Greetings A Plus Benefits Clients and Friends – For this HR Update instead of focusing on one subject I’d like to briefly examine several issues. If you have any questions or concerns about the issues raised in this HR Update please contact me or your assigned HR Advisor
About One in 12 Full-Time Workers Reports Using Illicit Drugs, HHS Survey Says
About one in 12 full-time workers, or 8.2 percent, admitted to using illicit drugs over the previous month, according to study results released July 16 by an agency within the Health and Human Services Department.
More than half of those who reported that they had used illicit drugs are employed full time, the study said.
Illicit drugs were defined in the study as marijuana, cocaine, heroin, hallucinogens, inhalants, or prescriptive pyschotherapeutics used nonmedicinally.
The study, which was conducted by the Substance Abuse and Mental Health Administration, found food service workers reported the highest drug use rate at 17.4 percent, followed by construction workers at 15.1 percent, and workers employed within the arts, entertainment, sports, and media sector at 12.4 percent. Protective service workers reported the lowest drug-use rate—3.4 percent.
The study also noted that employees who confirmed illicit drug use were more likely than those who did not report drug use to work for employers without drug- and alcohol-testing programs. About 29 percent of those who reported illicit drug use said they would be deterred from working for a company that tested for drugs on a random basis.
The study also questioned respondents about their levels of alcohol consumption and found that 8.8 percent of full-time workers reported heavy alcohol use within the past month.
The report’s results were tabulated from three separate surveys conducted by the agency in 2002, 2003, and 2004. Each survey featured in-person interviews with more than 40,000 randomly selected noninstitutionalized civilians.
The report is available online at http://oas.samhsa.gov/work2k7/work.pdf.
Please be aware that A Plus Benefits is prepared to assist you and your organization with this thorny issue. We can assist with pre-employment drug screens, random drug screen programs, etc.
An important element of employee drug use to be aware of is that fact that drug using employees have a higher need for cash in order to purchase illicit drugs. Many employees turn to their employers as a great source of merchandise that can be readily turned into cash. Organizations with a higher incident of drug abusing employees have a higher rate or pilferage and shrinkage.
Employer Unlawfully Refused To Accommodate Employee
A wheelchair-bound employee, fired by Convergys Customer Management Group Inc. for tardiness, established that the company unlawfully failed to accommodate his “brittle-bone” disorder by extending his lunch break by 15 minutes, the U.S. Court of Appeals for the Eighth Circuit ruled July 6 (EEOC v. Convergys Customer Mgmt. Group Inc., 8th Cir., No. 06-2874, 7/6/07).
Affirming a jury award of $114,265 under the Americans with Disabilities Act, the court found that “an extra 15 minutes is a reasonable accommodation.” Convergys failed to engage in an interactive process with Ahmet Yigit Demirelli, the court found, therefore “a reasonable jury could find that Convergys did not act in good faith to make a reasonable accommodation.”
The Equal Employment Opportunity Commission sued the company in the U.S. District Court for the Eastern District of Missouri alleging failure to accommodate under the ADA.
A jury awarded Demirelli $14,265 in lost wages and $100,000 in compensatory damages, and the company appealed.
Strict Policy on Punctuality
Convergys’s call center, where Demirelli worked, had a strict policy requiring punctuality, the court recounted. The company penalized employees who were more than three minutes late reporting for work or returning from their 30-minute lunch break. Employees with 14 or more violations in a year could be disciplined, ranging from a written warning to termination.
Demirelli’s tardiness reporting to work “stemmed from the lack of adequate handicapped parking,” the appeals court said. Although the company had a large parking lot, it only had two handicapped parking spaces, which were usually occupied by special-needs vans.
In unsuccessful efforts to reduce his tardiness, Demirelli tried arriving at work as much as an hour early but the parking spots still usually were occupied, the court said. He also tried parking at a nearby movie theater, but traveling by wheelchair to the call center took 10 minutes and caused him considerable physical pain.
Inside the building, the call center’s narrow aisles were difficult to navigate in a wheelchair, the court said. Demirelli, who could not stand up to see whether a cubicle was available, had to go from cubicle to cubicle to find a vacant worksite. His original supervisor would reserve a work station for him, but a new supervisor refused to do so.
When asked about his tardiness, Demirelli explained that he had problems finding a parking space and a work station and asked that he be given a “grace period”—a few extra minutes to return from lunch. Convergys denied the request and fired him. The company argued that Demirelli was required to request a specific accommodation.
Resolving an accommodation request is a “shared responsibility between employers and employees,” the court said. A disabled person has to initiate the interactive process by making the employer aware of his or her need, providing relevant details of the disability and, if it is not obvious, stating the reason that the disability requires an accommodation, the court said. Once the employer is made aware of the legitimate need for an accommodation, it is required to make a reasonable effort to determine the appropriate accommodation, the court said. Demirelli testified that he requested an accommodation because of his wheelchair, “thus meeting his initial burden,” the court said. He also suggested several potential accommodations, including being allowed a few extra minutes to return from lunch.
“Demirelli thus exceeded what disabled employees at the initial stage of the interactive process must do,” the court said.
Moreover, Convergys did not present any evidence that extending Demirelli’s lunch break by 15 minutes would eliminate the punctuality requirement, the court found.
We’ve all heard it….time is money. In this case, giving an employee who was without a doubt in need of some kind of accommodation, a little more time would have resulted in a huge $$ savings for the company.
With ADA claims the most important word is “reasonable.” It was not reasonable to expect that this employee could find a vacant cube as quickly and readily as a non-disabled employee. A few extra minutes for this employee was more that reasonable and would not have had a negative impact on a company the size of Convergys.
It’s good to remember that we do not live in a cookie cutter world and we need to be careful that we make our practices so inflexible as to assume that all of our employees are cookie cutter people. As they say in France….”viva la difference.”
Worker Lawfully Fired After Affair
A federal trial court properly vacated a jury award of $200,000 to a female employee who was dismissed after she had an extramarital affair with a male co-worker, the U.S. Court of Appeals for the Seventh Circuit found July 5. The appeals court found that Floor Covering Associates of Joliet Inc. terminated Vicki Hossack because of her husband’s threatening conduct and the co-worker involved in the affair was retained because he was more valuable to the company.
“[I]t is uncontroverted that [Vicki] Hossack was terminated because management feared her husband’s threats and that he might very well cause workplace disruption in the future, while [Nick] Cladis was not discharged because he was the top earning salesman in the store and, thus, was more important to the organization,” the court said. “[N]o reasonable jury could find that the defendant terminated Hossack’s employment because she is a woman,” the court said (Hossack v. Floor Covering Assocs. of Joliet Inc., 7th Cir., No. 04-3990, 7/5/07).
Every employee in every organization should understand that there are consequences for workplace affairs. In this case one person involved in the affair had to go in order to maintain a safe work environment for everyone.
Hospital Not Put on Notice Of Harassment, Court Finds
A nurse who alleged a doctor sexually harassed her did not prove her employer’s liability because, among other things, her initial complaint was not specific enough and she asked that it be kept confidential, the U.S. Court of Appeals for the Eleventh Circuit held July 6, overturning a jury verdict (Nurse “Be” v. Columbia Palms W. Hosp. Ltd. P’ship d/b/a Palms W. Hosp., 11th Cir., No. 06-12159, 7/6/07).
Former nurse Bobbie Eicke O’Brien’s request for confidentiality and the insufficient substance of her report to her supervisor at Columbia Palms West Hospital Limited Partnership, doing business as Palms West Hospital, meant that she did not put the hospital on notice that she was reporting sexual harassment and thus did not trigger the hospital’s obligation to act, the court ruled.
Late-Night Phone Calls
According to the court, in late 2002-early 2003, Dr. Michael Chaparro started calling O’Brien’s cell phone late at night, asking her to meet him for a late drink or dinner. O’Brien spoke to her supervisor, Cindy Stowers, about the problem but asked that the matter not be reported to the administration because she feared retaliation and only identified Chaparro when Stowers promised to keep the conversation confidential. At O’Brien’s request Stowers removed O’Brien’s listing from the staff directory and the calls stopped.
O’Brien claimed that in May 2003 Chaparro again began harassing her, but she did not report him. On Nov. 11, 2003, he followed her into a supply room and began making sexual advances toward her.
That evening, O’Brien complained to the hospital’s nurse supervisors, who forwarded her complaint to the human resource director, Katie Kato, who immediately investigated the harassment charges, but found Chaparro’s contention that he and O’Brien had “a long history of mutual flirting” credible.
During the investigation, O’Brien was granted a leave of absence and later was switched to the day shift to keep her away from Chaparro. Because Chaparro was not an employee of the hospital and only enjoyed staff privileges there, the hospital did not discipline him, but he received a disciplinary action form from his employer, warning him against further contact with O’Brien. From her investigation, Kato was unable to tell whether the conduct leading to the supply room incident was consensual, but she presented her findings to a physician advisory committee, which told Chaparro that even consensual relationships were inappropriate.
Believing that she subsequently was ignored by supervisors, scheduled impermissibly, and reprimanded for failing to show up for shifts of which she was unaware, O’Brien resigned Dec. 31, 2003. She sued Chaparro for assault, battery, and intentional infliction of emotional distress and later added claims against the hospital for sexual harassment and retaliation. She settled her claims against Chaparro and her claims against the hospital went to a jury.
The jury eventually found no liability on the retaliation claim but ruled against the hospital on the hostile work environment claim, awarding O’Brien $10,000 in damages.
On appeal, the circuit court ruled that “[b]ecause O’Brien did not suffer tangible employment action,” the hospital could invoke the affirmative defense to employer liability for sexual harassment established in Faragher v. Boca Raton and Burlington Indus. Inc. v. Ellerth. Moreover, the hospital had a sexual harassment policy, and “the jury found that [it] ‘exercised reasonable care to prevent any sexually harassing behavior in the workplace,’ ” the court said.
O’Brien’s failure to put the hospital on notice that she was being sexually harassed and asking that her report be kept confidential meant that the hospital’s duty to remedy the alleged harassment was not triggered until her complaint following the supply room incident, the court ruled. Following that complaint, the hospital ensured that Chaparro did not harass her again, absolving it of liability under Title VII of the 1964 Civil Rights Act, the court said.
This case is yet another example of how good documentation can protect an organization. We often say….if it’s not written down, it didn’t happen. Adopting a habit of making notes often pays off in many ways. Not only do we remember exactly what was said, we protect ourselves when someone else tries to twist the past to fit their current complaint.
Another important factor in a case like this is having the company policy on the reporting of sexual harassment and hostile work environment posted in plain view. The two posters that A Plus Benefits provides is almost as good as Kevlar when an employee complains of having been subjected to illegal behavior but has failed to properly report the conduct. Please let us know if you need posters.
Speaking of posters…..the Federal Minimum Wage changed on July 24th. Watch your mail for a sticker that you can place over the former minimum wage section on your A Plus Benefits poster. The printer has recently delivered the stickers to us and these stickers will be going out in the next couple of days.
I hope everyone is enjoying the summer months. We’re all stretched thin by summer vacations. A Plus Benefits has a goal to provide superior service every day, every week and each and every month. We hope of efforts on your behalf continue to….allow you to get back to business.
Thanks to checking this week’s HR Update. If there are any subjects you would like to have discussed in an upcoming HR Update please let me know.
Randall Barker is the VP Human Resources for A Plus Benefits, Inc. and can be reached at randall@aplusbenefits.com.
Read Randall’s previous HR Update.
