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Preparation for the 20th Anniversary HR Law & Solutions seminar is well under way, and we have reached record numbers — with nearly a month to go!  As of this post, we have 295 attendees registered.  The good news is that we’ve secured additional space, so we can continue accepting registrations even after we hit 300.  The better news, for those of you who haven’t registered, is that to celebrate the largest attendance in HR Law & Solutions history, we will give a prize to registrant #300 at the seminar!  If you haven’t registered, please do soon!  This seminar is sure to be our best yet, and we are so excited to share everything we have planned with all of you.  Check out our previous post for the event schedule and details, and click here to register.  Looking forward to seeing you March 27!

 

Title VII, and comparable state laws, like the Florida Civil Rights Act, prohibit employer actions that have the purpose or effect of discriminating against persons because of their national origin. It is no secret that U.S. work forces are becoming increasingly more diverse. In response to the increased linguistic diversity of the workforce, many employers have implemented policies that limit or completely prohibit their employees from speaking languages other than English while at work, or take action against employees because of their foreign accent. Employers must do so with great caution and deliberation – such practices may violate the national origin protections of Title VII.

Is an English-Only Policy a Business Necessity?

The EEOC and the courts will likely look at English-only policies with skepticism, and will require the employer to justify the policy by showing that it was a “business necessity.” Generally speaking, the policy should be narrowly-tailored to address specific concerns. For instance, requiring hospital healthcare workers to speak English around patients due to safety concerns is likely reasonable, but requiring that they speak English at all times, including at lunch and/or in break-room conversations, is typically unlawful.

What about accent discrimination?

An “accent discrimination” claim can arise if an employer takes the adage “the customer is always right” a bit too far. For instance, if a customer or client (or even a co-worker) expresses discomfort or a preference against interacting with an employee because the employee has a foreign accent, an employer can end up facing an EEOC charge or lawsuit if that preference led to some adverse employment action against the employee. However, an employment decision based on foreign accents does not violate Title VII if the accent materially interferes with the ability to perform job duties. Employers should distinguish between a merely discernable foreign accent and one that actually interferes with communication skills necessary to perform job duties. Cases have demonstrated that positions involving teaching, training, customer service, telemarketing, security/safety-sensitive, often have communication requirements which can be materially interfered with due to the foreign accent.
What Does This Mean For Employers?
As a practice, an employer would be wise to document all instances of complaint(s) from students, customers, co-workers, etc., expressly documenting that the person was unable to benefit from the training, customer service, etc., because of the communication problem. This type of evidence could win the day for an employer that later faces a national origin discrimination charge should the employer have to transfer or discharge the employee. As a reference, the EEOC Compliance Manual guidance on national origin discrimination can be found here.  The best practice, of course, if you have concerns about an English-only or other language policy, or if you have an issue involving potential accent discrimination, is to seek the advice of counsel before you take action.  Always better safe than sorry!
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U.S. Department of Labor (DOL) announced today that it has awarded more than $183 million in grants to industries in 28 states that rely on the H-1B visa program for skilled workers. The grants will be used to provide education, training and job placement assistance aimed at helping American workers fill jobs in high-growth fields in which employers are currently using the H-1B nonimmigrant visa program to hire foreign workers. This is the second round of funding in connection with Solicitation for Grant Applications (SGA) DOL published last year in the Federal Register. In the first round of funding last October, DOL awarded more than $159 million to 36 grantees. Between the two rounds of grants, more than $163 million has been designated to provide on-the-job training for U.S. workers in fields such as information technology, advanced manufacturing and health care. The original SGA announced funding of $240 million to be awarded through two rounds of funding. However, about $100 million more than anticipated has been awarded as a result of additional H-1B visa fees collected. The DOL press release includes a complete list of grantees, including their locations, award amounts and targeted industries.

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A guy may prefer barbecue-type holidays, such as Memorial Day or the Fourth of July, over Valentine’s Day. As employers, you probably should, too, even if it is for different reasons.

A CareerBuilder survey published in 2011 found approximately 40% of workers have dated at least one person with whom they have worked, and 18% reported dating at least two people with whom they have worked. Clearly, workplace romance is pervasive. With it can come a host of unwanted side-effects, including loss of productivity, ethical dilemmas, depressed morale, and sexual harassment claims.

Sexual harassment claims can arise in a variety of situations, including when a workplace romance goes south.  They can also arise from what one employee might find to be a light-hearted joke, card or funny e-mail, sent to an employee who does not see the humor and might be completely offended.  A sexual harassment claim can even arise when a thoughtful boss gives a Valentine’s Day gift to an employee for a job well done, and the message is misinterpreted.

Since Valentine’s Day is upon us, take this opportunity to carefully review your policies addressing sexual harassment and workplace romances. As you do, consider the following:

  1. Continue Reading A Potential Valentine’s Day Equation: flowers + chocolates = sexual harassment
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We are excited to announce we have just opened registration for the 20th Anniversary of our HR Law & Solutions Seminar!  The seminar is March 27 at Sanibel Harbour Resort & Spa.  Topics and speakers include:

  • Employment Law and Legislative Update presented by Attorneys Robert Shearman and John Agnew
  • First Report of Injury: Best Practices to Save Your Bottom Line presented by Attorneys Cora Molloy and David Roos
  • DHS/DOL Immigration Audits: Is Your Company Ready? presented by Board Certified Immigration Lawyer Tulio Suarez
  • Dealing with the Retaliation Claim Boom presented by Board Certified Employment Lawyer John Potanovic
  • Employment Law IQ: Test Your Knowledge and Issue Spotting Abilities presented by Board Certified Civil Trial Lawyer Vicki Sproat and Attorney Suzanne Boy
  • It’s Not the Fruit, It’s the Root presented by guest speaker Sean Carter, Humorist at Law.

Also, as we teased in our Save the Date post, we have some fun surprises up our sleeves, including a surprise guest and a special 20th Anniversary celebration!  Download the seminar brochure here.  Click here to register.  Can’t wait to see you all!

Is hiring back on at your company?  We hope so!  With unemployment in Southwest Florida at its lowest level in three years, and with the economy showing signs of life, we wanted to take a minute to highlight an article on hiring we read in this month’s Gulfshore Business.

In Hiring Smart:  5 Questions to Ask Job Candidates in 2012, Lori Johnston, with help from Lori Burke of INgage Networks (an HR Law & Solutions Hall of Famer!) and Libby Anderson of Human Resources Now, suggests five questions to consider asking potential candidates in 2012:

*How did you maintain your skills when you were unemployed?

*What other types of jobs are you looking for?

*Why is this job of interest to you?

*Tell me about a weakness you had in your past work performance and how you strengthened it?

*How did you overcome a conflict with a co-worker?

These questions would be a great addition to your list.  Check out the full article here.  For more interview questions, take a look at 17 Interview Questions Hiring Managers Love to Ask and Ask Right to Hire Right:  Effective Interview Questions.  Always remember to avoid questions that are related to any potential protected class, such as an applicant’s age, race, religion, national origin, or marital/family status.  Happy hiring!

Earlier this month, the United States Supreme Court issued a unanimous opinion expressly recognizing “a ministerial exception,” which bars “ministers” employed by faith based employers from suing for discrimination. In Hosanna-Tabor Church v. EEOC, the Supreme Court considered the case of Cheryl Perich, an elementary teacher at a Church School. Although Perich was also a commissioned minister, the vast majority of her working time was devoted to teaching secular subjects. Perich took a six-month leave of absence from work after being diagnosed with narcolepsy. When she attempted to return to work, she was informed by her principal that the school already hired a lay teacher to fill her position. The school asked Perich to resign. She refused to quit, stating that she intended to pursue her legal rights. The Church School fired Perich for insubordination, disruptive behavior, and threatening to take legal action against the school. The EEOC sued on Perich’s behalf, claiming Perich’s discharge constituted unlawful retaliation under the Americans with Disabilities Act.

The Supreme Court held Perich’s suit was barred by the “ministerial exception” created by the First Amendment religion clauses. The Court recognized the “ministerial exception” because “requiring a church to accept or retain an unwanted minister or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governments of the church.” The Court did not decide whether the ministerial exception bars other types of employee suits, such as actions for breach of contract or torts.

The Hosanna-Tabor decision grants churches and other religious entities broad discretion in making decisions concerning the employment of their “ministers.” Still, employers should still be cautious when making these types of employment decisions, even if the employer believes it will be shielded by the ministerial exemption. Remember, just because you think you have the “right” to do something, does not mean you should do it.

 

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A couple of events prompted this post.  First, as I was driving to work last week, I saw a car sporting an “Insured by Smith & Wesson” bumper sticker.  Perhaps this will officially out me as an employment law nerd, but, being that it was on a vehicle, this bumper sticker made me think of Florida’s Bring Gun to Work, which I’ve posted about before.  Interestingly (scarily?), that law (Fla. Stat. 790.251) is one of the most searched terms on this blog.

Then, as those of you in this area have undoubtedly heard, there was an incident in Naples where an Ave Maria School of Law student was arrested for attempted murder, after allegedly threatening to shoot and even shooting at two fellow law students. This story has received widespread media coverage.  Of course the local papers like the News-Press and Naples Daily News have covered it with multiple articles, but it was even picked up by national legal publications like the ABA Journal (article) and top legal blog Above the Law(article).

How is this relevant to you and your workplace?  Interestingly (to the employment law dork, at least!), the Above the Law article quotes Ave Maria’s spokesperson, who said the school “doesn’t have a policy regarding students who are arrested.”  Now, this guy was a student, not an employee, but this quote still raises a whole host of issues in my mind.  Should you have a policy on arrests?  Should you have a policy on workplace violence?  What if your employee is arrested for a violent act after hours, remains employed, then later commits a violent act at work?

While I could go on at length about these and other issues implicated here, I want to focus on a couple of things you, as business owners and HR professionals, can — and should — do to address violence at your workplace.

More after the jump.

 

 

 

Continue Reading Insured by Smith & Wesson: Revisiting Workplace Violence Issues

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Henderson Franklin is so excited to announce the 20th Annual HR Law & Solutions seminar will take place March 27, 2012 at Sanibel Harbour Resort & Spa.  To celebrate our 20th anniversary, we have several great topics planned, we are bringing back the hilarious Sean Carter, and we might just have a few surprises up our sleeves! 

Registration will open in the beginning of February.  Thank you for your continued support of our seminar — we are looking forward to making it the best yet, and can’t wait to share all we have planned with you.

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Happy New Year!  Can you believe it is 2012?  Employees who make minimum wage can ring in 2012 by celebrating their 36-cent per hour raise.  That’s right, as we told you back in November, Florida’s minimum wage increased to $7.67, effective today.  The minimum wage for tipped employees also rises 36-cents, to $4.65.

Employers must ensure they make the appropriate payroll changes to comply with this change.  Also, remember to switch out your 2011 minimum wage posters for the 2012 versions.  If you have not already done so, you may download the 2012 Florida version in English here, and in Spanish here.  The federal minimum wage poster has not changed, but still must be posted.  It can be downloaded here.

Best wishes for a happy, prosperous 2012!