As the Director of Human Resources, I have been charged with the task of ensuring that Company X remains in compliance with all federal regulations against discrimination in hiring and employment. Please note that three very different situations have been brought to my attention for review, recommendation and possible action. Below is a full explanation of the facts of each situation, the federal statute that applies, as well as my findings concerning any company compliance issues.
Known Facts: Mr. A has been employed with our company for two years. The employee’s spouse recently gave birth to twins that were born prematurely. We granted the employee’s request for leave to be with his spouse during this time. Mr. A has asked to return to work after 11 weeks of leave. He has also asked that he be paid his salary for the 11 weeks that he was on leave. His manager has offered Mr.
A his previous job at his previous rate of pay; however, the employee’s request for salary withheld has been denied. Employment Law to Reference:Family Medical Leave Act (FMLA) The FMLA is an act that was passed in 1993 that guarantees men and women up to 12 weeks of unpaid leave per year for childbirth, adoption or medical emergencies for themselves or a family member. This act applies to companies that employ at least 50 workers. As our Company employs more than 75 workers, Mr. A is guaranteed up to 12 weeks of unpaid leave for the birth and care of his premature twins. FMLA rules state that an employee: ·
Must have been employed full time for at least a year (1250 hours). ·Must be allowed to return to the same job or a comparable job with the same pay and benefits. ·Must not be discriminated against because of leave time taken. The employee’s request to return to work at the same job and the same rate of pay has been granted; however, Mr. A’s request to be paid withheld salary for the time he was on leave was denied. Company Compliance Issues:
As a company, we have not violated any of the regulations set forth in the Family Medical Leave Act. FMLA does not require an organization to pay withheld salaries to employees; however, under the Department of Labor code section 825.207, if an employee has earned or accrued paid vacation, personal or family leave, that paid leave may be substituted for all or part of any (otherwise) unpaid FMLA leave relating to birth, placement of a child for adoption or foster care, or care for a spouse, child or parent who has a serious health condition. (1995, www.dol.gov[->0]) I recommend we inform Mr. A of this accrued vacation or personal leave option to ensure that we are in compliance in all areas of this act.
Situation B Known Facts: Mr. B, who is 68 years old, recently competed for a promotion within his department. His employment history indicates that he has been doing “above average” work for the past 42 years of employment at the company. Mr. B recently was made aware that he was denied the promotion because of his age. The employee ultimately chosen for the promotion is 36 years younger and has only received an “adequate” rating on her performance review.
Employment Law to Reference:Age Discrimination in Employment Act (ADEA) The Age Discrimination in Employment Act (ADEA) prohibits age discrimination against employees or job applicants who are 40 years if age or older. ADEA rules state that: ·An employer cannot fire, refuse to hire, fail to promote or diminish a person’s employment opportunities based solely on the fact that a person is 40 or older. ·An employer cannot require that an employee retire at any particular age.
·Complainants must first file a discrimination charge with the EEOC. ·Employees are permitted to substantiate age based discrimination based on unequal treatment or disparate impact. Company Compliance Issues:
If Mr. B was denied a promotion based solely on his age, this action places our company in direct violation of the Age Discrimination in Employment Act (ADEA). Perhaps a promotion for Mr. B would have resulted in a salary increase that was above the budgeted amount for this particular job class.
If so, the hiring manager may have been inclined to seek to promote someone whose current salary was more inline with the department’s financial plan. In a few recent court cases, the decision to promote a younger, lesser paid employee could constitute a sound business decision if a company could prove that the decision was a financial one and not an age based one. However, if Mr. B can prove that discrimination occurred based on disparate treatment or disparate impact, the company stands to be charged with violating this federal statute. Consequently, the hiring manager should be required to review the ADEA for future hiring decisions. It might also be beneficial to implement some form of company wide ethics training. Situation C
Known Facts: Due to paralysis of both legs, applicant C requires the use of a wheelchair to get around. The position that he applied for requires that he travel to all seven floors in the headquarters building via use of an elevator. The key pads in two of the four elevators are inaccessible to the applicant and would need to be lowered four inches to accommodate him should he be hired.
Applicant C was told that he was denied employment because the request to modify the elevators would cause undue hardship to the company. Employment Law to eference:Americans with Disabilities Act (ADA) The Americans with Disabilities Act, which was passed in 1990, prohibits employers from discriminating on the basis of a disability. For the purposes of this act, the definition of a disability includes mental illness, recovered drug addicts, visual impairment, epilepsy, AIDS or any other physical impairment that significantly limits any major life activities.
The ADA permits that: ·An employee or job applicant cannot be disqualified from a position because of a disability if, with reasonable accommodation, he/she can perform the necessary functions of the job. ·An accommodation is not reasonable if it creates undue hardship for the employer. ·An employer may not ask questions about disabilities prior to making a job offer to an applicant. ·Once a job offer has been made, an employer may require that the applicant submit to a medical test, but it must be relative to fundamental functions of the job. ·An employer cannot discriminate against an individual because of his/her relationship with a disabled person. Company Compliance Issues:
The hiring manager has claimed that making the physical changes to the elevators would constitute an undue hardship. But what is the definition of “undue hardship” as determined by the ADA? “Undue hardship must be based on an individualized evaluation of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. A determination of undue hardship should be based on several factors, including: othe nature and cost of the accommodation needed;
othe overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility; othe type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; oThe impact of the accommodation on the operation of the facility.” (http://www.eeoc.gov)
In accordance with the ADA, an employer must provide any other type of reasonable accommodation that would not entail making substantial physical changes to the building. However, in the case of the key pad on the elevator, we should first confer with the building owners to determine if this change should have already been made in accordance with Title III of the ADA. Failure to permit modifications to the elevator could be viewed as interfering with the rights of Americans with disabilities and thereby, place the building owner- not the company - in a noncompliance situation.
That said, our company could still be in danger of an ADA violation as the two elevators that are currently accessible could be used by applicant C to perform the job for which he applied. Because of this, the hiring manager should not have denied this applicant the opportunity of employment based on the basis of undue hardship to the company. It is our responsibility as a growing organization to properly train all hiring managers in all areas covered by the EEOC in regards to employment laws. Without this critical training, we could, quite unintentionally, be placing the company in threat of noncompliance issues and potential law suits from employee discrimination claims.
Reference Sheet Beatty, Jeffery F., & Samuelson, Susan S. (2007). Business Law and the Legal Environment. Mason, OH: Rob Dewey.
Department of Labor, CFR 825.207(1995). What Leave Is an Employee Entitled to Take Under the Family and Medical Leave Act? http://www.dol.gov. Retrieved December 27, 2008, from http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.207.htm The U.S. Equal Employment Opportunity Commission, Notice #915.002 (2002). http://www.eeoc.gov . Retrieved December 28, 208 from http://www.eeoc.gov/policy/docs/accommodation.html#N_121_[->1]
[->0] - http://www.dol.gov [->1] - http://www.eeoc.gov/policy/docs/accommodation.html%23N_121_