Major League Baseball opens the 2011 season this week, and I have baseball on my mind.  Which makes me think about the great baseball philosopher, Yogi Berra. Here are some of the most-memorable "Yogi-isms," and what human resources professionals and personnel managers can take away from these pearls of wisdom.

As I wrote last week, the interaction of the ADA obligation to provide a reasonable accommodation and the employer's leave of absence policy can be tricky.  Beyond reviewing policies to make sure there are no ADA time bombs in your policy manual, it also makes sense to spend some time thinking about how to handle potential ADA issues and accommodations before the situation arises.  The key to the ADA accommodation process isn't necessarily the end outcome as much as it is the interactive process between the employer and the employee.  It is important that a trained HR person is involved with any employee situation where ADA issues could be involved.  In fact, it makes sense for an employer to assign all accommodation and return to work issues to a centralized HR person (or team) due to the potential complexity of the issues that may be involved.  This focal person (or team) will want to ensure a good interactive accommodation process is used in each of these cases.  As the employer works through the process with the employee, it is important to keep good notes of the options discussed.  These discussions may result in the identification of an accommodation that resolves any concerns or may result in being unable to find a reasonable accommodation.  Either way, the documentation of the interactive process, including any offered accommodation and the employee's response, will be valuable if the employee later claims the employer failed to provide a reasonable accommodation.  

For more information on the ADA and various accommodation issues click here.

The EEOC has finally issued its long-awaited regulations interpreting the ADA Amendments Act.  The final regulations are in today's Federal Register.  Here's the link (guaranteed to make your eyes glass over): 

http://www.federalregister.gov/articles/2011/03/25/2011-6056/regulations-to-implement-the-equal-employment-provisions-of-the-americans-with-disabilities-act-as#h-73

This week the Kansas Senate approved House Bill 2134, which includes numerous amendments and additions to the Kansas Workers Compensation Act.  After narrowly approving two amendments to the version of the bill previously approved by the House, the Senate passed the substitute bill by a unanimous 39-0 vote.   

Among the changes in this new-and-improved version of the bill (the tenth version) are: (1) redefining several existing terms and defining new terms; (2) specifying circumstances for disallowing compensation benefits; (3) requiring uniform deadlines for an injured employee to give notice to the employer; (4) revising drug testing standards; (5) shortening the time a case can stay open without a hearing from five to three years; (6) reducing compensation in cases involving proof of pre-existing conditions; (7) requiring expert evidence to prove permanent total disability; (8) redefining benefits available for temporary total disability; (9) revising calculations for compensating bilateral injuries and determining "average wages"; (10) increasing the maximum compensation for four different categories of disability; (11) reducing compensation benefits when the employee accepts retirement benefits from the same employer; (12) reducing an employer’s responsibility to provide medical and health care services in specified circumstances; (13) expanding who is eligible to access the appeals process involving future medical treatment; (14) expanding the use of the WC Fund when an employer has insufficient coverage; (15) mandating insurers and self-insured employers to issue warning notices in certain circumstances; (16) revising the appointment process for the WC Board; (17) allowing employers or insurance carriers to request a post-award hearing for medical treatment; and (18) permitting administrative hearings to be by      Continue Reading...

As most of you know, the ADA was amended a couple years ago making it easier for individuals to qualify for protection due to the expanded definition of a disability.  One danger area for employers is dealing with individuals needing a leave of absence or additional leave as it relates to a situation that may be defined as a disability under the ADA.  This can arise after FMLA leave has been used and expires, or for those non-FMLA employers/situations at the end of a standard leave of absence.  It is at this juncture that employers sometimes find themselves in dangerous waters.  What should an employer do at the end of an approved leave of absence (FMLA or otherwise) when the employee isn't quite ready to return to work?  Does the employee have some expected return date that is just a few days or weeks away?  Is the return a bit more uncertain?  How employers resolve this issue can be the difference between smooth exit and an EEOC complaint/lawsuit.  While just how much leave is a reasonable accommodation under the ADA can be unclear, it is clear that accommodating an indefinite or uncertain return to work date is not required.    

In addition to having sometimes murky factual information, some employers have a leave policy with an automatic employment termination provision that triggers at a certain point.  For example, if an employee has been on leave for six months, his or her employment is automatically terminated.  The EEOC is focusing some negative attention on this type of leave of absence policy and taking the position that such a clause violates the ADA.  Given this scrutiny, it's probably a good idea to review your leave of absence      Continue Reading...

A few weeks ago I wrote about spending some time reviewing your record retention policies and making sure your current files were properly managed (a/k/a throw out some stuff).  Another good task for the spring season is to check your internal posters to make sure you have the current versions in place and have all the required items hanging on the wall.  The posting requirements are driven by both state and federal law, so it is important to make sure you are in compliance with both.  The Department of Labor website provides employers with access to free posters for use in the workplace along with a simple tool to assist you in deciding which posters are necessary.  Click here for the Department of Labor website.  For employers in Kansas click here for access to links to posters required under state law. 

Yesterday Governor Brownback dropped his plan to move the Kansas Human Rights Commission into the Attorney General's Office.  The KHRC will thus continue to function as a stand-alone agency.  The Governor still seeks to reduce the KHRC's budget by about $231,000, the amount that would have been saved under his original proposal.  Read more at http://www.kansas.com/2011/03/16/1764968/kan-gov-backs-off-change-for-human.html#ixzz1HHxx6vew.

What do you do when your former employee uses your company as an employment reference?  Is it your company policy to say nothing?  Or is there no policy in existence?  It isn't very helpful for your former employees if you say nothing.  And in most cases, you would like to provide a reference to help them along.  It becomes a bit more problematic when the reference request is for a former employee that had issues.  If you provide a negative reference, you might find yourself the target of a defamation or retaliation claim.  It is always a good idea to have a consistent approach to providing references and to assist with that goal -- having a policy is ideal.  In Kansas, there is a statute providing immunity to employers who provide references within the scope of the statute.  A policy centralizing employment references to the HR group and tracking the terms of the statute is one of the better ways to ensure your company is following a consistent approach as well as avoiding potential litigation traps.  The provisions of the reference statute can be found here.

Two months ago we told you about Governor Sam Brownback's proposal to move the Kansas Human Rights Commission into the Attorney General's Office as part of a plan to cut costs.  William Minner, the Commission's Executive Director, and Joseph Mastrosimone, its Chief Legal Counsel--whose positions would be eliminated if the plan is approved--are now speaking out against the proposal.  They say the plan would create legal conflicts of interest when the KHRC pursues discrimination cases against state agencies and officials, because the AG's Office represents agencies and officials when they're sued.  

Several civil rights organizations, including the Kansas chapters of the National Association for the Advancement of Colored People and the National Organization for Women, oppose the Governor's proposal.  They plan to conduct a protest march and rally this weekend. 

A spokesperson for the Governor says the AG's office regularly manages conflict issues like this already.  The Kansas Legislature will eventually decide whether to act on the proposal.

Yesterday I blogged about fanciful legal issues you might encounter if the newly unemployed Charlie Sheen were to show up at your doorstep with application in hand.  We were not the only employment lawyers thinking about Charlie.  Click here to read an article that examines Charlie's termination, his resulting lawsuit, and some lessons HR professionals can learn from this tumultuous Tinseltown tale. 

We all know that Charlie Sheen recently lost his job and is currently looking for work.  Vaughn Burkholder, one of my law partners, who walks on the cutting edge of emerging legal trends, has identified several tricky legal issues that might arise if Charlie applies for employment with your company.

- When conducting pre-employment drug testing, can you test for the drug "Charlie Sheen?"

- Is it permissible to ask applicants if they have tiger blood in their veins, or would that violate GINA, the new genetic information law?

- What are your obligations when an applicant asks if your medical plan provides benefits for two domestic partners?

- Does Title VII's protection against national origin discrimination cover a "total bitchin' Rock Star from Mars?"

The filing period for H-1B visa applications counting against fiscal year 2012 (October 2011 - September 2012) opens on April 1, 2011.  These applications can be for individuals intending to start work on October 1, 2011.  While October is seven months away, it is important for employers intending to take advantage of the H-1B visa program to think ahead.  The economic downturn over the last few years has left H-1B visa numbers available to employers through the December/January time period of a given year.  With the uptick in hiring that is starting to occur, it is likely we will return to the prior scenario where H-1B numbers for the entire fiscal year are alloted during the April filing period.  That isn't likely to occur this year, but it also isn't likely that H-1B visas will be fully available throughout the fiscal year.  In fact, it is more likely the cap will be reached earlier in this upcoming cycle.  So start planning ahead if you intend to utilize the H-1B program during the 2012 fiscal year. 

Yesterday the U.S. Supreme Court ruled that an employer can be liable for employment discrimination based on evidence that a biased supervisor influenced, but did not actually make, an employment decision. The Court, pulling words and phrases from a legalese lexicon that only a lawyer could love, said, “if a supervisor performs an act motivated by [discriminatory] animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable ....” Leaving the legal jargon aside, this is sometimes called the “cat’s paw” theory of liability.

The term "cat's paw" theory derives from Aesop's fable about a clever monkey who persuades a gullible cat to retrieve roasting chestnuts from a fire. The monkey gets the chestnuts, and the cat gets nothing but burned paws. The analogy to employment discrimination is when a biased supervisor dupes an unbiased decisionmaker into taking an adverse job action against an employee based on inaccurate, incomplete, or misleading information.     

The      Continue Reading...

Hardcore football fans know that the NFL combine, which precedes the draft, just took place.  If you have never heard of the combine, it is an annual event that takes place over a very long weekend (about 5 days) where the top prospects from college football are tested, measured, and interviewed.  Think of it as a massive job fair with candidate interviews, written tests, running, jumping, catching, throwing, kicking, and other agility tests.  If you want to see a 6'6 325 pound man run amazingly fast and weave around cones, this event is for you.  While your business isn't likely to engage in this type of testing, most employers do like the idea of conducting pre-employment testing to make sure prospective employees are a good fit.  While this seems like a great idea, keep in mind that the EEOC isn't nearly as excited about this process as the average employer.  If your business conducts any form of testing, keep in mind the EEOC has published a set of guidelines related to the testing.  If the testing process in any way discriminates or has a discriminatory impact, your business may find itself at odds with the EEOC.  It is important for employers to visit with counsel prior to implementing any testing programs to ensure they fully understand the risks associated with the testing.  Click here for a short EEOC summary on pre-employment testing.