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Texas Labor Law Blog Posts

One in Five People Have a Disability: How Do Workplaces Accommodate Them?

Published by Brett Holubeck on September 28, 2018
Photo by james williams on Unsplash

Nearly one in five people in the US (approximately 56.7 million people) have a disability. Only 18.7% of people with a disability had a job compared to 65.7% of those without a disability. Disability issues are increasingly critical for companies to understand especially as the workforce continues to age. One out of every 4 US workers will be over 55 by 2024, which is important because 48% of persons over 65 have a disability. People are also working longer and nearly 40% of people aged 65-69 are still working. As the working population ages, more people in the workforce will have a disability.

What is A Disability Under the ADA

The Americans with Disabilities Act (ADA) protects employees from being discriminated against because they have a disability or their employer regards them as disabled. It applies to any company with more than 15 employees. Under the law, a person has a disability when they meet one of three conditions (not every medical condition is protected). Here is a helpful breakdown from the EEOC (a government agency that enforces workplace discrimination laws):

  • A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning).

  • A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).

  • A person may be disabled if he [or she] is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).

Is Obesity a Disability Under the ADA?

Obesity is not only a major medical problem in the US, with nearly 40% of adults meeting the criteria for obesity and 7.7% being severely obese, it is also an evolving and changing area of disability law.

The 7th Circuit (covering Illinois, Indiana, and Wisconsin) will decide whether severe obesity (formerly known as morbid obesity) is a disability under the ADA. Generally, the standard has been that severe obesity is not a physical impairment (meaning it is not protected under the ADA) unless it is caused by an underlying disease or medical disorder. The 2nd, 6th, and 8th Circuits have all found that severe obesity is not a disability without some associated medical issue or disorder. If the 7th Circuit finds that obesity is a condition that is protected under the ADA, then numerous workplaces would need to prepare to accommodate these employees.

No matter what happens in the 7th Circuit, if you have an employee like Al Bundy, who actively insults customers and just about anyone around him, then you should probably consider terminating him or her.

The Interactive Process or Providing a Reasonable Accommodation to Disabled Workers

If an employee informs their employer that they have a disability (note the employee does not need to say the magic words of disability or ADA) or the need for an accommodation is obvious, then the employer needs to begin the interactive process to determine what accommodation it should provide. The company should also document that it received a request to accommodate the disability and provide a copy to the employee to show that the company is committed to accommodating the employee.

The law requires employers to provide a reasonable accommodation for an employee unless providing an accommodation would cause the employer to suffer an undue hardship (it is too difficult or expensive, which is a high standard to meet) or the person cannot perform the essential functions of the job. For example, the nurse in last week’s article could not perform one of the essential functions of her job: lifting patients.

During the process, the employer asks the employee questions to determine what accommodation the employee wants and what is the problem that needs to be corrected (what tasks the disability is hindering or preventing the employee from doing). Employers should stay away from questions about the exact medical condition that the employee has and medical details (usually).

An employer does not need to give the employee the exact accommodation that the employee wants but may choose which accommodation to provide as long as it engages in the interactive process with the employee and considers the employee’s needs. To accommodate an employee, an employer may need to purchase a device to help the employee complete their job, modify the employee’s work schedule, or offer them a vacant position. Courts also generally require companies to continue to assess the accommodation and make changes to the accommodation as needed (assuming that this is a condition that will change, or the employee informs the company that his or her condition changed). Some conditions need only a one-time accommodation. The employee or their doctor may also have informed the company that the employee’s condition will not change. Companies do not need to continue seeking information from the employee in these situations.

Employers should document the discussion about the accommodation that they provide and how the employer determined which accommodation to provide. The interactive process is never the same because workplaces, jobs, and disabilities are all unique. However, when done right, the employee and the company can both win. The employee is more productive, less stressed, and a better, more loyal member of the team. The employer shows its employees that it cares for them, it gets a more productive employee, and employee morale improves.

Conclusion

Accommodating an employee with a disability can and should be done. Most of the time, it can even be done with little or no cost to the company. The Job Accommodation Network has conducted surveys showing that 59% of respondents stated that accommodating their employee cost nothing, and 36% had a one-time expense which cost $500 on average. Working with an employee to find the right accommodation also can show the employee that the company cares about the employee, which increases the employee’s morale. Rather than something that HR dreads, accommodating a disability can be a chance for HR to do one of its primary tasks: supporting employees and making them more productive by putting the “human” back in Human Resources.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Pitfalls in Hiring Employees

Published by Brett Holubeck on September 21, 2018
Photo by rawpixel on Unsplash

One of the most difficult tasks that managers, HR, and business owners face is hiring new employees. According to a survey by the Society for Human Resource Management, the average cost of hiring a new employee is $4,129 and the average time to fill a position is 42 days. This is not a process that you want to do more than you have to (at least for the same position). In addition, employers often hire their problems by not taking the hiring process seriously. Oftentimes companies will hire haphazardly for an ill-defined position. Companies can save themselves a lot of trouble in the future by carefully planning their hiring.

Before Hiring New Employees Assess Your Needs

The first step in hiring a new employee, even if it is to replace a current employee, is to determine what need you are trying to fill. If you do not know what the employee will be expected to do, then neither will the applicant. Moreover, you will not know what the requirements are for the position.

By outlining the duties of the position, a company understands what is expected of any applicant. A good job description includes duties that the employee will perform that are essential but may not be performed on a day to day to basis. This could include climbing a ladder or carrying a certain amount of weight. If you leave this information off, then it may indicate that these are not essential functions of the position. For example, one nurse did not have an ADA claim that could be pursued when she was unable to perform one of the essential functions of her position: lifting up to 100 pounds on occasion. She needed to be able to lift patients on occasion but was restricted from lifting more than 50 pounds for 6 weeks after returning from 12 weeks of FMLA leave. Her employer escaped an ADA claim because she could not fulfill one of the essential functions of her position: being able to lift patients.

Another mistake that managers and others make is that they believe that they know all the job duties and the requirements of the position. They do not talk to any other employees that may have more information. Employees that are already in the same position or anyone that works closely with the position are good resources. They may have guidance on what is actually required for the position, what the new hire will do, and any job requirements that you may not have considered. Companies benefit by involving these employees in the hiring process.

Finally, if you are determining whether you need to hire someone for a new position, then you need to spend even more time carefully considering what you are looking for in the position. Review where employees (or you) are spending your time. Are you doing work outside of your regular duties? For example, if you are a dentist and are spending a lot of time answering the phone, calendaring appointments, and completing office paperwork, then it may be time to get an office manager. If you are hiring your first employee, then it is often a good idea to track your time to figure out how much time you are spending in activities that someone else (a new hire) could do.

Legal Oh-No-No’s

Some quick reminders of what is absolutely illegal in an interview (and elsewhere in the process) and yet still appears every year in news articles, announcements from the Equal Employment Opportunity Commission (EEOC), and Jon Hyman’s annual worst employer of the year nominations.

This is some publicity that you want to avoid:

Refusing to Hire an Applicant Because She is Pregnant

Inc. has a great article on a woman that was fired one week after she started her job because the boss found out she was pregnant. Chris Matyszczyk also posed a great question in the article. “How much training does it take to tell a manager that they can’t fire a woman because she’s pregnant?” Training is an important step to reduce the likelihood of discrimination. The EEOC even offers guidance on training employees and managers.

However, training alone is likely not enough to combat discrimination in the workplace. Culture is often one of the key differences in having an effective team and minimizing harassment and discrimination. David Minze lists five steps on how to improve culture and reduce discrimination at work. He recommends that companies 1) develop values, 2) create a culture of feedback, 3) lead with courage (i.e. do not protect high performers just because they are valuable to the company), 4) build connections (treat employees as humans, which means that you or their manager should ask them how they are doing and genuinely be interested in their well-being), and 5) provide guidance to managers. These are simple steps that all companies can take.

Asking an Applicant Whether She Has Children

The EEOC does not look kindly on this question. Employers that ask this and similar questions get sued because the employer may be (is probably) discriminating based on the applicant’s sex.

Asking Questions About a Candidate’s Race, Religion, Sex or Any Other Protected Characteristic

Don’t refuse to hire people based on these characteristics. That’s just illegal. Well, it is usually illegal. Someone’s religion or sex may be a Bona Fide Occupational Qualification (BFOQ) in certain jobs. For example, a Christian church may require that the pastor it hires be Christian. Another example is hiring only women for jobs that require close contact (e.g. strip searches) with female prisoners. The BFOQ defense is very narrow and many companies have been sued for potentially violating the policy (especially restaurants like Hooters and Twin Peaks).

Conclusion

Hiring is one of the most important issues that companies undertake. Employers that have a plan in the hiring process, seek help from their staff, and avoid major legal issues are generally more successful than those that hire employees without any plan.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

What is the Future of Labor Unions?

Published by Brett Holubeck on September 11, 2018
Photo by Vek Labs on Unsplash

Are labor unions still relevant? Will they continue to shrink? Will they reinvent themselves? What will they look like in 10, 15, or 20 years? Labor unions have gone from representing 20.1% of the workforce in 1983 (when the government began to track the data) to 10.7% of the workforce in 2017. Union membership in the public sector is 34.4 % of the workforce compared to the private sector rate of 6.5%.

There has been a lot of debate about the decline of labor unions.  Some argue that increasing competition in traditionally regulated industries, increasing deregulation in unionized industries (such as trucking), and just a desire to not be in unions led to the decline.  Other commentators believe that these factors played a role, but add still additional causes including smaller labor costs for non-unionized firms compared to unionized firms, anti-union campaigns by companies including the hiring of permanent replacements for strikers, and President Reagan’s firing of the air traffic controllers. see Reagan’s speech here).

Regardless of the reasons for the decline in membership in the past, the future of unions is uncertain. With the Janus ruling by the Supreme Court this year (see my blog post), it is likely that many public sector unions will lose members. However, Janus will certainly not be the end of unions. In fact, we are likely witnessing a shift in the union movement which may possibly even lead to a resurgence of some unions and their membership.

Organizing by Apps

One aspect of unions that has yet to reach its full fruition is labor organizing by app.  There has been a lot of ink spilled about apps that could help workers organize, but this is an aspect of organizing that has yet to find its mark. In These Times talked about the need for a labor app that could help with organizing in 2015. Walmart has told workers not to download an app that allows their members to communicate.

However, with all the talk of organizing by app most organizing still begins because workers at a company are dissatisfied and feel that their voices are not being heard. Of course, paid labor organizers do attempt to organize big companies where they hope to make inroads. For example, the UFCW has been trying to organize Target for years. One Target store in New York voted down a unionization attempt this past week. It would have been the first Target store to unionize if it had voted to do so. Time will only tell what the future of organizing will look like, but currently labor organizing is still happening the same way that it did 20 or 30 years ago. Labor organizers stand at the plant gate and distribute literature and go door-to-door in an attempt to get people interested in the union.

The Return of the Strike

As unions seek to exercise their muscles and return to their former days of representing large swarths of the American workforce we may again experience, and indeed already have experienced, the return of the strike. Around 5,000 members of the United Steelworkers are voting or have voted on whether to give their union leaders the ability to call a strike. Three of the local unions that represent some of the steelworkers voted unanimously to grant their union leaders the authorization to strike. In addition to the steelworkers, 12,000 Marriott workers in 9 cities may authorize their union leaders to call a strike if negotiations break down further. The staff for 25 hotels in downtown Chicago have gone on strike.

Why are so many workers considering the strike again? The success of the 2018 teacher union strikes is surely part of the reason. The teachers in Arizona received a 20% raise over the course of the next 2 school years.  Teachers in Oklahoma got a $6,000 pay raise and those in West Virginia got a 5% pay raise. As a result of the stunning success of the teacher’s unions in raising wages for their members, it seems that many other unions are willing to take a gamble to see whether they can see similar increases. But the teachers are in the unique position of being virtually impossible to replace.

Union Pensions

Any resurgence of unions and union organizing in the country may eventually be met by many different obstacles. Perhaps the most obvious obstacle is the growing pension crisis. In 2016, public pension in the states were $1.4 trillion in debt, the 75-year unfunded liability for both state and local pension plans was $3.5 trillion, and the median return for a public pension plan by a state was 1% which is well below the median assumption of 7.5% return still used by most pension funds. In other words, the pensions are broke and are going deeper into debt. The loss of these pension benefits will inevitably hurt the reputations of the unions that ran the plans and the public sector unions. It will also hurt the public opinion of these groups. It is not clear how the unions respond to this loss, but for now many seem content to ignore the problem or seek a government bailout.

Conclusion

Unions face a number of challenges if they hope to change and evolve for the modern workforce. Currently, the Janus decision and the teacher strikes from last year have created an environment where unions are seeking to do more organizing to maintain their relevance. However, if they wish to successfully evolve they must do more than merely strike. They have to learn to adapt to organizing with modern technology and confront their mistakes in the past and failings for past members. The most troubling sign for unions is the rapid loss of their share (by percentage) of the private sector over more than 30 years (16.5% of the workforce in 1983 to 6.5% in 2017). Clearly, unions were either unable to stop unionized businesses from closing, were not effective at convincing workers to join or at least to stay union members, or workers in the private sector simply did not want unions (unions are especially struggling with recruiting younger members because a unionized workforce generally rewards employees based on tenure rather than merit and young workers are the first to be laid off if the workforce shrinks). Whatever else may be said about unions the loss in the share of the workforce should be a wakeup call to unions.

 

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Brett Holubeck (of Houston, Texas) is the attorney responsible for this site.