Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners. More details about the events and Human Resources 4U can be found on my website.

 

Employee Handbook Updates 2013: There have been significant changes to CA employment laws in the past two years. If you haven’t updated your Employee Handbook recently and you are interested in having me update your employee handbook, please contact me.

NLRB Gives Guidance on "At Will" Provisions in Employee Handbooks

The NLRB General Counsel has issued opinions in two cases, finding the employers’ handbook provisions concerning “at-will employment” to be lawful. The Advice Memoranda provide guidance for employers whose handbooks and policies advise employees that their employment is “at will” and may be terminated at any time. As the General Counsel observes in both memoranda, it has become commonplace for employers to rely on such policy provisions as a defense against employees asserting that the employee handbook creates an enforceable employment contract.

 

The two cases decided bring clarity to this issue. In both cases, the clauses recited that company representatives were without authority to enter into any agreement altering the “at-will” status of the employees, and that the handbook itself did not constitute an express or implied employment contract. One of the handbooks also required that employees sign an “Acknowledgement of Receipt.” The General Counsel stated that the provisions did “not explicitly restrict Section 7 activity.” Moreover, in neither case was the provision promulgated in response to union activity, nor had the provision been applied to restrict union activity. Hence, the sole issue was whether employees would reasonably construe the language to prohibit union organizing or other concerted activity protected by Section 7.

 

The General Counsel concluded that employees would not reasonably understand the provisions to prevent them from engaging in concerted activity for the purpose of altering their at-will status. The clauses do not require employees to agree to refrain from such activity, nor do they require employees to agree that their status cannot be changed. These clauses simply recite that management representatives could not alter the employees’ status. As such, the provisions reflect a restriction on the authority of company representatives, not on employee rights.

 

Accordingly, when the at-will provisions are considered in context, employees would not reasonably construe these provisions as preventing them from bargaining collectively for a contract, a critical component of Section 7 activity.

As these cases demonstrate, employers may avoid issuance of a complaint by carefully drafting their “employment at will” handbook provisions to avoid interference with employee organizing rights or protected activity.

Employer Wins ADA Fragrance Case

The employee’s only alleged problem was asthma triggered by Japanese Cherry Blossom perfume and apparently only when worn by her co-workers but not by anyone else. The court avoided making any finding as to whether she had a disability under the  ADAAA. Therefore employers should be advised that these "fragrance sensitivities" can be considered "disabilities" under the version of the ADA that is now in effect. Therefore, “fragrance complaints” need to be taken seriously. However; the court found that the ADAAA "disability" question was moot because the employer had tried to make reasonable accommodations anyway and also that the plaintiff had been unreasonable.

 

Reasonable Accommodation

The employer’s attempts to make reasonable accommodations to the plaintiff's sensitivity, included that it:

• Offered to ask co-workers to refrain from wearing Japanese Cherry Blossom
• Tried to consult with the plaintiff's health care provider
• Offered the plaintiff more-frequent breaks, and
• Made all kinds of other offers to help her out.

 

According to the court, the plaintiff was essentially uncooperative and insisted on two "unreasonable" accommodations or nothing. The court found that the employer had engaged in the interactive process and had met all of its legal obligations to try to accommodate her.

 

Unreasonable accommodation

Under both versions of the ADA, an employee who fails to cooperate in the reasonable accommodation process or refuses a reasonable accommodation loses the protection of the Act. The two accommodations the plaintiff insisted upon were a 100 percent fragrance-free workplace, and being allowed to telecommute. The court found that neither of these accommodations was reasonable based on her work environment and job duties and therefore that the employer did not have to make them.

 

So, the plaintiff either refused or failed to respond to offers of reasonable accommodation from the employer. By doing so, she essentially lost her protection under the ADA, and her employer won the case.

 

Factoids

• Over a 20 year period of retirement, out-of-pocket healthcare costs for the average 65 year old couple can reach $240,000. By 2030 the average cost per year for a nursing home is projected to be $265,000
• In 2000, 12% of workers were over age 55, by 2025 it will be 20%.

Wellness

• 52% of all companies offer wellness programs
• 49% of eligible employees participate in company wellness programs
• 90% of large companies say wellness solutions are an important part of their benefits mix while 79% of small companies (2-99 employees) do, As well.