Maybe It’s You! Maybe You’re A Bad Employee.


“She’s a bully” and “obnoxious” are what San Francisco-based career coach Joel Garfinkle heard from employees at a Silicon Valley tech company about a colleague. The company had approached Mr. Garfinkle because its managers needed coaching help. Their best salesperson wasn’t getting along with her co-workers and managers, who frequently complained about her insensitive behavior.
“I found that people didn’t want to work with her or for her. It was quite an eye opener for her, but the truth was right there on paper,” says Mr. Garfinkle, who conducted interviews with co-workers, subordinates and managers and confronted the teary employee with the results. It took a year, but Mr. Garfinkle was able to help the employee improve her empathy and listening skills, which eventually led to higher productivity and a promotion.

Whether you’re a good employee or bad, experts recommend that all employees do regular career self-assessments that include feedback from co-workers, bosses, customers, vendors and even family and friends. And you shouldn’t wait for the annual review—especially if you find that you’re working harder to achieve the same goals, are being passed up for promotions and aren’t being invited to important meetings that you were invited to before. These are signs that you may already have a tarnished workplace image.

Not the Best Judge – The problem is that humans in general are bad at judging themselves so they may wait too long to act, says David Dunning, a professor of psychology at Cornell University who researches how people perceive their own skills and competence. “We’ve found that good employees are best attuned to rooting out their strengths and weaknesses but bad employees are the worst at it,” he says. “There are a lot of people whose only impediment to them improving is that they don’t know that they need to improve.”

Unfortunately, most organizations only give feedback when deciding on merit pay, and that may not be helpful, Mr. Dunning says.
“The review becomes tied to consequences that make people emotionally involved,” he says. “That’s why self-assessment should also be done more frequently and outside of those situations.” When you ask your colleagues for feedback, don’t put them on the spot with character questions.

Take the emotion out of the equation by asking for actionable feedback on your behaviors with questions such as: “What should I be working on?” “What would you like to see more of?” or “How do I come across in these situations?” Don’t get defensive if you don’t agree with the feedback. You want to encourage uninhibited answers by showing that you’re completely open to both positive and negative feedback.

You can make the process easier for colleagues by taking them out of a workplace setting. Meet over lunch or coffee during the weekend and open the conversation by revealing a flaw, says Mr. Garfinkle. “You can say something like, ‘I know that I become impatient in certain situations but I’m trying to work on that.’ ”

Benchmark yourself against colleagues. How do they deal with situations similar to those that you work with? You may find that there are better ways to handle issues that you may not have ever considered.

Make an ‘Action Plan’ – Once you get your feedback, formalize your intent to make a change by creating an action plan that addresses your negative perception. You won’t be able to change other people’s behavior but you can change your own by diagramming how you’ll use the feedback. Keep colleagues that provided you with feedback apprised of your progress to show that you’ve taken their advice seriously. At the same time, you’ll be increasing your visibility by bringing them into your plan as advocates and showing that you’ve got the will to improve and succeed.

Many people tend to backslide over time and revert to their old habits so it helps to have somebody reliable to check on you regularly, says Mr. Garfinkle. “It should be an ongoing process that evolves as you change.”

Without a Smile, Your Staff is Not Ready for Work!

Jerry Osteryoung | 6/24/2013

I have just returned from a very enjoyable and relaxing cruise to Alaska. From watching glaciers to salmon fishing, the panoramas and activities were incredible, but the experience aboard the cruise ship was lacking in one major area: customer service.

Without exception, the crew — and it was a large crew — never really smiled at the guests. I have no idea why this was, but in my opinion, they clearly needed to.

For example, there was one day on this cruise when we were at sea the entire day. I used this ship-bound day to observe the servers at the giant buffet. Their primary job was bringing drinks and clearing tables, but I never saw them smile at anyone.

Sometimes a guest would smile at them and they would acknowledge the smile with a nod, but even then, still no smile.

A smile is a valuable piece of the customer experience because it communicates things words cannot. A smile indicates warmth and kindness, whereas a frown or empty expression puts up a barrier between your company and your customers. At best, it sends the message that you just are not there for them.

For this reason, all of your employees should wear a smile at all times(; in person or on the phone. And believe me, your customers can ‘hear’ your smile or frown over the phone! RK).  It is an integral part of the presentation they make to each customer or guest. Clearly, on a cruise you want your staff happy so that the guests stay in a great frame of mind.

Walgreens clearly gets the importance of a smile in the service experience. On a visit to one of their drugstores, I noticed a sign in the employee lounge that said, “Your uniform is not complete unless you are wearing a smile!”

Many firms talk about the importance of smiling, but very few make it a part of their culture. I think the reason for this is that management just forgets how great an impact this very simple act can have on the customer. Additionally, management often assumes the staff will just know they should smile, so it’s not emphasized in their training.

I believe that smiling is a natural habit we are all born with, but gradually it is extinguished by watching role models who do not smile or because we get punished somehow for smiling.

For example, my parents rarely ever smiled. Consequently, I picked up that same behavior. I am, however, changing that by making a conscience effort every day to smile.

As with any new behavior, smiling must be practiced and rewarded over time. As the leader of the company, it falls to you to provide a consistent example for your staff to see and emulate. Make it a point to remind your staff every day of the benefits of smiling in a fun way.

Now go out and make sure that you include smiling as part of your customer service training. The benefit to your customers will be worth the effort.

You can do this!

Small employers are struggling to make heads or tails of their health-care costs under the Affordable Care Act.

Small employers are struggling to make heads or tails of their health-care costs under the Affordable Care Act.

By: Sarah E. Needleman at [email protected]

Some small employers, including Brian Gleason of Goodlettsville, Tenn., aren’t waiting until fall to talk to their workers about the higher costs they expect to face under the health-care law—and what steps they might take to cope.

Mr. Gleason, chief executive of filtration-systems maker Des-Case Corp., says his company will be hosting a series of informational meetings for its 72 employees, starting this summer.

Rather than face his staff alone, he plans to bring in the company’s insurance-consulting firm to lead the discussions. The topics and frequency of the meetings have yet to be determined. But “we have to make sure our employees are informed about changes that may happen over the course of the next couple of years” because of the health law, he says.

Explaining well in advance why benefits may have to change in 2014 is a smart step for employers because “otherwise, rumors get created,” says George T. Solomon, an associate management professor at George Washington University in Washington. “The more [business owners] can show the cost to their bottom line, the more likely their employees will understand,” he says.

But striking the right tone can be difficult, because owners don’t want risk scaring off loyal employees. Frequently, a small-business owner’s view of the law is colored by political leanings, but management experts say it is important to keep the conversation focused on how the law might affect the company. They also caution against revealing plans for drastic changes—such as laying off workers to avoid the law’s reach—if it isn’t clear such moves will be necessary.

When Mr. Gleason joined 30-year-old Des-Case in 1997, it had just three employees. As he expanded the company’s head count, he says he formed tightknit relationships with his employees and their families. Des-Case’s employees also have bonded over the years, he adds.They regularly get together for picnics, group charity work and Ping-Pong tournaments, and often comfort one another during periods of personal hardship.

For this reason, Mr. Gleason, 46 years old, says, broaching a subject as important as health insurance requires a thoughtful approach. “Anything that impacts the employment relationship is something that we have to be concerned about from a recruiting and retention perspective,” he says.

Mr. Gleason figures health-care costs for his company are likely to rise, particularly if more employees opt for employer-sponsored coverage next year, or if its premiums continue to increase by double-digit percentages. He worries that he will need to ask his employees to contribute more toward premiums, he says. Des-Case now covers 100% of premiums for single employees and about 70% for those with family plans.

Small employers have a practical reason to start talking about health coverage with their staffers now. In order to estimate their 2014 costs, they need to figure out roughly how many employees who aren’t currently on their health plans might elect to sign up for coverage next year. Individuals who don’t carry insurance will face penalties in 2014 under the law, and that could push more people to elect employer coverage.

Michael Ortner, founder of Capterra Inc., an online marketplace for business software buyers and sellers, emailed his 28 employees earlier this month to warn them that the company may need to adjust its health coverage, particularly if its head count doubles over the next two years, as planned.

“We have some tough choices ahead of us,” wrote the 39-year-old.

He says Arlington, Va.-based Capterra would have to pay 28% more in premiums to renew its current plan for 2014. In the past, premiums had increased only 5% to 10% per year. If the company were to continue to cover 100% of the cost for singles and 75% for families, it would have less money to put toward raises, hiring and other expenses, he told the staff.

Twenty-six-year-old J.P. Medved, Capterra’s manager of business development, says he was disappointed by Mr. Ortner’s email but “grateful to have that explanation.”

He responded by saying he would be OK switching to a similar but less expensive plan for next year. “I don’t think the company should eat the costs,” he says. “It could be harmful in terms of growth.”

Holding off discussions about the health law’s impact on a business might not make sense for employers getting ready to enter long-term contracts with customers, suppliers or trade unions.

Gray & Co., a producer of Maraschino cherries since 1908, held a staff meeting last fall to discuss concerns about the company’s future health-care costs in advance of negotiating a new five-year contract with a local union that represents about 60% of its 180-person workforce.

“It was just putting the cards on the table, saying here’s this thing happening in America,” says Josh Reynolds, president, referring to the health law. Gray’s leadership team, which hosts a barbecue once a year for employees, is covered under the same health plan as its staff, he adds.

“We hope the new law will reduce costs, but we just don’t think that’s reality,” said Mr. Reynolds’s father, Gray CEO and Chairman James Reynolds, in leading the talk. “We cannot continue to provide benefits for which we cannot estimate the costs.”

After the union negotiations were completed, the CEO and chairman met with employees again in late December, this time to notify them that starting in 2013 the firm would no longer contribute toward premiums for new hires who select family health plans above the amount it provides for single plans, which is 70%. Existing employees on family plans would be grandfathered into the old arrangement.

The elder Mr. Reynolds also announced that the company was placing a cap on the amount of money it would contribute toward annual premium increases. Previously, Gray split the increases 50-50 with its employees.



How a Few Bad Apples Ruin Everything

What harm can a handful of nasty or incompetent employees do? A lot more than you may think.  By ROBERT SUTTON from the WSJ 05/17/2013

Superstars get a lot of attention from bosses. But bad apples deserve even more.

A growing body of research suggests that having just a few nasty, lazy or incompetent characters around can ruin the performance of a team or an entire organization—no matter how stellar the other employees.

Bad apples distract and drag down everyone, and their destructive behaviors, such as anger, laziness and incompetence, are remarkably contagious. Leaders who let a few bad apples in the door—perhaps in exchange for political favors—or look the other way when employees are rude or incompetent are setting the stage for even their most skilled people to fail.

It’s crucial for leaders to screen out bad apples before they’re hired—and if they doslip through the cracks, bosses must make every effort to reform or (if necessary) oust them.

Spreading the Vibes

It’s easy to understand why bosses would rather focus on attracting and developing superstars. A mountain of research shows that stars and geniuses can deliver astounding results. And, obviously, it’s more fun and inspiring to focus on top-performing, energetic employees.

But studies of everything from romantic relationships to workplace encounters show that negative interactions can pack a much bigger wallop than positive ones. The reason is simple: “Bad is stronger than good,” as psychologist Roy Baumeister and his colleagues put it. The negative thoughts, feelings and performance they trigger in others are far larger and longer lasting than the positive responses generated by more constructive colleagues.

Consider research on bad apples and team effectiveness by Will Felps, Terence R. Mitchell and Eliza Byington. They examined the impact of team members who were deadbeats (“withholders of effort”), downers (who “express pessimism, anxiety, insecurity and irritation”) and jerks (who violate “interpersonal norms of respect”). An experiment by Mr. Felps found that having just one slacker or jerk in a group can bring down performance by 30% to 40%.

How can organizations squash those negative influences? The easiest way, obviously, is to avoid hiring bad apples in the first place—and that means taking a different approach to assessing candidates for jobs.

The usual means of screening are often weak when it comes to determining if a job candidate is a bad apple. Candidates may have gone to the best schools or may come across as charming and brilliant in interviews—thus disguising their laziness, incompetence or nastiness.

That’s why one of the best ways to screen employees is to see how they actually do the job under realistic conditions. Akshay Kothari and Ankit Gupta favor that approach. When they’re hiring new people for their Palo Alto, Calif., company, Pulse, which makes a news-reading app for mobile devices, they consider evaluations from peers and superiors and do multiple rounds of interviews. But they say the most effective thing is to bring candidates in for a day or two and give them a short job to accomplish. (The candidates are paid for their time.)

Not only do they learn a lot about the candidates’ technical skills, Messrs. Kothari and Gupta say, but they also learn about their personality. How do they deal with setbacks? Do they know when to ask for help and to give others help? Is the candidate the kind of person they want to work with? The partners say there have been several candidates who looked great on paper and came highly recommended but weren’t offered jobs—because technical and interpersonal weaknesses surfaced during the selection process.

Play Nice or Else

Beyond smarter screening, it’s important to develop a culture that doesn’t tolerate jerks. The best organizations make explicit their intolerance for bad apples; they spell out which behaviors are unacceptable in the workplace and act decisively to prevent and halt them.

Consider Robert W. Baird & Co., a financial-services firm that has won praise as a great place to work. The company is serious about creating a culture where disrespect and selfishness are unacceptable. They call this the “no jerk rule” (though they use a more colorful word than “jerk”).

The company starts sending the message during the hiring process, says CEO Paul Purcell. “During the interview, I look them in the eye and tell them, ‘If I discover that you are a jerk, I am going to fire you,’ ” he says. “Most candidates aren’t fazed by this, but every now and then, one turns pale, and we never see them again—they find some reason to back out of the search.”

When the company makes a hiring error and brings aboard an employee who persistently demeans colleagues or puts personal needs ahead of others, Baird acts quickly to deal with or expel the bad apple.

Mr. Purcell’s crusty approach won’t work in every company culture. For an idea of how to handle the task with a more subtle hand, look at renowned chef Alice Waters, who has headed the restaurant Chez Panisse in Berkeley, Calif., for 40 years now.

Biographer Thomas McNamee describes how Ms. Waters’s love of people and food has spread to those around her. Along the way, though, many bad apples have been shown the door—but Ms. Waters doesn’t hold it open. The process usually starts when one of her colleagues conveys the message that Ms. Waters isn’t “entirely pleased.” If the hints don’t work, then that colleague—or someone else close to Ms. Waters—does the firing.

A spokesman for Chez Panisse says Ms. Waters does personally fire employees on occasion and “she manages to have that person feel as though they are making the decision to leave and it is better for themselves to move on and explore new opportunities.” He also notes that a large percentage of employees have been with the restaurant for decades.

Keeping Them Close

There are times, of course, when an organization can’t—or won’t—remove a destructive personality. Maybe the person is a star as well as a bad apple, for instance, or is otherwise crucial to the operation. In such cases, leaders might try to use coaching, warnings and incentives to curb the toxic employee’s behavior. Another tactic is to physically isolate the bad apple.

In one organization, there was a deeply skilled and incredibly nasty engineer whom leaders could not bring themselves to fire. So, they rented a beautiful private office for him several blocks from the building where his colleagues worked. His co-workers were a lot happier—and so was he, since he preferred working alone.

But beware: Leaders who believe that destructive superstars are “too important” to fire often underestimate the damage they can do. Stanford researchers Charles O’Reilly and Jeffrey Pfeffer report a revealing episode at a clothing retailer. The company fired a top-producing salesman who was a bad apple. After he was gone, none of his former colleagues sold as much as he had. But the store’s total sales shot up by nearly 30%. The lesson, according to the researchers: “That one individual brought the others down, and when he was gone, they could do their best.”

Mr. Sutton, a professor of management science and engineering at Stanford University, is the author of “Good Boss, Bad Boss: How to Be the Best…and Learn from the Worst.” He can be reached at [email protected].

Containing the High Costs of Affordable Care Act

Containing the High Costs of Affordable Care Act

By JoAnn Greco / 25 March 2013 / for the Dow Jones advertising department; Katy Rich, ADP

Mainly, it’s a game of numbers — of enrollees, of employees, of dollars saved, of dollars spent. By most estimates, some 30 million Americans who have never been covered by health insurance will start receiving it once health care reform officially kicks in and the much-anticipated public exchanges come online next January. These federal- and state-run marketplaces will provide an alternative option for employees who either don’t wish to participate in their workplace health plan or whose workplace isn’t offering coverage.

“The complexity of the Patient Protection and Affordable Care Act is quite significant,” says Tim Clifford, president of benefits administration services for ADP. “U.S. health care reform has set in motion the largest change in employer-provided health benefits in the post-World War II era. With more complex rules set to take effect in January 2014, employers and plan sponsors really need to concentrate on their overall state of readiness.”

Ready or not, reform is coming. And not only are the rules lengthy and tough to navigate, they are also downright costly — no matter how you look at them. The employer who does offer coverage may still be subject to penalties if an employee cannot afford the health coverage offered, which is generally defined in terms of whether the employee’s premium contribution exceeds 9.5 percent of the employee’s household income.

According to research conducted by ADP, 8.6 percent of single employees pay more than the 9.5 percent of their income; similar ratios occur in married couples. In that case, an employer would be required to pay $3,000 for each employee who purchases subsidized coverage through an exchange.

If an employer elects not to offer any insurance plan at all, that employer incurs an annual tax penalty of $2,000 per full-time employee, less the first 30 — the so-called “pay or play” conundrum. That’s nearly $2 million per year for an employer with 1,000 full-time employees. “And that is not a one-time number,” says James P. Anelli, head of the ACA group at LeClairRyan, a national law firm. “It will be charged each year, and it will increase each year.”

Finally, assuming that an employer avoids tax penalties altogether by offering affordable coverage to all employees, it must, nonetheless, account for the additional costs associated with extending health coverage to a larger number of employees.

ADP’s report showed most of the newly eligible enrollees will be lower-wage employees or workers holding non-exempt positions where health coverage was not traditionally offered. “Industries with temporary, seasonal or high-turnover employee populations may very well see their heath insurance rolls increase,” notes Clifford.

A wait-and-see consideration is whether employees will increase their use of health benefits. “Given that employees will have numerous new rights — such as no caps, no limits on preventative tests, etc. — it’s a safe assumption that they’ll be using the plan more frequently,” adds Anelli. “That, too, has to be figured into any analysis.”

Intelligent Forecasting

For a company to better understand the ACA’s impact on its organization requires monitoring employee enrollment behavior and creating predictive cost models, which according to experts, will be no small feat. “The calculations seem innumerable,” says Anelli. “While larger companies are having to really take a close look at affordability and ‘pay or play; options, we’re seeing a lot of small- and medium-sized business going outside the company to look for solutions to keep track of their eligible employees.”

“There will be a whole new industry of consultants who can help businesses figure everything out,” says David Joffe, chair of the employee benefits and executive compensation group at Bradley Arant Boult Cummings. “Insurance brokers, payroll services companies and law firms, among others, will play large roles in helping companies administer their programs, stay in compliance with regulations and support employer Affordable Care Act strategies.”

Cost control, in particular, is difficult for companies to get a handle on. Many don’t have the business intelligence or infrastructure in place to do specific types of predictive analysis. Forecasting how many new employees will enroll in a specific employer plan, for example, could help organizations mitigate risk and make more cost-effective insurance choices.

The ADP study established a clear relationship between an employee’s W-2 wages and his/her subsequent participation in a health benefits plan. However, the study also found only 55 percent of mid-sized companies and about three-quarters of larger ones knew for sure that they have a benefits administration system in place that’s capable of using W-2 information to calculate the affordability of those benefits.

“It’s going to be critically important to tie together an organization’s different systems — payroll, benefits, and time tracking — since no single system will house all of the relevant data and provide the insight needed to make thoroughly informed decisions,” says Clifford. “Having integrated data with new learnings will help employers rethink their human capital strategy and better determine what they offer and to whom.”

Sub-Contractors & The Medical Industry (HIPAA HITECH)

Posted on Saturday, March 23, 2013 12:35 PM

Employers Must Issue Revised Privacy Notices Under HIPAA Final Rule Feb 12, 2013

The Final Omnibus Rule concerning health information privacy, security and breach notifications was published in the Federal Register on Jan. 17, 2013. The rule affects employers to some extent but greatly expands the list of those who are directly responsible to protect patients’ protected health information (PHI).

Under the rule, subcontractors – or what are called business associates in the rule – are now also liable for PHI data privacy and security, whereas previously only covered entities – generally, health care providers and health insurance companies – were held legally accountable. In addition, the fines for security breaches have been raised significantly to a maximum of $1.5 million for repeated violations. The rule takes effect on March 26, 2013, but affected interests have until Sept. 23, 2013, to comply.

The Final Omnibus Rule incorporates provisions of the Health Information Technology for Economic and Clinical Health (HITECH) Act into the previous privacy and security rules of the Health Insurance Portability and Accountability Act (HIPAA), and it adds teeth in the form of breach notification standards. The HIPAA Privacy Rule, now as then, protects the confidentiality of patients’ medical records and data, while the Security Rule concerns the safeguarding of those records in electronic data format so that unauthorized persons cannot access them.

“Much has changed in health care since HIPAA was enacted over 15 years ago,” HHS Secretary Kathleen Sebelius said. “The new rule will help protect patient privacy and safeguard patients’ health information in an ever-expanding digital age.”

The most immediate effect on employers is twofold: they must issue their employees revised privacy notices incorporating the new protections under the Final Omnibus Rule and they must assure that any business agreements with entities handling PHI contain language to hold them responsible for PHI privacy and security.

The revised notices will serve to inform recipients (employees) of (a) their right to receive security breach notifications, (b) HIPAA’s new prohibition on the use of genetic information for underwriting purposes, and (c) the requirement that the employer obtain the employee’s authorization before using PHI for marketing purposes and before selling PHI. The deadline for delivering these revised privacy notices for companies that maintain benefits websites is Sept. 23, 2013, but for those employers without  such websites, the deadline is Dec. 22, 2013.

Additionally, employers will need to review and possibly update any agreements or contracts with business associates, such as insurance brokers and third-party administrators. Many employers already updated their agreements following the passage of the HITECH Act in February 2009, but if not, they have until Sept. 22, 2014 to do so. These agreements must include provisions that require business associates to (a) comply with the HIPAA Security Rule, (b) enter into a business associate agreement with any subcontractor who receives PHI, (c) report any security breach to the covered entity (employer or other), and (d) comply with the provisions of the HIPAA Privacy Rule regarding any PHI from the covered entity.

70 Workers’ Comp Citations Issued Last Month

Posted on Monday, March 04, 2013 3:09 PM
Published on Sunshine State News ( Home > Blogs > Jim Turner’s blog >

Seventy Citations Issued in Sweep for Workers’ Comp Insurance | Posted: February 15, 2013 12:00 PM

Nearly one in 10 companies contacted this week by Florida investigators failed to carry the required workers’ compensation insurance, the state’s chief financial officer announced Friday.

Investigators with the Department of Financial Services’ Division of Workers’ Compensation Bureau of Compliance and Division of Insurance Fraud made random visits to 375 construction sites, contacting 770 employers during a two-day sweep.

The result of the sweep was 70 citations being issued to construction companies and other businesses, which requires each business to cease all operations until the employer obtains coverage for its employees, the office for Chief Financial Officer Jeff Atwater stated in a release.

Five of the employers were found working in violation of an already issued stop work order.

“The goal of this sweep was to ensure the safety of Florida’s workforce, especially in the construction industry, where workers encounter potentially dangerous situations daily,” Atwater stated in the release.

“Construction companies that don’t carry the required workers’ comp coverage put their employees at great risk and, through gaming the system, are able to outbid responsible companies that play by the rules.”

Under state law, businesses engaged in the construction industry are required to obtain workers’ compensation coverage when they employ one or more employees, including the owner.

Businesses engaged in the non-construction industry are required to obtain workers’ compensation coverage when they employ four or more employees, excluding business owners, who are exempt.

Must Workers’ Comp and FMLA Leave Run Concurrently?

Test Yourself

Amir is as close to perfect as employees get. Clients consistently praise his customer service skills, stating that he never fails to go “above and beyond.” His manager speaks highly of Amir’s dedication to the company and leadership capabilities. His department teammates find him to be a reliable, friendly, and pleasant coworker. And this past year, the organization implemented Amir’s innovative process improvement suggestion, which resulted in a savings of $15,000 in the first five months.

When Amir suffers a workplace injury caused by another employee’s negligence, you wonder whether you can further reward Amir’s hard work by not counting his workers’ compensation leave as leave under the Family and Medical Leave Act (FMLA). After all, why should Amir be penalized for this injury if he later suffers another FMLA qualifying event?

While it might seem strange that an organization’s generosity in this area would be unacceptable, failing to run FMLA leave simultaneously with workers’ compensation leave when the situation qualifies can not only be risky, but a violation of the law.

Treating employees differently is a mistake

Belinda is a problem employee. She has frequent personality clashes with her supervisor and a pattern of tardiness. When her negligence in driving a forklift leads to injuries for both her and Amir, you run FMLA and Workers’ Comp concurrently for Belinda, but not for Amir. When both Amir and Belinda take FMLA leave a few months later for unrelated reasons, Belinda exhausts her leave entitlement, while Amir has plenty to spare.

After you terminate Belinda for unexcused absences after exhausting FMLA leave, she files a charge against your company, alleging both a violation of the FMLA and gender discrimination. Your company must now explain why it treated Belinda differently than Amir. Even if your organization wins, defending against this lawsuit may still cost thousands of dollars and damage your company’s reputation.

The bottom line: Consistency in similar circumstances is one of the best ways to reduce the risk of a claim under the FMLA or discrimination laws. If your organization must deviate from general procedure, have a valid reason for doing so and to maintain proper documentation backing up this defense.

ADAAA Settlements on the Rise

Posted on February 20, 2013 ¬ 9:18 am Gary McCarty: Since the adoption of the Americans with Disabilities Amendments Act (ADAAA) in 2008, there has been a dramatic increase in disability claims and settlements based on the ADAAA’s expanded definition of disability. According to an analysis of Equal Employment Opportunity Commission (EEOC) statistics by Warren and Associates:

Settlements related to claims of disability discrimination based on anxiety disorders went from 1.6 million in 2007 to 6.4 million in 2012.  Settlements related to claims of discrimination based on cardiovascular impairments went from 1.6 million in 20076 to 4.5 million in 2012.  The list goes on and on, and the upward trend is obvious.

What does this mean for employers? The wording of the ADAAA and its Final Rule make it clear that employers shouldn’t challenge claims of disability but assume they’re real and try to work out a reasonable accommodation. The numbers in the paragraph above clearly show that the EEOC intends to enforce the letter of the law.

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