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Wednesday, March 05, 2008

Legal News

Legal News

Company Ordered to Pay Punitive Damages After Manager Denied ADA Training
- By Rita Risser, attorney at law

FedEx hired a deaf employee for its ramp operations. The employee so wanted the job that he brought a friend to the interview and orientation to interpret for him. After he was hired, he was able to do all aspects of his job without interpretation. Despite that, the Senior Operations Manager asked the boss why he had hired a deaf employee.

The employee was also required to attend meetings and training sessions including daily briefings, monthly meetings of up to two hours, plus quarterly meetings and 26 training sessions over the course of three years. These mandatory meetings addressed essential topics for employees such as workplace safety, job training, and employee benefits.

The employee repeatedly asked for an ASL interpreter for these meetings, and repeatedly was denied. On multiple occasions, he asked his supervisors for complete notes from the daily briefings, and this, too, was denied. As a result, he was "unable to understand what [was] going on in the meetings" and training sessions.

The Senior Operations Manager had received training in ADA compliance. The employee's immediate supervisor had not. The supervisor contacted various people in HR, in corporate headquarters and in the Legal Department requesting help. He also asked to go to ADA training. No one gave him any assistance and his request for training was denied.

The employee went to the Equal Employment Opportunity Commission which attempted to reach a settlement with FedEx. When that was unsuccessful, the EEOC sued. A jury awarded both compensatory and punitive damages, and FedEx appealed. On appeal, the court held that the company had failed to accommodate, and that it was liable for punitive damages because it did not make good-faith efforts to comply with the law. The court stated that FedEx had acted "reprehensibly"and was "plainly indifferent to the fact that their failure to accommodate his disability could jeopardize his safety, and potentially implicate the safety of others."(EEOC v. Federal Express Corp., No. 06-1724 (4th Cir. Jan. 23, 2008))

What this means to you: Training is the "silver bullet"of punitive damages. When employers can show that managers and supervisors receive training, they are much more likely to dodge costly jury awards.

Fair Measures training - simply the best. Call 1-800-458-2778.

Big Money

$21 million agreed to be paid by New York City for discrimination in pay and promotions by the parks department against black and Hispanic employees.

$6.6 million to be paid by Fresno State University to the former women's basketball coach who claimed sexual harassment and discrimination.

$3 million to be paid by Saiyed Atiq Raza, former president of AMD, for insider trading while employed by OrthoClear.

Fair Measures reports only settlements and final judgments - never jury verdicts.

Ask the Lawyers #1

Can we post employee productivity metrics?

One of my operations managers wants to post employee productivity metrics on a commonly viewed board, ranking by name from the best to the worst. I have a concern about this from a privacy standpoint. His employees have technician numbers, and I would prefer that he post the data using those numbers (not everyone knows each other's tech number). I'm concerned more so for the employee at the bottom of the list, who everyone will know is not making his numbers and if he continues to miss his goals he could be subject to termination. The manager wants to create a competitive environment. I think he can do that without names only numbers. Do you have any thoughts on the practice or have there been cases which challenged this practice? Thank you.

Rita Risser replies:

To be on the safest side, you should post by number. Productivity information generally is not considered private. Circulating it is done all the time with salespeople. However, conceivably it can lead to harassment, and if the lowest person happens to be minority in some way - female, older, etc. - it might lead to discriminatory comments. So I would limit to numbers.

Good luck.

Ask the Lawyers #2

Can we fire people by phone?

Can I fire someone over the phone?

Rita Risser replies:

If it is otherwise legal to fire them, yes, you can fire on the phone. In some situations this can be preferable. We do not, however, recommend firing by voice mail or email. You want to have an interaction with them.

Good luck.

Ask the Lawyers #3

Employee gave fake pay stub from prior job - what can we do?

A new employee gave us fake pay stub, which we used as base for new salary. How should we handle this?

Rita Risser replies:

In just about every state , you can terminate immediately for lying in the application process, or if you want to give the employee a second chance you could at least re-set the salary. However, you probably don't want someone this underhanded and despicable working for you. This may be a potential embezzler or thief.

I do want to note that I think it is stupid and potentially discriminatory to base pay on what employees made in their last jobs. You should be paying people the same amount for the same jobs, with differences only based on legitimate business considerations such as seniority, experience or performance. I cannot think of any legitimate business reason to pay based on what they made at prior jobs.

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