Sheltered workshops or “work-activity programs” are facilities funded by state and local agencies and nonprofit groups to provide the disabled with jobs. Workers perform basic unskilled labor such as packaging or simple assembly and most often are paid less than minimum wage.

Intended to be “stepping stones” to lucrative jobs in the competitive labor market, the workshops have recently come under fire from critics who believe that the disabled are being segregated and exploited and further suggest that the sheltered work environment creates stereotypes that the disabled are incompetent and incapable of succeeding at “real” jobs.

The class-action suit filed on Wednesday on behalf of the Oregon Chapter of the Cerebral Palsy Association and eight individuals with intellectual and developmental disabilities is the first of its kind in any state, according to National Disability Rights Network President, Michael Bailey.

Bailey says the federal suit was filed in Portland because Oregon once led the nation in providing vocational training services that helped integrate developmentally disabled workers into community-based jobs earning minimum wage or better.

However, the suit claims that since the mid-1990s, “Oregon has reversed course, increasing its reliance on segregated workshops while simultaneously decreasing its development and use of supported employment services,” and that Oregon’s “over-reliance on sheltered workshops and its failure to timely develop and adequately fund integrated employment services” violates protections against discrimination under the ADA and Rehabilitation Act.

The plaintiff class in the case could potentially include several thousand individuals of various mental and physical disabilities who are qualified for integrated employment or programs to transition them to mainstream jobs.

At present, more than 2,300 disabled persons are segregated in sheltered workshops in Oregon at any one time. The suit alleges, they are “stuck in long-term dead-end facilities that offer virtually no interaction with non-disabled peers; do not provide any pathway to integrated employment; and provide compensation well below minimum wage.”  It further notes that back in 1988, half those people received state support in making the transition to mainstream work environments offering competitive wages but by 2010, that number had dropped to less than a quarter.

The Oregon Department of Justice counters the claim and issued a statement that the state of Oregon was working “to improve its services to the developmentally disabled, including assistance with employment opportunities for the disabled in the broader community.” It went on to say that the latest effort involved a “stakeholder planning process” and that both the United Cerebral Palsy Association and Disability Rights Oregon, whose lawyers filed the suit, had been invited to participate.

Wednesday’s lawsuit comes a year after the National Disability Rights Network published a scathing critique of sheltered workshops, saying they “have replaced institutions in many states as the new warehousing system and are the new favored locations where people with disabilities are sent to occupy their days.” The report asserted that “segregated and sheltered work keeps people with disabilities in the shadows.”

The eight named plaintiffs and the plaintiff class in the suit are seeking injunctive and declaratory relief for supposed ongoing violation of the ADA and Rehabilitation Act. Additionally, an order is being sought to end needless segregation in sheltered workshops and to provide the individuals with supported employment services to allow them to participate in competitive employment in integrated settings.

In this week’s installment, we’ll be talking about conversations – how to have them, how to be better at them, and how to handle the difficult ones.

The podcast will air on BlogTalkRadio at 8:30 AM this Friday and will available for on-demand listening at The Proactive Employer website, on mobile devices via BluBrry and via iTunes.

In this week’s installment of The Proactive Employer Podcast, we’ll be talking about document retention policies. We’ll highlight the importance of having a policy, and provide a run-down on IRS and Department of Labor retention requirements for some common HR and payroll documentation.

The podcast will air on BlogTalkRadio at 8:30 AM this Friday and will available for on-demand listening at The Proactive Employer website, on mobile devices via BluBrry and via iTunes.

Under a bill up for debate by a Senate panel, South Carolina workers who remain unemployed for six months or longer would have to volunteer 16 hours each week to continue receiving unemployment checks.

After six months of unemployment, individuals would be required to take a job they are offered or begin volunteering at community service. Unemployment benefits would cease if an individual fails to meet one of the two criteria. “If you are out of work more than six months and there is a job that you can do both mentally and physically, you’re required to take that job,” says Senator Paul Campbell, who is taking the bill before fellow lawmakers.

Campbell believes that for those unable to find work after six months, the new bill would help make the jobless more appealing to prospective employers while providing service to their community. The intent is to match people’s skills with work that needs to be done in city or county government or schools ranging anywhere from electrical work to classroom assistance. “Depending on the skill they’ve got, I think we can put that skill to work,” he says.

The 16 hour per week volunteer requirement would allow workers to simultaneously support the community, network and hone their skills but would still allow ample time to continue searching for a paying job. As Campbell adds, “I just think if someone’s busy working, they’ll be more industrious and more likely to get a job.” His thoughts on volunteering:  “I think it’s something positive. It gives you a good mental attitude, makes you feel better about yourself and I just think it’s a win-win situation for everyone.”

Opponents are quick to bring up the welfare debate claiming that unemployment means that you have recently held a job and that the unemployed often are not at fault for their job loss. They further point out that companies pay into unemployment. These critics argue that it is the people on welfare who should be volunteering their time and service.

Meanwhile, those in favor cite potential positive outcomes such as learning new skills while helping out, and as Campbell pointed out, the ability to network and make connections which could lead to possible employment.

A senior attorney of the National Employment Law Project says the bill conflicts with federal law and feeds negative stereotypes of the unemployed. Lawmakers are currently researching the issue to ensure that, if passed, the bill would not violate or conflict with federal law and the bill will be up for debate when legislature returns to session.

The 90-minute webinars are hosted and sponsored by ComplianceOnline. Use the links below to learn more about the webinars and to register.

Avoiding Discrimination When Recruiting With Social Media Tools

February 14, 2012 1:00- 2:30 PM Eastern

Areas covered include:

• Conventional methods of job search and recruiting
• The advantages of using social media for recruiting
• Kinds of candidate information available via social networking
• Which pieces of information are prohibited by anti-discrimination laws
• Legal issues raised by recruiting with social media
• The theory of disparate treatment and how it can manifest when recruiting with social media
• Mitigating the risk of disparate treatment through the use of a formal policy regarding the use of social media in recruiting
• The theory of disparate impact and how it can manifest when recruiting with social media
• Demographic charateristics of the typical social media user versus the demographics of the civilian labor force
• The dangers of relying exclusively on social media for all recruiting efforts
• Incorporation of social media into a comprehensive recruiting strategy

Managing the Risk of Discrimination Litigation with a Compensation Review

March 2, 2012 1:00 – 2:30 PM Eastern

Areas covered include:

• Recent changes in compensation regulation
• Proposed changes in compensation regulation
• Compensation challenges presented by the evolving regulatory environment
• The importance of involving legal counsel in the compensation review process
• Identification of the goals of the compensation review
• Planning the compensation review
• Types of pay that can be studied via a compensation review
• Construction of similarly situated employee groupings
• Identification of the determinants of compensation
• Compensation data collection, assembly and cleaning
• Common compensation data pitfalls
• The use of multiple regression analysis to examine compensation for internal equity
• Evaluation of analysis results in terms of statistical significance, practical significance, sample size and goodness of fit of the model
• Follow up investigations of analysis results
• Adjustment of compensation based on analysis results
• The importance of compensation decision documentation

The HR Practitioner’s Guide to Adverse Impact Analysis

March 27, 2012 1:00 – 2:30 PM Eastern

Areas covered include:

• Why adverse impact is a problem for employers and how conventional training fails
• The theory of adverse impact and how it differs from intentional discrimination
• Where in an organization adverse impact typically occurrs
• Common sources of adverse impact
• The Four-Fifths Rule and its disadvantages
• Basic statistical inference and statistical significance
• Foundation of comparative statistical analysis
• Calculation and evaluation of surplus and shortfall protected group selections
• Criteria validation – job-relatedness and business necessity
• The importance of properly defining the study population
• Interpretation of analysis results: statistical significance, practical significance and sample size
• Statistical tools typically used in adverse impact analysis
• The limitations of statistics in addressing adverse impact

The proposed regulations outline the specific actions a contractor must take regarding recruiting, training, record-keeping and policy dissemination. Under the proposed regulations, contractors would be required to develop and maintain specific data sets relating to individuals with disabilities. Finally, the proposed regulations establish a utilization goal for individuals with disabilities.

According to Secretary of Labor Hilda Solis, “this proposed rule represents one of the most significant advances in protecting the civil rights of workers with disabilities since the passage of the Americans with Disabilities Act.”

In this week’s installment of The Proactive Employer Podcast, we’ll be talking about the proposed revisions to Section 503 with Leigh Nason. Ms. Nason is a shareholder in the Columbia, South Carolina office of Ogletree Deakins, and she chairs the firm’s Affirmative Action and OFCCP Compliance Practice Group. She devotes the majority of her law practice to representing federal contractors and subcontractors in compliance evaluations and administrative enforcement action triggered by the OFCCP. She is regularly involved in investigating and resolving systemic discrimination issues stemming from statistical disparities in hiring, compensation and testing, and she has extensive experience negotiating allegations of back pay liability and other sanctions imposed by the OFCCP.  She is a frequent lecturer in the areas of affirmative action and employment discrimination, and has presented nationally on diversity and compliance issues, including the OFCCP’s internet applicant regulations and EEO-1 reporting requirements.

The podcast will air on BlogTalkRadio at 8:30 AM this Friday and will available for on-demand listening at The Proactive Employer website, on mobile devices via BluBrry and via iTunes.

Maybe not.

A recent letter from the EEOC has left employers concerned that requiring a high school diploma for employment may be a violation of the Americans with Disabilities Act (ADA) and has others wondering if an educational backlash will result due to the decreased incentive for students to graduate high school.

The “informal discussion letter” posted on the EEOC website cautions employers that requiring a high school diploma, long a standard criterion for screening potential employees, must be “job-related for the position in question and consistent with business necessity.”

According to the Commission, employers risk violating the ADA if their requirement of a high school diploma “screens out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of disability.

While the EEOC’s warning does not carry the force of law, it  has employment law professionals wary of the potential implications for companies.

At this point, the EEOC is merely informing employers that disabled individuals cannot be excluded from consideration based upon inflexible qualification standards. Labor and employment law experts point out that employers are not being required to “prefer” a learning-disabled applicant over other applicants with more extensive qualifications.

Employers should, however, determine whether a high school diploma is actually necessary to perform the essential functions of a job. In instances where the requirement is justified, employers should  then consider whether a “reasonable accommodation” could be provided to allow a disabled person without a diploma to perform the job.

Mary Theresa Metzler, a lawyer with Ballard Spahr in Philadelphia wonders if there may be an “unintended and unfortunate” repercussion stemming from the EEOC’s letter. She says, “There will be less incentive for the general public to obtain a high school diploma if many employers eliminate that requirement for job applicants in their workplace.”

EEOC officials disagree. They claim that the letter addresses a “particular inquiry” and that the regulation would not discourage people from obtaining high school diplomas or have negative effects on secondary education. Peggy Mastroianni, an EEOC legal counsel, believes that, “People are aware that they need all the education they can get.”

The letter does not offer a new interpretation of the ADA and  issues would only  present  themselves when graduation standards are not related to a specific job. If a high school diploma is in fact necessary to do a job, no issues will arise.

As with other areas of compliance, being proactive is the key to avoiding issues. Employers can reduce the risk of potential violations by staying current on the laws and guidelines, carefully reviewing and, if necessary, revising application and hiring policies and job descriptions to adapt to the needs of particular positions and ensure that any educational requirements are justified.

On January 10th and 11th, HR.com and Institute for Human Resources is hosting a virtual conference that includes more than 14 hours of information on how to identify, source, screen and select candidates for open positions using software and internet technologies. Presentations include:

• Use Social Media to Extend Your Campus Employment Brand by Chelsea Newton;
• Cost-Effective Staffing for Unprecedented Times by Christine Lucy
• Recruitment – The Future is Social by Anita Nickerson and Jonathan Holowka
• Avoid Hiring Unauthorized Workers / Protect Vital Interests; Personal Identifier Absolute Validation by Chuck Salvia
• Creating a Culture of Hiring Amazing People by Anna Binder
• Sourcing Strategies – Old School vs. New School by Jennifer Hasche;
• Spotting Diamonds in the Rough – Mining for Top Performers with Psychological Assessment Tools by Ilona Jerabek;
• Online Recruitment: Are We Playing Catch-Up With Technology? by Samantha Sandell;
• Virtual Job Fairs: Where Is The Value? by Cynthia Gurne and Darren Scott
• Creating ROI by Systematizing Social Referrals by Jim Milton;
• Avoiding (Un)Intentional Discrimination When Recruiting Via Social Media by Stephanie R. Thomas;
• Online Staffing & Sourcing – The Internet Changes Everything by Rayanne Thorn
• Beyond Spreadsheets: Cloud Computing for HR Cuts Time and Costs by Carl Kutsmode;
• Applicant Tracking and Dispositioning For Federal Contractors by Carla Irwin.

The online staffing and sourcing virtual conference is free to attend, but advanced registration is required. Recertification credits may be available for a fee. It’s sure to be a great event with a ton of useful information and best practices tips. Visit the conference webpage for more information on the sessions or to register.

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In this special year-end installment, you’ll hear from:

• Timothy Eavenson and Philip Miles on retaliation;
• Sheridan Walker on ADAAA compliance;
• Cathleen Hampton, Carla Irwin and Ted Daywalt on changes at the OFCCP;
• Philip Miles, Eric Meyer, Daniel Schwartz, Rob Radcliff and Molly DiBianca on social media;
• Jon Hyman on how to identify your compliance trouble-spots;
• and much more!

The podcast will air on BlogTalkRadio at 8:30 AM this Friday and will available for on-demand listening at The Proactive Employer website, on mobile devices via BluBrry and via iTunes.

An EEOC disability discrimination lawsuit filed last year against Wal-Mart Stores, Inc. ended with a settlement last week in federal court.