Employment Law Update

Michael Patrick O’Brien
October 13, 2008 | COMMENTS

President Bush has signed into law major changes to the ADA , the ADA Amendments Act of 2008 (the "Amendments Act"). The changes in the law were highlighted in detail in the last update. In case you missed it, here is a short summary. Employers can no longer consider mitigating measures (except eyeglasses and contacts) when determining whether someone is disabled under the ADA . The Amendments Act also states that someone is still deemed disabled, even though his/her particular impairment is episodic or is in remission, so long as the person would meet the definition of disabled when the impairment is active or not in remission.

The new law also revises the definitions of disability and probably will make it easier for persons to claim that their particular impairment rises to the level of a disability. The Amendments Act also plainly tells courts that standards imposed by the courts have been too high and that "the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis." The new law clarifies that an employer need not provide any accommodation to a person who is only covered by the ADA by virtue of the "regarded as disabled" provisions. In other words, to get a reasonable accommodation, an employee must actually be disabled not just regarded as disabled. The Equal Employment Opportunity Commission (EEOC) likely will soon issue new regulations to help us all understand these new ADA statutory provisions. The Amendments Act takes effect on January 1, 2009.

Legislative Update

In addition to modifying the ADA, Congress is also about to approve legislation extending the mental health parity law, which requires that if employers provide life time dollar benefit limits for physical conditions, they must provide similar benefit limits for mental conditions. Congress also has amended the Consumer Product Safety Act to provide whistleblower protection to employees, in retail and manufacturing sectors, who provide information, testify about or assist in raising complaints about possible product safety issues or violations of the law. The House of Representatives also has approved a five-year extension of the E-verify program. Finally, many states are looking at laws to mandate paid leave for employees or to allow employees to use sick leave to care for family members. Watch for possible new enactments as state legislatures start to go into session for the 2008/09 legislative year.

Local Restaurant Pays $200K for Overtime Violations

Unfortunately, it happens here too . . . . A local restaurant has paid about $200,000 in back pay to employees who were not properly paid overtime and the minimum wage as required by the Fair Labor Standards Act (FLSA). In this case, the United States Department of Labor (DOL) contended that overtime should have been paid to chefs, kitchen helpers, and dishwashers. DOL also asserted that the restaurant failed to compensate tipped employees up to the level of the national minimum wage (now $6.55 per hour) when tips failed to bring them to that level of pay. Employers should audit their pay practices and exempt/nonexempt classifications from time to time to ensure their compliance with FLSA.

Study Looks at Employee/Plaintiff Success in Federal Court

A recent study by Harvard and Cornell law professors concludes that the federal courts are a less-than-friendly place for employment law plaintiffs. The study, looking at federal court data from 1979 on, determined that employment discrimination plaintiffs won only about 30% of federal jury trials, compared to a 45% success rate for other plaintiffs. In bench trials (judge, not jury as decider), job bias plaintiffs won only 20% of the time. Plaintiffs fared even worse on appeal, as plaintiff verdicts were reversed about 40% of the time and plaintiffs got reversals of their defeats only about 10% of the time. Plaintiffs in non-employment cases did better on appeal. The authors of the study conclude that because of these types of statistics, plaintiffs are filing their claims more often in state courts. Although charges brought to the EEOC have increased or remained steady, there has been a 37% drop in employment lawsuits filed in federal court over the last eight years. The lesson for employers? Don't get sued. If you get sued, make sure you try to move it to federal court.

A Tragic Reminder

You probably read about the tragic crash last month of a commuter train and a freight train in California, an accident that left 25 people dead and more than 130 persons injured. Although the investigation into the collision continues, news reports indicate that one of the possible causes of it was that the commuter train engineer was sending text messages on his cell phone, perhaps instead of paying attention to operating the train. This event should be a not-so-subtle reminder to employers of the hazards of allowing employees to text or talk on cell phones while driving or operating equipment. If an employee must drive or operate equipment as part of his/her job and the employer encourages or allows the employee to engage in distracting behavior (cell phone use, texting, operation of a laptop computer, etc.) at the same time, the employer may be held liable for any accidents that occur possibly due to the distraction. To try to reduce the risk of liability, employers should address these issues in policies, train employees about the same and enforce the rules.

The Employment Law Update is a legal and legislative update service sent out about twice a month to various members of the Utah League of Credit Unions HR Council. The author, Utah law attorney Michael Patrick O'Brien, is also the Legal and Legislative Director for Utah SHRM (Society for Human Resource Management). These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship. Contact O'Brien at 801-534-7315 or mobrien@joneswaldo.com or visit www.joneswaldo.com. Reprinted with permission.