Excerpts from March 2012 “An Ounce of Prevention” Newsletter

*The following are excerpts from some of the articles presented in our Newsletter. Please contact us to obtain complete copies of past Newsletters.

Pre-Employment Background Checks: Good Business Practice – or Unlawful?

Employers who hire employees with “unsavory” backgrounds can find themselves on the receiving end of a negligent hiring lawsuit. For example, hiring a sex offender to work as a home health aide can result in legal liability if that individual molests a patient. Similarly, wouldn’t you want to know if the applicant for your accounting position has a prior conviction for embezzlement or forgery? Conducting a background investigation, including a criminal background investigation, can be a good business practice.

However, tell that to Pepsi, who recently settled with the EEOC (Equal Employment Opportunities Commission) for $3.13 million over a claim that their criminal background check policy was discriminatory. According to the EEOC, 92 million Americans have a criminal history; excluding all employment applicants with prior convictions from consideration can result in discrimination against minorities because they have a proportionately higher rate of arrests and convictions.

Workplace Violence Can Lead to OSHA Citation

OSHA’s general duty clause requires employers to keep their employees safe (which of course, is one reason to conduct criminal background checks on applicants!). As if an act of workplace violence in and of itself would be difficult enough to work through, did you know that your company can be cited for an OSHA violation if such an act occurs?

In new guidelines issued by the Occupational Safety and Health Administration, employers are reminded that they “may be found in violation of the general duty clause if they fail to reduce or eliminate serious recognized hazards” in the workplace. In determining whether to cite an employer for a violation of the general duty clause when an act of workplace violence occurs, the first thing OSHA will look for is whether you have a workplace violence prevention program.

Are Your Company Policies Clear Enough to Defeat an Unemployment Claim?

Sticking with our workplace violence theme: if an employee brings a weapon to work in violation of company policy, and is terminated as a result, was the employee terminated for just cause such that her claim for unemployment compensation should be denied? In one recent case, the Cuyahoga County Court of Appeals said “no.”

Employee May Not be Disabled Under ADA if Restricted From Working Overtime

The Americans with Disabilities Act (ADA) prohibits employers from discriminating against a “qualified individual with a disability” in regard to terms or conditions of employment. A qualified individual with a disability is someone who, with or without reasonable accommodation, can perform the essential functions of his job. To qualify as a disability, a physical or mental impairment must substantially limit one or more major life activities.

Courts have consistently held that working is a major life activity. Therefore, an employee who is substantially limited in his ability to work due to a physical or mental impairment may be protected by the ADA. The question recently addressed by one federal court was whether the inability to work overtime constituted a “substantial limitation” on an individual’s ability to work; the court ruled it was not. Boitnott v. Corning, Inc.

Failure to Make Good Faith Effort to Comply with FMLA Costs Employer Dearly

Carl Thom worked for American Standard for 36 years, before taking leave under the Family and Medical Leave Act (FMLA) for shoulder surgery. The company had no written FMLA policy or definition of how the 12-month period for calculating leave eligibility would be established.

The company originally approved a period of leave, but before his leave ended, Thom stated he planned to return early. That later changed, and American Standard requested a new certification of leave. Thom was unable to secure the new certification because he was unable to schedule a new appointment with his doctor quickly enough. The company then fired Thom for unexcused absences.

The court ruled that American Standard failed to act in good faith. Thom was awarded over $100K in back pay, over $100K in attorney fees and costs, and the value of his lost pension and retiree insurance for the FMLA violation. In addition, the court awarded double damages because the company could not prove it acted in good faith.