A truck driver applied for a job with a transportation company. During the interview, the hiring manager noticed the applicant had a prosthetic leg. Believing he couldn’t drive a truck safely, the managers didn’t offer him the job.

But despite his impairment, the applicant had a commercial driver’s license from the Department of Transportation, as well as several years of experience as a truck driver.

He sued, claiming disability discrimination.

The company tried to fight the claim but was unsuccessful and ended up settling for $56,500.

The lesson for managers: Don’t make assumptions about disabled applicants. You’re allowed to find out if someone can safely do the job — you don’t need to resort to discrimination.

Cite: EEOC v. KLLM Transport, Inc.

Ever since the ADA Amendments Act got passed in January, employers and HR managers have been asking, “So, what does all this mean?” The Equal Employment Opportunity Commission has finally gotten around to giving some answers.

Last week, the EEOC laid out an explanation of employer responsibilities for following the act (knows as “ADAAA”).

• First, in a key passage, the agency summarized the intent of the act:

“The definition of disability … shall be construed broadly, to the maximum extent permitted by the terms of the ADA. The focus of an ADA case should be on whether discrimination occurred, not on whether an individual meets the definition of ‘disability.’”

Meaning: Besides broadening the circumstances under which a worker is considered disabled, the act also broadens the circumstances under which a worker can sue for disability discrimination. In other words, if a worker can show that an employer discriminated because of perceived disability — even if the worker wasn’t disabled — the worker has a case against the employer.

• The agency also put into focus some of the broader circumstances that make up a disability:

“An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered a disability.”

Here’s how that differs from earlier rules: Previously, an inability to do the physical requirements of a job wasn’t enough to qualify a worker as disabled. The individual also had to show some limitation in performing “major life activities,” such as walking, eating, etc. The EEOC’s interpretation of the new rules turns all that around to a point that a limitation in doing the specific tasks of a job could be enough to categorize someone as disabled.

The EEOC provides an example:

“Someone with a 20-pound lifting restriction that is not of short-term duration is substantially limited in lifting, and need not also show that he is unable to perform activities of daily living that require lifting in order to be considered substantially limited in lifting.”

Meaning: A long-term limitation on doing a work function is a disability.

• Short-term limits on major life activities now also fall under the definition:

“An impairment may substantially limit a major life activity even if it lasts, or is expected to last, for fewer than six months.”

Meaning: What was considered a “temporary condition” can now be considered a “disability.”

Any good news?
It’s not all bad. The regulations maintain the existing requirement that a worker must be a “qualified individual with a disability.” That means the individual “satisfies the requisite skill, experience, education and other job-related requirements … and who, with or without reasonable accommodation, can perform the essential functions of such position.”

So you still can require applicants and employees to meet essential job requirements, which, for most jobs, include regular and predictable attendance and conformance to the basic standards of performance and behavior.

And even in the case of the employee with a 20-pound lifting restriction, yes, that person may be disabled, but you still can disqualify the person because lifting is an essential part of the job and no reasonable accommodation is available.

As for the temporary part (”fewer than six months”) of the regs,  the EEOC recognizes that not all temporary conditions are disabilities:

“Temporary, non-chronic impairments of short duration . . . such as the common cold, seasonal or common influenza, a sprained joint, minor or non-chronic gastrointestinal disorders, or a broken bone that is expected to heal completely” generally are not disabilities.

In a recent opinion letter, the EEOC tried to clear up some confusion over the wording of help wanted ads.

The question: Does including a phrase such as “women and minorities encouraged to apply” break the law?

The answer: No, according to the EEOC.

Encouraging certain groups to apply doesn’t mean you’re biased against or in favor of any type of person.

However, the letter points out that some companies make the mistake of using similar — but discriminatory — phrasing. For example: “We are seeking women … ”

“Seeking” implies a preference for that group. Therefore, a court would likely consider it to be illegal bias.

Read the entire Opinion Letter here.

It’s a constant challenge for employers: Offering the benefits and incentives that employees desire without running into compliance problems with the feds.

Here are three popular benefits that present a legal minefield for benefits managers — and ways companies can offer them without fear of repercussions.

1. Wellness programs and the ADA

While every employer wants to promote healthier lifestyles for its employees, some wellness initiatives run afoul of the Americans with Disabilities Act — if the initiatives are constructed in a manner that makes it more difficult for certain employees to participate.

Example: A company unveils an on-site exercise program; participants can bring home perks like extra vacation days, cash bonuses, gift cards, etc.

Problem: The company has several disabled employees who are physically unable to participate and, therefore, can’t reap the benefits of the rewards.

Fix: If your wellness program includes certain features in which disabled employees can’t participate, create some alternatives where these employees can earn the rewards — like attending a class on the benefits of doing the cardiovascular exercises permitted by their disability.

Note: Don’t forget the tax implications of your rewards.  For example, all cash equivalent rewards — gift cards, etc. — are taxable, where as the tax status of an iPod Shuffle or movie tickets is uncertain.

2. Domestic partner benefits

While domestic partner benefits are highly coveted by many employees, domestic partners aren’t generally granted the same protections as spouses under ERISA and the IRS regs. For example, unlike spousal health coverage, domestic partner benefits are taxable.

However, there are two exemptions:

1. If the employee’s partner qualifies as a dependent, or
2. If the partner is recognized as a spouse or the benefits are protected under state law, as in MA, CT and VT.

And there are more restrictions surrounding the rules for flexible spending accounts (FSAs). However, ERISA trumps state law, and flex accounts are subject to the Defense of Marriage Act (DOMA), which only recognizes traditional marriages.

The effects: Flex accounts may not reimburse workers for domestic partner medical care, care of a domestic partner’s dependent, etc.

To get around the red tape, many companies require the employee to cover the entire cost of the partner’s health coverage. To balance this out, some employers adjust the worker’s pay to make up for the difference.

For a more extensive look at the tax problems with domestic partner benefits, check here.

3. Employee referral programs and the EEOC

The Equal Employment Opportunity Commission has already addressed the problems that accompany word-of-mouth recruiting. According to the EEOC, employee referrals can limit workplace diversity and increase the risk for discrimination because employees tend to only recommend colleagues of the same race, gender ethnicity.

Potential legal problems: Even in cases of accidental discrimination, companies that do extensive hiring based on employee referrals can be fined or sued by the EEOC. To add to more pressure to employers, EEOC compliance manuals now recommend that most firms scale back — or eliminate altogether — their employee referral programs.

Safeguard: If your company has no intention of scrapping its employee referral program, make sure to measure its effect on employee diversity and encourage widespread participation.

Shortly after starting her job at an auto parts retailer, a female employee in Mesa, Arizona said she was subjected to sexual harassment over the course of a year by her store manager. The store manager allegedly forced the worker’s head down to his genitals, exposed himself to her and made crude sexual remarks toward her.

Allegedly, HR investigated these incidents, and even interviewed five witnesses. (Take note of the “allegedly.”)

The last of these incidents was fortunately caught on a security camera at the store, and the regional HR manager forced the store manager to resign.

The female employee filed suit with the EEOC. When the EEOC asked the company for the documentation of the investigation, the store had some bad news — they simply didn’t have records of the employee’s sexual harassment claim.

Okay, said the EEOC. How about the records of the employee interviews HR did with the five witnesses to the harassment? Sorry, said the company. We are unable to locate that document at this time.

And the videotape of the store manager sexually harassing the employee? You guessed it — lost as well.

With all the documentation missing, the jury wasn’t buying the company’s story — and hit it with a $65,000 verdict.

The lesson for managers here? No documentation is just as harmful as bad documentation. Stress to your managers the importance of not only keeping good documentation, but also keeping organized records — you never know when your company will need to produce the paperwork again.

The Equal Employment Opportunity Commission just came out with a document that some are calling “How to Sue Your Employer.” Rather than cursing (and hiding) the document, employers might be better served by using its contents to avoid a lawsuit.

The document, issued this month,  is officially titled “Understanding Waivers of Discrimination Claims in Employee Severance Agreements.” It’s intended to provide guidance to employees who may receive such an agreement — and who need guidance on whether they have valid grounds for a lawsuit against an employer.

EEOC issued the document after noting an increase in age discrimination charges filed with the Commission, and what the EEOC characterized as “recent controversial Supreme Court decisions on enforcement of the Age Discrimination in Employment Act (ADEA).”

In summary, the document provides:

• guidance to terminated employees who are offered severance pay in exchange for a waiver of discrimination claims
• explains the purpose of severance agreements and releases, as well as the legal requirements for such agreements to be valid, including requirements for a valid release of age discrimination claims under the Older Workers Benefit Protection Act
• advises employees that even if they have signed a waiver releasing their employer from claims, they can still file a charge of discrimination with the EEOC without first returning their severance pay

The document even contains an “Employee Checklist,” advising employees of factors to consider when they are offered a severance agreement.

How to use it to your advantage
Rather than hiding the document, HR can consider it  a useful resource for when drawing up a severance agreement. For instance, you can find in the document a sample waiver that’s just about bulletproof against lawsuits.

Further, you can use the document to draw up a list of “don’ts” when drafting a severance agreement — what not to put in the agreement.

And consider the document a heads-up that EEOC is giving all such agreements a closer look.

Go here to see the full document.

That’s what one construction firm learned recently after settling a sexual harassment suit brought by a male employee.

The employee claimed his male supervisor subject him to a constant barrage of obscene comments, sexual innuendos, propositions and implied physical threats.

When he brought the conduct to attention of upper management, he was allegedly told, “This is a construction site; this kind of thing goes on all the time.”

With help from the EEOC, the employee sued. The company agreed to settle for an undisclosed amount.

The lesson: Managers need to take all harassment complaints seriously, no matter what the genders of the accuser and the accused.

Cite: EEOC v. Haydon Brothers Contracting, Inc.

The Lilly Ledbetter Fair Pay Act gave employees more time to sue when they believe they’re victims of pay discrimination. The Supreme Court had previously ruled pay bias suits had to be filed within 180 days of when the discriminatory pay was set.

But the law gives employees a new 180-day window to sue every time they receive a paycheck in which they claim they are discriminated against.

The law was signed on January 29, 2009, but was made retroactive to May 28, 2007 (the day before the Supreme Court decision).

The EEOC recently sent notices to employees who had filed claims, asking if their case may have been affected by the passing of the law. Individuals who are affected by Ledbetter and did not already file a lawsuit will get a new “right to sue” letter from the EEOC.

That means those employees will get an additional 90-day period to file a lawsuit after they receive the letter.

That’s what one construction firm learned recently after settling a sexual harassment suit brought by a male employee.

The employee claimed his male supervisor subjected him to a constant barrage of obscene comments, sexual innuendo, propositions and implied physical threats.

When he brought the conduct to attention of upper management, he was allegedly told, “This is a construction site; this kind of thing goes on all the time.”

With help from the EEOC, the employee sued. The company agreed to settle for an undisclosed amount.

The lesson: Managers need to take all harassment complaints seriously, no matter what the genders of the accuser and the accused.

Cite: EEOC v. Haydon Brothers Contracting, Inc.

Time-strapped managers wear several different hats over the course of a busy work day. With all of these responsibilities, it’s no wonder some tasks slide to the back burner. 

But documentation is a task that has to be a priority every single day.

Truth is, in today’s lawsuit-happy world, most court cases are won — or lost — based on the thoroughness of documentation.

Here are seven common documentation mistakes — and the fixes:

1. Not outlining company expectations. When documenting, supervisors should describe specific expectations so employees understand exactly what’s required of them. When the company’s expectations are recorded on paper, the employee knows exactly what was expected. And, if the company finds itself in court, good documentation provides evidence that backs up business decisions.
2. Failing to state specific changes employees need to make. A solid paper trail outlines the conduct that needs to change. The best documentation focuses on the behavior rather than the person. Give detailed examples, so employees understand exactly what’s not working.
3. Skipping the employee’s story. Of course, there are always two sides to a story. And good documentation records both the supervisor’s side as well as workers’ perspectives on the situation. First of all, including employees’ reactions may open up the lines of communication and solve a problem. And second, if you do end up in court, comprehensive documentation shows the judge that the manager made a good-faith effort to correct the problem.
4. Not outlining the plan. Effective documentation is a blueprint, which maps out specific goals — and how employees are going to get there. For instance, if workers need to increase productivity, good documentation lists the specific steps employees should take to meet production goals.
5. Forgetting to list possible consequences if improvements aren’t made. A solid paper trail lists the possible consequences if employees fail to make necessary improvements. For example, employees may be disciplined, demoted or terminated. One caveat: Don’t paint yourself into a corner by using absolute language — use “may” rather than “will” when listing consequences.
6. Failing to establish a time frame. When creating a time line for improvement, managers should use a realistic time period. If the documentation lists an exact time frame — such as a 30-day performance improvement plan — then it must be followed.
7. Not following up on documentation. Often overlooked, follow-up is a crucial part of documentation. Savvy managers use follow-up sessions to gauge progress, offer feedback and make further recommendations for continued improvement.