TIP OF THE DAY – SAFETY IN ADVERTISING

Targeting your message may make sense in advertising, but it can signal trouble if the ad you’re placing is for an employment opportunity. Be careful not to use language that could be interpreted as an age or gender preference.

Describing the ideal candidate as a “recent graduate” or the position as “entry level” could signal a preference for a young candidate, and result in EEOC filings by older job applicants who believe they were rejected for discriminatory reasons.

IN THE NEWS – SUPREME COURT RULING PUTS THE BURDEN ON EMPLOYERS TO PROVE POLICIES IMPACTING OLDER WORKERS ARE “REASONABLE”

In a decision hailed by employee advocates as a triumph, the U.S. Supreme Court ruled yesterday that in age discrimination cases the employer bears the burden of proof that employment decisions having a “disparate impact” on older workers are based on a reasonable factor other than age.

Three years ago, in March 2005, the Supreme Court ruled in the landmark case of Smith v. City of Jackson that the Age Discrimination in Employment Act (“the ADEA”) protects workers when an employer implements a policy which, on its face, has nothing to do with age, but in practice disproportionately impacts employees over age 40 in a negative way. (Notably, this marked a significant change for Florida employers because until that ruling, federal courts in Florida had held that the “disparate impact” theory was not applicable to age discrimination cases. To win a case, an ADEA plaintiff had to prove the employer’s alleged discriminatory policy was intended to harm older workers.) In Smith the Supreme Court held that such claims were in fact actionable under the ADEA, but did give the employer a “safe harbor” for their policies. Once an employee was able to show that the policy did in fact have a disparate impact, the employer could avoid liability by bringing forward evidence that the policy was based on “reasonable factors other than age,” a standard referred to by the Court as “RFOA.”

By requiring only an RFOA in the Smith case, the Court gave employers an advantage they did not have in disparate impact cases that traditionally arose in the contest of sex discrimination claims under Title VII of the Civil Rights Act. It has long been held that to avoid liability for a policy that has a disparate impact against a protected class under Title VII, the employer must show that the job requirement is a “bona fide occupational qualification,” referred to as a “BFOQ.” The classic examples in those early cases were height and weight restrictions which disproportionately excluded women from jobs as firefighters, but were held to be BFOQ’s because a certain minimum height and weight was deemed necessary to the ability to carry an overweight, unconscious victim out of a burning building. By interpreting the ADEA as requiring a lesser standard – the reasonableness standard of the RFOA instead of the absolute job necessity standard of the BFOQ – the Court made it much easier for an employer who was not intentionally discriminating to defend policies that had a disparate impact on older workers, so long as those policies were otherwise reasonable.

The question that remained after the Smith decision, however, was what happened procedurally after the employer brought forward evidence of the RFOA? To prove discrimination, did the employee have to prove that the employer’s asserted justification for the policy was in fact unreasonable? Or did the employer have the burden of proving that it was reasonable? While this distinction may appear at first blush to be a minor question of semantics, the question of who has the burden of proof can drastically change the outcome of a trial.

Until yesterday, federal courts were split on this issue. The Supreme Court has now resolved the question in Meacham v. Knolls Atomic Power Laboratory, holding that the employer must not only bring forward evidence that its policy was based on an RFOA, but also prove that the factor relied on is a reasonable one.

What this case means as a practical matter for employers is that care should be taken to examine any policies that appear to disproportionately impact older workers, and be prepared not merely to articulate a reasonable, nondiscriminatory basis for that policy but also to prove that the policy is reasonable.

IN THE NEWS – SLEEPING ON THE JOB?

In most workplaces, sleeping on the job can get you fired. But according to recent news reports and commentaries, a growing number of employers are not only permitting employees to take naps but actually encouraging the practice. Some are even providing a designated area, complete with couches, blankets, nature cds and privacy screens. Those employers argue that tired employees are less productive, and allowing workers to take a 15-20 minute “power nap” actually increases their productivity and cuts down on absenteeism resulting from fatigue and related heath issues, as well as reducing on-the-job accidents.

Boston University clinical psychologist William A. Anthony, PhD, has written a book on the topic, The Art of Napping at Work. In his book, Anthony suggests that Americans are sleep-deprived, not due to irresponsible habits but rather as a result of the expanding demands of their jobs, lengthy commutes, and household responsibilities. According to a recent ABC news report, the typical American needs 8 hours of sleep per night, but only gets about 6.7. In a poll conducted in late 2007 by the National Sleep Foundation, a surprising one-third of those surveyed admitted having fallen asleep at work at least once in the last month. In a earlier survey by the same group, more than 51% of workers surveyed admitted that sleepiness on the job was interfering with their productivity. According to a study by Cornell University, 40% of workers are sneaking naps at their desks or in their cars during lunch.

Is allowing employees to take an afternoon nap the answer? For some companies, perhaps. But before embarking on such a policy, you should consider the costs and logistics of administering a “nap” program, how to prevent the policy from being abused, and whether naps would be “on company time” or “off the clock.”

EMPLOYER ALERT – USE OF SOCIAL NETWORKING SITES CAN BACKFIRE

Many employers are looking at social networking sites like MySpace and Facebook for additional information in screening job applicants. The conventional wisdom has been that searching for and reviewing these sites can provide useful information about an applicant’s judgment and character. Have they been blogging about frequently calling off work at their last job after a long night of partying? Do their photos and comments indicate a lifestyle of excessive alcohol consumption or use of illegal drugs? Have they “trashed” their previous employer online? Are they posting the sort of photographs that you would find embarrassing if one of your customers “Googled” their name as a representative of your company?

All of the foregoing is information that certainly could be relevant to your hiring decision. But when does information obtained online become “too much information,” placing your company at risk?

This issue is discussed at length by Lester Rosen, head of a California-based national background screening company, in a two-part series published in Recruiting Trends®, an online newsletter for HR professionals. Mr. Rosen cautions that privacy issues may be involved if you or your background screener access these sites by setting up a cover identity, and that in some circumstances Fair Credit Reporting Act notifications may be required by law for including review of these sites in a background investigation.

The most troubling issue noted in the article, however, is that reviewing an applicant’s social networking site may give you information about their disability, age, race, national origin, religion, sexual preference or other characteristics which of course can not be considered in making employment decisions. If you decide not to hire the individual, they may assume that you have discriminated against them based on that information. Mr. Rosen’s article appears at http://www.recruitingtrends.com/online/thoughtleadership/969-1.html

EMPLOYER ALERT – DISABILITY DISCRIMINATION CLAIMS ON THE RISE

The EEOC reports that disability discrimination claims increased by 14% last year, and now account for one out of every five discrimination charges filed against private employers. In the past year, the EEOC settled two cases against national retailer Wal-Mart. In the most recent case, Wal-Mart paid $250,000 in damages and agreed to provide training to its supervisors in a case involving failure to provide a reasonable accommodation to a pharmacist who was disabled from an earlier gunshot wound. In the other case, Wal-Mart paid $300,000 to settle a claim that it failed to hire a job applicant because she has cerebral palsy. Because the ADA applies to all businesses with 15 or more employees, small employers are equally at risk for claims, and the financial impact of a significant settlement or jury verdict can be devastating.

Protect your company from liability by following these guidelines:

• Make sure job descriptions include the “essential functions” of the job, and leave out extraneous duties that could eliminate a disabled applicant from consideration.
• Do not include requirements such as lifting, standing, etc. unless they really are essential to the job.
• Avoid descriptions that favor a particular manner of performing physical tasks. For example, use “communicate with” instead of “speak with,” and “move” between locations instead of “walk” between locations.
• In interviews, do not ask questions about a disability. Focus instead on the essential functions of the job. Ask all applicants – not just those who appear outwardly to have a disability – whether they can perform the essential functions of the job.
• If a current employee requests a reasonable accommodation under the ADA, give careful consideration before making a decision. You are not required to provide the specific accommodation requested by the employee, nor are you required to provide an accommodation when doing so would cause an undue hardship on your company. You are also not required to eliminate an essential function of the job, or create a new job for the employee. However, you are required to provide a reasonable accommodation which would enable the employee with a disability to perform the essential functions of the job.

IN THE NEWS – PROPOSAL FOR COMP TIME IN THE PRIVATE SECTOR

Legislation is currently pending in the House of Representatives which would allow employers to offer “comp time” in lieu of overtime for nonexempt employees working in excess of 40 hours per week. Titled “The Family-Friendly Workplace Act,” the bill would give employees the option receiving one-and-one-half hours of paid leave for every hour worked over 40 in a given week, instead of receiving time-and-one-half overtime pay. Currently, the Fair Labor Standards Act (“the FLSA”) prohibits private-sector comp time, permitting only federal government employees to receive time off in lieu of overtime pay.

Comp time legislation resurfaces every few years, but its proponents have never been successful in bringing about a change in the FLSA. Critics – primarily labor unions and employee advocacy groups – argue that providing an alternative to mandated overtime payments would be subject to abuse, and employees’ elections to receive time off in lieu of pay might be coerced rather than voluntary.

Representative Cathy McMorris Rodgers (R-WA), the sponsor of the current bill, feels differently. In her recent press release, she states:

“Time is one of our most precious resources. We all want more of it and yet we only have 24 hours in a day. That means we have to figure out how to work a full day, run errands, pack lunches, make dinner and spend quality time with our kids, spouse, or elderly parent,. Giving employees more flexibility in their workweek is key to increasing retention as well as attracting great employees that will help increase our country's competitiveness.”

The ability to offer comp time would provide welcome flexibility for employers and employees alike, particularly in the small business arena. Whether this bill has any better chance of succeeding than its predecessors remains to be seen.