Employers Should Guard Against "Regarded As"
Claims, Which Are Now Easier to Establish Under the ADA
by Caroline Hogan
In 2008, the ADA
was amended by the Americans with Disabilities Act Amendments Act (ADAAA). The
corresponding EEOC regulations,
effective in March 2011, expanded the coverage of the "regarded as" standard
for determining whether an employee is considered disabled. The ADA covers
individuals with a disability; those with a record of a disability; those who
are perceived to have a disability; and those associated with someone with a
disability. An individual may demonstrate he or she is disabled by establishing
a mental or physical impairment that substantially limits a major life
activity, a record of such an impairment, or being "regarded as" having such an
impairment even though the person does not have an impairment.
Under the ADA, an individual will now be "regarded as"
having a disability any time an employer takes an adverse action because of an
actual or perceived impairment, whether or not the perceived impairment limits
or is perceived to limit a major life activity. The "regarded as" prong
requires only two elements: 1) the employer took an employment action and 2)
the action was taken because of the employee's actual or perceived impairment.
This is a significant change from the pre-ADAAA definition, which required an
employee to demonstrate that the employer believed the impairment substantially
limited a major life activity.
Because the employer's subjective belief is no longer
relevant, this can affect the defenses available to the employer, including the
defense that an individual's impairment is transitory and minor. (Transitory
conditions - those that are expected to last six months or less - are not
"disabilities" under the law.) Now, if an employer perceives an applicant as
having back problems and refuses to hire the applicant based on that
perception, the employer may face a claim under the ADA if the applicant's back
problems are not objectively transitory and minor.
The ADAAA definition of disability will result in more
employees being considered "disabled" under the law and employers can expect to
see more "regarded as" claims. A practical tip for employers is to train human
resources managers and supervisors to avoid discussing an employee's medical
condition in the context of a disciplinary or termination meeting, which could
lead the employee to believe that the employment decision was based on the
employer's perceived notion of the employee's medical condition. Also, accurately
document each and every employment decision to show the decision was made for
legitimate reasons not related to the employee's medical condition. Given that
employers will be less successful in arguing that the complaining employee is
not disabled, employers would do well to ensure compliance under the other
aspects of the law - engaging in a robust interactive process with employees
and their doctors, providing reasonable accommodations, and complying with the
non-discrimination provisions of the law.
Don't Run Afoul of the FLSA; Avoid
"Donning and Doffing" Suits
Written by: Rebecca Hanson
Butterball is the most
recent company to settle claims of workers who said they were not properly
compensated for "donning and doffing" protective wear. Donning and doffing
refers to the time workers spend changing into and out of required protective
gear for a job. Butterball workers in North Carolina filed a lawsuit alleging
Butterball failed to pay workers for putting on, taking off, and cleaning
protective equipment the workers were required to use in processing poultry. On
November 17, 2011, Butterball reached a $4 million settlement
that covers Butterball's payment obligations, but does not include $2.2 million
that the plaintiffs' attorneys will seek for attorneys' fees and costs.
Pride, a chicken processor, agreed earlier this month to pay $500,000 to settle state and federal class actions in Pennsylvania
alleging the company failed to pay its workers for time spent on the same
activities. These settlements follow on the heels of the a federal appeals
court decision in June 2011 in Perez
v. Mountaire Farms (No. 09-1917) that time spent by employees donning
and doffing protective gear at the beginning and end of the work day is
compensable work under the FLSA.
These donning and
doffing cases are not just limited to poultry processing companies but are
possible in any industry where employees wear uniforms or protective gear.
California police officers, for example, received vacation time in a settlement of
their donning and doffing suit in late 2010. Given the high rate of
donning and doffing cases, employers should be aware of the potential for
copy-cat suits in other industries involving protective gear and uniforms.
Labor and Employment Trivia
Last week's question: Do
labor unions file income tax returns and, if so, can we see them?
Answer: Virtually all labor
unions are organized as some form of not-for-profit organization. Therefore,
they would not be required to file federal income tax returns. However, labor
unions are required to file various reports with the U.S. Department of Labor's
Office of Labor-Management Standards (OLMS).
During the middle to late 1950s, the labor movement was
under intense congressional scrutiny for corruption, racketeering, and other
misconduct. In 1959, Congress passed the Labor Management Reporting and
Disclosure Act of 1959 (also known as the Landrum-Griffin Act). Among
other reforms, the law requires unions to file financial disclosure reports,
currently known as LM-1, 2, 3, 4, and so forth. They are public and available
to be viewed at the On-Line Public Disclosure Room at http://tinyurl.com/y4ugkau.
If your company deals with a union, or is the target of a union organizing
campaign, you would be well advised to view the relevant union's reports.
Please continue to send suggestions for trivia
questions to firstname.lastname@example.org.