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									July 1, 2008

This is Utah SHRM Legal-mail no. 2008-15 prepared for Salt Lake SHRM, the Human
Resources Association of Central Utah (HRACU), the Northern Utah Human Resources
Association (NUHRA), the Color Country Human Resources Association (CCHRA), the
Bridgerland Society for Human Resource Management and Utah at-large members of the
national Society for Human Resource Management (SHRM). This update is best viewed
in a HTML format. Please reply with your name and “UNSUBSCRIBE” in the subject
field if you no longer wish to receive this message.

CONTENTS:

SHRM NATIONAL CONFERENCE EDITION

-   INTRODUCTION– A TASTE OF CHICAGO
-   STAY ON TOP WITH TRAINING
-   SMOOTH OUT THE ROUGHNESS
-   WINDS OF ADA CHANGE
-   WATCH OUT FOR INVESTIGATION FIRES
-   IMPROVE IT BY LOOKING AT IT ANOTHER WAY
-   CHICAGO CONCLUSIONS

INTRODUCTION– A TASTE OF CHICAGO: One of the most popular national
events each year is the Taste of Chicago Festival (see www.tasteofchicago.us ), the
world’s largest food festival. Although it may not be nearly as delectable or appetizing,
here is a taste of the employment law sessions held recently at the SHRM National
Convention in Chicago.

STAY ON TOP WITH TRAINING: For the first time in a long time, both the Chicago
Cubs and the Chicago White Sox right now are on top of their respective major league
baseball divisions at the same time. An Illinois employment lawyer gave some good
advice to employers on how to stay on top of their employment law compliance game –
training of supervisors and active involvement of HR. She noted that supervisor “blind
spots” – mistakes on things they don’t know that they don’t know – lead to most lawsuits
(e.g., the supervisor who effectively tells an employee on FMLA leave: “it’s not you I
dislike, it’s your non-functioning kidney”). She recommended HR eliminate blind spots
by educating supervisors in basic legal issues, giving them scripts to handle common
requests (e.g., for FMLA leave) and reminding them, at all times, to “call HR!”

SMOOTH OUT THE ROUGHNESS: Carl Sandburg’s famous poem characterized
Chicago as “Stormy, husky, brawling, City of the Big Shoulders.” Portland and Salt
Lake employment law attorney Jathan Janove gave some good advice on how to deal
with the workplace roughness caused by jerks at work. His tips: (1) express your values
regarding the proper treatment of co-workers; (2) train about the same; (3) offer direct,
immediate and specific feedback to the offenders; (4) document actions; and (5) don’t
ignore or minimize misbehavior when it does occur. Finally, he reminded attendees that
jerks at work may actually be legitimate whistleblowers protected from retaliation, that
employers must take care to deal appropriately with the legally-protected jerks.

WINDS OF ADA CHANGE: Chicago is popularly nicknamed the Windy City. The
SHRM Director of Governmental Affairs described the hard-blowing winds of legislative
change in his 2008 annual legislature update. Most significantly, he noted that the United
States House of Representatives recently voted to expand the Americans with Disabilities
Act (ADA). The House bill seems to vaguely expand the current definition of disability –
an impairment that substantially limits a major life activity – by stating that “substantially
limits” means “materially restricts.” It also precludes employers from considering
mitigating measures (e.g., drugs that control blood pressure) when deciding if an
employee is disabled, although use of eyeglasses can be considered regarding alleged
visual impairments. The bill also attempts to exclude from the definition of disability
minor and/or transitory impairments, e.g., the flu or a broken leg lasting less than six
months. The bill now goes on to the Senate.

WATCH OUT FOR INVESTIGATION FIRES: The Great Chicago Fire of 1871,
which wiped out most of the city, is said to have started when Mrs. O’Leary’s cow kicked
over a lantern. A Philadelphia lawyer offered tips on how to minimize the risk of similar
fiery explosions related to workplace investigations. His key tips: (1) don’t defer your
investigation just because the government is investigating too; (2) make sure your
investigator knows how to investigate and does so without a conflict of interest or bias;
(3) drill down to the details; (4) assume an alleged perpetrator is innocent until you
conclude he or she is guilty; (5) document why you did not interview certain witnesses;
(6) document interviews; (7) explain your credibility findings; (8) don’t rely on “non-
defenses” such as “it was only a joke” or “I didn’t intend to hurt anyone;” (9) take
appropriate corrective action; and (10) take proactive measures to avoid retaliation.

IMPROVE IT BY LOOKING AT IT ANOTHER WAY: Chicago-style deep dish
pizza is delicious, but different. It is almost as if someone looked at regular old pizza a
different way and said, “let’s make this good by turning it inside out and putting the
cheese and toppings underneath the tomato sauce!” Sometimes, such an approach also
works with HR and legal compliance. A Colorado employment lawyer explained HR,
always concerned about risk to the company, must also consider that HR professionals
are often sued along with their employers, and thus they should take steps to minimize
such risks. He recommended the following steps: (1) make sure the employer stands
behind and indemnifies HR; (2) centralize approval processes for employee relations
decisions that could lead to lawsuits; (3) implement policies and procedures consistently;
(4) communicate with employees in a truthful, dignified and professional manner;
(5) don’t act out of anger or in retaliation; (6) educate decision-makers about litigation
risks; and (7) know and follow the law even if it conflicts with company orders.

CHICAGO CONCLUSIONS: One of the great and enduring rock bands of all time
was formed over forty years ago in, of course, Chicago and adopted the city's name as its
own. Chicago's classic 1973 tune, like the many excellent legal sessions at the 2008
SHRM national conference, should leave most HR folks . . . Feelin' Stronger Everyday
(listen in at: http://www.youtube.com/watch?v=e-wHixgp2RE&feature=related)



Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Email: mobrien@joneswaldo.com
Phone: 801-534-7315
Website: www.joneswaldo.com

Legal-mail is a legal and legislative update service sent out about twice a month to
various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm
of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you
have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice.
Receipt of this information does not create an attorney-client relationship.

								
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