Keeping up with what’s going on in the field of human resource management-once upon a time, we called it "personnel management," but I guess that sounds too impersonal these days-is never easy. But today, negotiating the intricacies of picking, managing, nurturing, and saying goodbye to the folks who work with us can get positively head-scratching. To wit . . .
Many public health experts point to obesity as a growing problem in America, including in the workforce. Carrying around too much bulk can contribute to heart disease and diabetes and limit mobility, say the experts. So does obesity, however defined, constitute a workplace disability? That’s an important question, both for determinations of whether an employee is entitled to disability benefits under state and federal law, and for determining whether obesity falls under the protections in the Americans with Disabilities Act (ADA).
These, notes the law firm of McGuire Woods, are "unsettled questions." The U.S. Equal Employment Opportunity Commission (EEOC) has sued BAE Systems, a Virginia military contractor, for firing an employee described as "morbidly obese." Obesity, said the commission, is covered by the ADA. So far, federal courts are split, with the Sixth Circuit Court of Appeals rejecting the linkage, but a federal district court in another jurisdiction upholding a link between obesity and disability. Says McGuire Woods: "The bottom line is that employers should proceed with caution when making disciplinary or termination decisions on the basis of obesity."
Here’s another conundrum for human resource management. What do you do when an employee gets a traffic ticket while driving in the course of the job, either in a company vehicle or a private car or truck?
If it’s just a traffic ticket, says Christopher Cotter of the Ohio-based Roetzel & Andress law firm, the answer is simple: The worker handles the ticket and pays any fines. But if a motor vehicle accident was associated with the ticket, it’s a different story, says Cotter. "This is because an accident could give rise to claims for personal injury or property damage from the other parties involved in the collision," he says. A minor misdemeanor could play a major role in a lawsuit.
What to do? Cotter suggests that the employer "should play a more supportive role in informing and guiding the employee in how to respond to the ticket." This might include working with the prosecutor ahead of time and trying to avoid anything that constitutes a guilty plea. A plea bargain, he advises, is better than an ill-informed guilty plea that "can come back to bite" the employer.
While on the subject of guilt or innocence, employers with a policy of immediately excluding from the hiring process anyone with a criminal record, or even a particular kind of criminal conviction, such as a drug violation, should think again, according to the EEOC. The EEOC has launched what it calls the "E-RACE initiative," which stands for "Eradicating Racism & Colorism from Employment." The federal agency is charged with preventing employment discrimination based on race, creed, color, sex, national origin, and other prohibited bases. Taking a blanket approach to criminal records, says the EEOC, can result in discrimination because certain protected groups have higher rates of conviction and incarceration.
To avoid falling afoul of Title VII of the 1964 Civil Rights Act, the EEOC says employers should consider all applicants on a case-by-case basis and request and consider only information relevant to the specific job. The agency also warns that there is a patchwork of state laws that limit use of criminal information histories and records. A tip of the hat to the labor and employment attorneys at the Dow Lohnes law firm for alerting us to this issue.
Here’s a twist on the already twisty topic of employment discrimination, courtesy of the Ogletree Deakins firm. The U.S. Commission on Civil Rights, another arm of the federal government’s anti-discrimination army, has asked the EEOC to modify its presumption that a firm’s use of an "English-only" employment policy violates Title VII of the 1964 law.
The Commission on Civil Rights, which advises the government through research and analysis, says that instead of automatically assuming that "English-only" is prohibited discrimination, employers (and employees) should be advised that the language requirement should be banned only when it’s clear it was adopted in order to exclude employment based on national origin. Lawyer Maria Greco Danaher explains that the recommendation comes from a December 2008 conference the commission held on the issue. Current EEOC policy puts the burden on the employer to prove that an English-only policy has a legitimate business purpose. Guidance is available from the commission.
—Kennedy Maize is MANAGING POWER’s executive editor.