|
The following questions and answers were developed by the California
Department of Fair Employment and Housing for an employer seminar
in March 1996. See how well you can do addressing these situations.
(You will find the answers at the end of this newsletter.)
#1 Employers are not permitted to ask disability-related questions
at the pre-offer stage. What is a disability-related question?
#2 May an employer ask whether an applicant can perform the job?
#3 May an employer ask job applicants to describe or demonstrate
how they would perform the job (including any needed reasonable
accommodations?)
#4 May an employer ask a particular applicant to describe or
demonstrate how she/he would perform the job, if other applicants
are not asked to do this?
#5 May an employer ask an applicant for documentation of his/her
disability when the applicant requests reasonable accommodation
for the hiring process?
#6 May an employer ask whether an applicant can meet the employer's
attendance requirements?
#7 May an employer ask applicants about their current illegal
use of drugs?
#8 May an employer ask applicants about their lawful drug use?
Answers to these questions are consistent with federal ADA guide-lines
from the EEOC. How did you do? (See the end of the newsletter
for answers.)
The California Occupational Safety and Health Administration (Cal/
OSHA) has enforcement jurisdiction over California employers
when it comes to workplace safety. The agency has begun investigating
incidents of workplace violence and issuing citations to employers
whose IPPs don't address workplace security.
The reason...
Cal/OSHA has taken the position that an employer is required to
address security concerns in its IPP if it faces significant risk
of violence in its workplace. To assess your own risk, look at
this list of risk factors the agency uses. If you have ANY of
these risks, you should include violence prevention in your IPP
and employee training.
- Your work involves the exchange of money.
- Valuables are kept on the premises.
- Employees work alone at night or in the early morning.
- Employees are involved in public safety.
- Employees work with people who have a history of violence.
- Any employee is belligerent, threatening to others, or has
a history of assaults.
We have a model IPP available which includes both workplace violence
and ergonomics issues. It comes with a word processing file on
disk for easy tailoring to your specific needs. If you would
like to avoid Cal/OSHA citations, call for your copy today. The
cost is $99.95 plus sales tax and shipping/handling charges.
Order your copy now... and be safe.
By Bill Truesdell
In my business of helping employers comply with the legal requirements
of managing employees, I understand that managers generally, and
small employers in particular, are expected to carry a very large
burden. My thirty years experience as a manager has led me to
believe that there are some cardinal rules that employers should
follow in their management of employees.
Rule #1: Develop employee policies which are good for
your business. Policies should apply to everyone you employ and
should be written. Even unwritten policies ("the way we
do things around here") have been interpreted by courts to
constitute valid policies. Therefore, it makes sense to clearly
and thoughtfully commit your policies to writing. Written policies
can be referenced by supervisors and managers and applied to everyone.
Unwritten policies are open to broad interpretation and often
lead to "unfair" treatment between or among individuals.
Thoughtful policies will always leave the employer room for management
discretion given differing circums-tances. Never develop policies
which are good for employees without first determining if they
are good for your business. For example, richly provisioned benefit
programs and luxurious surroundings could absorb resources at
a rate that could put your business out of business. Policies
should be designed to attract and retain qualified people in a
competitive marketplace.
Rule #2: Pay attention to details. Know the requirements
for payroll taxes, overtime pay, for filing new employee reports
with the State department of employment, and the dozens of other
requirements associated with owning a business and employing workers.
Most employers are aware that failure to pay business income
taxes or meet deadlines can result in a visit from the IRS and
the state income tax group. Most don't know, however, that not
reporting employee overtime compensation can result in big penalties
and interest. It's what you don't know that can hurt you. If
you don't have the time or the interest to learn all the details,
hire a professional to guide you. For taxes, talk with your Enrolled
Agent or CPA. For medical issues, talk with your physician or
benefits advisor. For employee management issues, talk with a
professional human resources consultant or employment law attorney.
These advisors should be considered part of your management team
and their cost is just part of the requirement one must pay these
days for being in business, like it or not.
Rule #3: Management consistency is critical. Apply all
company policies to everyone equally. Compensate people based
on their individual or team contribution. Compensation should
be similar when contributions are similar. Avoid the temptation
to have a "favorite" employee. It can only bring you
trouble.
Employees have a built-in mental scale on which is weighed all
management action. When some-one's absence rate climbs, employees
expect managers to take action to correct the offending employee.
They expect the correction because they have to take up the extra
work load in that person's absence. Their scale tips toward "unfair."
Management action (i.e. disciplining the offending worker) can
rebalance the scale. If management does not take action, employees
will rebalance the scale themselves by increasing their own absences
or slowing their production levels ... guaranteed.
Rule #5: Say what you mean. Making promises to job applicants
and employees is dangerous because they may be misunderstood.
Always strive for complete explanations and full disclosures.
Disclaimers are usually not much good when they are verbal.
If you are willing to agree to do something for an employee, you
should be willing to put it in writing. If not, don't make the
promise to begin with.
Rule #6: Document. Document. Document. Managers, and
especially entrepreneurs, seem to be constantly pressured for
time, especially when it comes to writing down what transpired
during a conversation with an employee. If you don't have the
time, summarize your conversation later, by dictating that summary
into a tape recorder for someone else to transcribe. (Never tape
record your conversation with an employee.) Make your notes in
the way that is easiest for you, but do it. Remember, if it isn't
documented, it didn't happen. You have no way to support yourself
and your position if challenged for any reason. With documentation,
you can say, "See. This is what we talked about and what
I agreed to do."
Managing employees is much more complex today than even five years
ago, and the time required to meet all requirements is greater
as well. The laws and regulations we must understand are more
numerous. Yet, you can do it successfully if you follow these
rules.
By Jonathan A. Segal, Esquire
A manufacturing client recently was subject to an OFCCP audit.
Notwith-standing the rhetoric on Capitol hill, federal contracts
are still lost as a result of noncompliance with affirmative action
responsibilities. While touring the plant, I noticed that one
employee had a swastika on his locker.
A male manager was sexually attracted to a female subordinate.
He made his attraction clear by running his hands up and down
her backside while making undulating motions with his hips behind
her.
In deciding which applicant to hire for a vacant senior management
position, one of the senior managers interviewing applicants indicated
that he would prefer not to hire a person of color. He stated
his view that "they" are not only less qualified, but
also hypersensitive.
Ensuring equal employment oppor-tunity is no easy task. There
is often a fine line between what is appropriate and what is inappropriate.
Complicating matters is the fact that what is appropriate turns
heavily on perspective. And perspective often depends, at least
in part, on EEO factors such as race, age, and gender.
So training is necessary so that we each can better understand
the differences in our communication styles and in our reactions
to workplace stimuli. Indeed, training is what was done in response
to all three of the cases described above.
In the first example, the employee was educated about the Holocaust.
In the second example, the manager was told why his behaviors
could make a woman uncomfortable. And in the third example, the
manager was warned that making such comments could be used against
the company in litigation so that he needed to be more sensitive
to what he said.
Sensitivity training requires a level of civility which most troglodytes
do not have. You do not sensitize troglodytes; you fire them
and let them move to another cave.
In each of the three cases, the troglodytes should have been fired.
There is no context or justification for a swastika. Is there
a reasonable Nazi perspective which I am missing?
There is no context or justification for sexual assault. Are
men feral animals who cannot control their sexual drives?
There is no context or justification for racist judgments. While
we debate affirmative action, are we regressing to separate and
unequal?
Not everything falls within areas of gray. Some things are objectively
and heinously wrong.
How can we provide sensitivity training to someone who engages
in sexual assault, when we terminate someone who punches someone
else's time card? What is the message we are sending?
Discipline is a critical part of every equal employment opportunity
program. But in many organizations, its absence is conspicuous.
We have become too polite, too understanding.
Discipline does not supplant training. But it is a tool which
managers must use along with training to ensure that equal employment
opportunity is a reality. It is amazing how many people become
enlightened when unem-ployment is the alternative.
Jonathan A. Segal, Esquire, is a partner in the law firm of
Wolf, Block, Schorr and Solis-Cohen, 12th Floor Packard Building,
S.E. Corner 15th and Chestnut Streets, Philadelphia, PA 19102-2678;
(215) 977-2000. (Reprinted with permission from
Managing Diversity Newsletter, P.O. Box 819, Jamestown, NY 14702-0819
(716) 665-3654.)
We join countless others in California and around the country
in mourning the passing of our friend, Earl E. Sullaway on May
28, 1996 of a heart attack.
Earl had just recently retired from the California Department
of Fair Employment and Housing. His was a long and distinguished
career in law enforcement. He constantly fought for fairness
and objectivity in application of the laws protecting against
discrimination in employ-ment and housing.
It was our pleasure to have worked with Earl for many years.
He was an avid supporter of liaison groups which brought together
employers and enforcement officials. He did more than anyone
else in our experience to further the cause of non-discrimination
in employment within California.
Earl is survived by his wife Elaine, mother Eileen, son Earl and
daughter Nina. Our prayers are with them all. We shall miss
our friend, Earl Sullaway.
If you have employees who are not citizens of the United States,
but who have legal permission to work in this country, they will
have proven that to you by showing you their "Green Card."
Form I-151, commonly known as the "green card," is issued
by the Immigration and Naturalization Service (INS) of the U.S.
government.
Anyone with a green card issued before 1979 had until March 20,
1996 to apply for a new card. The replacement cards are pink
and must be renewed every 10 years. Applications take from six
to eight months to process, and the new cards are mailed to applicants.
Employers need to be aware of these new arrangements because it
affects how they handle documentation of the I-9 form. As you
know, every new employee must complete an I-9 form and offer documentation
to prove both identity and employment eligibility. Employers
must enter on the form their certification that they have checked
the documentation offered by the employee and found it to be satisfactory.
As guidance for all employers, consider the following changes
in I-9 processing:
For employees hired before March 20, 1996: Employers may NOT require
reverifi-cation of employment eligibility by those who used a
green card issued before 1979 to establish employment eligibility
on the I-9 form.
For employees hired after March 20, 1996: The original green cards
may NOT be used as documentation to establish employment eligibility
on the I-9 form.
Be sure you do it right. Errors can cost you $1,000 per form!
Most people Audrey Stubbart's age are interested in the past.
Audrey spends her time with the news of today. The 100-year-old
works a 40-hour week as a proofreader and a popular columnist
for The Examiner, the newspaper in Harry Truman's hometown of
Independence, Missouri.
Her newspaper career began at the Hearst Publishing House. By
then, she was 47, had homesteaded a ranch in Wyoming, raised five
children (she was married at age 15), and taught school. Journalism
"wasn't a career I had planned," says Audrey.
In 1961, however, after 18 years of service, Audrey was forced
out by a mandatory retirement policy. "Folks at The Examiner
heard I was being retired and asked me to help them out until
they could fina a permanent proofreader," says Audrey, who
has been in that "temporary job" for 33 years now.
"My ophthalmologist says he'd like to have my eyes, but I'm
not through with them yet," she says.
At 100, you'll still find Audrey plugging away at the computer,
catching those typos and grammatical errors.
"My children, all retired now, laugh at me," she says.
"My daughter says, 'Mother, you will get as old as we are
someday.'"
Retirement plans? She says she has a quilt waiting on the rack
that she plans to finish just as soon as she's through with her
temporary job.
(Source: Country America magazine, April 1996)
"Life is what happens when you're making other plans."
-- John Lennon
Employers remain caught between the proverbial rock and the hard
place when it comes to giving references to former employees.
Witness the California Court of Appeals case of Randi W. v. Livingston
Union School District 11 IER Cases (BNA) 335 (1995).
The plaintiff in this case, a thirteen-year-old girl, was molested
by her school vice principal. She sued (through her mother) the
schools where the vice principal formerly worked as well as the
individuals who wrote the reference letters helping him to get
his job at the plaintiff's school. The letters of reference failed
to disclose the vice principal's history of sexual misconduct
with female students, of which all the recommenders were aware.
The vice principal had been forced to resign from employment
on at least one occasion due to complaints of sexual misconduct.
Rather, the letters all highly recommended the vice principal,
not only in his teaching and administrative abilities, but in
his personal abilities as well. For example, one letter noted
that the VP was an "administrator who relates well to the
students" and who created a "safe ... environment for
students."
Although none of the letters affirmatively stated that the vice
principal had never been suspected or accused of any improper
sexual misconduct with female students or that he had no negative
character traits, the court held that the parties who wrote the
recommendations were liable for not providing full disclosure.
If an employer chooses not to provide a recommendation, it will
not be held liable. However, if that employer chooses to speak,
then it must make a full and fair disclosure of all the facts.
The court added that the letters were objectionable because they
referred to the personal characteristics and traits of the vice
principal and because they were unqualified in their endorsement
of him. A statement that contains only favorable matters and
omits all reference to unfavorable matters is as much a false
representation as if all the facts stated were untrue, said the
court.
Although no misrepresentations were made directly to the plaintiff
or her family, she was nonetheless entitled to protection as a
third party, as one who was endangered by the negligent or deliberate
misrepresentations of the references, said the court. The defendants
owed her a duty not to negligently or intentionally misrep-resent
the vice principal's desirability to prospective employers, particularly
because the harm alleged was physical, not just economic. When
the only harm alleged is pecuniary loss, the courts adopt a more
restrictive rule of liability.
While many individual factors all fit perfectly into this case,
that will often not be true in other circumstances.
The safest approach for employers to take on requests for employment
references of former workers is to give only "name, rank
and serial number." Beyond that, we recommend, as we have
told you before, that you have every job applicant sign a waiver
which authorizes his or her former employers to release additional,
specific information about their job performance, attendance record,
alcohol and/or drug use on the job, personal conduct, adherance
to company policies, and the like.
If you are asked for a reference on a former employee who has
physically harmed someone in the past, you had better give serious
consideration to releasing that information to the potential employer
... and be sure you discuss the issue with your management attorney.
(Source: HR Practice Ideas, Warren, Gorham & Lamont, 31
St. James Ave., Boston, MA 02116 (800) 950-1201)
The interview process is critical to any candidate selection process.
It is particularly important to a successful outcome when working
with disabled applicants. Not only is sensitivity called for,
but a careful observance of and adherence to the ADA (Americans
With Disabilities Act) will enable you to conduct these interviews
to the benefit of all parties concerned.
The key aspect to interviewing a disabled candidate is to make
no reference to her or his disability. Do not comment on it,
ask about it or refer to it in any way. If you suspect a hidden
disability such as epilepsy or any other sort of legally recognized
condition, refrain from asking about it. You may speak only of
matters which directly relate to the job in question - but this
can extend to matters of past experience, judgment, spatial concepts,
etc. Difficult as it may sometimes be, you must also refrain
from acts of everyday politeness that would focus on the fact
that the person is disabled. For instance, do not ask if the
applicant would like to lay her or his cane in a certain location,
or say things like, "That's quite a limp you've got there;
it must have been hard for you to climb all these stairs."
The focus, as always, should be limited to specific job- and
skills-related inquiries.
Here are some examples of acceptable and unacceptable phrasing
for interview questions:
OK - Can you type 65 words per minute?
Not OK - I see you've lost your thumbs on both your hands. Would
that slow down your typing to less than 65 words per minute?
OK - Can you turn a screwdriver five times a minute for an eight-hour
shift?
Not OK - Do you have any sort of physical impairment that would
prevent you from turning a screw-driver five times a minute for
an eight-hour shift?
OK - The job requires airline travel about one week a month.
Could you manage this method of travel?
Not OK - That wheelchair must be hard to negotiate in those narrow
airplane aisles. Can you tell me how you'd go about traveling
by air?
OK - The actual job is performed in a high-pressure tank with
pulsating light. Would you be able to work in these conditions?
Not OK - Well, well, it's a small world isn't it? I understand
you know my neighbor, John Doe. Isn't he a great guy? Buy the
way, he mentioned to me that you suffer from epilepsy ...
OK - Your work experience certainly is right on target for what
we're looking for, but aside from the actual skill level, the
job also requires strict punctuality and dependability. Do you
think you'd be able to get to work on time on a consistent basis?
Not OK - You certainly seem to have the mechanical skills for
this job, but the referral form mentions that you recently completed
an alcohol rehab program. I have to admit that I'm a little concerned
about your dependability in the future, in terms of you consistently
getting to work on time.
(Source: Ability magazine, 1682 Langley Ave., Irvine, CA 92714-5633)
For more information on the ADA contact:
The President's Committee on Employment of People with Disabilities
1331 F Street NW
Washington, DC 20004
(202) 376-6200
#1 At the pre-offer stage, an employer cannot ask questions
that are likely to elicit information about a disability. This
includes directly asking whether an applicant has a particular
disability. It also means that an employer cannot ask questions
that are closely related to disability.
#2 Yes. An employer may ask whether applicants can perform
any or all job functions, including whether applicants can perform
job functions "with or without reasonable accommodation."
#3 Yes. An employer may ask applicants to describe how
they would perform any or all job functions, as long as all applicants
in the job category are asked to do this.
#4 Yes, if an employer could reasonably believe that an
applicant will not be able to perform a job function because of
a known disability, the employer may ask that particular applicant
to describe or demonstrate how she/he would perform the function.
An applicant's disability would be a "known disability"
either because it is obvious (for example, the applicant uses
a wheelchair), or because the applicant has voluntarily disclosed
that she/he has a hidden disability.
#5 Yes. If the need for accommodation is not obvious,
an employer may ask an applicant for reasonable documentation
about his/her disability if the applicant requests reasonable
accommodation for the hiring process (such as a request for the
employer to reformat an examination, or a request for an accommodation
in connection with a job demonstration). The employer is entitled
to know that the applicant has a covered disability and that she/he
needs an accommodation. So, the applicant may be required to
provide documentation from an appropriate professional, such as
a doctor or a rehabilitation counselor, concerning the applicant's
disability and functional limitations.
#6 Yes. An employer may state its attendance requirements
and ask whether an applicant can meet them. An employer also
may ask about an applicant's prior attendance record (for example,
how many days the applicant was absent from his/her last job).
These questions are not likely to elicit information about a
disability because there may be many reasons unrelated to disability
why someone cannot meet attendance requirements or was frequently
absent from a previous job (for example, an applicant may have
had day-care problems). However, at the pre-offer stage, an employer
may not ask how many days an applicant was sick, because these
questions relate directly to the severity of an individual's impairments.
There-fore, these questions are likely to elicit information
about a disability.
#7 Yes. An employer may ask applicants about current
use of illegal drugs because an individual who currently illegally
uses drugs is not protected under the ADA (when the employer acts
on the basis of the drug use).
#8 No, if the question is likely to elicit information
about disability. Employ-ers should know that many questions
about current or prior lawful drug use are likely to elicit information
about a disability, and are therefore impermis-sible at the pre-offer
stage. For example, questions like, "What medications are
you currently taking?" or "Have you ever taken AZT"
certainly elicit information about whether an applicant has a
disability.
Thanks to the Department of Fair Employment and Housing (DFEH)
for these questions and answers. The DFEH is a law enforcement
agency like the state highway patrol or the federal Equal Employment
Opportunity Commission (EEOC). DFEH and EEOC are given authority
to enforce equal employment opportunity laws at state and federal
level. They have broad powers of investigation into employee
complaints of discrimination.
The DFEH also supports several liaison groups which allow employers
and Department managers to learn from one another about California
requirements in this area of human resource manage-ment. Called
Employment Round Tables, membership is open to anyone interested
in furthering the ability of employers to comply with legal require-ments.
In Northern California, the Employment Round Table meets three
to four times a year. Annual dues are $30 per person. If you
wish more information, call our office.
Instant FAX Information about our products and services: (925) 671-0412
Thanks for taking the time to read our July, 1996 newsletter.
We would enjoy receiving your thoughts about its value to you.
You can e-mail your message to tmainc@management-advantage.com
or simply give us a call and tell us in person. We appreciate
your feedback.
The Advantage is published each quarter by: The Management Advantage, Inc.
Please also take time to read the important articles in other issues.
| 
In This Issue
