Copyright © Daniel Cullinane CPA.
HUMAN RESOURCES 2
FAMILY MEDICAL LEAVE ACT
You may be among the many employers that have dress and grooming rules for employees. That is fine as along as you allow for religion, race, disability and other protected statuses that may affect how employees comply with the rules. After that make sure supervisors do not make offhand snide comments about a particular employee's dress and grooming. It may be interpreted as racially hostile.
Recent case: Shareefah, who is black, worked for a union as an organizer. While she was at the union's main office in Oakland, the union president looked at her hair and implying she had weaves, asked her twice "Did you buy your hair from the store on the corner?" A few days later at that office another employee asked about her hair. Shareefah claimed that after two incidents, supervisors began to criticize her work. One day, she was called into a meeting to discuss her alleged work deficiencies. She was wearing a Ralph Lauren shirt with the designer's polo logo. She claimed a manager made a recially offensive statement and criticized for wearing the shirt. He allegedly added that Shareefah could nt belong to a polo club or ride horses because she was not white. Soon after she was terminated, allegedly for exhausting FMLA leave and being absent. She sued, claiming she had been subjected to a racially hostile work enviroment based on the hair and shirt comments. The court agreed to send her case to trial.
EEOC: Most Harassment training is worthless
Nearly 30 years of anti-harassment training by corporate America has done almost nothing to curb the amount of harassment occuring in the work place, says a new report by the EEOC Commissinor Victoria Lipnic about the 14 month study . Almost one third of the roughly 90,000 employee claims filed with EEOC last year included an allegation of some sort of harrassment, sex, race, religion age ect The problem says the report is that most anti harassment training is more focused on simply avoiding legal liability than on actually preventing harassment. That does not mean we are suggesting htat training be thrown out but training needs to be part of a holistic, committed effort to combat harassment, focused on the specific culture and needs of a particular workplace
Solutions: The EEOC is urging employers to use customized training. To be effective, the training that is live in person and customized to your workplace. The report encourages employers to implement workplace civility training, a skills based training on how to act respectifully with co-workers and customers. Plus, it suggests organizations employ "bystander intervention training " in which employees are taught how to recognize and report problematic behavior when they see it. This creates a sense of collective responsibility on the part of workers.
Managers are the employer's eyes and ears, so they have a key legal responsibility to be on the lookout for behaviors that could spark a sexual harassment compliant. Remind them they need to be alert for two kinds of harassement
Quid pro quo literally means this for that harassment. It occurs when a boss uses job rewards, such as raises or promotions, or punishment such as demotions or firing to force employees into a sexual relationship or sexual act. One incident of quid pro quo harassment is enough to justify a lawsuit. Victims do not even need to suffer any actual physical contact, they need only show that a coercive offer was made
Hostile environment harassment is more subtle. Employees who make such claims argue that the workplace is sexually charged that it affects their job performance. causes include pornographic pictures displayed verbal abuse inappropriate touching sexual jokes or demeaning gender based remarks
MANAGING DRESS CODE
The EEOC last month lost an important case that was among the first to test the concept that race can be defined by something other than a person's immutable characteristics . The EEOC had argued that an applicant's dreadlock hairstyle was an artifact of black racial identity and was therefor protected. The 11th Circuit Court disagreed.
In the case, Chastity, a black women, was told she would not be hired unless she cut off her dreadlocks. The employer's policy required employees to be groomed in a manner that projects a professional and business like image. The EEOC claimed a dreadlocks ban constitutes racial bias because it is "a manner of wearing the hair that is culturally associated with people of African decent. The 11th Cirsuit refused to expand Title Vll race discrimination to include the idea of "race construct" rather than as defined by physical characteristics that cannot be changed. If the EEOC's view were accepted, it reasoned a white person with dreadlocks would be able to allege race discrimination even without back skin. The Court concluded that black people can readily cut their hair but cannot change the color of their skin
Employees are becoming well versed in the FMLA game and you are paying the price. Unschduled intermittent leaves now account for a huge portion of all FMLA leaves of absence. While the law does allow employees to take FMLA leave in small bites for a doctor's visit or to care for a sick relative, it does not give them unfettered rights to random work breaks or to arrive late without a good excuse.
That is why employers can demand medical certifications for all FMLA leaves and challenge intermittent leave requests to create a less disruptive schedule. As a new court ruling shows, the FMLA was not intended to cover random breaks that damage an organizations's productivity.
Case: Call center employee Kenneth Mauder, who has diabetes frequently arrived late to work. His diabetes medicine caused temporary uncontrollable bowel movements. He demanded unfettered permission to take lengthy restroom breaks. The company denied his request because those breaks hurt the call center's responsiveness. After the company fired Mauder for performance reason, he sued, alleging he was entitled to FMLA leave for restroom breaks. The court disagreed, saying that such breaks were no the sorts of things the FMLA protected unless he actually was too incapacitated to come to work at all.
Daniel Cullinane CPA
25 Plaza 5 25th fl Jersey City NJ phone 732-516-1648 fax 732-516-9778
2500 Plaza 5 25th fl Jersey City NJ 07311 phone 732-516-1648 fax 732-516-9778