beyond disabilities--the ada amendments michael t. mortensen jackson lewis llp 10050 regency circle...
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Beyond Disabilities--The ADA Amendments
Michael T. MortensenJackson Lewis LLP10050 Regency CircleSuite 400Omaha, NE 68114(402) [email protected]
© 2009 Jackson Lewis LLP
ADA AMENDMENTS ACT
Background Information
• The original ADA became effective on
7/26/90
• “Disability” is defined as: 1) a current
physical or mental impairment that
substantially limits one or more major
life activities; 2) a record of such an
impairment; or 3) being regarded as
having a disability.
ADA AMENDMENTS ACT
Background Information
Supreme Court restricts scope of “disability”
• Sutton v. United Airlines (vision) and
Murphy v. United Parcel service, Inc.
(hypertension) — mitigating measures
must be considered
• Toyota v. Williams (carpal tunnel syndrome
and related restrictions) — “substantially
limited” means “prevents or severely
restricts” activities of central importance
• The result: Most plaintiffs unable to meet
initial burden of showing disability status
ADA AMENDMENTS ACT
Deja vu — Congress responds
• The ADA Amendments Act became
effective 1/1/09
• The goal was to restore the original
intention of Congress in affording
protection to a broad spectrum of
disabled individuals
ADA AMENDMENTS ACT
As a result--
● Congress expressly mandates a broad interpretation of the term “disability”
● Congress expressly rejects Supreme Court rulings limiting the scope of the term “disability”
● Congress expressly rejects the EEOC’s definition of “substantially limited” as imposing too rigorous of a standard
● Congress directs the EEOC to redefine this key term
ADA AMENDMENTS ACT
Significant changes
• Listing of “major life activities” expanded
• Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working
• Major bodily functions (immune system, special sense organs, and skin; normal cell growth; digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal and reproductive functions)
ADA AMENDMENTS ACT
Significant changes
● No consideration of ameliorative effects of mitigating measures
● Except eyeglasses or contact lenses
● Includes conditions that are episodic or in remission if it would substantially limit a major life activity when active
ADA AMENDMENTS ACT
Significant changes
● “Regarded as” includes conditions that are not disabling in and of themselves
● But, does not include impairments that are transitory and minor (e.g., an impairment of 6 months or less)
● No duty to accommodate perceived disabilities
● EEOC Regulations—proposed regulations issued September 23, 2009 (see ADA Special Report)
ADA AMENDMENTS ACT
What’s ahead?
• The focus will shift to the reasonable
accommodation process:
Assume
Disability
And
Attempt
Accommodate
ADA AMENDMENTS ACT
The reasonable accommodation process—
• Engage in an “interactive dialogue”
• Identify/verify the need for
accommodation
• Identify possible accommodations
• Evaluate the identified possibilities
• Document your efforts
• Maintain confidentiality
ADA AMENDMENTS ACT
“Hot button” reasonable accommodation
issues
• Reassignment to a vacant position--
EEOC v. United Airlines (6/3/09)
• Automatic termination after a specified
period of time--
EEOC v. UPS (8/27/09)
• Eligibility for light duty work--
EEOC v. Supervalu and Jewell-Osco (9/17/09)
• Automatic termination following the
expiration of workers’ compensation leave
EEOC v. Sears (Consent Decree 9/29/09)
ADA AMENDMENTS ACT
What should you be doing now?
• Review and revise policies as necessary--
--Job descriptions
--Employee handbooks
--Policies and procedures regarding
reasonable accommodation requests
--Develop forms and templates
• Train your HR staff and supervisors
--Communication will be key
--Revisit interplay between ADA, FMLA, and
workers’ compensation leaves and light
duty
Lincoln Human Resource Management Association
Michael T. MortensenJackson Lewis LLP10050 Regency Circle, Suite 400Omaha, NE 68114(402) [email protected]
“MySpace or Your Space” – Employees’
Use of Social Networking Sites
•There are over 300 million Facebook users worldwide.
•MySpace has over 200 million registered users
•Largest growth not by teenagers but by 25 to 54-year-olds
•Survey by Wall Street Journal – 26% of employees stated their employer had a policy; 24% didn’t know if their employer had a policy; and 23% said their employer did not have a policy
STATISTICS
TOOLS USED BY EMPLOYEES
• Social Networking Sites
(Facebook, MySpace)
• Business Networking Sites
(LinkedIn, Plaxo)
• Online Media (YouTube, Hulu)
• Personal Blogs
• Employer Sponsored Blogs
Key Legal Risks
• Hiring
• Trade secret or proprietary information
disclosure
• Privacy
• Harassment
• Wrongful termination
• Defamation
• Disclosure of nonpublic material information
creating securities law issues
• Negligent referral based on LinkedIn references
• Unauthorized use of company logos and
copyrighted material
Key Opportunities
• Litigation Tool• To establish connection to solicited party in restrictive
covenant matters
• To investigate lay and expert witnesses
• To prepare for depositions
• To vet prospective jurors
• To identify “lost witness”
• To obtain information through formal discovery (FRCP
34)
• Reviewing blogs, public Facebook postings, or
Twitter comments for evidence undermining
Plaintiff’s liability theories and emotional distress
allegations
• A possible electronic discovery burden for
employers
Federal Statutes
• Stored Communications Act
• Electronic Communications Protections
Act (ECPA)
Defamation
• An employer may be liable for
defamatory statements made by an
employee if the employee had the
apparent authority from the company
to speak on its behalf, under theories of
ratification, respondent superior, or
negligent supervision
• It is important that a company take
steps to ensure that employees are not
speaking on its behalf
Federal Trade Commission
• Federal Trade Commission recently published
guidelines regarding endorsements and testimonials
effective December 1, 2009
• Two potential areas of concern for liability: (1)
liability for false and/or unsubstantiated claims made
by employee endorsers; and (2) liability for failure to
make proper disclosure of an employment
relationship as part of an endorsement
• Solution: (1) Policy should require employees to
disclose their employment relationship when making
online comments regarding the employer’s product
or services or prohibit such online comments
altogether; (2) Train Managers and employees
regarding policy
Invasion of Privacy
• Invasion of privacy consists of 4 different theories;
intrusion upon seclusion, publicizing private facts,
false light and appropriation of name or likeness
• Courts are increasingly taking into account whether
employers have explicitly described how email is
monitored to their employees Brown v. Wolfe, (D. Conn. March 2009) (court found
employee had a reasonable expectation of privacy
after evaluating employer policy)
Quon v. Arch Wireless Operating Co., 554 F.3d 769
(9th Cir. 2008) – Supreme Court 2010
Pietrylo v. Hillstone Rest. (D. N.J. June 2009)
omg, u look gr8Potential liability risks for employers:
• The employer’s sponsorship of the content
• Ratification by inaction; and
• Obligation to take action to prevent or eliminate
inappropriate content once on notice Title VII (sex, race, color, religion, national origin,
Lifestyle discrimination Laws (State laws) – 9 states ban
discrimination based on legal off-duty “recreational”
behavior
NLRA (terms and conditions of employment /
unionbook.org
GINA (the Genetic Information Nondiscrimination Act)
FTC Guidelines
Wage and Hour
– Issuing Blackberries or remote access technology to
non-exempt employees
“Textual Harassment”
“Not only am I using [texts] more, but I’m
actually finding situations where by clients will
forward them on, print them out and bring them
into my office with them. Some of them will
even bait the harassers beforehand…”
Recent admission of a plaintiff’s attorney in the
National Law Journal, July 20, 2009.
SAMPLE MYSPACE PROFILE
SAMPLE MYSPACE PROFILE
Prospective Employees:
•Viewing Protected
Characteristics
•Inaccurate Information
•Protected Status
PRIMARY RISKS WITH INTERNET SEARCHES
Current Employees:•“Textual Harassment” - Employees
venting workplace frustrations by posting discriminatory statements, racial slurs, and/or sexual innuendos directed at coworkers, managers, etc.
•Employees posting confidential company information
•Posting damaging information regarding a former employee’s abilities and work habits
•Social NOTworking – lost productivity
PRIMARY RISKS WITH INTERNET SEARCHES
• Inconsistent information when supervisors “recommend” or provide informal performance reviews on social networking sites (i.e., LinkedIn)
•Possibly running afoul of your state’s “off-duty conduct” statutes
•Employees’ list of “contacts” on LinkedIn and the interplay with restrictive covenants
PRIMARY RISKS WITH INTERNET SEARCHES
•An outright ban of social media
sites
•Do you encourage employees to
use social media sites (i.e.,
LinkedIn, Facebook, etc.) to
cultivate business?
WHAT IS YOUR COMPANY PHILOSOPHY?
•Business use only/limited personal use
•Company reserves the right to monitor
the use of electronic resources
•Employee has no expectation of
privacy in use of company’s electronic
resources
•Counsel employees to refrain from
commenting on the company, its
products, or its competitors
WHAT’S IN YOUR POLICY?
• Risks of requiring approval of all external
postings by employees regarding the
company? (i.e., NLRA)
• Remind employees that it expects employees
to comport themselves professionally both on
and off duty
• Remind employees of the company’s
harassment and discrimination policy
• Prohibit managers from any informal review
systems on social networking sites (i.e.,
LinkedIn)
WHAT’S IN YOUR POLICY? (cont’d)
What Employers Can do to Minimize Risk
• Review internet/email policy and social media networking policy
• Make sure it is a policy that can be enforced
• Prohibit accessing of private password protected social
networking sites without proper authorization
• Consider whether to prohibit employees from providing
references on sites like LinkedIn and other professional
networking sites
• Do not prohibit employees from discussing terms and
conditions of employment
• Provide guidelines on appropriate terms of use
• Inform employees they have no reasonable expectation of
privacy in any technology by the company and list technology
• State that employer may record or monitor activities at is
discretion
• Obtain signed acknowledgments
• Prohibit disclosure of trade secrets and confidential
information
• Address use of company logos
What Can Employers Do To Minimize Risk?
• Require a disclaimer: The views are my
personal views and do not necessarily
represent the views or opinions of my employer
• Determine if access to major online networking
websites will be blocked from work
• Include contact information for the person to
whom questions or concerns about a blog or
blogging should be addressed
Make appropriate employment decisions
• Ensure employment decisions are based only
on appropriate criteria
• Verify information obtained from the internet
before basing employment decisions
• Do not ask third party to “friend” an applicant
to investigate background
TALK2UL8TR
?’s
Lincoln Human Resource Management Association
10050 Regency Circle, Suite 400
Omaha, Nebraska 68114
(402) 391-1991
www.jacksonlewis.com
Presented by:
Michael T. Mortensen