About Sindy Warren

Author Archive | Sindy Warren

Should you have a domestic violence policy?

Domestic violence is making big news these days as a result of the recently released video of NFL running back Ray Rice punching his wife (then his fiancee) so hard in the face that she immediately fell to the ground, unconscious.  It’s big news, especially in light of the NFL’s handling of the situation (which is now being investigated by former FBI Director Robert Mueller – this is an investigation I’ll be watching, BTW).  While the facts surrounding the Rice case and the implications for the NFL are of much interest, the whole issue raises an important questions for HR and business owners.  Should your organization have a domestic violence policy?

Recent statistics show that 1 in 4 women will suffer from domestic violence.  Because of this ridiculously high number, the Department of Justice has supported the creation of a Workplace Toolkit for responding to the issue of domestic violence.  Federal agencies are now required to have domestic violence policies.  Why?  Because both perpetrators and victims of domestic violence are members of the workforce.  Accordingly, the issues surrounding domestic violence infiltrate the workplace.

What should a domestic violence policy look like?  The NFL recently implemented one outlining discipline for any NFL personnel (not just players) who engages in domestic violence.  It also offers assistance for victims and those at risk for becoming victims.  These are both good facets of a comprehensive policy.  If you want to know more, the Toolkit referenced above can help craft a policy that’s right for your organization.


Comments { 0 }

Harassment training 201: Consider including “abusive conduct”

Some states have statutes making it mandatory for employers to conduct harassment training (e.g., California and Connecticut).  But even in states like Ohio where there is no particular statute mandating such training, employers should view it as mandatory.  The courts and agencies unanimously agree that employers must have a harassment prevention plan, and also that an essential element of such a plan is training.  What should this training look like?  It’s a good idea to look at the statutory requirements in those states with training statutes.  In California, for example, such training must occur every two years (for supervisors) and should cover federal and state laws prohibiting harassment and should include practical examples on identifying, preventing, and responding to harassment, discrimination and retaliation.

A new amendment to the California statute should give all employers pause – not just those in California.  Yesterday, California Governor Jerry Brown signed AB 2053, requiring employers to also cover “abusive conduct” in their harassment prevention training.  The amendment defines abusive conduct as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.”

Sound familiar?  Looks like a classic definition of bullying to me.  While bullying in and of itself is not illegal, it’s a subject that many are clamoring over and hoping for a legal intervention.  What is a proactive employer to do?  Prohibit bullying in the workplace.  Not only because it’s the right thing to do (duh), but because it’s a form of disrespectful behavior that has tangible negative consequences for the workplace (think, for example, of lowered employee engagement, productivity, and loyalty).  And train on your no-bullying stance as part of your harassment prevention training.

Hat tip to Allison West of Employment Practices Specialists for the update.

Comments { 0 }

What HR needs to know about orientation periods

Many employers have so-called “orientation” or introductory periods.  These are typically 30, 60 or 90 day periods following the onset of employment.  Handbooks often describe these orientations as an opportunity for the employee to get to know the company, and vice versa.  Don’t make the mistake of thinking it is less risky to terminate an employee during this period of time.  It’s not.

Unless they are covered by a contract providing for something other than at-will employment, employees are considered “at-will,” meaning both they and the employer can terminate the employment relationship at any time and for any reason — except for an illegal one (e.g., discrimination).  And there’s the rub.  The legality exception to at-will employment applies to all employees, even your newbies.  Thus, if you are looking to terminate someone in their orientation period, tread just as carefully as you would with any employee.  Make sure the decision is legitimate and not based on any illegal factors (even such as absenteeism due to a medical condition – think ADA coverage).


Comments { 0 }

Another NBA owner’s race-based rant

Atlanta Hawks owner Bruce Levenson announced his intention to sell the team this past weekend based on a “racially insensitive” email he sent to members of the team’s management over two years ago that addressed the issue of attracting more white fans.  Levenson was one of the most vocal critics of Donald Sterling’s racist rant (blogged about here).  Levenson self-reported the email a couple of months ago and the NBA was in the middle of investigating it when Levenson announced his intention to sell the team.  The email opined that the largely black fan base scared away more affluent white fans.  It suggested the team hire white cheerleaders, play less hip hop music, and make sure to feature white fans on the “kiss cam.”  (Click here for the full email).

Levenson’s email purported to disagree with the stereotyping he opined white fans were engaging in, stating “This was just racist garbage.  When I hear some people saying the arena is in the wrong place I think it is code for there are too many blacks at the games.” Critics say Levenson’s discussion of the issue was itself racist.  Supporters say Levenson shouldn’t be compared to Sterling, who espoused his own racist views.  Whichever side you come out on, it’s clear that race is an emotionally charged issue in the NBA (and in all areas of society).  What is a responsible business owner (and other senior levels of management)  to do?  Tread very carefully.  Don’t adopt racially-based stereotypes.  And certainly don’t make business decisions based on them.  Remember, customer preference is never a defense to a claim of discrimination.

bruce levenson

Comments { 0 }

Oakland Raiders settle cheerleaders’ wage and hour suit

The Raiderettes have something to cheer for.  They sued the team earlier this year, claiming they were misclassified as independent contractors and therefore not paid minimum wage under the FLSA.  Yesterday the team announced a settlement of $1.25 million for cheerleaders dating back to 2010.  Two other NFL teams still have similar lawsuits outstanding – perhaps this settlement will encourage them to settle too.

The (obvious) takeaway: Misclassifying employees as independent contractors is a big mistake.


Comments { 0 }

Remember the blog post about telecommuting as a reasonable accommodation? JK (maybe)

Back in April I blogged about a noteworthy Sixth Circuit case that held telecommuting may be a reasonable accommodation.  (See here for the post).  The case was filed by the EEOC against Ford and involved a resale steel buyer who asked if she could telecommute due to her medical condition of irritable bowel syndrome.  The employer’s position was that the employee had to have face to face contact with co-workers and suppliers and so denied the request.  The Sixth Circuit held in April that the EEOC was entitled to a jury trial on the issue.  The case caught a lot of attention for its significant pronouncement that changes in technology have, in effect, changed the definition of the “workplace” to expand beyond the employer’s actual place of business.

Just yesterday, the Sixth Circuit agreed to rehear the case.  What does this mean?  That some of the judges are skeptical of the pro-telecommuting decision and want a chance to revisit it.  This is a case to watch.

Comments { 0 }

Appellate court rejects sex discrimination claim based on favoritism

When managers play “favorites,” the non-favored often feel mistreated and disrespected.  That is especially so when the favoritism is not based on merit (work product or ethics), but on a personal relationship.  That’s one of many reasons why managers should never be in a direct reporting relationship with a romantic interest.  Favoritism claims have been raised in the courts before, often with very little success.  A recent Tenth Circuit case aligns with the majority of opinions on the issue.

In Clark v. Cache Valley Electric Company, a male project manager sued for sex discrimination when his female colleague allegedly received better assignments and more bonuses.  The better treatment, according to his complaint, was based on her romantic relationship with their supervisor.  Rejecting the claim, the court held this favoritism alone did not present any evidence of discrimination: “favoritism of a paramour is not gender discrimination.”

I’ve seen a least one other court go the other way on this issue (yes, it was a California case), but the Clark decision represents the majority view.  Does this mean managers should be free to play favorites?  Absolutely not.

Favoritism in the workplace erodes trust and creates negativity.  Even if it does not run afoul of the employment laws, it is certainly not a “best practice.”  Managers should be trained to apply consistent treatment across the board, unless there are legitimate business reasons for differential treatment.  Not just to avoid lawsuits and liability, but to create a workplace where employees perceive that fairness prevails.

Comments { 0 }

So an employee asks for FMLA leave but you really, really need her for a big project . . .

What do you do?

Multiple choice:

(a) let her take the leave and find a way to manage without her; (b) flat out deny the leave, since she is essential to your operations; (c) try to persuade her to keep working on the project while she’s at home on leave, but continue to pay her.

Unless you chose option A, you could be looking at an FMLA interference claim.  The employer in Evans v. Books-a-Million (BAM) chose option C and is now getting ready to defend itself before a jury.

Ms. Evans was a payroll manager for BAM.  BAM was implementing a new payroll system when Ms. Evans requested FMLA leave after the birth of her child.  Because BAM really, really needed her help, it persuaded Ms. Evans to work on the project from home.  She reluctantly did so, but not to her supervisor’s liking.  Accordingly, upon her return she was offered a different position, one that required a lot of travel.  Being a new mom and all, Ms. Evans did not want the new position.  Thus, BAM terminated her employment.

Not at all surprisingly, Ms. Evans sued for FMLA violations.  While the lower court tossed the case on summary judgment, the appellate court reversed, sending the case to a jury trial.

The takeaway should be pretty obvious: if an employee is on an FMLA leave, don’t persuade (read, coerce) him or her to work.  FMLA leave is meant to be what it sounds like – time away from work.

Comments { 0 }

Legal compliance 201: Making sure the right hand knows what the left hand is doing

It’s a problem many organizations face.  One member of management does or says one thing, while another does or says the opposite.  This kind of communication break-down, innocent though it may be, can have legal consequences.  Take the EEOC’s recent press release that it is suing the grocery chain Food Lion for religious discrimination.  According to the EEOC, a Jehovah’s Witness employee asked for and received a scedhule modification to attend religious services.  But when he was assigned to another store location with a different manager, the new manager refused to accommodate the schedule change.  And when the employee missed work to attend a religious service, he was fired.  Enter the EEOC.

What can an employer do to avoid situations like this one?  First, train all supervisors.  Then, make sure supervisors know that if an employee had a previous accommodation, inquire into the circumstances before nixing it.  If supervisor B had simply picked up the phone to call supervisor A, she would have realized that the schedule change was for a good reason – accommodating a religious belief.


Comments { 0 }

The problem with “doesn’t fit in” comments

It can be hard to articulate why a candidate isn’t right for a particular job.  Or why an employee is not the best pick for a certain assignment or promotion.  But it is really important for employers to identify legitimate, business related reasons for an individual’s non-selection.  One phrase that has historically been problematic is the “she just doesn’t fit in” approach.  Saying someone does not fit in can sometimes be seen as proxy for some kind of discrimination.  That’s precisely the pickle the Connecticut Department of Public Safety finds itself in now.

In Abrams v. Dept. of Public Safety, the Second Circuit reversed a grant of summary judgment for the employer.  At issue was an African American employee’s non-selection for a prestigious assignment.  Two of the decision makers said words to the effect that Mr. Abrams just didn’t fit in with the group.  While the lower court found these insufficient to take the case to a jury, the court of appeals disagreed.  Stating it was a “close case,” the court opined that a reasonable jury could construe the comments as implicitly referring to Mr. Abrams’s race.  Now, a jury will decide.

This decision is a scary one for employers.  The comments about Mr. Abrams not fitting in could very well have nothing at all to do with his race.  Yet the employer is now stuck with the expensive and stressful prospect of proving this to a jury.

What’s the takeaway?  TRAIN your supervisors on how to make employment-related decisions and, just as importantly, what not to say in the process.  This would typically fall under your performance management training (which of course you roll out on a regular basis, right?).

Comments { 0 }

Back to school means back to work

The end of August is always a difficult time to successfully keep all the necessary balls in the air – for me, anyway.  Camp is over, it’s time for the big family vaca, and it’s all I can do to stay on top of everything (I know some of you out there are feeling my pain, yes?).  So blogging tends to take a back seat.  Yesterday, as I was shopping for new notebooks for my soon-to-be sixth grader, I got that excited feeling I used to get as a student every year.  Time for school!  It’s true – I was a nerd who loved notebook shopping and the anticipation of a new academic year.  I now feel that same elation as a mom.  My kid is back to school and I’m back to blogging.

Back to school


Comments { 0 }

Back to school means back to work

The end of August is always a difficult time to successfully keep all the necessary balls in the air – for me, anyway.  Camp is over, it’s time for the big family vaca, and it’s all I can do to stay on top of everything (I know some of you out there are feeling my pain, yes?).  So blogging tends to take a back seat.  Yesterday, as I was shopping for new notebooks for my soon-to-be sixth grader, I got that excited feeling I used to get as a student every year.  Time for school!  It’s true – I was a nerd who loved notebook shopping and the anticipation of a new academic year.  I now feel that same elation as a mom.  My kid is back to school and I’m back to blogging.


Back to school

Comments { 0 }

Treating employees differently can support discrimination claims

You probably already know this basic maxim of employee relations: treating “similarly situated” employees differently is great fodder for plaintiffs seeking to show discrimination.  A recent Seventh Circuit case demonstrates this nicely and serves as a good reminder for HR and employers to look for consistent treatment among employees.

In Orton-Bell v. State of Indiana, the plaintiff was a prison social worker who had an inter-office affair with a supervising officer.  When the employer discovered the affair, which violated policy, it terminated the plaintiff and he paramour.  But it allowed the male officer to resign in good standing, keep all of his benefits, and continue working at the prison as a contractor.  The plaintiff, on the other hand, left with nothing.  When she sued for sex discrimination based on this disparate treatment, the court sent her claims to a jury, finding a reasonable jury could conclude the better treatment of the officer constituted sex discrimination.

Lesson learned: When two employees engage in the same misconduct, treat them equally.  If, however, there is a good reason for treating them differently, document it.  The Orton-Bell court noted that the employer did not proffer a good reason for the disparate treatment.



Comments { 0 }

Executive Order bars employers with employment-related violations from receiving federal contracts

On July 31, 2014 President Obama signed the “Fair Pay and Safe Workplaces” order (see the Order here).  The Order applies to new federal contracts and requires the disclosure of all labor and employment law violations for the previous three years.  If you work as a government contractor or subcontractor, this is huge news.  Government contracts are the lifeblood for some employers and even seemingly minor employment law violations can be used to bar them from receiving such contracts.  Also, for contracts in excess of $1 million, the Order prohibits the use of mandatory arbitration.  If this Order could apply to your business, read it carefully so you understand these new rules.  It will become effective in 2016.

This is one more reason to make sure your HR house is in order.

president seal

Comments { 0 }

Effectively defending a harassment complaint

The recent case of Simpson v. Big Lots Stores provides a great example of how an employer can successfully defend against a serious complaint of sexual harassment.  Before sharing the facts, let’s review the Faragher/Ellerth defense, which refers to a pair of U.S. Supreme Court cases decided in 1998.  An employer can prevail in a hostile work environment harassment complaint, so long as there was no tangible employment action, if it can show (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior, and (2) the employee unreasonably failed to take advantage of any corrective or preventive opportunities provided by the employer.  The first prong of the defense is within the employer’s control.  It can be met so long as an employer has a solid anti-harassment policy that includes a clear complaint procedure, trains its employees on it, and investigates complaints of harassment.  The second prong, however, really depends on the employee.

Here are the Simpson facts: the employee was an assistant manager for Big Lots.  A co-worker allegedly harassed her and others on a regular basis by, among other things, discussing his sex life in explicit terms, commenting on females’ breasts and buttocks, and telling dirty jokes.  Big Lots had a clearly communicated harassment policy and provided a hotline for employees to make complaints.  Simpson lodged an anonymous complaint and Big Lots responded by immediately sending a representative to investigate.  Simpson did not participate in the investigation, even though she knew it was taking place.  Even without her participation, the investigation resulted in discipline for the co-worker.  Thereafter, Simpson complained about the co-worker to her boss, who brought in another district manager to investigate.  During this second investigation, Simpson was out of the office and did not make any attempts to reach the investigator.  She also told a co-worker who had been documenting the alleged harasser’s behavior not to share the documentation with the investigator.

After Simpson lost her job on an unrelated issue, she sued for harassment.  In dismissing the case, the court found the employer successfully invoked the Faragher/Ellerth defense, blaming Simpson for her failure to cooperate in, and her attempt to interfere with, the investigation.

What’s the lesson?  Have your harassment-prevention ducks in a row.  Be ready to jump in an investigate when you learn of potential harassment.  And document all efforts to communicate with the complainant.

Comments { 0 }

“One time at band camp” and Ohio State’s firing of band director over “sexual culture”

Ohio State University recently fired its marching band director Jonathan Waters after an internal investigation revealed ”serious cultural issues and an environment conducive to sexual harassment” among the students.  The investigation, which was commenced following a parent complaint, concluded that the band culture allowed students to sexually harass other students, and that the band director “knew or should have known” about it (click here for the investigation report).  It’s that last quote that should have every employer on alert.

Organizational leaders are expected to create and maintain a harassment free environment.  While context certainly matters and the college environment is, in many ways, quite unique from the typical workplace, the point about leadership applies across sectors.  There is a lot of debate about whether the firing was just and whether Waters should be held accountable for band traditions that pre-dated his tenure (such as students marching across the field in their underwear).  Regardless, the takeaway here is clear: if an employer, an HR professional, or a member of management knows of a potentially harassing environment, he/she/it has a duty to take steps to address and correct that environment.  Period.

one time at band camp

Comments { 0 }

Religion in the workplace: an issue that will continue to confound employers

Back in March the EEOC published a guidance entitled Religious Garb and Grooming in the Workplace, aimed at educating employers on their duty to provide reasonable accommodations to sincerely held religious beliefs.  It highlights employers’ obligations with respect to appearance standards and other facially neutral policies that can have religious implications for employees.  The issue of religion at work is one that I see continuing to grow as a hot topic (in fact, I just spoke about it at last week’s HR Star conference in Cleveland).  Under Title VII, employees have the right to some degree of religious expression at work, so long as they do not create an “undue burden” or proselytize.

A recently filed EEOC charge on this topic caught my eye: a newspaper editor in Iowa was fired based on a blog posting wherein he criticized the “gaystapo” for advancing LGBT rights despite the bible’s supposed rejection of them.  He stated “Shaw Media directly discriminated against me because of my [anti-gay] religious beliefs and my identity as an evangelical Christian . . . .”  Will the EEOC agree with him?  I tend to doubt it, as I think the employer had a right to terminate the editor given the public nature of his position and the fact that he used his position as a platform to express his religious views.  But you never know.  It’s a topic HR professionals and employers need to stay on top of.

While there is a lot of gray area here, I offer a couple of quick tips that can help employers stay out of trouble.  While they are not directly on point to the Iowa case, they can be good guides when navigating these issues:

  • Don’t reject requests for religious accommodations outright.  Have a good faith dialogue with the employee.  The EEOC and courts want to see you engage in an “interactive process.”
  • Document discussions and other communications relating to the process.
  • Before taking adverse action against someone who has requested an accommodation, step back and review the facts to make sure retaliation is not in play (better yet, check with counsel).


Comments { 0 }

Sixth Circuit case emphasizes importance of temporal proximity in retaliation cases

For an employee to prove she was retaliated against, she must show she engaged in protected activity (e.g., filing a claim of discrimination with the EEOC), she was subsequently subjected to an adverse employment action, and causation.  The causation part of the test is where temporal proximity (i.e., how quickly did the adverse action happen following the protected activity) comes into play.  Courts have been split on the issue of whether temporal proximity, standing alone, can be enough to send a retaliation claim to jury.  A recent Sixth Circuit case says yes.

In Montell v. Diversified Clinical Services, decided on June 27, 2014, the Sixth Circuit stated “temporal proximity alone can be enough” to establish causation.  In so holding, the court reversed summary judgment for the employer, sending the case to trial.  Keep in mind that retaliation claims before juries have garnered some pretty steep verdicts against employers.  Incidentally, the plaintiff in the Montell case was subjected to an adverse action literally the day after she engaged in protected activity.

Takeaway:  Think “caution” when taking disciplinary or other adverse actions against employees who have recently engaged in protected activity (which includes making requests for accommodations, BTW).  Employees should not be considered untouchable just because they made a complaint of some kind. But at the same time, caution dictates that some thought, documentation, and conversation take place with such employees.



Comments { 0 }

Federal contractors cannot discriminate based on sexual orientation and gender identity

Yesterday President Obama issued an Executive Order prohibiting discrimination based on sexual orientation and gender identity.  This protection for the LGBT community applies to both the government and to all federal contractors.  Regulations implementing these new requirements will be forthcoming in about three months’ time.  If you do business with the federal government (or if you are part of the federal government), check your anti-discrimination and harassment policies immediately to add these two new protected categories, if they are not already there (many employers voluntarily extend protections to the LGBT community).  Make sure your supervisors and employees are aware of the change.  Consider sending the revised policy out to everyone with a memo explaining the change.

Comments { 0 }

Investigation don’t: do not promise to release your report

Back in January I blogged about a Minnesota Vikings investigation into allegations made by former player Chris Kluwe that he was let go based on his pro-gay marriage stance (here).  I commended the Vikings for responding swiftly to a blog post by starting an investigation.  Apparently, the Vikings promised to release the report to Kluwe.  They then decided not to release the report, and a settlement between Kluwe and the team has fallen apart.

What’s the lesson?  Don’t make promises you might not be able or willing to keep.  An investigator should never promise a complainant (or any other witness) that the report will be shared.  Quite the opposite – investigation reports are often maintained confidentially.

Comments { 0 }

The EEOC’s new Enforcement Guidance on Pregnancy Discrimination

Yesterday the EEOC released a new Enforcement Guidance on Pregnancy Discrimination (see here).  The Guidance covers issues ranging from the Pregnancy Discrimination Act’s (“PDA”) application to women with past pregnancies and the potential to become pregnant; the application of Title VII to discrimination based on caregiver responsibilities; and the intersection with the ADA when it comes to the duty to provide reasonable accommodations.

While pregnancy in and of itself is not a “disability” under the ADA, many medical conditions associated with pregnancy are covered.  Thus, employers must be mindful of their duty to engage in the interactive process and provide reasonable accommodations where appropriate.  In its Questions and Answers document that accompanies the new Guidance, the EEOC also states that employers are required to provide light duty work for pregnant employees, if they provide light duty for non-pregnant employees.  The agency elaborates that “An employer may not treat pregnant workers differently from employees who are similar in their ability or inability to work based on the cause of their limitations. For example, an employer may not deny light duty to a pregnant employee based on a policy that limits light duty to employees with on-the-job injuries” (emphasis added).

I’ll be blogging more about the new Guidance, but it’s worth your time in checking it out.


Comments { 0 }

An NLRB Update

A couple of weeks ago the U.S. Supreme Court decided the Noel Canning case, which undid a slew of NLRB decisions (I blogged about it here).  How is the NLRB responding?  The Board’s general counsel gave some answers in an American Bar Association webinar last week.  While the cases decided by the improperly constituted Board do not have precedential value (meaning the Board cannot rely on them in future cases), the reasoning behind those cases still stands and should be considered persuasive in future cases before the Board.  In other words, employers can expect the NLRB to maintain its positions on issues pertaining to non-union workplaces, including social media policies.  Thus, while the Noel Canning decision was huge news, the Board intends to aggressively pursue its agenda of enforcing NLRA rights in all workplaces.

In the meantime, President Obama has renominated an NLRB candidate who was nixed by the Supreme Court in Noel Canning.


Comments { 0 }

Two tips for managing employee performance issues

For business owners, HR professionals and managers, dealing with employee performance issues is an inevitable part of the job.  There are two guiding principles to follow when it comes to managing employee performance: communication and documentation.  They are fairly simple concepts, but the hard part is putting them into practice consistently.

Communication:  If an employee is not meeting your legitimate performance expectations, let him or her know.  Even if you think the lapses are beyond obvious, don’t expect your employees to be mind readers.  In fairness to them, they can’t improve if they don’t know they’re not meeting your standards.  Also, open communication prevents (or at least mitigates) an employee from later claiming the performance issue was just a pretext for some unlawful motive, like discrimination.

Documentation:  Anytime you have a conversation with an employee about a performance issue, put it in writing.  It does not need to be a formal part of the personnel file (though sometimes it will be).  But it should be clear and concise so that if a judge or jury were somehow looking at it down the line, they would understand what the issue was and your need to address it.

These two tips can save employers time, money and stress down the road.  But they can’t work if your managers aren’t trained on them.



Comments { 0 }

Remember the case of the employee fired for stealing a bag of chips?

Back in May I blogged about an employee who was fired for stealing a bag of chips from Walgreens.  The employee was a diabetic who typically carried around candy in case she suffered a drop in blood sugar.  On one occasion she started to shake and sweat, a sure sign she needed to ingest some sugar.  But she had none on hand.  She took a bag of chips (valued at $1.39) and tried to pay for it, but no one was at the register.  Thus, she went about her duties and forgot about the chips.  When Walgreens discovered the “theft,” it fired her.  An EEOC-initiated lawsuit followed, alleging Walgreens violated the ADA by failing to accommodate the petty theft.  The case was set for trial after the court denied Walgreens’s motion for summary judgment.

Last week the EEOC obtained a settlement of $180,000 with Walgreens.  In addition, Walgreens agreed to provide training to employees on the ADA and reasonable accommodations.  The EEOC attorney captured the agency’s view of the matter, stating “[p]eople may think this case revolves around theft, but the real issue is how a company responded to a valued 18-year employee, whom it knew for 13 years to be diabetic, and who attempted to pay for the chips after she recovered from her hypoglycemic attack.”  Framed this way, the outcome seems pretty darn reasonable.

What’s the moral of this story?  Make sure all managers understand their duties when it comes to reasonable accommodations.  Consider having a centralized decision-making process for accommodation issues.  And above all, be reasonable.


Bag of Potato Chips


Comments { 0 }

Breaking news: US Supreme Court decision throws thousands of NLRB decisions into question

Many of us HR and employment law types have been waiting for the Supreme Court’s decision in the Noel Canning case, in which the D.C. Circuit Court of Appeals help that President Obama’s January 2012 recess appointments to the National Labor Relations Board were improper (not because recess appointments are improper in general, but because Congress was not actually in “recess” when the appointments were made).  The Supreme Court upheld that decision today.

This is huge news.  It almost certainly means that thousands of Board decisions over the past couple of years are invalid.  The NLRB’s activist stance in inserting itself into all workplaces, not just unionized ones, has been the subject of much commentary and criticism, including on this blog.  What does this mean for employers?  Stay tuned.

Comments { 0 }