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Conquering the Legal World of Human Resources
Mr. Siegel began by explaining the 2008 amendments to the Americans with Disabilities Act. The amendment defines an impairment as a disability even if it is episodic and in remission however would substantially limit a major activity when active. Presently, EEOC regulations provide that "substantially limits" means the individual is unable to perform a major life activity or is significantly restricted as to the condition, manner or duration under which one can perform a particular life activity, as compared to the average person in the general population.
Except for ordinary eyeglasses and contact lenses, the ADA prevents courts and employers from considering mitigating measure an individual may be using when determining whether or not they are disabled. "Therefore, it is quite likely that many with conditions of diabetes, high blood pressure, carpal tunnel and cancer will have a "disability" under the ADA, which may then place an affirmative obligation on an employer to provide reasonable accommodation," said Mr. Siegel.
He said what ultimately may be the most profound change to the ADA is the definition of an individual "regarded as" having a disability. The ADA would hold an employer liable under a "regard as" theory if the individual can show discrimination because of an actual or perceived physical or mental impairment, whether or not the impairment actually limits or is perceived to limit a major life activity.
"In a lawsuit, the plaintiffs only need to establish that the employer had a mistaken belief about the individuals ability to perform his or her job, not a broad class of jobs or other major life activities," said Mr. Siegel.
Mr. Siegel next discussed avoiding costly mistakes regarding wage and hour issues. Some common pitfalls include failing to compensate employees for travel time during the continuous workday, failing to combine hours an employee works at all of an employer's work sites, violating child labor Hazardous Occupation Order 12, failing to pay for pre- and post-shift work activities, failing to pay overtime to salaried non-exempt employees, failing to include all required compensation in the employee's regular rate, and mis-designating employees as independent contractors.
Concluding his presentation, Mr. Siegel outlined the steps for proper termination and discipline. First, a proper investigation must take place and detailed documentation should be kept.
"Goals of a successful investigation include being responsive to an employee concern, making personnel change where necessary, improving behavior, reaching a conclusion to the complaint and creating a record of response," Mr. Siegel said. Next, an alternative to termination should be considered because termination is not always the appropriate action under state and federal law and also to avoid costly wrongful termination lawsuits. If an alterative is still not an option, then a termination meeting should be planned, keeping confidentiality, timing of the meeting, final compensation and fair treatment of the employee in mind, concluded Mr. Siegel. |
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