When HR is the problem:  A lawsuit against American Airlines was allowed to proceed that included allegations of improper investigation by HR.  In the complaint, a plaintiff alleged that the airline asked her to travel to Germany and join a team planning the new menu for its European International Business Class menu. The team included a celebrity chef, who had a history of alcohol abuse and sexual misconduct. On the last night of the trip, the chef broke into the plaintiff's room and sexually assaulted her, which followed a night of team dining and drinking. After the plaintiff left, members of American Airlines leadership provided the intoxicated chef the plaintiff's room number and "intentionally aided and abetted and conspired" in his assault. After reporting the incident, instead of investigating, the company discouraged her from further reporting, spent time interrogating and investigating her, and even punished her professionally for reporting the sexual assault. "The first thing HR asked her when she reported the assault was, 'What were you wearing?'" Miller, the plaintiff's attorney, said. "How does an HR person in this century, who's supposed to be trained, how do they ask her that? What difference does that make? But that's the first thing the HR person asked."  Source:  HR Dive 3/14/22

Being qualified for ADA includes being there: In Lamm v. Devaughn James, LLC, the employee, who had mental health conditions and who had attendance issues, requested an accommodation to be allowed to work half-days on the days that she experienced intense anxiety. Her request was denied, and she was subsequently terminated for attendance violations unrelated to her anxiety. She sued, alleging failure to accommodate under the ADA, among other things.  Courts may apply a two-part analysis to determine if the employee is qualified under the ADA – first, whether the employee is able to perform the essential functions of the job and, if not, then whether any reasonable accommodation would enable them to do so. The Tenth Circuit found that, because she was away from work excessively and often without warning, the employee was unable to perform the essential function of regular and predictable job attendance, as required for her position as a paralegal who was required to timely perform administrative and client-facing tasks. The Tenth Circuit further found that there was no reasonable accommodation that would enable her to perform that essential job function; her requested accommodation of sporadic absences without warning would not enable her to meet that requirement, and was therefore, not reasonable.  Source: Shawe Rosenthal LLP 2/28/22

Misogyny at work? Yes: In Workhuman's recent study on gender-based microaggressions, 32% of women said they're interrupted, 29% have been told they're too emotional, and 25% have been told to change in some way to be "taken more seriously."  Additionally, 29% of women said a co-worker has "mansplained" to them and 28% have had a male coworker take credit for their idea.  Notably, 54% of women surveyed don't feel as if they're being treated differently. In turn, 45% of women and 55% of men surveyed did feel that women were being treated differently in the workplace. Of that group of men, more than a third said women received more acknowledgement from their colleagues, and about half said women were given more opportunities than men. "Considering 55% of workers surveyed support organizations that speak out in favor of combatting gender inequities in the workplace, organizations must take workplace discrimination more seriously, or else risk employees leaving for more psychologically safe workplaces," the report said.  Source:  HR Dive 3/14/22

Diversity statistics at a glance:  The U.S. workplace is becoming increasingly diverse. The number of non-white workers has doubled since 1979 and now stands at one-quarter of the workforce. In addition. over the last several decades, women increased from about one-quarter of the civilian labor force to nearly half.  About 10 million U.S.-based workers have a disability, but unfortunately the unemployment rate for individuals with disabilities is over 10%.  The current Michigan unemployment rate is at 4.9%.   More than 5% of U.S. adults identify as LGBTQ+, including one out of every six members of Gen Z.  “Employers benefited from the diverse population, as these individuals brought unique perspectives to the workplace,” according to a report from Alight.  How diverse is your organization?  Source: Benefits Pro 3/10/22

Benchmark data for remote employees by title or by location? While millions of workers have grown used to the flexibility granted by remote work, employers have grown accustomed to a level of flexibility too — specifically when it comes to who they can hire and from where. But how do employers determine salaries for those hires, if not based on location? Globally, 16% of companies hire remote-only workers, according to tech company Owl Labs. Freelancing platform Upwork reported that 36.2 million Americans are expected to work remotely by 2025, an 87% increase from pre-pandemic numbers. As companies continue to hire talent across state lines and even national borders, employers will have to decide how to benchmark salaries for a global workforce. For example, the average salary of a software engineer in San Francisco is $135,464 per year, according to Glassdoor, but just $58,000 in Singapore, according to Payscale.  It’s an interesting dilemma, and every organization does it differently.  The recommendation to whichever way it’s done – be consistent.  Source: ebn 3/15/22

Terminating nonunion employees for walking off job violates NLRA: Walking off the job is grounds for discipline, except for when the National Labor Relations Act (NLRA) says differently. Recently the National Labor Relations Board issued a reminder that employees can at times refuse to work and not suffer any consequences. In Pain Relief Centers, P.A., five employees of a medical office initiated a spur-of-the-moment “walkout” in protest of mistreatment by the officer manager. Specifically, the employees complained that the manager yelled at them and exhibited abusive and threatening behavior. After an argument between the manager and one employee, all walked out in protest. The employer argued the employees, by leaving work, had effectively quit. The NLRB disagreed, finding that the walkout was protected concerted activity because it involved group action related to an issue that affected their working conditions.  The employer was ordered to reinstate the employees with full back pay.  Given the wide reach of the NLRA, employers should exercise caution in considering how to react to workplace concerns and complaints raised by a group of employees.  Source: Barnes & Thornburg LLP 3/11/22