Wednesday, February 22, 2012

Summary of NLRB Decisions for the Week of February 13-17, 2012

Click here.

Monday, February 20, 2012

4th Circuit Holds Employee Not Disabled Under ADA Because Able to Work 40 Hour Work Week

Plaintiff sued under the Americans with Disabilities Act (ADA) alleging that he had been discriminated against after his employer failed to accommodate his impairment which disabled him from working more than eight hours per day and rotate day/night shifts.  The Defendant-employer moved for summary judgment arguing that since the plaintiff was physically able to work a normal forty hour work week and had not demonstrated that his impairments significantly restricted the class of jobs or a broad range of jobs available to him, he could not establish that he had a "substantial" limitation upon which to base a claim of disability under the ADA.  The lower court granted summary judgment in favor of the Defendant-employer and the Court of Appeals for the Fourth Circuit AFFIRMED.

In affirming the lower court, the 4th Circuit held that because the plaintiff could still work a regular 40-hour week and was only unable to work at this particular employer's job site due to their change in scheduling that he was not a qualifying individual with a disability as that term has been defined under the ADA.  In the context of the ability to work, the plaintiff must show that the impairment "significantly restricted . . . the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3). Further, the "inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working."  The court further noted that an employee will not be considered disabled if they cannot perform overtime work but can work at least 40 hours per week.

IRS Offers Voluntary Program for Employers Misclassifying Employees to Come Forward and Avoid Hefty Fines and Penalties

The Internal Revenue Service (IRS) is offering an interesting program to employers who are misclassifying employees as independent contractors to come forward and avoid interest and penalties while making "minimal payments" in unpaid payroll taxes.  The program, the Voluntary Classification Settlement Program (VCSP), has some employers reluctant to come forward as they do not know if the IRS will share the information with other government agencies who may slam them for other penalties and law violations but he IRS has issued an FAQ sheet. The FAQ resolved three key fears for employers:
  • The IRS states that it will not share information about VCSP applicants with the Department of Labor or state agencies;
  • An employer that applies for but is not accepted into the VCSP will not automatically be subject to an IRS audit; and
  • Participation in the VCSP is not an admission of liability or wrongdoing with respect to employee classification issues.

Controversial Theory of Sexual Harassment Proposes Women's Cleavage Causes Sexual Harassment

It is beyond the scope of this blog post to fully delve into this area where psychology, evolution and law intersect but given my science background I found this article interesting but given my profession as an attorney, I do not see this going anywhere legislative-wise.  


In an Australian newspaper, pop psychologist Bettina Arndt posits a theory that suggests women, who are dressing more and more 'sexually,' may be responsible for their own sexual harassment given how "beta" men are wired and programmed from an evolutionary standpoint.  A good summary of the theory is written here.

Wednesday, February 8, 2012

10th Circuit Holds Migraines Not a Disability Under the ADA

Despite the fact the 2008 amendments to the Americans with Disabilities Act were enacted to make it easier for plaintiffs to qualify as individuals with disabilities, the Court of Appeals for the Tenth Circuit has delivered a decision that does the opposite of that intent.  In Allen v. Southcrest Hospital, No. 11-5016, 2011 U.S. App. LEXIS 25488 (10th Cir. Dec. 21, 2011), the plaintiff transferred to work for a particular doctor, who had a busy practice that was especially hectic on the three days during the doctor’s compressed office hours. Shortly after the transfer, the plaintiff claimed that she began having migraines. These migraines varied in severity - as some days she could go to work, while other days she had to stay home - and she was prescribed medication for the pain. In August 2009, after requesting and being denied FMLA leave and allegedly being denied a reasonable accommodation for her migraines, the plaintiff resigned, because of “migraines and hypertension.” Although she later tried to rescind the resignation, the employer told her that her resignation was accepted the day she tendered it and that her employment was terminated.


Upon filing both federal FMLA and ADA claims, the employer moved for summary judgment arguing the plaintiff was not disabled as defined under the ADA and the district court granted the motion.  On appeal, the 10th Circuit noted that the plaintiff had to show that: (1) she had a recognized “impairment;” and (2) the impairment substantially limited one or more of her major life activities.  It was undisputed that the migraines were an "impairment" but what was disputed was whether the plaintiff was substantially limited in one or more of her major life activities.  The plaintiff claimed that the migraines affected her ability to “work,” to “care for herself,” and to “sleep.”
 
The employer was able to prevail on appeal but critiquing the plaintiff's daily routines both when she had migraine pains and when she didn't.  The 10th Circuit was not persuaded that the plaintiff's migraines as an impairment "substantially limited her in one or more of her major life activities."  

This decision does not mean that migraines are not disabilities ever under the ADA as disability discrimination cases are a case-by-case evaluation.  It may be that a different plaintiff suffering from migraines may very well be substantially limited in major life activities to qualify as an individual with a disability under the ADA.