26, 2019

Key Compliance Topics for the First Quarter of 2019

& Ban the Box

By Scott Mara, SHRM-CP, PHR-CA

I can't believe that January is almost over, it seems like the last three weeks have just flown by. Now is the time to develop your HR and Payroll Calendar for 2019; having a comprehensive calendar will help you stay organized and help you maintain compliance. With two months left in the first quarter, here are some key items that should be on your HR radar:

·       Send out the 2018 W-2s by January 31. Develop a process for dealing with returned W-2s and how you will handle the phone calls from current and former employees looking for their W-2s.

·       Adjust the compensation for all employees impacted by the change in the minimum wage that went into effect Jan 1. Pay attention to any retro-pay issues.

·       Obtain an updated W-4 Form by February 15, 2019 from each employee wishing to claim exempt status from Federal Tax Withholding in 2019.

·       File the Annual EEO-1 report by March 31.

·       Purchase and update your employment posters. If you have multi-state locations this can be a challenge. I recommend having a third-party vendor to help you manage this process. It would be a good time to audit your various locations to make sure they have the most current posters in place.

·       Conduct an analysis to see what required training is needed in your company this year and start your planning process now to deliver this training.

·       Conduct a review how your year-end went and how it can be done better this year.

·       Finalize your HR strategic and action plans for 2019 and make sure to communicate it with your staff and your stakeholders.

·       Update your employee handbooks and policies and review your on-boarding process both electronically and in person.

I recommend this site for developing a comprehensive HR and Payroll Calendar it has a lot of good information and it will be a good starting point. Make sure to add your key HR dates on the calendar.  https://www.fuseworkforce.com/blog/2019-hr-and-payroll-compliance-calendar-key-dates-hr-and-payroll-managers-should-know

I am not an attorney and this blog is not legal advice. Rather, I am an HR professional like you and when I write these blogs I try to write them from an HR perspective. Another compliance area HR must deal with is the Ban the Box. Ban the Box started back in 2004(1) and has been gaining strength across the U.S. There are 33 states and 150 cities/counties that have some kind Ban the Box law in place (2). Ban the Box is also referred to as "The Fair Chance to Work Movement (3)." 

Ban the Box laws require employers to remove the box on the employment application that asks if an applicant has ever been arrested or convicted of a crime. The premise behind the Ban the Box movement is to have the employer focus on the applicant's work experience, skills and other pertinent employment information; instead, of looking at the applicant's criminal past and using that information against him or her.  (or, the applicant).  The EEOC has stated that using criminal records exclusively in the hiring process can be a form of employment discrimination and in violation of Title VII of the Civil Rights of 1964, as amended. I would recommend that you check out the EEOC's website concerning guidance on arrest and convictions and how they apply to your hiring process. https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

By removing the criminal questions from the employment application and then delaying the background check until later in the hiring process, you are better able to provide a person with a fair chance to be measured against other candidates based on the person’s work performance, skills and education. You can still use past convictions in your final hiring determination but be careful, document, and when in doubt, check with your employment attorney. The link below has a lot of good information on Ban the Box and has a comprehensive document that is very helpful https://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-and-local-guide/.

Another good source of information about Ban the Box can be found from Anita Campbell who is the Founder, CEO and Publisher of Small Business Trends, she recommends the following for how employers can comply with Ban the Box:

·       Determine which laws apply to your company — Consult with your employment counsel to see if there are any state or local laws that apply to your business, and what they require. Also, EEOC guidelines may apply.

·       Revise and reprint job application forms — Review your employment application form. Does yours ask about criminal history? Consult with your employment counsel and consider removing that question or check box. Then have the form reprinted. As a best practice, more and more employers are voluntarily removing that question. Even those who still strongly believe they can and should inquire into criminal history are doing it later in the hiring process. And, while it may be your company’s practice to review the facts of each situation individually, a check box on a job application has a chilling effect. It feels like an automatic disqualifier. It may keep good candidates from applying. For that reason, alone, some employers remove it.

·       Destroy outdated application forms — Make sure only the new version is used. It’s not uncommon for an outdated form to stay online in one place, even if a new one goes up on another URL. Managers may erroneously keep outdated forms thinking they are doing the company a favor by using up the old supply, too.

·       Review internal HR policies — Update your company’s policies as needed.

·       Train hiring managers — Instruct them not to ask about criminal history during interviews. They could say the wrong thing at the wrong time. It’s best for someone who is knowledgeable, like an HR manager, to handle all legally sensitive matters.

·       Document decisions — Document any hiring decision that is based in whole or in part on a criminal history, including other factors that went into the hiring decision. If challenged, you will need the documentation. You may also be required to provide it to the applicant.

·       Understand how to read background checks — Talk with any background checking services you use. See how they designate criminal history. For example, do they note whether an arrest resulted in a conviction or whether the charge was dismissed later? Is the difference between an arrest and a conviction clearly distinguished?

·       Stay up-to-date — Ask your employment attorney to notify you of any future legal changes. Or stay aware of any changes through business organizations to which you belong.

Thank you for reading and wishing you a happy and wonderful 2019!

 

1. & 3."What Employers Need to Know About Ban the Box Movement," Anita Campbell. December 24, 2018. https://smallbiztrends.com/2015/05/employers-ban-the-box-movement.html

2.    "Ban the Box: U.S. Cities, Counties and States adopt Fair Hiring Policies." Beth Avery and Phil Hernandez. National Employment Law Project. September 25, 2018. https://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-and-local-guide/

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The U.S. Supreme Court Upheld Lawfulness of Class and Collective Waivers in Arbitration Agreements – Should Your Company Use Them?

Posted By Cindy Hesch, Monday, January 7, 2019

The U.S. Supreme Court Upheld Lawfulness of Class and Collective Waivers in Arbitration Agreements – Should Your Company Use Them?

 

Kristy Peters, Shareholder, Littler Mendelson

 

In May 2018, the United States Supreme Court held that class and collective action waivers in arbitration agreements are lawful and must be enforced under the Federal Arbitration Act (FAA). The Court’s decision in Epic Systems Corp. v. Lewis ended a circuit split and overturned the National Labor Relation Board’s opinion that class and collective action waivers violate employees’ rights under the National Labor Relations Act.  The Supreme Court held that the FAA requires arbitration agreements to be enforced on the same grounds as any other contract.

 

Now that the Supreme Court has weighed in, finding class and collective action waivers in arbitration agreements enforceable, the question many employers ask is whether they should implement arbitration agreements in the workforce. There are a number of issues to consider when determining whether to issue an arbitration agreement. Some of the positive benefits of arbitration agreements are that employees waive their right to a jury trial; a greater level of predictability regarding exposure and risk; less susceptibility to extortive lawsuits; discovery is typically more limited and much more cost effective; and employees cannot bring claims on a class or collective basis. Some of the negative aspects of arbitration agreements are that arbitration fees can be more expensive than court fees; and awards in arbitration are subject to very limited review—which can cut both ways.

 

Under the #MeToo movement, some state legislatures are pushing for sexual harassment claims to be carved out of arbitration agreements. However, if an employer just carves out sexual harassment claims, what about other discrimination or harassment claims?  Further, a group of law students at top-tier law schools are pressuring law firms to remove arbitration agreements from employment agreements or they will not accept positions with the firm. Other groups of employees could engage in similar pushback.

 

Numerous employers are successfully implementing arbitration agreements in their workplaces. In jurisdictions such as Arizona, our federal courts have implemented a Mandatory Initial Discovery Pilot Program that mandates extensive disclosure and e-discovery obligations early in this case. Having an arbitration agreement in place allows employers to move to arbitration to limit case discovery to a more reasonable and appropriate level to manage costs.

 

Overall, all companies should do an analysis of whether arbitration agreements are the right fit for the workplace. A few things to consider are (1) the jurisdictions where employees are located including damages caps in the applicable jurisdictions, typical jury verdicts, and general cost of litigation; (2) potential for class or collective actions; (3) attitude of the judiciary toward discovery and summary judgment; and (4) quality of potential arbitrators. It will be an individualized assessment for each company to determine if having employees execute an arbitration agreement is the right decision, but the trend is for employers to move toward arbitration agreements.

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