Foley & Lardner Labor and Employment Law Weekly Update (Week of December 5, 2011)

Foley & Lardner Labor and Employment Law Weekly Update (Week of December 5, 2011)

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.

Similarly, Farmers 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 mneuberger@foley.com.