NEW CASE HIGHLIGHTS RISKS ASSOCIATED WITH EMPLOYEE TERMINATION DECISIONS

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War is deceptive: you may think you are strong and that you are making advances against an enemy, but time may show that you were actually marching into great danger. You can never really know, since our immersion in the present deprives us of true perspective. The best thing you can do is to rid yourself of lazy, conventional patterns of thinking. Advancing is not always good; retreating is not always weak.

To waste your time in battles not of your own choosing is more than a mistake, it is stupidity of the highest order. Time lost can never be regained.

Robert Greene, The 33 Strategies of War

As an employer you seemingly hold all the cards. You can terminate an employee for failing to perform or for no reason at all. Employees work for you “at will” — as long as you want them to.

Life is not so simple. Terminating an employee can be an act of war. You have just deprived someone of their livelihood. You may have wounded their pride. And you may have embarrassed them. Never be surprised when such a person strikes back at you.

As an owner, manager, or human resource professional, you are a risk manager. You must know the law and, equally so, the laws of human nature. Ignore either and you may find yourself in court — wasting time and treasure.

This article provides you with a risk management tools to make employee termination decisions. Understand when it is better to bide your time rather than to act in the moment. Follow these guidelines and keep your time, money, and sanity. Leave bad decisions to your competition.

“It’s who you know and who you blow.” This tasteless comment from one employee to another got the employee fired. Was it a lawful termination? The question was answered last week in Scheidler v. Indiana. However, after six years of court battles I am not sure it really mattered. With the enormous waste of time and money, both sides had lost by then. Only one group had profited — the lawyers.   

There are interesting legal questions which arose in the case: what are limits of what employees can say to each other?  Was Brenda Lear Scheidler’s crude comment really a complaint about favoritism in the workplace — a “protected activity” for which she should not have been fired?

However, “interesting” legal questions are best left to lawyers. You have a business to run. You cannot do so while litigating against ex-employees. Therefore, let’s examine how Brenda Lear Scheidler’s employer could have avoided the fiasco from the start — and how you can be a good risk manager when faced with difficult employees.

SCHEIDLER V. INDIANA

Brenda Lear Scheidler worked for the Indiana Department of Insurance (IDOI). She sought accommodations for disabilities related to her mental health, including that her coworkers not startle her. She received these accommodations for several years. But on May 28, 2013, a frustrated supervisor reached toward Scheidler and said, “I could just strangle you.” An investigation into this workplace incident discovered that several months earlier Scheidler commented in an elevator about a coworker’s apparent promotion prospects: “It’s who you know and who you blow.”

Weeks before she made the comment Scheidler she had applied for a new position.  Another employee, Mary Ann Williams, also wanted the job. As Scheidler and others left work one day, they noticed Williams was not at her station. Scheidler then said, “Oh, it looks like Mary Ann is still upstairs in her interview for her government job.” 

Her co-worker responded, “Brenda, don’t we all have government jobs? We’re all State employees.”

Sheidler then replied, “Well, I mean for her federal job upstairs … I’m sure she’ll get it because … it’s who you know and who you blow.”

IDOI terminated Scheidler for this comment and one other incident. Sheideler then sued alleging disability discrimination, retaliation, and other claims. 

The case went on for six years.  The employer prevailed, but only after costly and time-consuming discovery, a trial, and an appeal.   With better decision making by company management, Scheidler v. Indiana would never have come to be.

DO NOT FIND YOURSELF IN COURT DEBATING THE MEANING OF “BLOW”

“Another such victory over the Romans, and we are undone.”

King Pyrrhus

A Pyrrhic victory is a victory that inflicts such a devastating toll on the victor that it is tantamount to defeat. Someone who wins a Pyrrhic victory has also taken a heavy toll that negates any true sense of achievement.

Pyrrhic victories can hit close to home.  Have you ever “won” an argument with your spouse, only to suffer tenfold from the ensuing fallout?  Yeah, me too.

Some (mostly lawyers) who read Scheidler v. Indiana will come away believing it was a victory for IDOI.  But those of us who know history — and have learned from our experiences —  know otherwise.  We think:  how could we have avoided six years of painful litigation, while at the same time having managed this group of challenging employees?

HOW TO BE A GOOD RISK MANAGER

Risk management requires managers to first identify the risk.  Untrained, inexperienced, or impetuous managers lack this skill.

Here are ways to improve your risk management game when disciplining or terminating employees:      

  • If an employee is a minority or in another protected class (e.g. over 40, pregnant, disability), then there is increased risk of a discrimination claim.  For example, Brenda Lear Scheidler had a mental disability that she claimed was the real basis for her termination.
  • If there is no record of you having disciplined the employee and/or a history of positive employee reviews, terminating the employee for performance or other “cause” based reasons will be problematic.
  • If the employee has recently reported misconduct or harassment, then the risk of a retaliation claim — and liability for your company — is high.
  • You will increase the risk of a claim by fudging the real reason for the termination —  for example, telling an employee that the company is “restructuring” or “eliminating the position” when in truth the basis for the termination is something else. In court this sort of statement can and will be used against you.
  • Patience pays:  if you want to terminate an employee, but the immediate risk is too great, it is often best to wait and establish a better record of discipline for a future termination (assuming the employee continues to perform poorly or engage in inappropriate behavior).  In 27 years of counseling employers, I have never once seen this strategy fail to succeed.
  • Ask yourself:  have I been consistent in meting out discipline?  Treating two employees with similar offenses differently can be evidence of discrimination.
  • Conduct an adequate investigation into the facts before you make a final decision.
  • Document discipline; if you do not write it down, it might as well never have happened.
  • Understand, employees are permitted by law to criticize management and work conditions.   Think twice before firing an employee on the basis of a critical, possibly offensive, comment about the workplace or your business.
  • Contact legal counsel if there is any question regarding your strategy or pending decision.  A half hour call is much less expensive than a trip to the courtroom.  

TAKE CONTROL

Court can be a Roman circus.  The Scheidler parties actually debated the meaning of “blow.” The judge, in making his decision, went further: “Blow” has various potential meanings. Another Lear famously hurls it without obvious sexual innuendo: “Blow winds …! Rage, blow!” William Shakespeare, King Lear, Act III, sc. ii.

You have control over your workplace.  You do not have control in the courtroom. Use the tools provided in this article to make good, informed decisions and your risk of ending up in court will fall to near zero.  Operate in the dark, however, and you may find yourself among lawyers and judges debating the meaning of “blow” or some such other random word. 

Art Bourque is an AV rated commercial and employment lawyer who has been practicing law in Phoenix, Arizona for 27 years.  Art provides employment law training to help businesses operate efficiently and avoid mistakes; he is also an experienced litigator.  Art can be found at www.bourquelaw.com, art@bourquelaw.com, 602.559.9550, linkedin, or trail running with his dog, Eli.

WHAT TO DO WHEN YOU ARE A VICTIM OF SEXUAL HARASSMENT

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“Proclaim the truth and do not be silent through fear.”

 St. Catherine of Siena

If you are a victim of sexual harassment, it’s easy, right?  Just read your company’s sexual harassment policy and make a complaint.  Everything will be fixed, just like it says in the company handbook.  If life were so simple.

Those of us who live in the real world understand that bullies do not like being called out.  We learned this long ago — on the playground, or the bus to school, or on the street.  Either deal with the abuse or risk something worse by speaking up. 

We like to believe that this dynamic changed when we became adults; but it didn’t.  To the contrary, children are typically more open to expressing themselves than adults, who often accept their toxic environments without complaint.   

Women in the workplace face a dilemma:   either report sexual harassment and risk retaliation, or “deal with it,” try to avoid the harasser, and hope it goes away.  Neither choice is easy.

THE LAW PUNISHES WOMEN WHO STAY SILENT

The law requires women to “take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” This means that if your company has a sexual harassment reporting policy, and you fail to report harassment as stated in the policy, you could end up being victimized twice:  first, at the hands of your harasser; and later when you are left without a remedy by the courts. 

In deciding whether to allow a claim to go forward, courts look at the reasonableness of a woman’s efforts (or lack thereof) to report misconduct and avoid further harm. The United States Supreme Court has held that “proof that an employee failed to exercise reasonable care to avoid harm … will normally suffice to satisfy the employer’s burden…”

Under this standard, victims of sexual harassment too afraid to come forward will find themselves trapped in a hell-like place where they have no way of redressing the harm they have suffered.

Modern courts understand the hard choice women face when deciding whether to report sexual harassment.  They allow certain cases to go forward despite a woman not following her company’s sexual harassment reporting procedure.  In a recent case, a court noted that the plaintiff’s belief that complaining would result in retaliation was reasonable: she reasonably feared her supervisor’s hostility and retaliation by having her fired, and her belief that reporting would be futile was reasonable because others knew of his conduct, yet it continued. These factors were aggravated by her pressing financial situation.

DO NOT STAY SILENT — SEEK HELP      

Do not leave your future to chance.  If you do not speak up or seek help against your harasser, you will leave your fate to the whims of the court system.  “Hoping” that your judge will be the one who finds that your failure to report under your company handbook was reasonable is not a good strategy.

Here is what you should do when faced with sexual harassment in your workplace:

  • Read your employee handbook or manual; highlight every section that may apply to sexual harassment, discrimination, reporting, and the like.
  • Gather and maintain evidence to support your position; examples include emails, audio and video recordings, notes, witness statements.
  • Determine if there are other victims that will support or corroborate your experience.
  • Consult legal counsel: many lawyers will discuss your situation via a free consultation or a limited charge; depending on your case, many lawyers will pursue the matter for you on a contingency fee basis.
  • Keep a diary or chronology of what is happening so that events remain fresh in your mind over time.
  • Report the harassment under the procedure in the handbook unless there is a situation where that would be futile or otherwise untenable.
  • Consider filing a charge of discrimination with the EEOC; this, like reporting harassment to your employer, is “protected activity” which will insulate you from illegal retaliation by your employer.

ON THE FLIP-SIDE: ADVICE FOR EMPLOYERS

Employers routinely make grandiose statements about their “progressive” and “inclusive” workplace policies.  Much of it is just PR.  But PR is no longer good enough in the #MeToo era.  Employers must provide a workplace free from harassment and discrimination or suffer the consequences.  Lately, those consequences have been multi-million dollar jury verdicts and settlements. 

Here is what employers should do to start 2019:

  • Review your company handbook cover to cover and determine if you need to make changes to either align with your current structure or comply with new laws.
  • Take a moment — or more — to conduct a self-audit of your workplace to understand if there is an existing harassment or discrimination issue(s) you need to get a hold of or ahead of.
  • Respond swiftly and appropriately if you determine there has been harassment, discrimination, or retaliation.
  • If you are overdue, have counsel conduct sexual harassment training for employees and management.

By taking these steps, employers will provide a workplace where women are not faced with harassment and the difficult decision of whether and how to come forward.

Art Bourque is an AV rated commercial and employment lawyer who has been practicing law in Phoenix, Arizona for 27 years.  Art provides employment law training to help businesses operate efficiently and avoid mistakes; he is also an experienced litigator on behalf of both plaintiffs and defendants.  Art can be found at www.bourquelaw.com, art@bourquelaw.com, 602.559.9550, linkedin, or trail running with his dog, Eli.

WAKE UP CALL: STATISTICS SHOW SIGNIFICANT INCREASE IN EEOC ENFORCEMENT

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Your line of work is a layer of reality. Right now, things might seem calm on the surface, but there are changes rippling through that world; dangers are looming on the horizon. Soon your assumptions about how things are done will be outdated. These changes and problems are not immediately apparent. Being able to see through to them before they become too large would bring you great power.

Robert Greene, The 50th Law

Image result for reality

How many times you watched a TV news show where the crime victim’s neighbor exclaims “things like this just don’t happen in our neighborhood.”  Believing that we live in a safe environment allows us to enjoy life.  We have it so much better than our primitive ancestors who were constantly faced with danger — or so we think.  

Complacency is dangerous – even in 2018.  Businesses that fail to prevent sexual harassment and other forms of discrimination are being hit hard by the recent Me Too movement.  Recent EEOC press releases bear this out.

EEOC sexual harassment lawsuits against businesses increased over 50% in 2018 versus 2017. Overall charges of sexual harassment by alleged victims increased by 12% year over year. 

On November 15, 2018, the EEOC issued a report noting significant increases in its outreach efforts and enforcement actions to prevent and remedy unlawful employment discrimination.

The EEOC noted:

  • The launch of a nationwide online inquiry and appointment system as part of the EEOC’s Public Portal resulted in a 30 percent increase in inquiries and over 40,000 intake interviews.
  • The EEOC’s outreach programs reached 398,650 individuals, providing them with information about employment discrimination and their rights and responsibilities in the workplace. To address persistent workplace harassment, the EEOC conducted more than 300 Respectful Workplaces trainings that reached over 9,800 employees and supervisors in the private, public and federal sectors.
  • The EEOC secured approximately $505 million and other relief for over 67,860 victims of discrimination in the workplace.

The economy is thriving.  Complacency often follows prosperity.  Now is a good time to take stock of your business’ sexual harassment and discrimination policies, conduct a “self-audit” of your workplace, and schedule management and employee training heading in 2019, so that it too will be another good year.

Reality has its own power — you can turn your back on it, but it will find you in the end, and your inability to cope with it will be your ruin.

Robert Greene, The 50th Law

Art Bourque is an AV rated commercial and employment lawyer who has been practicing law in Phoenix, Arizona for 27 years.  Art provides employment law training to help businesses operate efficiently and avoid mistakes; he is also an experienced litigator.  Art can be found at www.bourquelaw.com, art@bourquelaw.com, 602.559.9550, linkedin, or trail running with his dog, Eli.

HOW TO INSTANTLY IMPROVE YOUR JOB INTERVIEWS

Hiring practices

Somebody once said that in looking for people to hire, you look for three qualities: integrity, intelligence, and energy. And if you don’t have the first, the other two will kill you. You think about it; it’s true. If you hire somebody without integrity, you really want them to be dumb and lazy.

Warren Buffett

Imagine committing to marry a stranger after a one hour meeting. Following this sit-down, you invite the stranger into your house and depend on him or her for your financial success. This doesn’t feel like a good strategy for success and happiness, does it? Yet, it plays out every day across corporate America.

You do not have six months or a year to evaluate employment candidates as you would a prospective spouse. But you have other tools, including the job interview. A good interview can lead to a productive, long-term, drama-free employee. Conversely, today’s poorly executed interview is tomorrow’s problem employee.

Despite their importance, many companies give short shrift to interviews. This is bad business. The after-effects of a bad hire are many: lost production, poor morale, time wasted on discipline, and other forms of mayhem, such as lawyers and lawsuits.

Let’s look at how to improve your job interviews.

ONE QUESTION CAN REVEAL ALL YOU NEED TO KNOW

You have limited time to ask questions in an interview so they better be good — geared towards eliciting answers that help you evaluate your candidate. With as little as one question, you can detect the person you want, or do not want, in your organization.

“What went wrong?” This question can be used to great effect. Daniel Coyle, author of The Talent Code, describes how Bill Belichick, head coach of the New England Patriots, uses the question to make multi-million dollar hiring decisions:

At the NFL combine, Belichick invites a prospect to the team’s hotel room. The athlete walks in, Belichick says a brisk hello, clicks off the lights, then pushes PLAY on a video of one of the player’s worst moments of the previous season: a major screw-up. Then Belichick turns to the prospect and asks, “So what happened there?”

Belichick not really interested in what happened on the field, of course. He’s interested in how the player reacts to adversity. How does their brain handle failure? Do they take responsibility, or make excuses? Do they blame others, or talk about what they’d do differently? (One player started ripping into his coach, and Belichick flicked on the lights and ended the interview right there — possibly saving his franchise millions.)

The idea is not just to weed out players with the wrong mindset, but also to identify those who have the right one. Players like Tom Brady — a skinny, incredibly slow, unathletic quarterback (below), who developed into one of the all-time greats.

HIRE WINNERS, NOT VICTIMS

You want to hire people who take responsibility for what happens to them and in their workplace. You do not want to hire candidates who display a victim mentality. Such types do not take responsibility and complain incessantly. They make poor leaders and bad subordinates. They kill the spirit and morale of your workplace.

The following questions can reveal candidates who possess victim mentalities:

• “Describe the best boss you ever had, and describe the worst boss you ever had.”

• “Tell me about a failure in your life and tell me why it occurred.”

• “What are some of the things your last employer could have done to be more successful?”

• “Did you ever tell your previous employer any of your thoughts on ways they could improve?”

• “What are some of the things your last employer could have done to keep you?”

Evaluate the answers you receive: Does your candidate speak briefly of his best boss, but rail on negatively about others? Can he identify any of his failures and, if so, does he take responsibility for them or blame others? When your candidate speaks of ways his previous employer could have improved, are his comments constructive or laced with condescension or anger? When your candidate identifies things his previous employer could have done to keep him, does he list reasonable things or grandiose demands. Observe your candidate’s body language and demeanor when giving his responses — are they a “tell” that you are dealing with an overly emotional or negative person?

These questions appear in Gavin de Becker’s book, The Gift of Fear, in which he details how to identify and assess troubled people, including employee candidates you are considering inviting into your workplace.

Understand, you have limited time to assess your next hire. Much of your job interview will be consumed with discussing job requirements, the candidate’s qualifications, and other topics which will reveal little of your candidate’s character. Do not leave anything to chance: make sure that you ask an adequate number of questions to reveal your candidate’s emotional intelligence.

HEDGE YOUR BETS AGAINST A SKILLED INTERVIEWEE

A “professional” interviewee can sometimes fool an interviewer who does everything right. So, before you decide to interview someone consider the following red flags:

• Have they frequently hopped from job to job?
• Have they been associated with failed business ventures?
• Is their resume excessively grandiose?
• Does your background search reveal past litigation, credit problems, or an association with sketchy people or businesses?
• Do previous employers have nothing good to say about your candidate?

CONCLUSION

Hire quality people into your organization and it will thrive. Leave bad candidates to your competition.

Bonus tip: The principles discussed in this article go beyond interviewing employees. Use them to interview prospective business partners, independent contractors, professionals, vendors, and would-be lovers. Surround yourself with winners.

Art Bourque is an AV rated commercial and employment lawyer who has been practicing law in Phoenix, Arizona for 27 years. Art provides employment law training, including how to interview, conduct background searches, hire, discipline, supervise, and terminate employees; he is also an experienced litigator. Art can be found at www.bourquelaw.com, art@bourquelaw.com, 602.559.9550, linkedin, or trail running with his dog, Eli.

HOW TO AVOID BEING AN EMBEZZLEMENT VICTIM

Con men, Embezzlement, Sociopaths

“The irony is inescapable. The same thing that can underlie success can also make you all the more vulnerable to the grifter’s wares. We are predisposed to trust. Those who trust more do better. And those who trust more become the ideal, albeit unwitting, player of the confidence game: the perfect mark.”

Maria Konnikova, The Confidence Game: Why We Fall for It . . . Every Time

Trust should be a four letter word. It is the embezzler’s currency. A famous President once said, “trust, but verify.” I would add: “and do so promptly and regularly.”

Most all of us know someone who has been conned or the victim of embezzlement. But you or me, that would never happen to us — right? Wrong. It may be happening to you right now.

Embezzler’s need opportunity. If your business or family does not present an inviting target, most embezzlers will not invest the effort needed to relieve you of your wealth. And if a thief mistakenly believes that you are a possible mark, your quality control — your “trust, but verify promptly and regularly” — will red flag any theft.

Sounds easy, right? It’s not. We are irrational creatures who often engage in “confirmation bias.” This is the tendency to search for, interpret, favor, and recall information in a way that confirms one’s preexisting beliefs or hypotheses. People display this bias when they gather or remember information selectively, or when they interpret it in a biased way. The effect is stronger for emotionally charged issues and for deeply entrenched beliefs. Confirmation bias leads to “belief perseverance” — a belief that persists even after the evidence for the belief is shown to be false.

Most of us engage in belief perseverance at one time or another. Indeed, right now, half the country is convinced that the other half is delusional. But when is the last time a Facebook rant or cocktail party conversation changed your mind about politics? Never. Belief perseverance is strong.

Knowing that we may be smart, but are also prone to confirming our beliefs rather than challenging them, here are ten strategies to protect your business and family wealth from embezzlers:

• Do not have a bookkeeper, accountant, or family member operating your business or personal wealth without oversight by others; too many of my embezzlement cases have involved the “trusted” bookkeeper or CPA.
• Be observant of any unusual, defensive, or territorial behavior among your “trusted” employees, partners, and associates.
• Your first reaction to new information should be healthy skepticism, not blind enthusiasm or rationalizing bad news. In The Confidence Game, the author notes that “Sherlock Holmes’s trick is to treat every thought, every experience, and every perception the way he would a pink elephant. In other words, begin with a healthy dose of skepticism instead of the credulity that is your mind’s natural state of being.”
• Do not wait until after you are a victim to sit down and carefully think about what is happening to you in any given situation. “A helpful exercise is to describe the situation from the beginning, either out loud or in writing, as if to a stranger who isn’t aware of any of the specifics—much like Holmes talks his theories through out loud to Watson. When Holmes states his observations in this way, gaps and inconsistencies that weren’t apparent before come to the surface.” The Confidence Game.
• If you are an organizational or family leader, make sure that your employees or family members are free to bring concerns to your attention; then listen intently and evaluate what they are telling you before reaching a conclusion. This is extremely difficult if the news challenges your beliefs about a trusted person.
• Put organizational safeguards in place, update them regularly, and follow them like your fortune depended on it.
• Perform periodic audits — formally and/or informally — that expose your books and records to scrutiny.
• Retain a professional(s) if you believe you have a problem on your hands, or a situation that requires closer scrutiny.
• Do not engage in illegal or immoral conduct; other than the fact that it is wrong, the embezzler or con-man will use it as a means to expose you should you expose him.
• Read The Confidence Game and The Sociopath Next Door — informative and entertaining — to know who you are dealing with.

Are you predisposed to trusting people? Worry not: the world is full of trustworthy, wonderful people. A certain percentage of people, however, cannot be trusted, and many have acting skills that are academy award worthy. Do not be an unwilling participant in their game. Play Sherlock Holmes to their Professor Moriarty.

Art Bourque is an AV rated commercial and employment lawyer who has been practicing law in Phoenix, Arizona for 27 years. Art provides training in order to help businesses operate safely, efficiently and avoid financial and other mistakes; he is also an experienced litigator. Art can be found at www.bourquelaw.com, art@bourquelaw.com, 602.559.9550, linkedin, or trail running with his dog, Eli.

THE EMPLOYER’S GUIDE TO DEALING WITH SICK AND DISABLED WORKERS

Americans with Disabilities Act, Family Medical Leave Act, Reasonable accomodation

‘Tis the season to be…sick.  I can attest to this, having just endured a particularly pernicious disease:  the dreaded and debilitating man-cold.

Over the next several months, employees throughout the country will be missing more work due to sickness.  Many of them already have a less than perfect attendance records.   Others will injure themselves at work or home or succumb to chronic and sometimes disabling diseases.

 This is the first in a short series of HR Law Insider articles targeted to help HR professionals, managers, and business owners successfully navigate two of the most common, yet difficult and misunderstood, workplace challenges:
  • Deciding when to discipline or terminate sick or disabled employees that cannot come to work or cannot do so with adequate frequency and reliability.
  • Avoiding Americans with Disabilities Act (ADA), Family Medical Leave Act (FMLA), and other claims when dealing with sick and/or potentially disabled employees.

HILL V. CITY OF PHOENIX:  WHEN GOOD IS NOT GOOD ENOUGH

Stacia Hill worked for the City of Phoenix police department. Upon returning to work in February 2012 after a lengthy medical leave, Hill advised the City she had ankle problems and a sleep disorder.  The City tried to accommodate these disabilities by assigning Hill to the Front Desk Sergeant position, which it characterized as a sedentary desk job, and by giving Hill an 8:00 a.m. to 4:00 p.m. shift, consistent with the recommendations of her sleep doctor.

Hill began arriving late and missing some days of work and her attendance worsened in April and May.  Hill’s supervisor then held a “coaching session” with Hill.  He  told Hill that he would be removing her from one of her positions in order to lighten her workload.  Hill stated that she viewed this decision as “punishment” for her previous use of approved leave.

Following this meeting,  Hill stopped reporting to work entirely on May 22.  On May 23, 2012, Hill’s psychologist drafted a two-sentence letter recommending that Hill “be placed on stress leave beginning on May 22, 2012  for an indeterminable amount of time.”  On May 31, the City sent a letter to Hill explaining that the doctor’s letter was insufficient to authorize Hill’s absence because it “failed to identify a medical condition or provide any information as to the nature of the condition, prognosis, course of treatment, symptoms, duration of the condition, or an anticipated date of return to work.” The letter requested additional information explaining why Hill was unable to work.

Around the same, the City sent Hill a letter advising her that her position required her to maintain regular and reliable attendance. Then, Hill’s doctor gave the City a letter explaining that Hill was experiencing “considerable anxiety” which had exacerbated her sleeping difficulties and depression.  He recommended that Hill not drive a vehicle, and indicated that it was “difficult [to] pinpoint when she will be able to return to duty, if ever.” Hill’s doctor then provided another letter stating that it was “difficult to say when exactly Ms. Hill can return to work,” but that it would likely be possible once her stress levels improved.

On June 26, 2012, the City sent Hill a letter requesting that she have her doctors complete a “reasonable accommodation medical questionnaire” to “clarify [her] medical conditions.” The letter also informed Hill that she had exhausted her leave time and would need to request a leave of absence if she wished to remain employed. Failure to obtain such leave, the letter warned, would constitute job abandonment.

Hill returned to work on June 28, 2012.  However, she began using unscheduled leave again on July 10th, leaving two hours early on that day, and failing to report on the 11th or 12th.  On July 13, Hill came to work but left two hours early, complaining about her ankle.  She never returned to work again.

On July 17, 2015, Hill’s doctor produced a two-sentence letter virtually identical to the one supplied on May 23rd, again recommending Hill be placed on “stress leave” for an “indeterminable amount of time.” The City responded with a letter advising Hill that her doctor’s letter was not sufficient to authorize her absence, and requesting that she provide acceptable documentation of her medical condition and contact her supervisor immediately regarding her intentions to return to work. The letter further informed Hill that failure to report to work by July 27, 2012 would be classified as job abandonment.

On July 30, 2012, the City sent Hill a letter stating that because she had not reported to work or provided acceptable medical documentation, the Department would classify her as having abandoned her job. The letter further informed Hill that the City would consider reinstating her if she could establish that her absence was due to circumstances beyond her control.

On August 7, Hill sent a letter to the Department’s Chief which stated:

“I wish to inform you that I was absent from my job only because I was instructed not to work by my doctors. If I were able to perform my job, I would be there and I’m certain the City does not want me at work if I’m unable to perform my duties….I request you reinstate me and allow me to remain on unpaid leave until I can complete the LTD application process.”

This request was denied, Hill was fired, and her EEOC claim and lawsuit soon followed.

THE COURT’S DECISION:  HILL WINS A HUGE VICTORY   

Initially, things look good for the City:  the court ruled that Hill was not able to perform the essential functions of her job in or after July 2012, and that no reasonable accommodation would have changed this fact. For this reason, it granted summary judgment and dismissed Hill’s unlawful termination claim.

However, in a big win for Hill, the court also ruled as follows, setting the stage for an expensive and risky (for the City) trial:

“It is not possible to determine … whether Hill’s condition might have stabilized, allowing her to perform the essential functions of her job going forward, had the City engaged fully in the interactive process in May and June 2012—a process that might have led to helpful accommodations. It is similarly impossible to determine as a matter of undisputed fact whether the City engaged in the interactive process in good faith during this time.”

FOLLOW THESE FOUR STEPS AND AVOID THE CITY OF PHOENIX’ FATE

Employers who fail to engage in the interactive process in good faith face ADA liability if a reasonable accommodation would have been possible.  The interactive process is an informal undertaking in which the employee and the employer attempt to identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. There are four critical steps in the process:

(1) identifying the essential functions of the employee’s position,
(2) identifying the employee’s precise limitations,
(3) identifying potential accommodations and assessing the effectiveness of each, and
(4) implementing the accommodation that is most appropriate for both the employee and the employer.
 

An employer must participate in the interactive process upon receiving notice of the employee’s disability and desire for accommodation or in circumstances in which an employee is unable to make such a request, if the company knows of the existence of the employee’s disability.  An employer’s duty to engage in the process continues as long as the employer is aware that the initial accommodation is failing and further accommodation is needed.

The crux of the court’s decision is that the City essentially gave up too soon on trying to accommodate Hill:

“In determining whether a reasonable accommodation would have been possible, the Court considers the accommodations that were possible at the time the interactive process broke down. Thus, it is not dispositive that Hill was not a qualified individual with a disability—i.e., an individual able to perform the essential functions of her job with or without reasonable accommodation—when her employment relationship with the City ended in late July 2012. The relevant question is whether she was such an individual at the time of the City’s alleged failure to participate in May and June 2012. A reasonable jury could find that she was qualified at that time. While it is true that Hill was having trouble maintaining regular and reliable attendance in May and June, a reasonable jury could conclude that she was not fully accommodated at that time, and that she could have maintained adequate attendance if she had been granted additional accommodations (e.g., a transfer to a fully sedentary position, a 4/10 schedule) to assist with the management of her disabilities.”

THE NEXT TIME YOU HAVE A SICK OR INJURED EMPLOYEE…

Expect your conduct in accommodating — or failing to accommodate — a sick or disabled employee to be heavily scrutinized if that employee is subsequently terminated.  Months of patience and discipline can be ruined by failing to explore and document all potential accommodations to allow an employee to return to work or have additional time to recover.

Fortunately, Hill-type situations do not occur frequently.  But when they do, (1) understand the law and (2) contact experienced employment law counsel to develop and implement a plan that ensures compliance with the law, a fair shake for your employee, and that your business stays out of court.

When not battling man-colds, Art Bourque of Bourque Law Firm can be found here tackling HR, employment, and other business issues for both companies and individuals.

TEN TIPS FOR WRITING EFFECTIVE WORKPLACE EMAILS

Effective writing, Writing effective emails,

“With great power comes great responsibility.”

Uncle Ben, Spiderman

I missed the class on writing workplace emails. You did too? Probably because the class does not exist.

Most of us are left to our own devices, so to speak, when composing emails and hitting the send button — forever losing control of our words. This can lead to many problems down the road. How many of us have read, or sent, regrettable emails?

Perhaps worse are the emails that nobody reads because they are long, winding, and unorganized. Want to be irrelevant?  Be a boring, rambling, windbag in your emails.

This article gives business owners, HR professionals, and others simple tools to convey effective messages that will stand the test of time — and scrutiny.

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WRITING TO WIN

Steven Stark’s Writing to Win  is my go-to book for simple, effective writing tips.  As Mr. Stark observes, the average person now gets so much email that the tendency is to read a few lines and then lose interest, especially because email is often read while the recipient is doing something else at the same time.  If you want people to read your electronic communications you have to take steps to make them readable.

Here are what I believe are the ten best tips to ensure your emails have the best chance of getting read, understood, and acted upon:

  1. Lead with conclusions:  tell your reader why you are writing them and what you want them to do in response.
  2. Keep it short — 150 words or less:  write anything longer than five sentences and you risk that the email will go unread or be forgotten.
  3. Write in simple English:  that’s right, KISS (keep it simple, stupid) applies to emails.
  4. Assume unknown readers:  your email is a “forward” away from being read by many others; anticipate this.
  5. Pause and think before you send:  the heat of the moment is not the time to send an email; put a timer on yourself when you are mad or fired-up and want to hit send.
  6. Don’t pick a fight:  escalating tensions is rarely effective; can you convey a message or viewpoint without using inflammatory or abusive language?  Of course you can.
  7. If you’re writing anything confidential, inflammatory or contentious, enter the recipient’s name in the “to” box after composing the email:  this way you do not risk inadvertently hitting “send” and losing control of an incomplete or unintended email.
  8. Beware the “reply all” button:  need I say more?
  9. Avoid questionable phrases or sentences:  Don’t make comments like “I don’t know if this is legal but…” or “I really shouldn’t put this in writing.”
  10. Don’t overuse email:  excessive emails are a nuisance at least and, much worse, risk making you irrelevant.

GO FORTH AND SPREAD THE WORD(S)  

Consider putting the bullet point tips in this article directly into your Employee Handbook or a separate email policy.  Too many handbooks and policies tell employees what not to put in emails, but omit any mention of how to write an effective email.  For help in updating your employee handbook for 2017, or in developing  workplace policies and handling business law issues, contact Art Bourque at Bourque Law Firm.

Otherwise, while you ponder your next email, enjoy this brilliant —  and really funny — use of rhetoric in response to an attorney’s nasty demand letter (don’t try this at home):

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DOL APPEALS RULING STRIKING DOWN OVERTIME LAW

FLSA, Overtime, Trump administration, , ,

According the Wall Street Journal, and as anticipated, the US Department of Labor (DOL) is appealing the injunction that halted the December 1 implementation of a sweeping overtime-pay regulation, advancing a federal court battle over a rule that could face an eventual challenge from President-elect Donald Trump.

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Labor Secretary Thomas Perez and other department officials filed a notice of appeal on Thursday with the Fifth U.S. Circuit Court of Appeals in New Orleans to defend an Obama administration rule requiring employers to start paying overtime to workers earning salaries of less than $47,476 a year.  Ironically, the rule was struck down by Obama appointee, Judge Amos Mazzant of Texas.

The WSJ notes that even barring court action that could permanently block the rule, the regulation could face a challenge from President-Elect Donald Trump, who has said he would be rolling back business regulations he thinks do economic harm.  While Mr. Trump hasn’t commented specifically about the overtime-pay regulation, Republicans have criticized the rule as excessive.

What can businesses expect and how can they plan given the legal wrangling?:  businesses that did not implement the proposed, but now banned, rule, can continue to operate lawfully under the “old,” existing rule.  That rule requires  exempt, salaried workers be paid at least $23,660.

The appeals process will likely extend into 2017, be decided by the court of appeals, and then reach a crescendo and conclusion at the US Supreme Court.  Separately, expect the Trump administration, after he is inaugurated on January 20, to try and bury the proposed new rule through an administrative and/or executive action.

HR Law Insider will immediately inform businesses if there is any change in the law and what they need to do.

For further information on these or other employment, business, and HR matters, contact Art Bourque at Bourque Law Firm.

NEWS ALERT: JUDGE STRIKES DOWN NEW OVERTIME RULE AS UNLAWFUL

FLSA, Overtime

Yesterday, in a shocking decision, and a stern rebuke to the Obama administration, a United States federal court judge in Texas struck down the Department of Labor’s (DOL) new overtime rule that was set to go into effect on December 1.

This brief HR Law Insider article explains all you need to know about the judge’s decision and its huge impact on businesses throughout the nation.

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OVER 20 STATES SUED THE DOL TO KILL THE NEW OVERTIME RULE

The DOL’s much ballyhooed regulation that was to raise the salary limit below which workers automatically qualified for overtime pay to $47,476 from $23,660 was set to go into full force and effect on December 1.

However, months ago over 20 states sued the DOL arguing, among other things, that the DOL exceeded its authority in enacting the new regulations.  The states contended that Congress’ law — the Fair Labor Standards Act (FLSA) — could not be changed by a fiat of the DOL.  In other words, the states contended that the Obama administration’s DOL exceeded its authority.

THE NEW OVERTIME LAW IS DEAD — FOR NOW

Judge Amos L. Mazzant III of the Eastern District of Texas ruled that the DOL has indeed exceeded its authority by raising the overtime salary limit.  The judge promptly enjoined (i.e. stopped) the DOL rule from going forward not only in Texas, but nationwide.

Understand, the court’s injunction is a temporary ruling that stops the regulation until the judge can issue a final ruling on the merits.  However, the handwriting is on the wall: the judge is highly likely to strike down the regulation when he issues his final ruling.

 

ELECTION 2016: ARIZONA ADOPTS NEW WORKPLACE LAWS AND PRESIDENT TRUMP IS COMING TO YOUR WORKPLACE

Minimum wage, Proposition 206, Sick time

President Elect Donald Trump won in a shocker last night.  So too did Arizona employees:  Proposition 206, known as the Fair Wages and Healthy Families Initiative, passed comfortably at 59% to 41%.

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PROPOSITION 206

Here is an overview of the new law:

Starting on January 1, 2017, Arizona’s minimum wage will increase  to $10, then $10.50 in 2018, $11 in 2019, and $12 in 2020.  In 2021, the minimum wage will be adjusted each year based on the cost of living.

In dollars and cents, a current full-time minimum wage worker makes $16,744 per year. However, by 2020, such workers will make $24,960 per year.

For restaurants and similar businesses, tipping laws in Arizona will remain the same:  employers may pay employees $3 less than minimum wage if they are earning as much, or more than, minimum wage with tips.

The new law also entitles certain employees to paid sick time. Employers with more than 15 employees must provide each worker with 24 hours of paid sick time per year. If a business has more than 15 employees, 40 hours is required.

Sick time is available to employees who have a physical or mental illness, must care for a family member, experience a public-health emergency, or take a leave of absence because of domestic or sexual violence and/or stalking.

DONALD TRUMP AND YOUR WORKPLACE

President Trump will likely have wide-ranging effects on workplace laws and, equally important, how those laws are enforced.  From Executive Orders, to selecting Supreme Court Justices that interpret workplace laws, to appointing agency heads who apply those laws (e.g. head of the Department of Labor),  a President can greatly impact employers and their workers.

In the coming weeks and months, as President-Elect Trump’s cabinet selections and other appointees come into focus, HR Law Insider  and attorney Art Bourque will be right there to help businesses understand the real world climate in which they are operating.

Today, however, is for many a day for celebration or mourning.   To assist on that joyful or seemingly perilous journey, here are two songs about change, the first for the “winners” and the second for those wondering what happened.