Nonprofits Insurance Alliance

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What You Need to Know About Retaliation Claims

Since the United States Equal Employment Opportunity Commission (EEOC) issued its enforcement guidance surrounding workplace retaliation last summer, employers have been on notice to exercise caution when taking adverse action against an employee following protected activity.  Absent clearly documented evidence of a legitimate business reason for adverse action, like termination, such action taken by an employer following an employee’s participation in protected activity may be deemed as retaliatory, leaving the burden on the employers to defend their actions. Protected activity includes such things as:  requesting an accommodation; taking a leave of absence; or participating in an investigation.

Laying out a three-prong test, the EEOC tells us that in order to establish a claim of retaliation, employees merely need to show that: 1) they were participating in protected activity; 2) they suffered some kind of adverse employment action; and 3) there is a causal link between the activity and employment decision.

Unfortunately, even employment actions taken with no retaliatory motive and made in good faith may undergo scrutiny if an employee feels they are being punished. Therefore, while the first two prongs of the EEOC’s test may appear straightforward, the following should be considered as best practices in order to minimize risk and disconnect the link between protected activity and subsequent adverse employment action:

  • Maintain a written policy that is made available to all employees regarding zero tolerance for retaliation, including ways an employee may report actual or suspected retaliatory conduct.
  • Have written employment policies and consistently apply them.
  • Review policies and practices to ensure employees are not deterred from engaging in protected activity.
  • Train managers and supervisors on your anti-retaliation policy and how to handle employee discipline following protected activity.
  • Promptly and thoroughly investigate all complaints.
  • Accurately report job performance on performance evaluations. A below-average performing employee should not receive all superior marks. Use factual examples to support less than satisfactory ratings.
  • Clearly and thoroughly document business decisions your nonprofit may make that employees may consider as adverse (e.g., moving office space or eliminating positions).
  • Document job-related reasons for all actions, including poor performance or unwillingness to perform duties, to link adverse actions to poor performance rather than protected activity.
  • Ensure employees are aware of their job requirements by having up to date job descriptions, acknowledged by the employee.
  • Evaluate options in lieu of termination or discipline, including coaching, performance improvement plans, and additional training, especially if the adverse action is close in time to the protected activity.

Employers should also be aware that while retaliation may be as obvious as a termination, it can also be less recognizable, such as with overlooking an employee for a promotion, directing another employee to engage in harassment or retaliatory conduct, and criticizing or questioning an employee for filing a complaint.

Because the EEOC has linked adverse action to protected activity despite the passage of years between events, it’s critical for employers to always document and consistently apply policies.

While retaliation is prohibited conduct under state and local laws, employees also can find protection under Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act (Rehabilitation Act), the Equal Pay Act (EPA), and Title II of the Genetic Information Nondiscrimination Act (GINA).

 

*Note: While this article focuses on the employment relationship, retaliation is prohibited against job applicants and volunteers. 

Related Links:

The EEOC Enforcement Guidance on Retaliation and Related Issues:  https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm

Questions and Answers:  Enforcement Guidance on Retaliation and Related Issues:
https://www.eeoc.gov/laws/guidance/retaliation-qa.cfm

Small Business Fact Sheet: Retaliation and Related Issues:  https://www.eeoc.gov/laws/guidance/retaliation-factsheet.cfm

EEOC Guidance on Mental Health Conditions and Accommodations in the Workplace

Citing a substantial increase in complaints of discrimination and failure to accommodate employees with mental disabilities, the United States Equal Employment Opportunity Commission (EEOC) has released new guidance for employees with these disabilities, advising them of their rights to be free from such discrimination and to request and receive accommodations for their disabilities.

Entitled “Depression, PTSD & Other Mental Health Conditions in the Workplace: Your Legal Rights,” the guidance contains a number of questions and answers to help employees understand their rights under the Americans with Disabilities Act and how the interactive process should work to reach an understanding with the employer about what accommodations can be provided. It also advises what actions on the part of the employer are prohibited, such as firing employees for having a disability, failing to engage in a meaningful interactive process, and forcing employees to take a leave of absence, among others. Furthermore, it contains information regarding the right of employees to have medical information maintained confidentially when obtained through the interactive process.

The EEOC also offers information that may be helpful for employers. For example, the guidance provides a link to a fact sheet entitled “The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation.”  Included in this material is a list of how a provider makes available documentation of the disability that the employer may require and what that documentation should include, such as the nature of the employee’s condition, the employee’s functional limitations in absence of treatment, the need for reasonable accommodation, and suggested accommodations.  This clarifies what information the employer is entitled to receive in the documentation process.

The increase in complaints being filed and litigated by the EEOC on behalf of these disabled employees explains why they are taking measures to increase the awareness of employees with mental disabilities of their legal rights in the workplace and their right to accommodation to enable the employee to do their job.  Employers should be strongly advised to review this guidance in detail, not only to avoid the possibility of claims arising from the improper handling of requests for accommodation, but moreover, to ensure that these employees’ rights are protected and not compromised, as the law requires.

The full text of the EEOC’s guidance can be found here.

 

Risk Alert: What You Need to Know About the New I-9 Form

As all employers are aware, the Immigration Reform and Control Act of 1986 requires all employers to verify that all employees hired after November 6, 1986 are legally entitled to work in the United States. Employees must also provide employers with sufficient documentation that establish identity and employment eligibility, and complete the I-9 Employment Eligibility Verification form. The last form before the 2016 revision was published on March 8, 2013.

On November 14, 2016 a new version of the I-9 that was required to be used exclusively by January 22, 2017.  Now, after almost 7 months of becoming comfortable with the “new” revision, it was announced on July 17, 2017, that a “newer” version of the I-9 has been published.

Employers are permitted to use either the November 14, 2016 revision or the newer July 17, 2017 version until September 17, 2017.  On and after September 18, 2017, employers are required to use the July 17, 2017 revision, exclusively — at least until another revision is issued.

Details as to what the newest revisions provide, as well as a link to the form itself can be found here.

 

Preventing Slips, Trips and Falls

Slips, trips and falls are one of the most common causes of incidents in and around public and private buildings of all sizes. This can be a very costly problem for any nonprofit.

According to the National Safety Council, approximately 900 slip, trip and fall incidents happen every day in workplaces all across the U.S.  From 2014 to 2016, Nonprofits Insurance Alliance Group members have had the unfortunate experience of approximately 888 slip, trip or fall related claims, costing nearly $7 million. These incidents were caused by a broad variety of hazards, including slipping on hangers left on the floor of a changing room at a thrift store, a wet entryway floor, tripping over curbs in parking lots, slipping on icy sidewalks and falling on stairs that did not have handrails or a nonslip surface.

Effective slip and fall incident prevention methods go well beyond just keeping floors clean or placing a “Wet Floor” sign after mopping. It’s important to establish a program that focuses on prevention, as well as procedures on what to do if someone does get injured. Documenting the incident, collecting witness statements and any possible video surveillance can make a huge difference in defending you from any fraudulent claims as well.

It is important to understand where on your premises the greatest potential for danger lies. To reduce slip, trip and fall incidents in or around your facilities, as well as protect your organization in the event of a claim:

  • Conduct a daily facility safety survey to look for common culprits such as wet or greasy floors, loose mats, torn carpeting, bad lighting, clutter, cables or wires and uneven surfaces.
  • Immediately attend to any problems by putting up warning signs and/or closing an area off and taking steps to quickly eliminate the hazard.
  • Maintain all floors and walkways on a consistent basis, using the recommended cleaning products and methods. Fix all uneven surfaces if possible by recoating or leveling the floor. You should mark or illuminate areas that can’t easily be leveled.
  • Train your employees and volunteers in slip and fall safety, and establish guidelines on how they should report problems and respond to customer injuries or hazardous situations. Stress these safety reminders:
    • If you drop it, pick it up.
    • If you spill it, wipe it up.
    • Go where you are looking, and look where you are going.
  • Make sure you have secure handrails for all stairs and balconies.
  • Take care of your outdoor areas, including sidewalks and parking lots. Potholes, snow and ice all create potential problems. If necessary, subcontract snow and ice removal to make sure it’s handled promptly and meets local legal standards.
  • Additional or dry replacement entrance mats may be needed during wet weather. Document all of your efforts by keeping records of your daily safety inspections and any maintenance work to improve walking and working surfaces.

Form a written policy and train managers on how to consistently respond and document any slip and fall claims. This might include taking witness statements, first aid, contacting emergency responders and archiving video evidence from security camera systems of the event. You should have a written incident report form to document any such events. (Sample form provided in link below). Slips, trips and falls have the potential to be a major cause of injury for your employees, volunteers and visitors. Be sure you are doing all that you can to recognize and reduce the risk.

 

Driving Safety

Motor vehicle crashes are the leading cause of unintentional workplace deaths in the United States. The statistics are staggering. Every eight seconds someone is seriously injured on our roadways and someone is killed every 15 minutes. New preliminary data from the National Safety Council estimates that as many as 40,000 people died in motor vehicle crashes in 2016, a six percent rise from 2015. If those numbers are confirmed, it would be a 14 percent increase in deaths since 2014 — the biggest two-year jump in more than five decades!

Although you cannot control the actions of other drivers, you, your employees and your volunteers can develop defensive driving skills that will help avoid the dangers caused by other people’s poor driving behavior.

  • Drive Defensively. Be aware of what other drivers are doing and expect the unexpected. Maintain a two-to-three second cushion between you and the vehicle in front of you.
  • Pay Attention. Avoid distractions when driving. Never use a cell phone behind the wheel – not even hands-free. The National Safety Council states: “Research shows the brain remains distracted for 27 seconds after dialing, changing music, or sending a text using voice commands.”  Pre-set the navigation system and music playlists before driving.
  • Slow Down. Speeding reduces how much time a driver has to react in an emergency situation to avoid a crash. According to the National Highway Traffic Safety Administration, it was a factor in 27 percent of all traffic deaths in 2015. Allow plenty of time to reach your destination and adjust speed as needed for weather conditions.
  • Yield the Right of Way. Drivers must often make quick decisions about who has the right of way and when to yield. Remember, the right of way should always be given and it’s not something a driver should take for granted. When two or more drivers approach a situation where someone is supposed to yield right of way, all drivers should be prepared to yield. Whoever has the last clear chance to avoid a collision has an obligation to do so.
  • Use Caution When Passing. Be careful to accurately estimate the time and space needed to safely pass the vehicle in front without interfering with any other vehicles in the vicinity. Always use turn signals to indicate intentions. When passing, especially at night, a driver should be able to see both headlights of the vehicle being passed in the rearview mirror before moving back into the original travel lane.

Individuals driving on behalf of your organization, whether in an agency-owned vehicle or a personal vehicle, should be exercising caution and using good judgment while driving. Every driver is ultimately responsible for controlling his or her vehicle to avoid a collision with another vehicle, object or person. A defensive driver can avoid crashes and help lower their risk behind the wheel.

 

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