Never fear. Some employees have no shame and will lie about anything–even a fake dying spouse.

As Newsweek reported last week, https://t.co/d9NpMTGiFS?amp=1, an executive at Ford Models allegedly made up a story about a dying husband in order to get released from her non-compete. She asked to go to Canada to care for her husband and consult. Instead, she took a job with a rival in Manhattan. Ford Models is now suing her. To make matters worse, Ford Models alleges that she stole trade secrets using her email and company computer before leaving for the competitor.

While it is never good form to doubt an employee’s sick or dead relative story, sometimes instincts are correct that the employee is being shady.

You’ve had an employee blow a deadline or miss the mark on a project or presentation. But you’re avoiding providing feedback.

Key Tips for Delivering Feedback:

  1. Prompt but not “in the moment”
  2. Constructive and with intention
  3. Treat it as a conversation
  4. Focus on details
  5. Don’t Over-explain or sugarcoat it
  6. Provide action items

Prompt

Give the feedback promptly. Don’t wait until the employee’s annual review to tell him/her about it. He/she will have no time to fix the issue before it negatively affects his/her performance review and raise. Plus, you will be dealing with months of sub-par performance.

On the other hand, do not provide feedback in the heat of the moment. If you are particularly annoyed or mad, the feedback will come across more reactive and emotional. Give yourself time to cool off and then provide the feedback while the details are fresh in your mind.

Constructive

The goal of feedback is to improve the employee’s performance and help the employee succeed. Keep that intention in mind when delivering the news. If you strike a tone that shows that you care about the employee’s success, the employee will be more receptive to the feedback.

Conversation

Approach the meeting as a conversation. Ask the employee if it is a good time to have a conversation. If it is not, the message will get lost. Come back when the employee is less busy or distracted.

Ask the employee about the project: What went well? What could have been better? Maybe the employee is aware of the issue already but unsure how to fix it.

If possible, deliver the message face-to-face. If face-to-face is not an option due to work location, use a video conferencing or telephone (if no visual option exists). Reading non-verbal cues can be critical to determining if the employee understands the message and is on board. Email is the worst form of communication for feedback. It avoids confrontation, but it can be easily misconstrued.

Details

Focus on the details and actions that fell short of your expectations. Rather than saying, “you don’t seem focused on your work or committed to the company,” give details about how the employee has missed project deadlines and turned in finished work with errors. Inform the employee why their behavior affects the company or organization. It may seem obvious to you that late work or tardiness affects the company, but their impact may be lost on the employee.

Don’t Over-explain

At the same time, do not provide too many details that your message gets lost. Sometimes, in an attempt to soften the message, managers provide too many details and filler content. The message gets watered down, or worse, lost entirely. The commonly given advice to sandwich constructive criticism between two items of praise is ill-advised. It hides the real message. Promptly give positive feedback when it is warranted, and the negative or constructive feedback will be better received, since the message is not always negative. In addition, providing prompt positive feedback encourages the desired actions and behaviors to continue.

Action

Provide the employee with specific goals to achieve going forward. Be specific about the behavior you want to see going forward. Rather than say, “you need to turn it around,” say “you need to turn your work in by 5pm on the date you said that you would have it completed and ensure that it is spell-checked and proofread.”

Other examples of action items include:

  • Specific hours of work arrival and departure
  • Required training courses to complete
  • Defined objective measures of quality or productivity as goals

If the issues are serious and ongoing, schedule regular check-ins to discuss the progress on the action items. If there is improvement, be sure to inform the employee. Recognizing the positive change will encourage more change and build trust.

 

For all of the federal contractors and subcontractors, OFCCP released new compliance guides on posting and notice, recordkeeping for Section 503 and VEVRAA, and general guidance. As a reminder, OFCCP has other guidance on its website to assist contractors, see: Compliance Assistance Guides Page.

It is always a good idea to be prepared for a potential audit and work with your affirmative action plan vendor and legal counsel.

A local diner in Florida scheduled an applicant for an interview for a server position. When she disclosed her pregnancy, they told her not to come to the interview. Her boyfriend took to social media and posted a screenshot of the written Facebook messenger discussion between the diner and his pregnant girlfriend (side).

His posting resulted in media attention and local outcry. Long time patrons of the establishment threatened boycotts. http://www.fox13news.com/news/local-news/lakeland-diner-denies-woman-interview-because-she-is-pregnant

The diner posted to Facebook that they made the decision to reject her as an applicant based on her lack of experience and posted her resume to demonstrate her lack of qualification–which subjected them to further backlash. Eventually, the owner of the diner confirmed that he did not authorize the communication with her about cancelling the interview. He invited her to come in for an interview and a fair shot at the position. She declined.

This is clearly an example of what not to do when an applicant discloses her pregnancy and why going viral on social media can be harmful to your business.

Cannabidiol (known as “CBD”) is a compound naturally found in marijuana and hemp. For commercial use, it usually is extracted from hemp and combined with oil for vaporizing. It also can be found in creams and other products. It is being marketed as a treatment for pain, inflammation, anxiety, insomnia, epilepsy, and other illnesses.

In 2018, the federal farm bill removed hemp and CBD from the coverage of the Controlled Substances Act’s Schedule I drug list. This means that it is legal to market and sell at the federal level—even though some state laws restrict its sale and use. Its use is expected to grow exponentially over the next few years. Little is known about its actual effectiveness for the treatment of pain or other ailments because of the lack of studies. There is strong scientific evidence behind its use for epilepsy and seizures.

Why Should Employers Care?

CBD oil will not result in a positive drug test. Why? “Hemp” is required to contain a THC concentration of no more than 0.3 percent. This means that, even daily use, generally would not result in a positive drug test because a drug test looks at the THC concentration in urine. Marijuana potency can range from 0.4-25% THC. Further, CBD oil does not have the psychoactive effect of marijuana and has no presently known impairing effects.

CBD and hemp, however, are unregulated by the FDA. That means that an employee could unknowingly acquire some illegal CBD oil derived from cannabis (marijuana) that contains a much higher concentration of THC. It would be impossible to know if the positive drug test was the result of illegal CBD oil or actual marijuana use.

Is There a Duty to Accommodate CBD Oil Use?

Employers probably do have to accommodate CBD oil use where it is used as a treatment for a qualifying disability under the Americans with Disabilities Act. Unlike medical marijuana, where most employers do not have to accommodate its use because it is illegal under federal law, CBD oil is a legal product. (There are a few states where court decisions have held that employers must accommodate off-duty medical marijuana use.) Employers likely must allow its use off-duty and on duty, to the extent allowed for other over-the-counter drugs. If an employer prohibits all vaping, the employer would need to engage in the interactive process with the disabled employee to determine if there is a duty to accommodate CBD oil vaping or if another reasonable accommodation would suffice.

Employers would be smart to review their drug-free workplace policies and drug testing programs and consider the impact of CBD oil.

The Democratic House of Representatives passed a $15 per hour nationwide minimum wage. Given the composition of the Presidency and the Senate, it i is unlikely to go anywhere this year.

On Thursday, July 18, 2019, H.R. 582, the “Raise the Wage Act” passed 231-199, mostly along party lines. The Congressional Budget Office (“CBO”) estimated that enactment of a $15 per hour minimum wage would raise wages for 17 million workers and lift 1.3 million families out of poverty, but also result in the loss of 3.7 million jobs. Given the fact that the Senate and Presidency are controlled by Republicans, this bills is unlikely to become law.

Presently, the federal minimum wage is $7.25 per hour ($2.13 for tipped workers), and Ohio’s minimum wage is $8.30 ($4.15 for tipped workers). I think we will continue to see the trend of state and local minimum wage increases that are increasingly difficult for employers with multi-state operations to comply with.

Image result for wage image

In a big win for employers, a three-judge panel of the Sixth Circuit struck back against the notion that, under the 2008 expansion of the ADA, nearly every medical condition requiring work restrictions is a qualifying disability. Instead, the Court held that an employee must show that he or she is limited in performing a class or a broad range of jobs to show a limitation in the major life activity of working.

Michael Booth injured his neck at work in 2004. When he returned to work, he was limited in his ability to reach overhead and in the amount of time he could flex or extend his neck. The employer accommodated his restrictions by moving him to a different assembly line where he worked for nearly a decade. In 2015, Booth repeatedly requested a transfer to a material handling position that he viewed as less stressful, easier, and simpler, but the employer denied the request due to his restrictions. Around the same time, the employer restructured Booth’s assembly line to add two additional duties. Booth alleged that his restrictions prevented him from performing the additional duties. The employer sent him for a reassessment of his ability to work. After re-evaluation by a doctor, all but one of Booth’s restrictions was removed, and Booth was cleared to perform all tasks on his assigned assembly line.

Booth sued, alleging that the re-evaluation and the failure to transfer him were discriminatory under the ADA. The employer asserted that Booth was not disabled and could not make a claim under the ADA. The trial court agreed and awarded the employer summary judgment. Booth appealed.

Recall that the ADA requires that an employee show that: (1) the employee is disabled; (2) the employee was qualified for the position with or without accommodation; (3) the employee suffered an adverse employment action; (4) the employer knew or had reason to know about the disability; and (5) the position remained open while the employer sought other applicants or the individual was replaced. To show that an employee is disabled, the employee must have a physical or mental impairment that substantially limits one or more major life activities, has a record of a disability, or is regarded as having such an impairment. Working is one example of a major life activity. In 2008, Congress amended the ADA to cover a broader range of individuals and to make clear that an impairment only needs to substantially limit one major life activity.

Image result for disability

The Sixth Circuit held that simply showing a limitation in performing a particular job is not enough to demonstrate that an employee has a “disability” under the ADA. An employee who alleges an impairment in the major life activity of working must show that he/she is limited in the ability to perform a class of jobs or a broad range of jobs.

The case is Booth v. Nissan North America, Inc., No. 18-5985 (6th Cir. June 7, 2019).

Website accessibility seems to be a topic that companies choose to ignore until it is too late. Is your website compliant, and does it need to be?

Jamie LaPlante, a frequent lecturer across the country on the issue of website and app accessibility, outlines the legal background, statutory coverage, application of the ADA to websites and apps, standards for accessibility, recent law and the consequences of the failure to comply.

Public Accommodations Law – Background

There are two different laws at issue: the Americans with Disabilities Act (ADA) and Section 508 of the Rehabilitation Act. Within the ADA, there are three different sections to consider: Title I (employment law), Title II (state and local government entities), and Title III (private entities). Title I only concerns website and app accessibility issues as they relate to employees, not the public. Notably, the only official regulatory standards for website accessibility are under Section 508, which applies only to the federal government and its agencies. For most private companies, as well as state and local government, the water is pretty murky on coverage and what is required for compliance.

By way of background, the ADA was passed in 1991 and said nothing about the Internet, websites, or mobile applications (“apps”). When it was amended in 2010, website and app accessibility were ignoreRelated imaged. The ADA broadly requires equal opportunity to individuals with disabilities to participate in and benefit from all aspects of American civic and economic life. This would seemingly include readers and adaptive software for web browsing. The Department of Justice was scheduled for many years to issue regulations regarding website accessibility and private businesses. In 2017, those efforts were officially taken off the regulatory agenda.

 Is Your Website Covered?

To be a place of public accommodation, the business must (1) affect commerce and (2) be in one of twelve categories listed in the ADA. Those twelve categories are:

  1. Places of lodging,
  2. Establishments serving food or drink,
  3. Places of exhibition or entertainment,
  4. Places of public gathering,
  5. Sales or rental establishments,
  6. Service establishments,
  7. Stations used for specified public transportation,
  8. Places of public display or collection,
  9. Places of recreation,
  10. Places of education,
  11. Social service center establishments, and
  12. Places of exercise or recreation.

If the website, and the goods or services it provides, does not fit in one of the twelve categories, it is not covered. The website or app must be doing something more than just advertising. Yet actually web-based sales are not required. Generally, except in certain federal circuits, the website or app must be integral to what is done in the physical business locations, even if the business is not “selling” over the Internet. There are a few areas of the country where pure e-commerce—those without any physical locations—are covered as places of public accommodation.

How Does the ADA Apply to Websites and Apps?

With the rise in e-commerce, more commerce is done online versus in physical locations. PlacesImage result for website accessibility of public accommodation are required to have disabled parking, accessible restrooms, etc. to

enable the disabled to have full access to the goods and services offered there. Plaintiffs and advocacy organizations sought to apply law for accessibility related to accommodating the disabled in their access to physical locations to virtual business locations on the Internet.

What is the Standard?

As applied to physical locations of public accommodations, there are voluminous regulations clearly addressing the height, slope, number, etc. of each element of the location. Unfortunately, there is no clear standard for websites and apps. Courts have zeroed in on the Web Content Accessibility Guidelines (“WCAG”) 2.0 Level AA as the consensus standard for now, but there is no regulation mandating this standard. The WCAG is a voluntary standard developed by W3C, an international consortium that develops website standards. Compliance with WCAG 2.0 AA enables a disabled user using assistive technologies to experience the website as close as possible to non-disabled users. As it is the only standard with any credibility out there, it is the best option for businesses to use for compliance with the ADA.

The Law

Businesses can be sued wherever they have customers, solicit business, or have physical locations. In the 3rd, 4th, 5th, 6th, 9th, and 11th circuits, courts require that the website have some connection to a physical location. In the 1st, 2nd, and 7th circuits (Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, Vermont, New York, Indiana, Illinois, and Wisconsin), purely e-commerce websites and apps can be sued.

While you might be waiting for clear regulations from the federal government, courts have held that the Department of Justice’s failure to issue regulations is not a valid reason to delay compliance efforts. Judgments have been rendered against businesses for their failure to comply—even in the absence of regulations.

Further, you may be surprised to learn that signing a settlement agreement with one plaintiff or preparing a plan to comply with WCAG 2.0 AA over a period of time does not prevent an adverse judgment for the continued failure to comply with website accessibility. The only clear way to avoid liability for website or app accessibility is to get into full compliance—likely with WCAG 2.0 Level AA. (Note that WCAG 2.1 was issued in 2018, although we have yet to see any courts order compliance with the updated standard.)

Ignoring Compliance Is Not a Good Strategy—the Risks

The risks of a failure to comply are significant. A business can face a court order to make the website(s) or app(s) accessible within a certain period of time, as well as state law damages, attorney’s fees, costs, and expert costs. It is better to assess your risk and address any compliance issues before you are sued or receive a demand letter.