It wasn’t just me.  Even the natives seemed out of sorts.  Many carried umbrellas to protect themselves from the storm (and we Ohioans know umbrellas don’t really do any good in a snow storm).  The buses shut down for the afternoon, as did the underground metro system.  The city was decidedly unprepared for the sudden turn in the weather.  (As it turns out, the storm was short-lived, and the sun was shining brightly as we boarded our plane to come home).  

I take two points from my chilly Barcelona experience.  They are equally apt when discussing trans-Atlantic traveling or managing employee relations in the workplace.  First, be prepared.  At a minimum, travelers should review the physical landscape before they leave (i.e., check the weather carefully).  Similarly, HR professionals should understand the legal landscape in which they are operating, including staying up-to-date on recent legislative changes at the local, state and national level.  Second, be adaptable to change.  Travelers must have a go-with-the-flow mindset to best enhance their experiences abroad.  So too with HR professionals in the workplace.  Things come up, often quite unexpectedly, especially when you are dealing with something as tenuous as employee relations.  Be flexible in your approach to handling workplace issues.  Going with the flow does not always come easy to those of us who fit the “Type A” mold, but cultivating that ability can be priceless.

Although regular attendance is an essential job function for most positions, the court noted that it was particularly important to this employee’s job because “reliable employee attendance was . . . essential to ensuring against a power outage or even an explosion.”  Finding the employee failed to prove he was terminated for taking protected leave under the FMLA, the court further ruled he was terminated for violating the employer’s “no call/no show” policy. 

Nevertheless, employers must act with caution when disciplining or terminating a disabled employee for attendance reasons, and be prepared to demonstrate the specific reasons regular and reliable attendance are essential to job performance. The EEOC offers guidance on this specific issue in “The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities.”

This also serves as a reminder of the importance of accurate job descriptions. If regular attendance is an essential job function, it should be included in the job description.

 So what is an employer to do? There are several ways to recover this loss. Consider the following:  

1.  Have email applications set up to check for email every 45 minutes (rather then every 5), reducing the number of possible interruptions;
2. Turn off the new email alert dialogue box and email sound alerts;
3. Train staff on effective and efficient use of email, such as setting email priority, email housekeeping with message rules, effective use of user groups, folders and address books;
4. Make sure your technology use policy adequately and accurately communicates the company’s rules regarding email use.

 A complete ban on using company email for personal reasons is typically unreasonable because it is difficult to monitor and virtually impossible to enforce; therefore efficient and effective use of email is critical.

Currently there are efforts in Congress to extend the benefits through June 30, 2010. We will keep you posted.

Last September, the EEOC filed a discrimination lawsuit against Abercrombie based on its failure to hire a young woman who wore a hijab, a religious headscarf.  (We blogged about this case, the outcome of which is as of yet unknown).  

Last week, the Council on American-Islamic Relations, one of the country’s largest Muslim civil rights organizations, filed an EEOC complaint against Abercrombie-owned Hollister, also a retail store.  According to the complaint, nineteen year old Umme-Hani Kahn, a stockroom worker, was fired for refusing to take off her hijab.  Kahn was told she could wear her hijab when she was hired last October, so long as it was white, gray, or blue, so as to conform with the store’s “looks” policy.  But when a new district manager came to the store last month, Kahn was told wearing the hijab in any color violated the “looks” policy.  When Kahn claimed she could not remove it due to her religious beliefs, she was fired, according to the complaint.

It surprises me that some employers continue to be completely confounded by the duty to accommodate religious beliefs.  It’s not all that complicated, so long as employers take the time to know the general rules, and to train on them.  Even basic anti-discrimination training can enable employers and their managers to at least spot potential legal issues.  The lesson here is, in short, if an employee cites a religious belief as the basis for a specific appearance, whether it be a hijab, a yarmulka, a tattoo, a hairstyle, or anything else, check with counsel and go through a very careful analysis before firing that employee.

Without a doubt, the best type of training is live, interactive training conducted by experts (such as us).  Not only do employers avail themselves of defenses in the event a harassment lawsuit ensues, they also stand a very good chance of averting such situations from arising in the first place.

The case was also of interest because then-Supreme Court nominee Sonia Sotomayor was on the appellate court panel that found against the white firefighters.  All eyes may be on her in the next round, in Lewis v. City of Chicago.  The case involves a 1995 test by the city’s fire department.  While the test takers were only slightly less than 50% African-American, only 11.5% of the test takers scored high enough to be likely to secure a job.  Approximately 6000 African-Americans who were not hired sued the city, alleging the test had an illegal disparate impact.

The Supreme Court heard oral arguments in the case yesterday.  It is not yet clear whether they will decide the case on a mere timing issue (the plaintiffs may have missed the statute of limitations on their claim, as the Seventh Circuit held when it dismissed the suit), or it may tackle the broader issue of discrimination claims based on test scores.  Stay tuned.

So how can you tell if you’ve got an independent contractor or an employee?  In the infamous words of the “Hoosier” poet James Whitcomb Riley, “When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.”  In other words, the label an employer slaps on the “contractor” does not matter.  The IRS has published an article to help employers make correct classifications.  The linchpin of the IRS’s inquiry is how much control the individual in question has over her job.  The more control, the more likely it is that independent contractor status is appropriate.

Our advice is to take proactive steps to determine whether your independent contractor classifications are correct.  Better you do it now than the IRS does it for you down the road.

Even if your trade secrets are not as famous as Thomas’ nooks and crannies, you can prevent their disclosure by former employees with proper protections in place and a well-drafted confidentiality provision. In these circumstances, it is not necessary to have a non-compete agreement, which tend to be harder to enforce (and prohibited in some states like California).

While this case has a happy ending for the employer, employers should still be careful about the rationale behind all termination decisions, whether as part of a RIF or otherwise.  Thorough, consistent and well-documented performance reviews are an example of such relevant and helpful documentation.