Workplace Issues Archives

Fix the Problem The First Time

by Karen Fitzgerald | Oct 2, 2021 | Equal Pay, Pay Issues, Workplace Issues

When you know about a pay disparity, fix it before you get told by a court to fix it.

Too often, a company knows of pay disparities between male and female employees. Yet, the company does not fix the pay disparities—usually arguing there is no money in the budget.

However, years of costly litigation to address pay discrimination may not be in the company’s budget either.

A recent Sixth Circuit case demonstrates the risk that a company takes in refusing to fix pay disparities. In Briggs v. University of Cincinnati, 11 F.4th 498 (6th Cir. 2021), Lee Briggs, an African American male, was a Compensation Analyst. The University later hired a Caucasian female as a Compensation Analyst. Despite having no prior compensation experience, she was paid over $9,000 more than Briggs.

The Director of Compensation knew of the pay disparity but did not immediately correct it for budget reasons.

However, the Director of Compensation later asked the Chief Human Resources Officer for an equity adjustment to Briggs’ pay. The CHRO’s response was only “we’ll see.” In a follow-up meeting, she told him, “I’ll think about it.” Over two years later, nothing had been done to close the pay gap.

In a good reminder that men too can bring an Equal Pay Act claim, Briggs filed a Charge of Discrimination and sued under the Equal Pay Act and Title VII.

The University defended its pay disparity for several reasons, including (1) the female demanded the higher salary as a condition of accepting the job and (2) that the female’s performance reviews were higher.

The Sixth Circuit made short shrift of the salary demand argument. It said: “No authority supports the concept that an employee’s prior salary or demand for a specific salary is sufficient in isolation to justify a wage differential. Such a rule would simply perpetuate existing sex-based pay disparities and undercut the purpose of the Act—to require that those doing the same work receive the same pay.”

As for the higher performance reviews, the court said the employer had to show it actually used the performance review scores in setting the pay. Here, it did not.

That argument was further undercut by the Director of Compensation testifying he knew there was a pay gap when he hired the female and hoped to close it when the budget permitted.

What is the moral of this story? When you see a pay disparity, find the money to fix it. Here, the $9,000 salary increase would have been far cheaper for the University than years of litigation. Plus the fact that litigation of this kind gets the attention of other employees and may lead to additional pay discrimination claims.

The Sixth Circuit reversed the grant of summary judgment and remanded Briggs’s case for trial. So the University is in for more expensive litigation.

Do the right thing the first time. Fix the problem when you discover it. The University of Cincinnati did not, and it is paying far more in litigations costs for that mistake than it would have taken to fix the pay disparity.

Stay tuned.

Get The Shot Or Get Fired?

by Karen Fitzgerald | Sep 17, 2021 | Workplace Issues, Workplace Safety

President Biden issued an Executive Order compelling companies with more than 100 employees to require all employees to be vaccinated or provide proof of weekly negative COVID-19 tests. This also applies to smaller companies that are federal contractors.

While this order creates many legal questions for companies, the most pressing decision employees must make is whether to get the shot or be fired.

Though there are exceptions to a vaccine mandate, most employees likely do not fit within either of the exceptions. The two main exceptions deal with ADA disability accommodations and accommodations for sincerely held religious beliefs.

ADA Issues

If a disability prevents you from getting the vaccine, you may request to be excused from getting the vaccine as a “reasonable accommodation” under the ADA.

However, be prepared to prove that you do have a medical condition that will prevent you from getting it. Expect your employer to verify that you really do have a disability that will prevent you from getting the vaccine.

A company is not going to just take your word for it. Nor should it. Because going unvaccinated can put others in danger, a company is well within its rights to request medical information to verify that you do have a disability when it considers your ADA reasonable accommodation request. That proof will need to be more than just saying, “my doctor said I should not get it.”

Sincerely-Held Religious Beliefs

Some employees request an exemption from the mandatory vaccine requirement because a sincerely held religious belief prevents the employee from receiving the vaccine.

Generally, this is a small part of the workforce population. However, in recent weeks, it has expanded rapidly, with many websites starting to pop up offering “advice” to employees on how to seek this accommodation or even selling pastoral “notes” to employees.

If you ask for a religious accommodation, know that you must show that you have a sincerely held religious belief. Be prepared to identify the specific religion. Be prepared to explain why this sincerely held religious belief requires accommodation.

Companies are already wise to employees who “suddenly” claim to hold sincerely held religious beliefs that prevent them from getting the vaccine.

One popular request for an accommodation addresses that the vaccine was developed (in part) using fetal stem cells. Many employees claim that fact prevents them from getting vaccinated.

One employer is pushing back. It requires its employees to verify and attest that they do not take any medication or vaccine developed with the use of fetal stem cells. This includes very popular and commonly used medicines such as Tylenol, Pepto-Bismal, Aspirin, Ibuprofen, Ex-Lax, Benadryl, and Claritin. That company wants to know how committed the employees are to the sincerely held religious belief. If the employee takes any of those medications, an argument can be made that the employee is not necessarily all that committed to the belief.

If you intend to ask your company for religious accommodation, be prepared for questions about your request.

If it makes you mad to provide evidence of a disability or a sincerely held religious belief, think about why your employer is asking for it. Remember, companies owe a duty to their other employees and customers to provide a safe environment.

If you don’t want to do support your accommodation request, you may walk with your feet. You do not have to continue to work for a company that requires you to be vaccinated. You can quit.

If you don’t want to quit, please remember that your company is trying to balance its duties owed to other employees and customers. It is going to take all of us working together to get through this pandemic. Do your part to keep everyone safe.

The Perils of Working Remotely

by Karen Fitzgerald | Sep 3, 2021 | Workplace Issues

Many companies are now asking—or demanding — that employees return to work in the office. Many employees don’t want to go back. Employees loved the flexibility of remote work and not making long commutes into an office. Many employees say the past 18 months show they can work effectively remotely. So, why do they have to go back to the office? The answer: because their employers want them to come back to the office.

Every company gets to make its own decision as to whether it will allow employees to work remotely or in the office. Even though businesses kept running during COVID-19, many companies want their employees back in the office. These companies find value in employee face-to-face interaction and collaboration. These companies think the opportunity for brainstorming and informal data sharing when workers are together is missing with 100% remote work.

Employees who embraced remote work often don’t see that value. They argue that they can fully work remotely and that they have shown that over the last year. If you are in this position and your company wants you to come back to the office, exercise caution in taking this strong stand. While you may have valid arguments about working remotely, you risk damaging your career and beneficial relationships.

A recent study from the Society of Human Resources points out the risks to the remote workers:

42 percent of supervisors said that they sometimes forget about their remote employees when assigning tasks.
67 percent of supervisors admitted they consider remote workers more easily replaceable than those working onsite.

Change is a constant in both life and business. Companies routinely restructure how their business operates, which can mean a significant layoff of employees. When change comes, you want to be the employee the company wants to keep. You want to be the employee the manager fights to keep off of the layoff list. You want to be the employee the manager won’t want to replace.

This SHRM study shows us that your real risk of being “out of sight” daily is being “out of mind” for the manager. If 67% of supervisors admit that they consider remote workers more easily replaceable than those working onsite, there is a good chance the remote worker is the first one on the chopping block when layoffs come. Do you want to be that person?

If your company wants you to return to the office, can you resist returning to work without damaging your relationship? Can you resist returning to the office without becoming the employee that 67% of managers will consider easily replaceable? Can you resist returning to the office without creating a permanent shift in your supervisor’s perception of you?

As someone who represents employees in employment matters, I am not taking a position here as to what is right or wrong. I urge you to know the risks and make educated decisions about this. Every person needs to consider whether resisting the return to the office risks future damage to their career.

The COVID-19 Vaccines

by Karen Fitzgerald | Jan 5, 2021 | Workplace Issues

With the first vaccines approved to fight the COVID-19 virus, many ask if an employer can require a COVID-19 vaccination as a condition of employment.

The answer is complicated.

The first place to look for an answer to this question is the EEOC’s COVID-19 Technical Assistance Questions and Answers. This guidance is available at www.eeoc.gov. The EEOC regularly updates this guidance as we obtain new information about COVID-19 and the vaccines.

As a general rule, an employer can require employees to get vaccinated. However, there can be exceptions to this general rule because of ADA disability concerns and religious discrimination concerns.

ADA Issues

An employee may have a disability that prevents the employee from getting the vaccine. There, two things could happen. First, an employer may argue that the employee could be terminated because the employee is not a “qualified employee” under the ADA. Employees who directly threaten the health or safety of individuals in the workplace are not “qualified employees” under the ADA. However, the employer would have to actually show that the employee poses a direct threat to others.

Before concluding that an employee who is not vaccinated poses a direct threat to other employees, the employer must individually assess the risk to others. This assessment considers factors such as: (1) the duration of the risk, (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.

If an employer determines there is a direct threat from an unvaccinated person that cannot be reduced to a reasonable level, the employer can exclude the person from entering the workplace. However, the company cannot just automatically terminate the employee. Instead, the company must explore where there are other reasonable accommodations (such as working remotely) that would allow the employee to perform his or her job duties.

The second scenario—and the one likely to be far more common—is that an employee who cannot get the vaccination asks for an exemption from that requirement as a reasonable accommodation under the ADA. Again, an employer must assess each requested accommodation on an individualized basis. If the employee can easily work remotely, that would be one easy accommodation. In other cases, it might be trickier. However, the employer could consider other steps (such as private office spaces, plexiglass dividers, etc.) that could protect the employees.

Sincerely held religious beliefs

The second area where claims may arise from a mandatory vaccine requirement is with employees whose sincerely held religious beliefs prevent the employee from receiving the vaccine.

If an employee tells the employer he or she has a sincerely held religious belief preventing the employee from obtaining the vaccine, the employer must reasonably accommodate that religious belief unless it poses an “undue hardship.” An “undue hardship” is something having more than a de minimis cost or burden on the employer.

Just like with the ADA, if an employee asks for an accommodation due to sincerely held religious beliefs, the company and the employee should together explore what reasonable accommodations can be made to accommodate that belief.

Though a company may exclude the employee from the workplace if the employee cannot get vaccinated, it does not mean that the company can automatically terminate the employee. Again, the company must explore other potential accommodations, such as remote work.

After such a hard year, companies and employees want things to return to normal. The push to vaccinate employees soon is expected. However, there may be legitimate reasons for some employees to request to be exempted from a vaccination requirement.

This will be a tricky area to navigate in the coming months. If we can help, please contact us.

30 Years of the ADA

by Karen Fitzgerald | Aug 3, 2020 | Disability Discrimination, Discrimination, Workplace Safety

Thirty years ago, President George H. W. Bush signed the Americans with Disabilities Act into law. This law was designed to increase access and opportunity for people with disabilities in the workplace as well as in communities.

The ADA has been critical to the rights of disabled employees, allowing many disabled employees to find jobs, earn a living, and to make very positive contributions to their employees. It allowed employees who developed a disability after starting a job to retain their job as well.

For so many people with disabilities, they do have the ability to work when given appropriate reasonable accommodations. And they want to work. They want to contribute. The ADA was the stepping stone requiring employers to make reasonable accommodations instead of just terminating a disabled employee or—even more troubling—just not hiring a disabled employee at all.

Having the contributions of all—including employees with disabilities–in the workplace enriches all of us. To celebrate the 30^th anniversary of the ADA, the Department of Labor has organized a yearlong campaign for disability employment called “What can you do?” The Department of Labor has videos, public service campaigns, discussion guidelines, and many resources to educate both employees and employers about the campaign for disability employment. The website is www.whatcanyoudocampaign.org.

With COVID-19, the ADA is even more important to millions of Americans. Right now, it is unclear whether COVID-19 is a “disability” as the law defines it. For some, a COVID-19 diagnosis will lead only to a very minor illness. For others, as we have seen, it is fatal. And millions fall somewhere in between those two points.

Right now, a key concern is for those employees who suffer from underlying health concerns making them more vulnerable to severe consequences if they get COVID-19. In these cases, many employees ask for reasonable accommodations to make sure they do not contract COVID-19 at work.

One of the most valuable resources in determining what can be a reasonable accommodation under particular circumstances is the Job Accommodation Network website, www.askjan.org. This website identifies many common disabilities and potential accommodations for each disability. For an employee who needs to ask for an accommodation, this is a good starting place to be educated about what kind of things are reasonable to request as accommodations.

For employees who fear that they are susceptible to more severe effects if they contract COVID-19, some common accommodations requested include continued remote working or appropriate personal protection equipment. In some cases, companies are bringing employees back to the office, but an employee with a disability may continue to work remotely as an accommodation. In other cases, an employee who must return to the workplace may ask for additional PPE above and beyond what the employer is providing if the employee has a disability. This may include things such as an N-95 mask, a face shield, or an office location that is appropriately distanced from other employees.

Many other employees express concerns about returning to work since they live with others who might have underlying health conditions that make them vulnerable to more severe effects of COVID-19. Unfortunately, the ADA does not apply in that situation. It will only apply if the employee is the person with a disability, making him or her more vulnerable.

If you have questions about the ADA and whether you are entitled to any reasonable accommodation in the workplace, contact us.

Returning to Work in a Pandemic: ADA Concerns

by Karen Fitzgerald | Jun 16, 2020 | Family Medical Leave, Workplace Issues, Workplace Safety

As offices reopen, many people have real concerns about COVID-19 and how it affects the workplace. The EEOC’s Technical Assistance Questions and Answer on what you should know about COVID-19 and various EEO laws is a great resource for these questions. The EEOC updates this guidance regularly, but the most current version is at: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.

One set of concerns deals with people afraid to return to work. A person might have health issues making that person vulnerable to COVID-19. Or the person may live with another person at risk due to age or underlying health issues. The employee fears going to work and possibly bringing home germs that expose the family member to illness.

Many employees are asking what happens if they refuse to return to work because of this fear. Usually, the employee won’t have much protection if the employee refuses to return to work due to a generalized fear. However, sometimes, the ADA may provide relief.

If an employee’s disability puts the employee at a higher risk from COVID-19, the employee may ask for a reasonable accommodation that would allow the employee to perform the job duties. The catch is what is a “reasonable accommodation” and whether the requested accommodation creates an undue hardship for the employer.

For example, if the employee has a job that can be performed remotely, the employee could request permission to continue to work remotely even after other employees have returned to the office. The employee must have an underlying disability, though, not just a generalized fear of exposure to COVID-19 before the employee would be eligible for a reasonable accommodation. So, just because an employee is over age 65 or is pregnant, that alone would not be entitled to an ADA accommodation without some other disability. Also, an employee who fears exposing a family member at higher risk of severe illness from COVID-19 due to an underlying medical condition may not have accommodation under the ADA.

That does not mean that an employee with these concerns should not ask for such an accommodation. It just means that an employer is not required by the ADA to grant the accommodation. Some employers might still be happy to work with the employee to address that concern.

If the employee cannot get the accommodation of working remotely, the employee should explore other kinds of reasonable accommodations that might minimize the risk of exposure to COVID-19. This can include getting permission to wear a mask or being allowed to work in a space appropriately distanced from coworkers. It might include asking for plexiglass shields to be installed between cube spaces. The website www.askjan.org is a good resource for workplace accommodations.

An employee can also consider whether the employee may have Emergency Paid Sick Leave or Emergency FMLA leave under the Families First Coronavirus Response Act. However, those provisions only apply to companies with fewer than 500 employees, so many employees are not eligible for those benefits.

The laws and regulations are changing frequently. If you have questions, we can help.

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