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Should the ADA certify service animals?

September 11th, 2009  |  Deborah Hammonds

>Service animals seem to be in the news a lot lately and the stories indicate either confusion about or an unwillingness to recognize what service animals are. It’s not simply a matter of what the service animal is–be it a dog, a miniature horse, a monkey, or a parrot. The questions are about the tasks being performed and whether the animal is truly a service animal.

For instance, an Illinois public school district was sued by the parents of an autistic child after the school district banned the child’s service dog from entering the classroom. A judge granted a preliminary injunction against the school district but the child will have to start school without the dog since the judge believed it would be unfair for the dog to start without further discussion between the parties. (No date was set for the dog to enter the classroom.)

The school district argued the dog was not a service dog and not part of the student’s Individual Education Plan (IEP). The school district claimed that, because of this, the district had not been able to ascertain if the dog was necessary for the student to obtain an adequate and appropriate education. The district also argued the dog’s presence was an unfair burden to the rest of the students. Another student’s parent testified that her child had severe allergies that would prevent her from attending class if the dog were present.

In Texas, a university student claimed he needed his “doctor-ordered, therapy dog” for “emotional support,” but has run into the university’s “no-pets” policy. The university argued the student had not proven he is disabled or that his dog is a certified service dog. The student claimed to have provided the necessary documentation but–still no dog.

Then there’s always the question of whether the animal is truly a service animal. Litigation is currently pending in Canada where a dog owner has filed suit against the owners of a food store claiming they discriminated against him by not allowing him to bring his service dog into the store. The store’s owners argue that they were suspicious because the dog, a teacup Chihuahua, was not really a service animal. While the dog owner had a prescription sheet describing the dog as a service animal, the dog did not have any special harness, muzzle or markings and did not behave like a service animal. What’s more, the dog owner usually carried the dog in his arms. The dog owner claimed to suffer panic attacks and episodes of claustrophobia.

Under the Americans with Disabilities Act (ADA), employers and private businesses that serve the public are prohibited from discriminating against individuals with disabilities who use service animals trained to provide assistance.

Although these stories do not involve employer-employee relationships, employers undoubtedly share some of the same concerns. How do you recognize whether an animal is truly a service animal? Would the presence of one employee’s service animal cause problems for other employees or for the employer?

While the ADA does provide a definition for a service animal (any guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability), the ADA does not license or certify service animals. The Department of Justice does, however, offer guidelines regarding service animals.

Would it help employers if the ADA provided more specifics regarding service animals such as what animals could be service animals or what tasks must be performed (i.e., guidance for a blind or visually impaired person, guidance for deaf individuals)? What if the ADA were amended to provide licensing or certification of service animals? Would that help employers avoid litigation in similar situations?


“Workers of the World: Sleep In!”

September 9th, 2009  |  Connie Eyer

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Last year, former Utah Governor Jon Huntsman (R) announced the Working 4 Utah initiative, which extended state government service hours from 7am to 6pm, Monday through Thursday, thus giving 17,000 of the state’s 24,000 executive branch employees three-day weekends for as long as the program lasts. While at least 70 cities already practice a form of either a staggered or compressed workweek, this large-scale experiment has been watched closely by many cash-strapped companies, cities and states.

Huntsman’s goals were ambitious: “As we go forward with this initiative, we will conserve energy, save money, improve our air quality, and enhance customer service,” he said. “We live in a dynamic, ever-changing environment, and it’s crucial that we take a serious look at how we can adapt and maintain our state’s unparalleled quality of life.”

So, one year into the program, how’s “Working 4 Utah” working for Utah? Although a recent evaluation of the program by state planners found that the energy savings haven’t materialized quite as much as expected, there were some unanticipated boosts to productivity and worker satisfaction. Lori Wadsworth, a researcher at Brigham Young University, surveyed state workers who’ve switched to the four-day workweek and found that 82 percent prefer it. “Utah employees actually show decreased health complaints, less stress, and fewer sick days,” Wadsworth noted.

In addition, absenteeism has noticeably dropped, while productivity and quality of service have improved, with early evidence seeming to allay fears that 10-hour workdays would “burn out” employees. Longer weekends can also result in more time spent in recreation and/or with the family. In addition—as noted by Tufts University research—workers also reported having more time to volunteer in their communities.

Although the original goal of the shorter workweek was to cut energy use by 20 percent, actual savings were more in line with a 13-percent reduction. Believe it or not, one of the major obstacles was trying to figure out how to turn off the massive heating and air conditioning units on Fridays. Even despite the technical difficulties, though, current energy savings translate into Utah shrinking its carbon footprint by 6,000 metric tons.

The financial savings were impressive, too. At the nine-month mark, it was reported that Utah had saved $1.8 million. And, according to Governor Huntsman, “the cost savings will only grow if the four-day workweek is granted permanent status” because the state can renegotiate long-term leases and further refine “smarter” energy, heating, and cooling systems in buildings. Add to that less driving, less gasoline consumption, and more money not spent on commuting that workers can now add to Utah’s economy as a stimulus.

What is the potential downside to this program? Will there be longer-term effects of working a four-day week? Can worker productivity keep up or will it eventually lag? Time will tell—in any case, it can’t hurt to at least re-think the post-1938 Fair Labor Standards Act workweek paradigm.

The final report on the pilot program is expected to be sent to Utah state lawmakers in October. In the meantime, there are a whole lot of interested folks out there contemplating taking the three-day weekend plunge themselves.


Wage violations may lead to “trickle-up” economy stagnation

September 8th, 2009  |  Matt Pavich

>Next week, if someone were to rob you of $51, you’d probably call the police. Now imagine that it happens every week. Or let’s say that you’re driving and someone broadsides you, but pressures you into not going to the hospital for your injuries.

Sound outlandish? Seem a bit predatory? Sound like something that could never happen here? Well, these scenarios are reality for approximately two-thirds of the low-wage workers in the United States, according to a recent study. The New York Times has reported that the study, which analyzed wage violations in low-wage industries, found that the typical low-wage worker lost the aforementioned $51 per week due to wage violations. That’s a hefty chunk taken out of an average paycheck of $339.

See the story here: http://www.nytimes.com/2009/09/02/us/02wage.html?_r=3&partner=rss&emc=rss

It gets worse for those toiling in, among other industries, apparel manufacturing, child care and retail. In what is certain to be a controversial finding, the study suggests that employers have enjoyed astounding success in pressuring their low-wage workers not to file workers’ comp claims. A breathtakingly low eight percent of these workers file for compensation when they suffer serious injuries on the job.

It gets worse still. 57% of the participants did not receive mandatory pay documents that would ensure legal and accurate compensation. 12% of workers who received tips stated that their employer stole their tips. And of the workers who filed wage complaints, 43% said that they experienced some form of illegal retaliation as a result.

And these violations are not, according to the study, limited to a few bad actors, nor do the violations disproportionately affect undocumented workers, those least likely to assert their rights. Instead, the study shows that the disregard for federal labor standards is widespread throughout the low-wage labor market and affects in almost equal parts, undocumented workers (39%), legal immigrants (31%) and native-born citizens (30%.)

We can expect more workers to be affected by such violations. According to recent reports, the underemployment rate — which includes part-time workers who’d prefer a full-time position and people who want work but have given up looking — reached a record 16.8 percent. That’s more and more workers who are forced to take low-wage, part-time employment.

And that, indirectly, affects us all. An already-struggling economy isn’t receiving the assistance it could from these workers who have less money to spend as a result of these violations. And the federal government, which needs the money for little things like health care reform, paying down the deficit and financing two wars, isn’t getting all the tax revenues that it can.

So, what is to be done? Obviously hiring more investigators is a good first step. Immigration reform might assist as well, as it would theoretically offer a reason for undocumented workers to come out of the shadows, thereby diminishing the power employers have over those workers. And some version of labor reform is essential to give employees a stronger voice. But, as previously noted, this might not happen.

As any casual observer of labor reform efforts knows, its opponents have been far more effective at spreading their message than have its proponents. And that’s fine. One of the hallmarks of our modern American democracy is that the group that messages the best gets to light the cigars. But a recent comment by Senate Majority Leader Mitch McConnell (R-KY) highlights a general belief that may doom labor reform. The Bluegrass State Republican explained why none in his caucus will vote for the Employee Free Choice Act, no matter what form it takes, should the day come when it reaches the Senate floor. Workers, you see, don’t want to join unions because of the “very enlightened management in this country now, treating employees better.”

If McConnell’s statement is taken at face value, it suggests that many simply don’t believe that egregious wage violations and unfair labor practices still occur. The participants in this survey would beg to differ. Perhaps because of the industries in which they work and the pay they receive, their voices just don’t get heard as often as they should. But we disregard their plight at risk to our own economic future.


If an e-mail is in “all caps” and no one is around, does it make a sound?

September 4th, 2009  |  Lucas Otto

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IS WRITING IN “ALL CAPS” ANNOYING, DISTRACTING OR EVEN INSENSITIVE? AM I SHOUTING AT YOU? WOULD THIS STYLE OF WRITING, IF PUT IN AN E-MAIL AND SENT OUT, CONVEY A CONFRONTATIONAL ATTITUDE TOWARD ITS RECIPIENTS? WOULD IT BE WORTH TERMINATING AN EMPLOYEE FOR SENDING OUT AN E-MAIL IN “ALL CAPS?”

Well, at least in one instance, this perceived “e-mail shouting” was a costly endeavor. Just ask Procare Health, which fired Vicki Walker in December 2007 after colleagues in New Zealand complained about her e-mail messages that were in “all caps,” and sometimes bolded and in red font. It cost Procare Health $11,500 U.S. dollars ($17,000 NZD) for unfair dismissal, and garnered the company a lot of negative media attention.

Okay, so maybe “all caps” is a bit annoying, but is it something worth firing an employee and going to court over? Although this was a case in New Zealand, it is not a stretch to think that this kind of situation is coming to a courthouse near you. Ms. Walker’s employer determined that her e-mail, making use of “all caps” and sent to other employees, was far too confrontational, and was the equivalent of “shouting” at the employees. Essentially, the employer worried that one employee had hurt the feelings of, or intimidated, another employee, and it took action. If this type of situation doesn’t sound familiar, it should, as the employer clearly thought this kind of “confrontational” e-mail style had the makings of a workplace harassment or discrimination claim.

If this all sounds like a trivial, even silly, employment problem, well, it might be, but as ridiculous as it may sound, it has the potential to cost an employer thousands of dollars, not including court costs and legal fees. Yet, the idea of e-mail usage costing employers shouldn’t be so unbelievable, as there have already been a litany of problems associated with employee e-mail, e.g., inappropriate e-mails sent out, using e-mail to threaten, and using e-mail for personal business on company time. However, firing an employee for “all caps” in an e-mail may be more knee-jerk reaction and less common business sense.

The fact is, e-mail use is so pervasive and necessary in our daily work lives that it has almost single-handedly replaced most telephone calls, so it is no wonder that something so seemingly inconsequential like using “all caps” in an e-mail could lead to a workplace mess. That is why it has become so important for employers to not only teach employees how to utilize e-mail effectively in the workplace, but also how to use proper e-mail etiquette.

The Web site emailreplies.com cited an excerpt from Nancy Flynn and Tom Flynn’s book, Writing Effective E-mail, which stated:

By requiring employees to use appropriate, businesslike language in all electronic communications, employers can limit their liability risks and improve the overall effectiveness of the organization’s e-mail and Internet copy in the process.

The website goes on to further list the 32 most important email etiquette tips, and notes that a company needs to implement etiquette rules for the following three reasons:

  • Professionalism: by using proper e-mail language your company will convey a professional image.
  • Efficiency: e-mails that get to the point are much more effective than poorly worded emails.
  • Protection from liability: employee awareness of e-mail risks will protect your company from costly law suits.

While the concept of an “all caps” e-mail may not be discharge-worthy at all businesses, the fact that it occurred at all, or that there were employee complaints, shows that today’s work environment might be a little more “tech-touchy” than anyone thought. So, take the time to train employees and senior management on e-mail etiquette, because a little training can potentially save a business all the TIME, MONEY AND EMBARRASSMENT OF LITIGATING THESE TYPES OF CLAIMS.


Which side are you on?

September 2nd, 2009  |  Lisa Milam-Perez

>Far be it for me to wade into the increasingly bitter turf wars between the SEIU’s United Healthcare Workers-West (SEIU-UHW) and the National Union of Healthcare Workers (NUHW), the upstart formed by exiled SEIU-UHW officials. But the dueling unions aren’t doing any favors for organized labor in its fading hopes of passing the Employee Free Choice Act (EFCA) with card-check intact. If it is to capitalize on the most labor-friendly legislative climate in decades, a united front among organized labor is essential. (Isn’t that why Change to Win and the AFL-CIO are in peace talks, after all?) Failing that, at least don’t air the dirty laundry.

But labor can only hope the anti-EFCA folks don’t get their hands on the latest salvo fired off by SEIU-UHW in this internecine skirmish.

SEIU-UHW is embroiled in a dispute with NUHW over the representation of San Francisco home care workers, among others. Currently NUHW is trying to get SEIU-UHW decertified as the home care workers’ bargaining rep, and SEIU-UHW is crying foul. In an August 31 press release, the SEIU called for a hand-examination of each signed decertification card collected by the NUHW, citing more than 1,000 incidents of “lies, coercion, and fraud” in the signature drive.

According to SEIU, members have reported “more than a thousand incidents in which improper tactics were used to coerce workers, their family members, and the people they care for to sign cards by representatives who came to their homes.” The incumbent union contends the same tactics were used in an earlier representation dispute with NUHW, when one-third of the cards collected were found to be invalid when hand-checked.

“Apparently, the only way NUHW believes it can get the number of signed cards they need is by frightening and tricking us into signing,” one worker is quoted as saying—one of a throng who are asking to have their cards returned after NUHW improperly collected signatures, SEIU says.

Sounds pretty ugly.

So the union wants each card and each signature hand-checked against official records to verify the signature—“to protect these workers’ rights and ensure a fair process.”

That’s not the anti-union National Right to Work Committee talking, or the Center for Union Facts. It’s the 2.1 million member SEIU—the nation’s fastest growing labor union. The union that put card-check recognition on the map.

Here are a few of SEIU’s claims of improper tactics by NUHW:

  • Workers were told that signing a card was the only way they could keep their union.
  • Workers were threatened that they could be deported if they did not sign.
  • NUHW representatives said they were from a government agency.
  • NUHW reps pressured family members and even home care consumers to sign the cards.
  • A worker was told to sign “a petition to protect our rights.” It was not until “a few months ago that I realized that, through their lies, they try to move me to a different union.”
  • One member “was overwhelmed when two workers from the hotel union knocked at her door pressuring her to sign a petition. They told her the petition was for their voting freedom and it would not affect her union. Then they refused to leave until she signed.”

Intimidating home visits. Misleading tactics. Widespread unfair labor practices. This kind of talk won’t woo any EFCA fence-sitters in Congress. In fact, these are the very complaints of card-signing coercion that EFCA opponents have lodged. Has the SEIU divulged the unsavory devices that union organizers employ in their efforts to secure workers’ signatures? Or is the SEIU overstating the misconduct of its rival to win its turf battle at all costs?

Again, far be it for me to say. But the SEIU increasingly has been going rogue of late. The union, with Andy Stern at the helm, stands accused of abetting the break-up of UNITE-HERE, of raiding unions, of cozying up to Wal-Mart—labor’s favorite adversary—on healthcare reform. Other union leaders and labor supporters have voiced their displeasure, as UNITE-HERE is all too happy to document: http://www.wrongwayseiu.org/.

The SEIU won’t likely win its friends back by making the case against card-check.