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Beware these 2 deadly employment law traps

Beware. The government has stepped up its efforts to protect employee rights.

Two areas of particular interest to medical offices are disability discrimination and retaliation against protected activities such as discussing wages and work conditions.

The agencies involved are the Equal Employment Opportunity Commission (Americans with Disabilities Act) and the National Labor Relations Board.

But it’s not just an agency audit that the manager needs to be prepared for, says Susana Knutson Gibbons, an employment law attorney with Poyner Spruill in Raleigh, NC.

In the tight economy, employees are taking a new interest in areas that can generate money, and they aware of the rights those agencies provide. So even if the office never sees a government auditor, it’s still at high risk of a complaint from an employee.

1 Listen to that ADA request

At the Equal Employment Opportunity Commission, “there is an enormous amount of attention” on the Americans with Disabilities Act.

The ADA applies to offices with 15 or more employees, but managers need to remember that depending on the practice’s structure, the doctors may be counted as employees.

Specifically, the EEOC is searching out how employers are responding to ADA accommodation requests.

Most employers don’t have procedures for that, Gibbons says. It’s a hit-or-miss situation. Requests go to a supervisor, and it’s up to that person to decide how it gets handled.

The danger is that a supervisor could deny the request wrongfully. Even in law firms, she says, it’s no unknown for an ADA-uneducated attorney to come back with a response of “quit whining and get back to work.”

Her advice is to centralize the process by assigning one person to handle all ADA requests.

Make it a rule that requests have to be in writing, and draw up a form for them. On the form, the employee needs to describe the disability, explain how it affects job performance, list the accommodation being requested, and tell how that accommodation will make it possible to perform the essential functions of the job.

The central person is then the one who discusses the request with the employee and determines the feasibility of providing it.

If a complaint occurs, she says, the office will have to show that it analyzed whether the accommodation was necessary for the employee as well as reasonable for the office to provide.

With the form and the single person in charge of the requests, there can be no question that the office analyzed the request and made an appropriate decision on whether there was a covered disability and whether the request reasonable or posed undue hardship on the office.

2 Don’t say staff can’t discuss pay

The second area of concern is the National Labor Relations Board. And the point of concern, Gibbons says, is that it’s getting mighty interested in nonunion jobs.

It’s homing in on allegations of employer retaliation against employees who engage in concerted activities protected by law.

What is a concerted activity?

It’s a group effort or request to improve working conditions.

It can be a conversation about working conditions such as pay or vacation time or safety or working hours or even the fact that the office doesn’t have a lactation room for new mothers. It can also be a direct complaint, whether several employees approach the employer or one employee says “I’m speaking for all of us.”

Whenever two or more employees discuss or complain about anything they have a right to question, “that’s concerted activity.”

What should managers watch out for here?

Watch out for the biggest mistake employers make, she says. Don’t tell staff they can’t discuss their pay with each other.

“The NLRB says they can.” If they are talking about or complaining about anything related to their work conditions, the NLRB considers that a concerted activity.

What the NLRB is searching out is retaliation against employees for concerted activity. There’s nothing new about that, she says. It’s just that the NLRB “is more interested in it than it used to be.”

And many employers are getting hit because they don’t realize employees have a right to discuss all working conditions. It’s not uncommon to see a policy forbidding discussions about pay. Some employers even have policies against discussing any type of work conditions.

Be careful. If Staffer A comes to the manager and says “Staffer B and I have been talking, and we think you aren’t paying us properly,” don’t take a negative stance. Their conversations with each other and with the manager are lawful, protected activities.

If one of those staffers later gets fired – even for a legitimate reason – it can be a lucrative venture to go to the NLRB and claim the firing was retaliation for the complaint.

And if the office doesn’t have any documentation to prove otherwise, and if that employee was indeed engaged in a concerted activity, the claim can be strong.

Be aware too of what retaliation covers, Gibbons adds. “It no longer has to be as Draconian as firing.” It can be things such as not giving the employee the good assignments or leaving that person out of an important meeting or even not inviting the complainer to lunch when all the other peer staff are invited.

Then somebody quits and claims constructive discharge because of retaliation.

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