"The vast majority of jobs in retail stores require that an individual be able to perform a broad range of physical tasks from stooping and bending to stock low shelves, to lifting items for scanning at the cash register, to pushing and pulling carts of goods for stocking," he says. "Medical restrictions on an employee's physical abilities can be extremely hard to accommodate within the concept of reasonable accommodation under the ADA. That is, in many cases, the only way to allow someone with a physical restriction to continue to work is either by a transfer to a different position with lesser physical requirements or by removing essential functions."

But, he notes, this can be tricky. Sometimes there's no way to change a person's job to accommodate them. Sometimes they just need to take a break till they get better. And accommodation and employer liability have different definitions if the injury is work-related rather than no-work-related.

"Problems arise when store managers try to apply practices utilized in work-related injury scenarios to non-work-related situations. Having been instructed to provide light duty to one employee, they will often take it upon themselves to treat the next situation in the same manner because that's what they did last time, without comprehending the distinction between work-related and non-work-related injuries. Risk managers, on the other hand, can become singularly focused on getting employees back to work to reduce the company's workers' compensation costs, creating hardships for store managers," Harold says.

"Retailers should assess how they are handling employee restrictions arising from workplace injuries. Particularly:

• Are the disruptions to the store being appropriately considered before returning an employee to work?
• Does the risk department have the ability to offer particularized guidance to store managers depending on the severity of the restrictions?
• Are the managers at the store level being trained how to work with the risk department to achieve its goals?

FMLA leave

Today's lean staffing scenario suddenly makes everyone's presence at work vital to success. Yet life happens, and it happens more often to some folks, he says.

"Because of this, store managers quickly become unsympathetic to employees who often miss work. Rather than terminating the employee, a process requiring paperwork and review by higher-level decision makers, store managers take other steps such as reducing the employee's scheduled hours or scheduling them for undesirable shifts in an effort to minimize the impact of the employee's poor attendance. These efforts are often undetectable by the company if the employee does not come forward to complain.

"Given the complexity of the FMLA, it is difficult if not impossible for these managers to distinguish between attendance issues for reasons that the FMLA protects and those that it does not. There is no requirement under the FMLA that an employee complain in order to have a claim. As such, store managers can easily unwittingly be creating FMLA liability for the company by their actions."

Harold's advice? "Companies should assess their attendance policies and what level of decision-maker is required to act on a violation. Don't authorize store managers to terminate employees for attendance issues without consulting higher-level management."

Malicious-prosecution cases

Inventory shrinkage. What a fine phrase to describe employee theft! Retail is especially vulnerable to this crime. But should it be reported to the police as a crime? Once you bring in the law, Harold says, the company loses control of the situation — often with unforeseen consequences. Such as, no conviction, which may force the company to continue to employ a thief.

"There are numerous reasons for this. Police sometimes perform poor investigations. Overworked assistant district attorneys do not want to invest their time in small-dollar thefts. Grand juries may refuse to indict and juries may refuse to convict even when the evidence is solid. No one is more likely to lash out with a lawsuit than an individual who, having been 'exonerated,' believes charges were unfairly brought."

What to do? Our man has a best-practices plan.

• Keep "a copy of all statements made and all evidence turned over to the police because by the time a lawsuit is filed, the individual may have had the record expunged and the original evidence may have been destroyed.
• "No one individual should have the discretion to make a decision to report a theft to the police. Having two individuals assess a situation before taking that action doubles the chances that a witness will be available to explain the decision making process if a suit gets filed.
• "Investigate the willingness of local law enforcement to prosecute small-theft claims. In some jurisdictions, authorities simply do not prioritize these claims, almost guaranteeing no conviction will come."

Criminal-background Checks

The crime has to be related to the work to be performed if the evidence produced by a background check is to be used to disqualify a candidate or to terminate an employee, Harold tells us. Otherwise, the EEOC may support a candidate or employee claim of improper use of the background check.

"The EEOC's recent criminal-background check guidance has not changed in spite of its repeated court losses in trying to enforce those policies. Likewise, the EEOC's focus is not changing and its enforcement efforts remain high," he explains.

"Retailers need to assess their individual approach to criminal-background checks for defensibility should a claim arise," he advises. "Many companies simply do not have the resources to engage in protracted litigation with the EEOC on these issues and find themselves settling claims that include provisions changing their policies in ways they do not desire.

"One good step to take is to review the list of crimes that disqualify an individual from employment and ensure there is a logical connection between the crimes and the job, i.e., credit-card fraud for a position that includes handling customer credit cards. Documenting the reasons for including the crimes in the list prior to a challenge over the use of a particular crime as a disqualifier should buttress the company's position on its use."

Recordkeeping

Retailers, especially during peak seasons, don't always document employee behavior well. Harold allows no real excuse for this since "this leads to inconsistencies in enforcement of policies that can be used as evidence of discrimination. Documentation is also increasingly important in defending the growing number of retaliation claims. … If documentation of the employee's poor performance or misbehavior begins only after the complaint has been made, terminating these employees carries a higher risk and handcuffs the company with a poor performer."

He identifies two keys to appropriate documentation.

1. "Make the process easy for managers. The more complex documentation is, the less likely it is that managers will complete it. Forms that require the manager to provide a lengthy written explanation are much less likely to be completed than forms that allow for the manager to check off the problems and provide a short explanation.
2. Hold "the managers accountable for their failures to document. Doing so often requires a shift in prioritizing. District managers routinely walk stores for compliance with company policy on appearance, stocking, inventory, shrink control, etc. Rarely do a company's review practices include a requirement that during store visits the district manager converse with the store manager about problems with employees, and review documentation of those problems. Changing store-review policies to include this oversight would increase compliance by store managers."