Talking About Mental Health Awareness Month

By Kathleen J. Jennings (kjj@wimlaw.com)

May is “Mental Health Awareness Month,” so on our most recent Podcast, Thom Jennings and I discuss mental health issues in the workplace. Mental health conditions may be protected as disabilities under the Americans With Disabilities Act, so it is important not to ignore employee requests for accommodations for both physical and mental health conditions.

Have a listen! And if you like it, please share with your friends and colleagues.

Link to Podcast: https://www.spreaker.com/user/10949568/cyamentalhealth

Interview Questions-the Good, the Bad, the Ugly

This week on the Cover Your Assets Podcast, my nephew, Thom Jennings (affectionately known as Thom Jr.), joins me and my brother (also Thom Jennings) to talk about interview questions. Thom Jr. is an executive recruiter who has some interesting insights into the interview process. Have a listen!

https://podcasts.apple.com/us/podcast/cover-your-assets-the-labor-and-employment-law-podcast/id1610059515?i=1000559791096

Free Webinar: Urban Myths of the Fair Labor Standards Act – Wage Hour Law

When: Friday, May 6th, 2022, 12:00 PM to 12:45 PM

The Fair Labor Standards Act was passed in 1938, eighty-four years ago, and yet many employers continue to pay in violation of the FLSA based on urban myths. We will address those urban myths, why they are wrong, and the right way to handle that myth.

Such urban myths are: “I pay all of my employees’ salaries so I do not have to pay overtime.” “All of my workers are independent contractors so I do not have to worry about the Wage-Hour Law.”

We will also address some of the more difficult issues such as paying tipped employees and remote employees.
To Register:
https://wimlaw.com/events/webinars/fair-labor-standards-wage-hour-law

They Say It’s Your Birthday!

Photo by Jess Bailey Designs on Pexels.com

By Kathleen J. Jennings (kjj@wimlaw.com)

This week, on the Cover Your Assets Labor and Employment Law Podcast, Thom and I discuss the recent case involving an employee who successfully sued his employer because the employer held a birthday party in his honor. We go beyond the headlines and discuss how this litigation might have been avoided. Have a listen!

Prepare for the Worst and Hope for the Best

By Kathleen Jennings (kjj@wimlaw.com)

Last week, an EF-3+ tornado touched down in the city where I live, so it is not surprising that the concept of disaster preparedness is on my mind. (Thankfully, my family and I suffered no damage).

Is your business prepared if a disaster were to strike? And is your business required by OSHA to have a written emergency action plan?

According to OSHA, an emergency action plan (EAP) is intended to facilitate and organize employer and worker actions during workplace emergencies and is recommended for all employers. Well-developed emergency plans and proper worker training (i.e., so that workers understand their roles and responsibilities within the plan) will result in fewer and less severe worker injuries and less damage to the facility during emergencies. A poorly prepared plan may lead to a disorganized evacuation or emergency response, resulting in confusion, injury, illness (due to chemical, biological and/or radiation exposure), and/or property damage.

Two OSHA standards (29 CFR 1910.38(a) and 29 CFR 1926.35) require written EAPs. Not all employers are required to establish an EAP but developing an EAP is a good way to protect workers and businesses during an emergency. Emergency preparedness is a well-known concept in protecting workers’ safety and health.

At a minimum, for businesses that are required to to have an EAP, the plan must include:

  • A preferred method and/or procedures for reporting fires and other emergencies (29 CFR 1910.38(c)(1) and 29 CFR 1926.35(b)(5));
  • Emergency escape procedures and route assignments, such as floor plans, workplace maps, and safe or refuge areas (example shown below) (29 CFR 1910.38(c)(2) and 29 CFR 1926.35(b)(1));
  • Procedures to account for all workers after an evacuation, such as designating an assembly location (e.g., a safe/refuge area) (29 CFR 1910.38(b)(4) and 29 CFR 1926.35(b)(3))
  • Names, titles, departments, and telephone numbers of individuals both within and outside the company to contact for additional information or explanation of duties and responsibilities under the emergency plan (29 CFR 1910.38(c)(6) and 29 CFR 1926.35(b)(6));
  • Procedures for workers who remain to perform or shut down critical plant operations, operate fire extinguishers, or perform other essential services that cannot be shut down for every emergency alarm before evacuating (29 CFR 1910.38(c)(3) and 29 CFR 1926.35(b)(2)); and
  • Rescue and medical duties for any workers designated to perform them (29 CFR 1910.38(c)(5) and 29 CFR 1926.35(b)(4)).
  • Names, titles, departments, and telephone numbers of individuals both within and outside the company to contact for additional information or explanation of duties and responsibilities under the emergency plan (29 CFR 1910.38(c)(6) and 29 CFR 1926.35(b)(6));
  • Procedures for workers who remain to perform or shut down critical plant operations, operate fire extinguishers, or perform other essential services that cannot be shut down for every emergency alarm before evacuating (29 CFR 1910.38(c)(3) and 29 CFR 1926.35(b)(2)); and
  • Rescue and medical duties for any workers designated to perform them (29 CFR 1910.38(c)(5) and 29 CFR 1926.35(b)(4)).

And don’t forget to perform regular evacuation drills so that employees actually know what to do and where to go in the event of an emergency.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Copyright 2022 by Kathleen Jennings

The “Boy’s Club” Problem

Photo by cottonbro on Pexels.com

By Kathleen J. Jennings (kjj@wimlaw.com)

It’s Women’s History Month, so it is a good time to talk about avoiding sex discrimination in the workplace.

This topic came to me by way of a personal experience. It recently came to my attention that male opposing counsel in a large litigation matter sent an invitation to join him and his trained dogs on a bird hunt. However, the invitation was sent only to the male members of our litigation team. Mind you, this is a lawyer who represents plaintiffs in employment matters; you’d think he’d know better. But the “boy’s club” mentality can be deeply ingrained. And if you have male managers at your company with the same mentality, you run the risk of losing qualified female workers or worse, drawing a sex discrimination lawsuit.

Here’s what to look for: male groups of managers (we are going to focus on management here) that socialize together inside and outside of work, to the exclusion of female managers. Worse case scenario–the male managers who like to regularly go to strip clubs to socialize or conduct business. As a practical proposition, this type of activity serves to exclude women, and let’s face it, the optics are horrible in the era of #metoo. Less obvious but still problematic–the tight knit group of male managers that keep a secret stash of liquor and sit around and drink and shoot the breeze because they work long hours. Or regularly go out to a bar together after work. Maybe they even make comments about female employees or customers while they are hanging out. They do not invite any women to join them. (This fact pattern occurred in a recent lawsuit filed by a female manager who was denied a promotion). If participating in these activities is the way that people advance up through the ranks at your company, you have got a problem that could eventually result in a lawsuit.

There are other consequences, too. For a time, I worked with a male senior attorney who openly bragged about taking clients to strip clubs as a form of client development. I didn’t complain or file an EEOC charge. I just left the firm for another job. And that’s what a good number of well-qualified women will do if they feel excluded because they are not a member of the “boy’s club.” Or maybe that kind of atmosphere makes them annoyed or uncomfortable. Especially now, it is easier to leave one workplace for another that is more inclusive. In this job market, where employers are competing for good talent, it makes no business sense to have a work environment that essentially repels half of the available workers.

Finally, as for the male managers that tell you the reason that they don’t socialize with women is because they “don’t want to say something wrong and get hit with a sexual harassment lawsuit,” those gents are perfect candidates for anti-harassment and sensitivity training. They are all but telling you that they are lawsuits waiting to happen. boy’s club

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2022 by Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Dealing with An Employee’s Request for Leave As A Reasonable Accommodation

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By Kathleen J. Jennings (kjj@wimlaw.com)

[Have you listened to the Cover Your Assets Labor and Employment Podcast? Listen to it here!]

The Americans With Disabilities Act (ADA) prohibits discrimination against persons with disabilities. What sets it apart from other anti-discrimination statutes is the requirement that an employer provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer. [Title VII does require some reasonable accommodations for persons with closely held religious beliefs, but the standard is slightly different.]

So what is a “reasonable accommodation?” It is the stuff of much litigation, for starters.

The EEOC tells us that a reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment. Basically, the determination of what is a reasonable accommodation must be made on a case-by-case basis through what is known as the interactive process–a conversation between the employer and employee about what accommodation(s) would help the employee perform the job and the impact on the employer if it provided such accommodations. And I shouldn’t have to tell you–document every step of that process.

It is important to note that an employer doesn’t have to provide an accommodation if doing so would cause “undue hardship” to the employer. Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost. An employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide.

A recent example of a requested accommodation that was simply not reasonable comes to us from Utah. In Anderson v. Zions Bancorporation N.A., No. 2:19-cv-00771, 2022 BL 66589, 2022 Us Dist Lexis 35716 (D. Utah Feb. 28, 2022), the plaintiff alleged that his former employer violated the ADA by denying his request for a reasonable accommodation, retaliating against him, and wrongfully terminating him after he requested a leave of absence due to depression and anxiety. The plaintiff requested almost one year of continuous leave as an accommodation for his mental health issues, and the employer found such a lengthy amount of leave to be an undue hardship. The court agreed.

We have seen other cases where employees seek leave without any end point, and such indeterminate leave is also considered to be an undue hardship for an employer.

If an employee requests leave as a reasonable accommodation, it is important for the employer to nail down exactly when the employee expects to come back to work. (As an aside, you should also determine if FMLA applies). If the employee doesn’t tell you, ask! Give them a deadline to provide the information. Then determine if the amount of leave is reasonable or presents an undue hardship. How long can you keep this job open? How long can other employees cover for this person?

If the employee does not come back on the anticipated date, the employer should follow up and determine if the employee is ever going to come back to work. If they don’t respond, they have essentially abandoned the job.

And speaking of FMLA, if an employee does not come back to work at the expiration of FMLA leave, it is generally not a good idea to terminate them immediately. Because if the reason that the employee needs the leave is because they have a disability, then the the ADA will apply and you need to commence the interactive process to determine if they need a reasonable accommodation, such as more unpaid leave.

This can get pretty complicated, so it is best to talk these issues over with trusted employment counsel.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2022 by Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Check Out The Cover Your Assets Labor and Employment Podcast

Photo by Dmitry Demidov on Pexels.com

By Kathleen J. Jennings (kjj@wimlaw.com)

With the assistance of my very talented brother, Thom Jennings (and his buttery smooth voice), I have launched the Cover Your Assets Labor and Employment Podcast. Thom and I talk about important labor and employment issues that impact employers. Check it out and let us know what you think: https://www.spreaker.com/show/cover-your-assets-the-podcast

Webinar: How Arbitration Restrictions Will Affect Employers

Please join me and two of my law partners, Rhonda Klein and Paul Oliver, this Friday, March 4 for a free Webinar in which we will discuss the implications of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.

On February 10, 2022, the U.S. Senate joined the House expanding the litigation rights of “Me-Too” harassment victims. The implementation of this legislation will directly impact the way that sexual harassment and sexual assault allegations in the workplace are resolved, how they can be addressed in employment agreements, and, initially, it may increase the number of harassment cases brought in court. Wimberly Lawson believes it is important for our clients to understand the importance and ultimate applications of this bipartisan legislation and how it would affect their individual roles and employers.

To register:

https://wimlaw.us19.list-manage.com/track/click?u=c2eb2ce3e55917cf081f4b573&id=9e506bab95&e=e6f09d75d6

What Does the New #MeToo Inspired Law Mean for Business?

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By Kathleen J. Jennings (kjj@wimlaw.com)

A rare bipartisan effort has brought us a new federal law that was enacted in response to the #MeToo movement. This new law will prohibit companies from forcing employees to use arbitration, rather than the courts, to resolve cases involving sexual harassment or sexual assault in the workplace.

Why do we need this new law? Many people have complained that forced arbitration tends to unfairly favor businesses and keep these types of claims out of the public eye. Businesses generally favor arbitration over jury trials for a number of reasons, including the cost, length of time to resolve claims, and less emotion influencing the result.

As of the effective date of this law, companies will be unable to enforce written arbitration agreements that require employees or former employees to resolve claims of workplace sexual harassment or sexual assault through the arbitration process. This will make these types of claims much more attractive to plaintiff’s lawyers because the monetary value of these cases, especially egregious ones, will increase substantially.

Pro Tip: Now is a good time for businesses to review their policies and procedures that prohibit harassment in the workplace. And when is the last time that you have done any harassment prevention training? It is not enough to talk to employees and managers about harassment at orientation and never bring it up again. Rather, your business should be taking regular affirmative steps to prevent workplace harassment.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2022 by Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.