Posts filed under ‘HR’

When Does The ADA Require Granting Unpaid Leave?

Image result for employee on long term leaveLet’s say you have an employee recovering from back surgery who is nearing the expiration of his medical leave. He requests an additional two to three months of unpaid leave under the Americans With Disabilities Act to recover. Are you violating the Americans With Disabilities Act if you don’t provide this accommodation? Historically, the answer to that question would have been probably, but recent cases decided by the Court of Appeals for the 7th Circuit indicate that employers may have more flexibility in this area than previously thought.

First, let’s remember that under the Americans With Disabilities Act, it is illegal to discriminate against a qualified individual on the basis of a disability. A qualified individual is an individual who with or without reasonable accommodation can perform the essential functions of a job (42 USC 1211). The question is, under what circumstances does a request for long-term unpaid leave constitute a reasonable accommodation?

In Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 33 AD Cases 1113 (7th Cir. 2017), an employee sued under the ADA after his request for an addition 2-3 months of unpaid leave was denied. Crucially, the Equal Employment Opportunity Commission joined in his lawsuit. It argued that the company’s actions were inconsistent with its own “long standing interpretation” of the ADA, under which it had interpreted a reasonable accommodation to include the provision of unpaid leave, at least for a set duration of time.

But in Heartland as well as another case, Golden v. Indianapolis Hous. Agency, No. 17-1359, 2017 BL 371274, 33 AD Cases 1219 (7th Cir. Oct. 17, 2017), the Court of Appeals for the 7th Circuit has flatly rejected this interpretation. For example, in upholding Heartland Woodcraft’s decision to fire the employee, the Court held that a “reasonable accommodation” is one that allows the disabled employee to “perform the essential functions of the employment position.” § 12111(8) . If the proposed accommodation does not make it possible for the employee to perform his job, then the employee is not a “qualified individual” as that term is defined in the ADA.” Since there are no conditions under which the employee could return to work, he is not a qualified employee.

Does this mean that no accommodation for time off under the ADA needs to be accommodated? Not at all. In making its rulings, the 7th Circuit pointed out that “[t]ime off may be an apt accommodation for intermittent conditions. Someone with arthritis or lupus may be able to do a given job even if, for brief periods, the inflammation is so painful that the person must stay home…Intermittent time off or a short leave of absence—say, a couple of days or even a couple of weeks”—may be appropriate in certain circumstances. “But a medical leave spanning multiple months does not permit the employee to perform the essential functions of his job.”

Does this ruling mean that you can change your policies immediately? Not without talking to your attorney please. For one thing, the 7th Circuit does not have jurisdiction over New York. For another thing, these cases leave open the question of just how much time has to be requested before an employee no longer gets ADA protection. Finally, the involvement of the EEOC and the Court’s split with that agency’s traditional interpretation, increases the likelihood that you may see this issue end up before the Supreme Court.

But I’m bringing this to your attention because I’m told by our own in-house HR consultant that the issue addressed in these cases is one with which credit unions frequently have to deal and the cases were recently highlighted in this employment law blog by Bond Schoeneck & King.

December 4, 2017 at 9:10 am Leave a comment

Albany County Latest To Ban Wage History Inquiries

Image result for job interviewWith apologies for the late start, I wanted to give a heads up to all of you HR people out there, particularly if you are situated in Albany County.

On November 6th, Albany joined the growing list of localities, including NYC that ban employers from inquiring about a job applicant’s salary history. You should update your policies and give a heads up to your interviewers immediately. The law takes effect 20 days after it is filed with the Secretary of State. Once I get a precise date, I will update the blog.

The purpose of the bill is to attack the problem of gender and race wage disparity. Proponents of legislation such as this argue, for example, that females who have taken time off to raise children are often disadvantaged when they re-enter the work force.

The Albany County measure makes it illegal to screen job applicants based on their wage and benefit history; request or require a job applicant disclose his or her wage or salary history as a condition of a job interview or seek the salary history of any job applicant from any current or former employer. The only flexibility given to employers is that a job applicant may provide written authorization to a prospective employer to confirm prior wages but only after a job offer, including proposed compensation, has been extended.

For those of you outside the Albany area, keep in mind that as localities across the state pass more and more of these measures, we are more and more likely to see state-wide legislation passed.

On that note, enjoy your day and console yourself in the knowledge that at least the Giants aren’t playing in Monday night football.

 

November 13, 2017 at 10:07 am Leave a comment

3 Things You Need To Start Your Credit Union Day

  1. New York City Employment History Ban takes effect. This one just impacts the credit unions in NYC but it’s the type of thing that could get consideration in next year’s legislative session. Yesterday, a local law took effect banning employers in New York City from inquiring about an applicant’s compensation history. Specifically, Local Law No. 67 prohibits employers from inquiring about the salary history of a job applicant or relying on salary history in determining salary benefits or other compensation including in the negotiation of contracts. The draft is provided that where a job applicant “voluntarily and without prompting” discloses his or her salary history, then an employer may consider past compensation.  I can see the lawsuits already. Captain Obvious here: for those of you in the city who haven’t already provided additional training to persons who conduct job interviews on your behalf, do so ASAP.
  2. CFPB introduced a new tool to help track mortgage delinquencies. Love it or hate it, what the CFPB does, it tends to do well. Yesterday it introduced a new part of its website that will allow people to track mortgage delinquency rates on the local, state and national levels. I can’t help but think that if such a tool had been available about 11 years ago, more policy makers and lenders would have been better positioned to prevent the worst of the Great Recession.
  3. Here’s a weird story courtesy of the CU Times that I looked into: The Illinois Division of Financial Institutions recently issued a cease and desist order against 1st Provision Credit Union located in Ottawa, Illinois. What makes this story odd is that 1st Provision is not chartered by either the state of Illinois or NCUA. Is this a case of incredibly sloppy paperwork or is there more to come about this story?

 

November 1, 2017 at 8:55 am Leave a comment

Can’t Find Employees? You’re Not Alone

If you’re having trouble finding and retaining good employees, then you’re not alone. That’s my takeaway from this article in today’s American Banker which quotes a leading HR professional as suggesting that banks have to get more creative in how they go about attracting new hires as the competition for new employees gets more intense across many industries.

There’s more going on here than a historically low unemployment rate. The banking industry is disproportionately benefiting from a growing economy which of course puts pressure on employee wages. According to the latest survey released by Crowe & Horwath, which has been tracking employment in the banking industry for 36 years, for the first time since the great recession more than half the banks surveyed said they planned to increase total employment during the coming year. In fact, only 35% of banks surveyed plan to maintain their current staffing levels.

As you can see from the chart accompanying today’s blog, the result has been rising salary demands for bank employees ranging from CEO’s to administrative assistants, with the best performing employees receiving salary increases of more than 5%.

Now I know some of you are reading this blog and saying, “Henry, we can’t compete against the salaries offered by banks so this news doesn’t really affect us.” But the reality is that the same trends impacting banks are certainly impacting credit unions. Furthermore, credit unions must also find tech savvy millennials who are in demand in a host of industries.

Even if you don’t have to compete with a community bank down the street for employees, this is very much an employee market.

I Know You’re In There

By the way, starting at 5p.m. tonight, I’ll be going around the neighborhood with my 8-year-old so don’t be one of those neighbors who forget to pick up candy on the way home, shut the blinds, lock the door and pretend not to be home. I know you’re in the basement watching the Wheel of Fortune. My daughter needs all the free candy she can get.

October 31, 2017 at 9:05 am Leave a comment

What You Can Learn From Harvey Weinstein

As you’re drinking your morning coffee, looking out over your staff and wondering how to squeeze a few more basis points of profit out of your credit union, it may seem like you don’t have much to learn from the downfall of The Weinstein Company, but that’s wrong. This is one of the watershed moments in sexual harassment law, much like the Anita Hill/Clarence Thomas testimony that lead to an infusion of female politicians and an increased emphasis on sexual harassment litigation.

The downfall of Weinstein and top executives at Fox News demonstrates that an environment that lets sexual harassment fester and go unchecked has the ability to take down a company. As a result, here are some key takeaways for Board Directors and top Executives:

  1. Selective ignorance is no excuse. While it isn’t realistic for a Board to know of all the actions taken by all its management officials, selective ignorance is no longer an excuse. What destroyed Weinstein’s company is not so much Weinstein’s actions, as repugnant as they are, but the reality that the Board either knew or should have known about his shenanigans and chose to do nothing about it. Your average credit union CEO is not a Hollywood mogul but when a Board member has enough credible information about misconduct, they need to investigate.
  2. A company’s culture starts at the top. Under NCUA regulations, examiners are responsible for determining whether a credit union has put adequate anti-discrimination policies and procedures in place (For example, take a look at Chapter 7 of NCUA’s Examiner Guide). And remember, that policies by themselves don’t go far enough unless you demonstrate that employees know, for instance, who they can reach out to if they have concerns about sexual harassment.
  3. Mad Men is no excuse. When the most recent allegations against Weinstein first surfaced in a New York Time’s article, one of his attorneys at the time, Lisa Bloom, described Harvey as acknowledging mistakes but explaining, “He is an old dinosaur and learning new ways.” This is what I call the Mad Men Defense. The TV show depicted a Madison Avenue ad firm in the 1960’s. Back then, the type of conduct engaged in by Weinstein would not have even raised an eyebrow. Fortunately, people have lost patience with the argument that individuals over the age of 50 shouldn’t be expected to know that sexual harassment is no longer acceptable.
  4. Sexual harassment is serious stuff. If allegations have the power to bring down successful companies, they certainly can damage your credit union.

Expect to see an increased emphasis on sexual harassment on the part of employees, not just employers. Now is a good time for your HR person to double-check those policies and procedures and make sure that everyone, including the credit union’s Directors, know the responsibilities they have and the roles they must play.

October 16, 2017 at 9:25 am Leave a comment

When Employees and Employers Clash

Former Supreme Court Justice Byron White, who was also an all American football player, once famously noted that he turns to the sports pages to learn about man’s successes and the front page to learn about his failures.

Maybe it’s because I couldn’t escape the deluge of negative news enveloping the country even after I turned on yesterday’s football games; Or maybe it’s because after watching Ken Burns’ documentary on the Vietnam war last night that got me thinking that the country has never been so divided since 1968, but I decided to throw away my intended subject for today’s blog and remind all you employees and employers out there to take a deep breath when it comes to discussing issues in the work place.

Let’s be honest, with Facebook now that everyone has a soapbox and wants everyone to be their friend, there’s a good chance that supervisors will know where exactly their employees stand on the hot buttoned issues of the day.

For example, let’s say your employer has deeply held beliefs about whether or not it was appropriate for athletes to boycott the national anthem. Before you decide to say something to him or her, keep in mind that New York law makes it “unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of: a. an individual’s political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property, if such activities are legal” (N.Y. Lab. Law § 201-d (McKinney). Keep in mind also, that the National Relations Labor Board has banned employers from taking action against their employees who speak out against issues of work place concern such as wages or working conditions. As a result, if an employee takes to Facebook to criticize workplace conditions, that criticism might actually be protected if other employees express similar concerns.

Now there are exceptions to everything I have just said and I’m certainly not saying that your employee gets to shoot off on issues with impunity. But what I am saying is, is that your employee has more protections than you might think when it comes to holding him or her accountable for viewpoints with which you might disagree. Before you go off half-cocked, take a deep breath and talk to your counsel before punishing an employee for taking part in political activities or expressing views with which you disagree.

 

 

September 25, 2017 at 8:54 am Leave a comment

Two Reports You Have To Read

Those of you in charge of anticipating where interest rates are headed or attracting and retaining the best employees, should take the time, assuming that your retinas are still in working condition, to read two recent reports released by the Federal Reserve Banks of San Francisco and New York. One report unveils a new survey intended to gauge employee sentiment and the other offers yet another plausible explanation for why we have not seen pressure to increase wages even as the unemployment rate continues to tumble at a rate almost as fast as the President’s approval ratings.

As readers of this blog will know, yours truly is becoming obsessed with the issue of inflation and wage growth. Simply put, if the economy is growing and the unemployment rate is dropping, why aren’t we seeing more upward pressure on prices in general and wages in particular?

The New York Federal Reserve has just introduced a new labor market survey which may help answer those questions. According to the New York Fed, the survey is the first which focuses on employee experiences and expectations. For example, it asks respondents how many job offers they have received and breaks them down by age. In July, 22% of persons under 45 reported receiving at least one job offer in the past four months compared to about 13% of older respondents.

A key question that this survey may help answer is, why has there been so little churn or job movement? In a well-functioning free market economy, churn is key since it both creates jobs for young employees and rewards the best performers with new growth opportunities. According to the survey, workers with annual household income of $65,000 or less are more likely to predict that they will be switching jobs or becoming unemployed in the near future than higher income employees. According to the Fed, these predictions are actually good indications of where the economy and the labor force is headed.

A second report produced by the Federal Reserve Bank of San Francisco has me scratching my head a little. It reports that wage growth is improving and that such growth, “may be even better than the headline number suggests.”

The good news is that wage growth for continuously full-time employed workers is currently in line with the wage growth peak of 2007. The bad news is that the entry of new and returning workers to full-time employment is holding down aggregate wage growth. The bank goes on to explain that, “As the labor market has continued to strengthen, many workers have moved from the sidelines of the labor force or part-time positions into full-time employment. The vast majority of these new workers earn less than the typical full-time employee, so their entry brings down the average wage.”

Now I don’t know why  the Bank considers this good news exactly. It means that the glut of under employed workers is so large that there is little pressure on wage growth. This type of report makes me wonder why the Fed is even considering raising interest rates any time soon.

August 22, 2017 at 8:48 am Leave a comment

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Authored By:

Henry Meier, Esq., General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association.

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