Court: Employers Must Honor Employees’ Self-Described Disabilities

AutoZone Inc. just had a case remanded back to district court in favor of an employee who claimed the company failed to accommodate his severe back pain and related physical limitations. The real stickler of the case — involving a former salesman in the chain’s Macomb, Ill., store — is the appeal court’s ruling that Memphis, Tenn.-based AutoZone should have accepted his personal testimony that he was “substantially limited in the major life activity of caring for himself,” even without any medical documentation to back that particular claim up.

As this account on the site lays it out, the salesman was so debilitated by his back pain that certain kinds of activities — including just mopping the floor — could lead to swelling, spasms and sometimes even vomiting. The story’s a bit complicated, with two different medical leaves and requested medical restrictions involved, the worker’s threatened firing and then ultimate firing, and appellate judges’ rejections of many facets of the salesman’s claims — including the fact that the ADA Amendments Act that became effective in 2009 did not apply to his claims of 2003 through 2005. In fact, to understand the case fully, it’s probably best to read the appellate judges’ entire ruling.

Bottom line, though, the case is heading back to court because appeals court judges ruled AutoZone should have accepted the salesman’s testimony that he was “substantially limited” and should have accommodated him, even though no medical documentation was submitted about his specific limitations. (Both the employee and his wife testified that she had to help him dress and bathe four or five days a week.)

As the hr.blr site points out, “employees need not submit medical documentation of substantial limitations; employers must accept what the employees themselves say about their limits.”

Dot-Jobs Canned?

ICANN, the authority on Internet domain issuance, has reprimanded the Society for Human Resource Management and its dot-jobs partner, Employ Media (which partnered with DirectEmployers Association) for improperly operating and managing the dot-jobs domain.

The statement by the Internet Corporation for Assigned Names and Numbers is here (PDF). John Zappe writes about it on the ERE website here.

Employ Media was directed to “take immediate actions to implement policies that would effectively terminate the operation of the Dot Jobs Universe,” according to  a statement issued by Peter Weddle, executive director of the International Association of Employment Web Sites, and the .Jobs Charter Compliance Coalition, which was formed to address possible violations by Employ Media of the dot-jobs charter.

Weddle applauded ICANN’s “strong stance,” saying there were “many false expectations” about dot-jobs and that it was an “unprecedented attempt … to misappropriate an entire [domain] … in blatant disregard of ICANN’s rules.”

HRE wrote about the dot-jobs domain many years ago. Weddle wasn’t crazy about the idea even back then.

DOL Delays Complicated ERISA Disclosure Requirements

You’re probably all aware of this, but just in case, here’s a legal alert I received Monday from the K&L Gates law firm reminding employers about the U.S. Department of Labor’s deadline extension — from July 16, 2011, to Jan. 1, 2012 — for achieving complete compliance with the new disclosure requirements under the Employee Retirement Income Security Act.

It’s not hard to discern, reading between the lines of this alert — specifically the quotes of DOL Assistant Secretary Phyllis C. Borzi — that the disclosure rule was far more complicated (dare I say confusing, overwhelming and of grave concern) for fiduciaries and HR and benefits professionals than the DOL probably imagined.

As Borzi puts it in the K&L release, the DOL “intended to have final rules in place sufficiently in advance of the July 16 applicability date to avoid compliance problems for both plans and their service providers.” But given the numerous comments the DOL received about the newly required disclosures, the DOL “now believe[s] plans and plan-service providers would benefit,” she says, “from an extension of the rule’s applicability date.”

At least it sounds like both sides are working together on this. Or at least it sounds like that’s the goal!

Just to refresh, here’s the earlier alert — from July 28 — from K&L Gates about the new disclosure requirements on service providers. The new rules make dramatic changes to an existing regulation that allows for a commonly used exemption from ERISA’s prohibited transaction rules for a broad variety of retirement-plan service arrangements. 

As K&L puts it, the amended rule makes it so the exemption “is not available unless the service provider makes detailed disclosures that describe, among other things, the services to be provided, the compensation — direct and indirect — that the service provider will receive and the service provider’s possible status as an ERISA fiduciary.”

Hopefully, the DOL will be providing much-needed additional guidance on this between now and the first day of 2012. Hopefully, service providers, fiduciaries, and HR and benefits professionals will be taking advantage of it.

NAHR and Charan Create Essay Contest

As any regular reader of HRE knows, we’ve touched more than a few times on the formidable challenge of attracting top talent to the HR profession. Well, while it’s not going to single-handedly solve that problem, it’s nice to see the National Academy of Human Resources and business adviser and author Ram Charan (who is also a Distinguished Fellow of the Academy and is sponsoring the effort) join forces to introduce an essay contest—appropriately named the Ram Charan HR Essay Contest—aimed at further advancing that important cause.

University undergrads and graduate students majoring in HR, industrial/labor relations or related fields are being invited to craft an essay on how HR strategies, policies and practices are contributing to global business competitiveness. Cash prizes of $20,000, $10,000 and $5,000 will be awarded to the three best essays. The deadline for submissions is June 15.

Click here to go to a PDF with additional details.

Recession Appears to Have Bred Punctuality

Finally! A good-news recession story — for employers anyway. So suggests CareerBuilder in this release it put out today.

According to its latest survey, more workers are starting their work on time since the recession began. Mind you, the numbers aren’t hugely divergent: In 2010, 15 percent of workers said they arrive late to work once a week or more, down from 16 percent in 2009 and 20 percent in 2008.

But they’re trending down nevertheless. So are the numbers of workers calling out sick, according to a report I heard on the radio this morning that mentioned CareerBuilder’s study and few others.

“Whether it is a result of fear associated with the economy or just a shift in attitude, workers over the last few years are doing a better job of managing their schedules and getting into the office at the designated time,” says Rosemary Haefner, vice president of human resources for CareerBuilder.

Not sure if this puts a struggling economy at odds with the telework/workplace flexibility movement — some would like to call it a revolution. Some reports suggest that’s true too. 

At the same time, we’re also hearing flexible scheduling and support for work/life balance will help keep your top talent from fleeing for greener pastures when the recovered economy finally and really kicks in.

Hard to know what to do. I guess just support a results-oriented environment of looser structure/work from anywhere/anything goes … and simultaneously enjoy the fact that everyone’s showing up for work when they’re expected, afraid to rock an already rocking boat.


Allegations of Dirty Tricks

I guess life really does repeat itself, but I’m not sure where the farce actually comes in. Seems more like a cryin’ shame.

About three years ago, Bill Kutik wrote Selling Software is Blood Sport about a lawsuit filed  by SuccessFactors against Softscape. I wrote about it as well, in Dirty Fighting Hits the Tech Market.

And now, yesterday, news hit that SuccessFactors may have been hit again, this time by Halogen Software, which is accused of creating a fake company and sham website to fraudulently solicit product demonstrations and confidential pricing information.

PC World writes about the lawsuit here, and it includes Halogen’s motion to dismiss the lawsuit, claiming that SuccessFactors did not take “the necessary steps to protect itself under the law,” such as requiring a nondisclosure agreement prior to providing confidential information.

The motion also argues that even if the claims were true, SuccessFactors fails to present a “legally cognizable claim for relief.”

But legalities aside, there’s the ethics of the action, and how that will play out in the realm of public opinion. That’s where Halogen may suffer a blow — at least if the views of widely known HR tech analyst Naomi Bloom is representative.

In her Twitter feed yesterday, Bloom wrote: “I wouldn’t presume to know the legalities, but if #Halogen has done what is alleged, they’ve been at the minimum stupid and unethical.”

She also wrote that she hates “dirty tricks … and it’s long past time they stopped,” adding that “Unless allegations are entirely spurious, and that’s not believable given SFSF’s experience with same, this could kill #Halogen.”

I guess we’ll have to see how it all plays out, but Jason Corsello, vice president of Knowledge Infusion’s Center of Excellence, tweeted that he had “a feeling many HCM vendors are now looking for [the sham company and its representative] in their CRM system.”

Quick update: Connie Costigan, Halogen’s director of corporate communications, says the company doesn’t comment on active litigation, noting that “the claims that they have put forth are unproven … .”

Did Negligence Contribute to Employee’s Death?

I came across an interesting post today on the site about an Amtrak employee who was killed when he was electrocuted while taking alignment readings of overhead electrical wires on a span of railroad tracks back on Feb. 17, 2005.

Though the case itself is clearly old, the worker’s widow, Michele Collins, just recently scored a major victory in her long-fought quest to bring survivorship and wrongful-death actions against the National Railroad Passenger Corp. under the Federal Employers’ Liability Act, alleging that Amtrak’s negligence caused her husband’s death.

The case is pretty complicated. You’re welcome to read the Maryland Court of Appeals’ entire ruling here. The gist of it, though, goes something like this: Robert Collins mounted the roof of a maintenance vehicle to tie down a piece of equipment when he came into contact with an electrified railing. The company, at the initial trial in a Maryland Circuit Court, claimed he had done this without being specifically ordered to do so and in violation of a company rule that gives every employee a right to refuse work they think can’t be completed safely.

Collins’ widow argued that, in a FELA action, whether he knew what the risks were or not, Amtrak couldn’t defend against a negligence claim by saying her husband had assumed said risks. Though that trial jury ruled in favor of Amtrak, Collins argued in appeals court that the jury should have been instructed not to consider this assumption-of-risk defense under FELA. The appeals court, on Dec. 1, agreed with her and sent the case back to circuit court for a new trial, “because the jury could have made the inference,” according to the company’s defense, that Michael Collins acted on his own volition, knowing what his job was and what the company rules were … i.e.,  that he assumed his own risk. So, the appeals court ruled, the jury should have been instructed not to consider such a defense.

All these technical details aside, the fact of the matter is that even though Amtrak had safety rules in place that this employee knew about when he climbed to that roof, the case is still heading back to a jury trial to determine Amtrak’s negligence — which could, no doubt, be costly.

The “point to remember,” says, is that “safety rules will not necessarily protect an employer from liability if it can be shown that those rules were not enforced.”

Not Just Smoke-Free: SmokER Free

The trend of refusing to hire smokers seems to really be taking off in the healthcare industry. According to a story in today’s New York Times, hospitals in Florida, Georgia, Massachusetts, Missouri, Ohio, Pennsylvania, Tennessee and Texas, among others, stopped hiring smokers in the last year and more are openly considering the option. A number of these organizations have justified the new policies as advancing their institutional missions of promoting personal well-being and finding ways to reduce the growth in health care costs. 

We’ve documented this issue before in our magazine, profiling companies such as Scotts Miracle-Gro, which found itself in the bulls-eye of public attention a few years ago for refusing to hire smokers and firing employees who failed urine tests for nicotine. It’s easy to see why organizations are sick and tired of smokers: the Times notes they cost $3,391 more a year each for healthcare and lost productivity, according to federal estimates.

I can sure sympathize with hospitals for taking this route—after all,  can you imagine a patient stepping outside and seeing the doctor, nurse-practitioner or physician-assistant who’s just counseled them about living a healthier lifestyle puffing on a cancer stick? On the other hand, it seems like it’s yet another intrusion over the line between work life and private life, especially the part about urine tests. If I want to smoke a cigarette now and then, then shouldn’t I, as a hardworking employee, have that right without risking my livelihood? Sure, I can always go work elsewhere, but as evidenced by this growing trend, my options would appear to be growing more and more limited.

Big Game, Big Consequences

Apparently, the leadership at U.S. Steel isn’t viewing the Pittsburgh Steelers’ upcoming tilt against the Green Bay Packers in Sunday’s Super Bowl with quite the same amount of excitement as some of its workers.

A recently released U.S. Steel memo says workers in a number of mills who miss work Sunday or Monday “without just cause” will face “severe disciplinary action,” according to the Pittsburgh Post-Gazette story:

The threat elicited a tongue-in-cheek response from USW International ice president Tom Conway. He called the warning “ham handed.”

“I’m concerned that since [Mon Valley employee relations manager] Preston [Henderson] hails from the Philly region, he may not be as flexible and that this is just some kind of Eagles sour grapes being displayed here,” Mr. Conway wrote in an e-mail to Mr. Henderson, U.S. Steel general counsel James D. Garraux and Donald C. Rizer, another employee relations executive.
The e-mail featured alternating paragraphs of black and gold type.
Mr. Conway proposed adjusting work schedules by enlisting volunteers for Super Bowl duty and making up any production lost during Sunday’s 3 to 11 p.m. shift over the coming week. He also suggested a post-game party for the Sunday shift workers at U.S. Steel’s training center in Duquesne, where they could watch a replay of the game.


“This would be a better approach to this weekend than your threat of SEVERE discipline … whatever that means,” Mr. Conway wrote.

U.S. Steel declined to comment on the issue, according to the report.

So enjoy your Super Bowl weekend, but not too much!