Employment Law Update

Michael Patrick O’Brien
July 28, 2008 | COMMENTS

One of the most popular national events each year is the Taste of Chicago Festival, the world's largest food festival. Although it may not be nearly as delectable or appetizing, here is a taste of the employment law sessions held recently at the SHRM National Convention in Chicago.

Stay on Top with Training

For the first time in a long time, both the Chicago Cubs and the Chicago White Sox right now are on top of their respective major league baseball divisions at the same time. An Illinois employment lawyer gave some good advice to employers on how to stay on top of their employment law compliance game—training of supervisors and active involvement of HR. She noted that supervisor “blind spots”—mistakes on things they don't know that they don't know—lead to most lawsuits (e.g., the supervisor who effectively tells an employee on FMLA leave: “It's not you I dislike, it's your non-functioning kidney”). She recommended HR eliminate blind spots by educating supervisors in basic legal issues, giving them scripts to handle common requests (e.g., for FMLA leave), and reminding them, at all times, to “call HR!”

Smooth Out the Roughness

Carl Sandburg's famous poem characterized Chicago as “Stormy, husky, brawling, City of the Big Shoulders.” Portland and Salt Lake employment law attorney Jathan Janove gave some good advice on how to deal with the workplace roughness caused by jerks at work. His tips:

• Express your values regarding the proper treatment of co-workers
• Train about the same
• Offer direct, immediate, and specific feedback to the offenders
• Document actions
• Don't ignore or minimize misbehavior when it does occur

Finally, he reminded attendees that jerks at work may actually be legitimate whistleblowers protected from retaliation and that employers must take care to deal appropriately with the legally-protected jerks.

Winds of ADA Change

Chicago is popularly nicknamed the Windy City . The SHRM Director of Governmental Affairs described the hard-blowing winds of legislative change in his 2008 annual legislature update. Most significantly, he noted that the United States House of Representatives recently voted to expand the Americans with Disabilities Act (ADA). The House bill seems to vaguely expand the current definition of disability—an impairment that substantially limits a major life activity—by stating that “substantially limits” means “materially restricts.” It also precludes employers from considering mitigating measures (e.g., drugs that control blood pressure) when deciding if an employee is disabled, although use of eyeglasses can be considered regarding alleged visual impairments. The bill also attempts to exclude from the definition of disability minor and/or transitory impairments, e.g., the flu or a broken leg lasting less than six months. The bill now goes on to the Senate.

Watch Out for Investigation Fires

The Great Chicago Fire of 1871, which wiped out most of the city, is said to have started when Mrs. O'Leary's cow kicked over a lantern. A Philadelphia lawyer offered tips on how to minimize the risk of similar fiery explosions related to workplace investigations. His key tips: (1) Don't defer your investigation just because the government is investigating too; (2) Make sure your investigator knows how to investigate and does so without a conflict of interest or bias; (3) Drill down to the details; (4) Assume an alleged perpetrator is innocent until you conclude he or she is guilty; (5) Document why you did not interview certain witnesses; (6) Document interviews; (7) Explain your credibility findings; (8) Don't rely on “non-defenses” such as “it was only a joke” or “I didn't intend to hurt anyone;” (9) Take appropriate corrective action; and (10) Take proactive measures to avoid retaliation.

Improve It by Looking at It another Way

Chicago-style deep dish pizza is delicious, but different. It is almost as if someone looked at regular old pizza a different way and said, “Let's make this good by turning it inside out and putting the cheese and toppings underneath the tomato sauce!” Sometimes, such an approach also works with HR and legal compliance. A Colorado employment lawyer explained HR, always concerned about risk to the company, must also consider that HR professionals are often sued along with their employers, and thus they should take steps to minimize such risks. He recommended the following steps: (1) Make sure the employer stands behind and indemnifies HR; (2) Centralize approval processes for employee relations decisions that could lead to lawsuits; (3) Implement policies and procedures consistently; (4) Communicate with employees in a truthful, dignified, and professional manner; (5) Don't act out of anger or in retaliation; (6) Educate decision-makers about litigation risks; and (7) Know and follow the law even if it conflicts with company orders.

Chicago Conclusions

One of the great and enduring rock bands of all time was formed over forty years ago in, of course, Chicago and adopted the city's name as its own. Chicago's classic 1973 tune, like the many excellent legal sessions at the 2008 SHRM national conference, should leave most HR folks “Feelin' Stronger Every Day.”

The Employment Law Update is a legal and legislative update service sent out about twice a month to various members of the Utah League of Credit Unions HR Council. The author, Utah law attorney Michael Patrick O'Brien, is also the Legal and Legislative Director for Utah SHRM (Society for Human Resource Management). These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship. Contact O'Brien at 801-534-7315 or mobrien@joneswaldo.com or visit www.joneswaldo.com. Reprinted with permission.