"This & That" Tuesday: Attendance, Back Pay, Disability

 

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 or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

 

Upcoming Events

September 22, Mt. Sac (Walnut), How to Build a Salary Structure & Merit Pay System, Click here for more information.

 

September 29, Mt. Sac (Walnut), Cal-OSHA & IIPP Basics, Click here for more information.

 

October 6, Mt. Sac (Walnut), Coaching to Improve Performance, Click here for more information.

 

October 13, Mt. Sac (Walnut), How to Create and Conduct a Formal Discipline Discussion, Click here for more information.

 

October 20, Mt. Sac (Walnut), Cal-OSHA & IIPP Basics, Click here for more information.

 

Job Descriptions: Being at Work Is an Essential Job Function

The Court of Appeals for the Eighth Circuit ruled that when determining whether an employee is disabled or not because the employee cannot perform the essential functions of the job, the key document to be considered by the Court is the job description prepared by an employer to describe the essential functions of a position rather than the actual duties being performed by the employee. This decision places great importance on the job descriptions prepared by an employer.

 

Another decision from the District Court in the Fifth Circuit held that attendance at work could be considered an essential function of a position. If that occurs, an employee who could not meet the employer attendance requirements would not be considered a “qualified employee” under the Americans with Disabilities Act and would not qualify for protection such as a reasonable accommodation. This again highlights the importance of having accurate job descriptions and comprehensive job descriptions that identify the expectation of attendance at work as a requirement of the job.

 

Many employers have not spent the time to create Americans with Disabilities Act compliant job descriptions. This can result in a loss of an opportunity to clearly identify the job expectations for a position and insure that all employees must be able to perform the essential duties of the job in order to be considered a protected employee that may be eligible for reasonable accommodations if suffering a disabling condition. Employers should also be careful to clearly indicate the attendance expectations for a position in order to be able to argue the attendance requirement as being an essential function of the position held by the employee.

 

Workers or Their Heirs Collect Back Pay After 44 Years

Forty-four years after the initial suit was filed, two retired workers and the estates of 30 others will receive back pay and interest because they lost their jobs and seniority in a railroad merger.

All but $500,000 of the $14.7 million award is interest. The Cleveland area workers, who were employed by a New York Central subsidiary, had contended they were protected by a jobs deal when the railroad merged with Pennsylvania Railroad in 1968. The company, however, claimed they weren’t direct employees and weren’t entitled to protection.

 

The case is one of the longest legal disputes in U.S. history. One of the retired workers is 85-year-old John Gallagher, who sought $3,000 but will get $95,000 because of the interest payment.

 

Foodworks Pays $25,000 to Settle Disability Discrimination

The Food Farmacy, Ltd. and J&T Enterprises, LLC, doing business as Foodworks, a chain of grocery stores in Connecticut, will pay $25,000 and furnish other relief to settle a disability discrimination lawsuit filed by the EEOC.

 

According to the EEOC's suit, Foodworks asked disability-related questions of a class of applicants before offering them jobs. The questions included "Do you have any health problems?" on applications and asking applicants in interviews whether they had any health/ physical problems; whether they were on any medications; and if so, which medications.

 

The EEOC also alleged that when an employee with epilepsy had a seizure at work, Foodworks fired the employee a few days after the seizure, despite the employee having performed his job successfully and presenting medical documentation indicating he was capable of returning to his normal work day. According to the suit, Foodworks also failed to post the required notices describing provisions of federal law prohibiting disability discrimination in its store.

 

In addition to the $25,000 in monetary relief to the individual who was fired, the four-year consent decree resolving the lawsuit prohibits Foodworks from asking pre-offer disability-related questions of applicants in the future and prohibits the company from firing an employee because of that employee's disability or perceived disability. The decree also requires Foodworks to post posters concerning federal anti-discrimination laws in all of its stores; provide anti-discrimination training to all of its employees; adopt a new anti-discrimination policy that will be distributed to all employees; and provide periodic reports to the EEOC regarding any internal complaints of disability discrimination.

 

Factoids

Millennials

• 75% of workforce by 2025
• 78% are influenced by a company’s innovative attitude
• 50% want to work for an ethical business
• 63% donate to charities

 

Wellness

• 36% of companies offered a wellness program in 2009
• 60% of companies offered a wellness program in 2013
• Expected average wellness incentive in 2014: $594

 

Quotes

“People are not the most important asset. The right people are.”
~Jim Collins~