Date: June 2011
Associational Disability Discrimination
A Frequently Overlooked Provision of the ADA
The Americans with Disabilities Act (ADA) allows applicants or employees who aren’t themselves disabled to sue for damages if they are denied an equal employment opportunity because they have an association or relationship with a disabled individual. This “prevents employers from taking adverse employment actions based on unfounded stereotypes and assumptions about individuals who associate with people who have disabilities.” Timken Company learned the hard way that EEOC takes this seriously, with a forced payment of $120,000. An employee who worked part time for four years was denied the opportunity to move into full time work. Managers refused to place her in the vacant position, even though she was qualified, because they believed that she would be unable to work full time and also care for her disabled child. In addition to the hefty settlement, Timken must conduct widespread anti-discrimination training for managers, supervisors, and employees and provide periodic reports to the EEOC on its hiring practices. The ADA does not require a family relationship for an individual to be protected by the association provision. The key is whether the employer is motivated by the individual's relationship or association with a person who has a disability.
At a recent risk management conference, a Liberty Mutual Senior VP of Workers' Compensation Claims warned "more and more workers are using mobile devices while driving, while walking, and in places that we never envisioned that people would be doing aspects of their jobs," This certainly increases the potential that workers who are involved in an accident or other mishap while using a mobile device to work will seek benefits under the workers’ compensation system. It is more important than ever to review and update Employee Handbooks and policies that govern the use of these tools. Ban texting while driving and consider specific standards that limit talking (even with hands free devices). Policies should also specifically address the appropriate use – and limitations – on when and how employees are expected to use their laptops, iPads, smart phones, Blackberries and other hand-held devices. Include effective and enforceable discipline for violators.
This also impacts wages owed to nonexempt employees for hours worked beyond the regular work day. The culprit is the extended expectations that come from increased accessibility of electronic exchanges. The Liberty Mutual VP observed, "There are some [nonexempt] employees who are working from home, and… that's another exposure.” California wage laws clearly require paying both straight time and overtime when non-exempt employees perform work, even when it is off site, nights and weekends. Employers must pay overtime when any manager or supervisor learns that the overtime work was actually performed, even if it wasn’t expressly authorized. You can mandate in writing that all overtime be approved in advance. But, if the non-exempt employee proves the hours were worked, your only option is to pay the OT wages and then discipline for the policy violation. Mobile devices leave a trail of electronic evidence for employees who claim they exchanged email, business texts, or made business related calls, making it much easier to establish (and put your company on notice) that the hours were “worked.” And, because these additional hours are often within the course and scope of employment, on the job injury claims are another source of potential exposure.
California Department of Fair Employment and Housing (DFEH) New Initiative: On May 3, 2011, DFEH announced it will begin a new collaborative with the University of California at Irvine Law School to combat allegations of “systemic discrimination.” Law students will actively assist DFEH agents on tasks which include evaluation, investigation, and prosecution of discrimination claims. The clinic is prompted by a $6+ million class action settlement of leave law and discrimination claims against Verizon. Employers facing DFEH or administrative claims may see heightened activity on all types of charges. The DFEH describes the law students as the "civil rights leaders of the future." Read that: a whole new crop of plaintiff’s attorneys.
Department of Labor (DOL) Promises Increased Independent Contractor Crackdown: Facing record budget deficits, government agencies have started aggressively pursuing employers that misclassify regular employees as independent contractors. Labor Solicitor M. Patricia Smith recently announced that DOL is stepping up its efforts against misclassification of independent contractors, noting that the target includes “all kinds of industries,” not just construction. She said the effort includes an information-sharing agreement with the Internal Revenue Service, noting: “It's one thing to have the Labor Department coming after you. It's another to have the IRS coming after you for taxes that you owe.” Smith warned the Wage and Hour Division is “focusing far more than [it] has in the past on targeted investigations” of “fissured industries” where businesses use “models that change the employment relationship or obscure the employment relationship” through the use of subcontractor, independent contractor, franchise, or third-party management agreements. With increased scrutiny of purported independent contractor relationships, employers should re-evaluate their worker classifications to reduce the risk of costly taxes, fines, and penalties.
National Labor Relations Board (NLRB) Steadily Increases Impact on Non-Unionized Workplaces: Last March, we reported on the settlement of lawsuit against a non union employer whose broad social media policy violated the National Labor Relations Act by preventing employees from discussing working conditions as part of their “concerted activity.” This protection extends to employees whether or not they are unionized. Now, the NLRB has proposed a rule that would require employers to notify employees of their rights under the NLRA. The required notices would resemble the postings of workplace rights that are currently required under the Fair Labor Standards Act, the Occupational Safety and Health Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and other workplace laws.
Final Rule on Form I-9: The U.S. Citizenship and Immigration Services published in the Federal Register its final rule intended to improve the integrity of the Employment Eligibility Verification (Form I-9) process. Effective May 16, 2011, it makes several key changes, including requiring employers to accept only unexpired documents, deleting outdated documents from the list of acceptable documents, and adding documentation applicable to certain citizens of Micronesia and the Marshall Islands. The details are available at http://edocket.access.gpo.gov/2011/2011-9152.htm.
Also, the Social Security Administration has resumed sending no match letters when name and SSN# differ. But, handle each individually, as EEOC vigilantly investigates bias claims when Latinos are treated differently from others.
“Reinvigorated” EEOC Equal Pay Investigations: According to the EEOC’s 2011-12 Congressional Budget Justification, they expect over 100,000 charges in 2011, the highest number in its history. On Equal Pay Day (May 10th), an EEOC attorney announced that the “reinvigorated” agency is more aggressive in investigating claims of sex discrimination in pay, emphasizing that they don’t need a formal complaint by a woman to begin an investigation. The Equal Pay Act dictates that workers receive the same pay for the same work, and Congress recently expanded employers’ exposure to such claims with relaxed statutes of limitations. An EEOC Enforcement Manager said a fair pay investigation would be likely if a third party contacted the agency, such as a union rep, human-resources manager or an attorney. The EEOC also peruses census data to see which industries tend to be more discriminatory. "We take very seriously our power to start an investigation without a formal complaint," she said. "You will see more of these." She concluded her remarks by warning that an employer should not be complacent even if it can point to similar average salaries or find overall that women make more money than men. "That's not a relevant defense…. All we need is one (instance of unequal pay). The law is very powerful." So, add equal pay lawsuits to the expanded Americans with Disabilities Act and Genetic Information Non-Disclosure Act as sources of EEOC charging activity they expect will get them to 100,000 claims. Examine your policies to assure compliance.
In July, the Hotline will address structured transitional return-to-work programs for workers with temporary restrictions (both work-related and non-occupational). A recent FEHA verdict of $1,571,500 against the LAPD reinforces the importance of carefully defining light duty transitional work and then enforcing the program to avoid a later argument that it became “permanent light duty.” Effective work assignments and regular interaction with employees are vital.
If you aren't sure about how to address an employment or WC question, call the hotline today.© 2010 Stuart Baron & Associates, LLP ▫ www.SBAlaw.net ▫ 562-596-1482.
