Archive | March 2012

Basic Rules for Responding to a Human Rights Claim

What should you do when you receive a claim from the Human Rights Commission or Equal Employment Opportunity Commission?  How you respond sets a tone for the charge, and also for defense of possible claims arising after the response.  Here are five suggestions that should guide your response:

  1. Contact your EPLI carrier if you have insurance, and coordinate with counsel.  Prompt reporting of a claim is a requirement of all insurance.  An agency charge may be the first step to litigation, and input from counsel to investigate, review, and coordinate defense is important.
  2. Be accurate and inclusive.  Conduct a sufficient investigation to verify the information.  Also, preserve all pertinent information and documents, and avoid future spoliation issues by suspending document destruction practices.
  3. Explain how your business works.  Details about your organization may help provide context for your actions.
  4. Recount all that happened completely.  Even if the charge includes only an imprecise allegation, a comprehensive response with justification for all decisions is preferable.  This includes making all necessary witnesses available, and you must ensure confidentiality and no retaliation during the interview process.
  5. Provide context for the charge.  Outlining your consistent past actions displays that your organization is responsible and treated the current employee the same as others.

New Generation on the Horizon

There are always changes when working with employees.  There are some big ones in store for many workplaces in the next few years.  Gen Z will arrive soon, and in some ways, it will open a whole new frontier in HR.  It’s a brave new world.  LOL.

There has been much discussion in recent years of generations in the workplace, particularly about assimilating Gen X and Gen Y employees into the work force.  Now Gen Z is on its way.  Generation Z has been defined as those born in 1991 or later.  This group will soon be entering the work force in greater numbers, and being ready to interact with and respond to this group effectively will require some rethinking of historic methods.  JMO.  This is the social media generation.  AFAIUI.  Growing up with cell phones, personal computers, Internet, and texting; this generation communicates in vastly different ways from those before it.  UGTBK, right?

This group brings many opportunities with the challenges.  This group can provide information with mass effect and get answers to nearly anything in seconds, yet many in this group struggle with personal interaction and may fail to interpret face-to-face interaction correctly.  They share intimate thoughts and experiences with hundreds of Internet “friends,” but can have trouble engaging in conversation.  This group has been over-stimulated and over-socialized—at least in a virtual way.  As this group hits your workforce, your employer will need to structure positions with frequent task changes.  SLAP.  There will need to be direct, precise tasks with frequent validation and instruction.  They will also look for social networking options.  There will need to be mentoring for soft skills, but the technological expertise and willingness will be strong.  This group can perform multiple, simultaneous tasks.  With some understanding and calibration, there will be growth avenues that benefit your workplace, once you establish ways for meaningful communication and assign responsibilities that allow for effective use of skills.  HTH.

New Wilson Worley Employment Newsletter on NLRB Stance on Social Media and EEOC Position Related to Education Requirement and ADA

For the most recent employment newsletter by Sam Booher of the Wilson Worley Employment Section, click here.  He outlines the NLRB’s softening of its position on whether social media use is a protected activity.  He also outlines that the EEOC has opined that a blanket requirement of a high school diploma may violate the Americans with Disabilities Act.  Our employment attorneys provide monthly newsletter updates.

HIPAA Enforcement Approaches for Electronic Claims, Version 5010

In early 2009, the Department of Health and Human Services (HHS) published the final rule that requires the implementation of HIPAA Accredited Standards Committee (ASC) X12 version 5010 for electronic claims, referrals, enrollment, patient eligibility inquiries, coordination of benefits (COB), and remittance advices.  This replaces version 4010Ai.  The new version is required to allow the transition in 2013 from ICD-9-CM to ICD-10 coding.  In order to ensure the submission of electronic claims, healthcare providers have been working to prepare for the transition.

Covered entities were required to comply beginning January 1, 2012 (small plans have until January 1, 2013, to comply with the NCPDP Medicaid Subrogation 3.0 standard).  Covered entities include healthcare providers, health plans, and healthcare clearinghouses.

The Center for Medicare & Medicaid Services (CMS) Office of E-Health Standards and Services (OESS) will enforce the compliance standards.  In November 2011, CMS announced, “While enforcement action will not be taken (until March 31, 2012), OESS will continue to accept complaints associated with compliance with Version 5010, NCPDP D.0 and NCPDP 3.0 transaction standards during the 90-day period. . . .  If requested by OESS, covered entities that are the subject of complaints (known as ‘filed-against entities’) must produce evidence of either compliance or a good faith effort to become compliant with the new HIPAA [version] standards during the 90-day period.”  You can access the announcement here.

Unless extended again, enforcement of compliance ASC X12 v5010 will begin midnight March 31, 2012.

Protected employment discrimination for BFOQ

I have written recent posts on religious discrimination.  Employment decisions can be based on religion in some circumstances.

First, the restrictions under federal law only apply to employers with fifteen or more employees (state law may have similar protections but require fewer employees).

Second, there may be a BFOQ, a bona fide occupational qualification.  For instance, a Catholic church is not required to consider the application of a Baptist minister to be a priest.  Certain religious belief may also be a qualification when the job involves teaching or presenting doctrine.   For example, a private, religious school may lawfully require that its teachers be members of a particular denomination, and may bar anyone who is not a member from employment.  BFOQs apply when the qualification is reasonably necessary to perform job duties for a position or when necessary to the normal operations of the employer.   A Christian college may lawfully require positions such as president, chaplain, and faculty to be Christians or to make a profession of faith.

This exception also applies to the other protected classes under Title VII, as well as to the protections under the ADEA.  For example, a transportation company may legitimately place an age restriction on a pilot or driver for public safety purposes.  And a “gentlemen’s club” need only hire women for some of its positions because being female is essential to “the job.”

Federal law states:

[I]t shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.

Religious discrimination under Title VII, Part 2

“There are three things I have learned never to discuss with people… Religion, Politics, and The Great Pumpkin. ” ― Charles M. Schulz

Employers are not required to know all tenets of different belief systems, thus employees must put them on notice to request accommodation.  But a “religious belief” does not require a recognized church or denomination.  An employee need only give adequate information to an employer to invoke protection.  Religious observance is not limited to prayer or worship; it can include dietary choices or declining to work on particular days or in certain ways.  If requests are made for secular reasons, though, an employer can refuse the request.  But employers must be careful about questioning beliefs.  The law requires that the belief must be sincerely held.  EEOC guidance provides that when the employee acts inconsistently with the belief, when the request appears made for secular reasons, when the timing of a request is suspicious, or when a religious request follows the denial of a secular request, then the sincerity of a belief may be questioned.

Creating a policy setting out how to make a request for accommodation is a must.  Also, many employers have a sexual harassment policy.  However, a better practice is to create a more general anti-harassment policy that covers all protected categories, including religion. Religion can be a unifying force, but it can also cause a great deal of strife.  Protecting against strife and discrimination based on religious belief in the workplace is essential.