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SHRM Newsletter: Helicopter Parents at Work

08/06/2012

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August 6, 2012

This is Utah SHRM Legal-mail no. 2012-16 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).  This update is best viewed in an HTML format.  Please reply with your name and “UNSUBSCRIBE” in the subject field if you no longer wish to receive this message.

CONTENTS:

-  HELICOPTER PARENTS AT WORK

-  DOL PUBLISHES PLAIN LANGUAGE GUIDE TO FMLA

-  LAST CHANCE AGREEMENT OVERREACHES AND FAILS

-  DISABILITY CLAIMS ON THE RISE

-  BIG SETTLEMENTS IN EEOC CASES

-  NEED MORE INFORMATION?  TRY CROSSROADS CONFERENCE 2012!

HELICOPTER PARENTS AT WORK: From time-to-time I get calls from clients wondering if they have to allow the non-employee parent of an employee to attend a meeting (e.g. a disciplinary  meeting) the employer wants to have with the employee. Generally, you can say no to these helicopter parents at work and insist that you will meet with your employee alone, without parental involvement. Of course, there are some circumstances where you might want to include a parent in a meeting or discussion. For example if the employee has been injured, the parent may help the employee understand and function at the meeting. An employer is also required to accept Family and Medical Leave Act (FMLA) communications/notices from a family member, such as a parent, if the employee is unable to communicate due to his/her own medical condition. Click here to read an interesting article from HR Hero on some of the pros/cons of helicopter parent involvement in the workplace: http://www.hrhero.com/hl/articles/2012/07/26/helicopter-parents-of-young-employees-soaring-into-the-workplace/

DOL PUBLISHES PLAIN LANGUAGE GUIDE TO FMLA: The United States Department of Labor (DOL) recently published a ‘plain language’ guide to the FMLA for employees.  According to DOL’s press release accompanying the guide, “The Employee Guide includes three easy-to-follow and informative flow charts that detail how FMLA coverage and eligibility are determined, maps out the FMLA leave process and how the FMLA medical certification process works. It addresses the FMLA definition of ‘son or daughter’, including in loco parentis relationships even if the employee has no biological or legal relationship to the child, as provided in the Department's June 2010 FMLA Administrator Interpretation. It also provides detailed information on how an employee can file an FMLA complaint with the WHD if they believe their FMLA rights have been violated.” You can access the guide here: http://www.dol.gov/whd/fmla/employeeguide.pdf

LAST CHANCE AGREEMENT OVERREACHES AND FAILS HEALTHCARE REFORM: Employer frequently will use a last chance agreement (LCA) with an employee who has failed to come to work or misbehaved at work due to abuse of drugs or alcohol. Typically, in an LCA, an employee will admit to the problem, agree he/she could have been fired for the misconduct, and submits to rehab, testing and a stipulation that any further problems will lead to discharge. A recent court decision shows how an LCA can go too far. The case, a ruling in favor of an employee, involved an LCA that also required the employee to waive any claims he might bring under any of the state or federal antidiscrimination laws. The employee later revoked the waiver and the employer fired him. The court ruled that the employer has retaliated against the employee.  The morale of the story is don’t condition employment on the waiver of statutory rights...or as the court explained it: "[An employer's] requirement that [an employee] be subject to an agreement restraining his statutory rights to avoid termination is an unlawful employment practice."

DISABILITY CLAIMS ON THE RISE: Perhaps confirming predictions of the impact of the Americans With Disabilities Act Amendments Act (ADAAA), recent statistics from the Equal Employment Opportunity Commission (EEOC) show that disability claims are on the rise. EEOC records show that disability charges rose for the second straight year in 2011 and now are one fourth of the EEOC’s annual charges.  Monies recovered by the EEOC in disability cases also have increased by over 35% from past years. The new ADAAA focuses more on what an employer does to help an employee with a possible disability than on the technical issues of whether the person is actually disabled under the legal terms of the law. Thus, if it is at all a close question, an employer probably should err on the side of caution.  This means you often will assume a condition is a disability and focus on engaging in the interactive process with the employee to see if the employer can reasonably accommodate the condition.

BIG SETTLEMENTS IN EEOC CASES: There is news of some recent large settlements by employers on claims involving the EEOC. A large national trucking company has agreed to pay a total of $21 million to settle multiple claims that the company allowing racial harassment to occur in certain of its Chicago offices. The plaintiffs, black employees, had claimed they were subjected to racist comments and graffiti, nooses, and harsher discipline than other employees. A national appliance maker has agreed to pay $1 million to settle race and sex harassment claims in Tennessee. The EEOC had filed the lawsuit based on claims that a white male employee had harassed and physically attacked a black female employee.  Finally, a Long Island employer has agreed to pay money to and reinstate a 71 year old life guard at the county pool who sued for age bias after he was fired for failing a swim test. One might think that failing a swim test would be a good reason to fire a lifeguard, however, it turns out the employer had allowed younger lifeguards who also failed the swim test to keep working.  Hmmm...even though we are entering the hot summer dog days of August, with life guards failing swim tests, it may be time to stay out of the water altogether when on Long Island!

NEED MORE INFORMATION? TRY CROSSROADS CONFERENCE 2012! When you are not reading these updates, you can get up-to-date on employment law issues at the 2012 Utah Crossroads Conference Conference. The Utah Human Resources State Council, an affiliate of national SHRM, and the Utah State Partners in Business (PIB) together present the conference on September 18 and 19, 2012 at the Davis Conference Center in Layton, Utah. This is the largest conference in Utah for HR professionals. Get comprehensive and relevant professional development programs. Improve your knowledge, skills, and abilities as an HR professional. Network with peers all across Utah. Explore innovative solutions with HR product and services exhibitors. Learn tools tips and techniques from our keynotes and breakout sessions that you can apply immediately in your workplace. The conference has been sent to the HR Certification Institute for pre-approval for recertification credits. Get into the HR conversation: Sponsor, Exhibit, or Register today at http://www.utahshrm.org


Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Email: mobrien@joneswaldo.com
Phone: 801-534-7315
Website: www.joneswaldo.com

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.