Jottings By An Employer's Lawyer

Wednesday, August 11, 2010

Cautionary Comments as the ADA Nears Adulthood

Turning 21 is a much bigger deal than turning 20 if you are one who is looking forward to consuming adult beverages legally. But if you are a statute, twenty years is a nice point for others to weigh in on your success. 

So in the the last two weeks various pundits have weighed in with their views on the Americans with Disabilities Act. (Although remember in terms of effective date, the ADA has just reached voting age. See, Happy 15th13th Birthday to the ADA).

Someone has no doubt collected a number of the articles about the good things the law has done, but I wanted to point out two cautionary notes because I think they make a serious point. They come from the employer side of the docket and are made by other "employer's lawyers" so you are more than welcome to take them with however big of grain of salt that you wish.

Both Jon Hyman at Ohio Employer's Law Blog and John Phillips at The Word on Employment Law raise a valid concern about the breadth of the ADA and its susceptibility to those who would game the system (my word, not theirs). See, Celebrating the ADA, but bemoaning its breadth and ADA's 20th Anniversary: A Contrary View.

To their contributions, I would add two more points. First, as I have pointed out in the past, there is at least some research that says notwithstanding its good intentions, the ADA may actually have hindered the ability of those that we would all consider disabled, to enter the workforce. See, Hurting by Helping? The Law of Unintended Consequences. 

The other point is really an expansion on Jon and John's thoughts on the breadth the ADA and the problems that are caused by extending coverage to conditions that are at least further from the core of what have traditionally been considered disabilities.

Think about the law works.

The legality of an employer's conduct in almost all circumstances turns on the fundamental question --is the employee who has complained of discrimination under the ADA, disabled? (I know technically -- whether the person is a qualified individual with a disability).  To put it another way, until you know whether someone is disabled, you do not know whether you have to comply with the law or not.

But whether a person is disabled as defined in the original Americans with Disabilities Act was very much a legal question. And not an easy one. Just think of the cases where that was the threshold question and the answer was not available until it went through EEOC, the district court, a court of appeals and in a handful of cases even the supreme court, before that fundamental question was resolved. By then of course many years after the employer had made its own fateful 'guess' as to what the ultimate answer would be.

In other words, in order to comply with the law you have to "know" the answer to what has been the key question over which most ADA lawsuits were fought -- was the person disabled. And in many cases you absolutely could not know for sure, until the lawsuit was decided, which obviously is too late to ensure that you act appropriately

With other types of discrimination it is rare that you have that initial hurdle. You know whether someone is male or female, young or old, black or white, of Hispanic descent etc. In those cases, there is rarely a legal question as to whether the law was applicable.

But are they disabled? As defined under the ADA, not nearly as easy.

And even after all the litigation that occurred after the first 20, oops 18, years, it was not much easier for an employer to make that decision, especially in the middle of the 1,000 other things that were on their plate when they were faced with answering the question.

And even if you had mastered that body of precedent, it has been drastically altered by the recently passed ADAAA, making for more difficulties as we head into the next 20 years.

There is a built in Catch 22 of many ADA cases, particularly those of the type that were mentioned in the two articles --  that in many such cases you don't know whether you have to comply, until you have been tried and found guilty of not complying.

I find it particularly ironic every time I notice a car with a government issued permit pulling into a parking space reserved for those with disabilities.


For what it is worth, I'm a in-house L&E attorney and I disagree with the focus of posting. Since the passage of the ADAA, I believe the majority of american workers would fit within the definition of "disabled" under the ADA. Therefore, HR professionals waste time and effort in attempting to determine whether the label "disability" applies to a situation, but are better served focusing on whether there is a "reasonable" solution that would enable an employee to perform their job effectively. To cry that it is too hard to determine if the ADA applies because of the court decisions on Disability is a red herring. Howeve,I agree the ADAA did more harm than good for the truly disabled community. I think the broad definition's labeling everyone disabled will actually limit the ability of the traditionally disabled to get employment simply because the law does not provide a hierchy of who gets accomodation (adjusted schedules, job assignment, etc.).
Actually the comment is worth a lot and a helpful reality check with the every day world of having to apply the law to real life situations. When writing the post, I did
have a nagging sense that I might be talking too much past tense, hence the call out about the the ADAA, but thanks for making a very practical point on going forward.

Michael Fox
Another in house L&E attorney here. ADA-AA stands for Assume Disability, Always Attempt Accommodation. It's a horrible law and nearly impossible to comply with, but we certainly don't waste any time trying to figure out if someone is a qualified individual with a disability any more.
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Thursday, August 05, 2010

Dealing a $2 Million Dollar Verdict in the California Wine Country

Sexual comments and jokes, including a Levitra pen that apparently grows in length, followed by a complaint with no follow up and then a termination were what a Sonoma County jury apparently believed was the hand Shannen De La Cruz , a minimum wage card dealer, had been dealt. $2 million harrassment verdict against Petaluma card room

Although it is easy to imagine how the comments contained in the newspaper story could have been made and taken by everyone as funny, it is equally clear that as it came across in the court room, the jury was offended, not amused.

One factor that certainly did not help the company was the testimony of four other women, including one who had settled her own case. Making that testimony probably even more powerful, she was the human resources chief to whom De La Cruz had reported the harassment. The unresolved issue of how much "me too" evidence should be admitted is an on-going danger of these types of cases.

Although with $5 million year in revenues it's hard to think of the casino on the receiving end of the jury verdict as a really small business, it is certainly no colossus. And what would tend to get almost any small business owner's attention is that the jury verdict amounts to 2/3 of the company's net worth.

Now as I repeatedly mention in reports of MDV's, there is a long way between jury verdict and payment and it is highly likely that any amount ultimately paid, if any, will be considerably less. But that a jury knowing the employee's financial net worth, felt it appropriate to give 2/3 of it to one ex-employee, has to be a sobering thought when contemplating placing one's fate in the hands of a jury.


I would like to know what the company's lawyer offered, if anything, in settlement talks. I had a case recently where the other lawyer offered me $500. I took the case to a judgment of $50,000. That needn't have happened if the other side had been reasonable in settlement. Whenever there's a multi-million dollar verdict, it usually means someone made a mistake in settlement discussions.
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Wednesday, August 04, 2010

Kudo's For Giving the Bad as Well as the Good

I am not a fan issuing press announcements following a trial victory. To quote an over used Seinfield line, "not that there's any thing wrong with it ..... ", it's just not my cup of tea.

Similarly, I have never mixed (at least that I can remember) my own personal practice results and my blogging, or at least not in any way that they were identifiable.

Others do, although generally they only give the favorable results.

So I was pleasantly surprised to find the following post, Kent County Jury Finds for School District in O’Neill v. Warwick, on the blog of the Employment Law Group. If you check out the story you can see that in this case their client did not prevail before a Rhode Island state court jury.

I admire anyone who actually tries employment law cases to a jury. And if someone is going to announce their wins, I would suggest that they follow the example of the Employment Law Group and shows us all the results, not just the wins.

If you are clicking through to look at their blog, you might look around as it is also an excellent site for developments in the employment law area, particularly in one of the fastest growing parts, whistleblower cases.

Interesting post. There are few things in the law that take more guts than trying an employment case to a jury as a management-side lawyer. The best way to get a favorable settlement for your client, and not be extorted by an overly-aggressive plaintiff, is to have a reputation for trying cases. Therefore, I think it's wonderful marketing to publicize your losses as well as your wins.
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Tuesday, August 03, 2010

CBA-FLSA-State Law? Is It Like Rock-Paper-Scissors?

Unfortunately for companies that operate in more than one state or are intently focused on the Fair Labor Standards Act, the answer is no.

Unlike the kid's game,  where the winner is variable, when deciding wage and hour compliance questions, the answer invariably seems to be -- state law tops all.

Judge Easterbrook's short 7 page opinion in Spoerle v. Kraft Foods Global, Inc. (7th Cir. 8/2/10) [pdf] is a good example and (surprisingly) the first appellate decision to address at least one variation of this non-preemption issue. The question was what happens when a CBA which specifically excludes donning and doffing from time worked as permitted under Section 203(o) of the FLSA, runs into a state statute which does not have a similar exclusion? The answer under Section 218(a) according to Judge Easterbrook: state law prevails; employer loses. Here that translates to a $2.2 million dollar judgment on behalf a group of employees against the employer.

This may be the first for this specific issue, but it is not the only time it is a problem. See Union Bargaining Agreements Likely Cannot Waive Overtime Pay Rights, at the Overtime Advisor for a similar issue brewing in Nevada.

If I were rewriting wage and hour law, and I wish someone would ask me to do so, starting with Section 218(a) might not be a bad place to start. Compliance for companies that truly want to comply is hard enough when it is one law, but one law and 50 possible variations is a little too much federalism at times.

If it were truly protecting individuals from abusive treatment that would be one thing. But here, Local 538 of the UFCW, the employees' representative, and the company agreed  that donning and doffing time would not be paid. No doubt elsewhere in the CBA that benefit to the company was offset by a benefit to employees, more than likely higher hourly wage rates.

So who really benefits from this $2.2 million decision?

The workers get all that they bargained for, plus a substantial windfall. Lawyers for the company and the plaintiffs (assuming that the judgment is not reversed by the Supreme Court) will have been well compensated. The Company will be out $2.2 + million dollars, which in classic economic terms likely means consumers will now have to pay more for their products.

I am sorry I must have missed something. Why is any of this a good thing?


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