In an opinion handed down on October 30, 2009, the Nebraska Supreme Court held that an employer is not relieved of its obligation to pay workers’ compensation just because the Social Security Administration previously labeled an employee as totally disabled.  In the case, Manchester v. Driver’s Management, a truck driver was injured in an accident for which she was found to be at fault.  She was fired shortly thereafter.  Due to injuries received during the accident and an exacerbation of prior psychological issues, she was temporarily unable to work after the accident.

About three years prior to the accident and 18 months before being hired, the employee was labeled as totally disabled by the Social Security Administration due to psychological issues.  The employer claimed that since the employee was “totally disabled,” she had no loss of earning power from her present injuries.  According to her employer, she was only eligible for workers’ compensation payments for the time during which she was employed.  The court disagreed and found that the prior determination by the Social Security Administration was not controlling on the issue of earning power and liability for workers’ compensation.

For information on The Employment Law Group® law firm’s Employment Law Practice, click here.

On November 19, 2009, the 9th Circuit Court of Appeals held that The Rehabilitation Act applies to an anesthesiologist hired by a medical center as an independent contractor.  The decision was made in Fleming v. Yuma Reg’l Med. Ctr..  At issue was whether section 504(d) of the Act, which makes reference to the Americans with Disabilities Act (ADA), incorporates all of Title I of the ADA or just the “standards.”  Citing the broad language of the Act, the Court held that Congress intended to the Act to be more expansive than the ADA.  The Court also noted that “Congress did not use language of incorporation when it referred to the ADA in § 504.”  This interpretation is in line with the 10th Circuit.  

Other courts have taken a different approach.  The 6th and 8th circuits have held that the Act should be read to incorporate all of Title I of the ADA thereby excluding independent contractors.  With a split among the circuits, perhaps we’ll see this on the Supreme Court’s docket before long.

For information on The Employment Law Group® law firm’s Discrimination Law Practice, click here.

The Equal Employment Opportunity Commission (EEOC) has published a document titled, “Understanding Waivers of Discrimination Claims in Employee Severance Agreements” to provide guidance for employees on waivers executed as part of their severance agreements.  The document offers basic information about severance agreements, including legal requirements and necessary provisions for a valid severance agreement.  Key points include:

1. Consideration – A severance agreement must be supported by consideration, i.e., a lump sum payment of a percentage of an employee’s annual salary.
2. Validity— A severance agreement is valid only where an employee knowingly and voluntarily consents to the waiver.
3. EEOC Charges – Regardless of the broad language used in a waiver to describe the claims that an employee is releasing, an employee can still file a charge with the EEOC for discrimination.
4. Other Rights – A severance agreement may not limit an employee’s right to testify, assist, or participate in an investigation, hearing, or proceeding conducted by the EEOC under the ADEA, Title VII, the ADA, or the EPA.  Any provision in a waiver that attempts to waive these rights is invalid and unenforceable.

The EEOC also provides a specific discussion on waivers of age discrimination claims to address recent developments under the Age Discrimination in Employment Act (ADEA), such as the Supreme Court’s controversial decision in Gross v. FBL Financial Services, Inc.

For information on The Employment Law Group® law firm’s Employment Discrimination Law Practice go to http://www.employmentlawgroup.net/PracticeAreas/Discrimination-Law.asp.

Scott Oswald, a Principal of The Employment Law Group® law firm spoke at a D.C. Bar CLE event titled, “Changing Currents in Employment Law:  Recent Developments Update.”  The program, which took place on June 18, 2009, provided an overview of the new developments in employment law, including key issues that affect employers and employees during the current economic climate.  Mr. Oswald provided a summary of the ADA Amendments Act of 2008 and highlighted its impact on the definition of “disability” under the Americans with Disabilities Act.  Examples of definitional amendments include:

• Redefining the meaning of the term “substantially limits”;
• Amending the “regarded as” prong of the disability definition; and
• Amending the list of activities that constitute “major life activities” to include “major bodily functions.”

To view the full presentation, click here.

On January 29, 2009, President Obama signed into law the Lilly Ledbetter Fair Pay Act, which expands the time frame in which employees can sue for discriminatory compensation under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), and the Americans with Disability Act (ADA).  Under the new law, employees can file a complaint for pay discrimination within 180 days of any discriminatory compensation decision, rather than within 180 days of the first occurrence of pay discrimination.  In other words, the new law permits employees to sue for pay discrimination within 180 days of their most recent paycheck. 

The Act is in response to the 2007 Supreme Court ruling in Ledbetter v. Goodyear Tire & Rubber Co., where the Court in a 5-4 decision, concluded that Ledbetter could no longer make a claim of gender-based pay discrimination with the Equal Employment Opportunity Commission because she failed to do so within 180 days of the initial discriminatory compensation decision.  The problem with requiring a strict timetable for reporting pay discrimination is that it often takes employees years to detect wage disparities.   Ms. Ledbetter for example, did not learn that she was being paid less than similarly-situated males until she was approaching retirement, several years after the pay discrimination allegedly began.  The new law however, restores the employees’ ability to challenge unequal pay by relaxing the statute of limitations for initiating a claim of unequal pay.  The Act applies to all discrimination claims under Title VII, the ADEA, and the ADA, and is effective for any claims made on or after May 28, 2007. 

The Employment Law Group® law firm routinely represents employees subjected to discriminatory practices because of their gender, race, national origin, age or disability.  Recently, the firm won a $466,000 plus verdict for a former female director who alleged that her employer discriminated against her by paying her less than similarly-situated male directors.  For more information on the firm’s Discrimination Practice, click here.

On September 25, 2008, President Bush signed into law S.3406, the ADA Amendments Act of 2008 (“ADAAA”), which clarifies and strengthens the current Americans with Disabilities Act (“ADA”) to provide protection for more individuals under the ADA.  The new law which becomes effective on January 1, 2009, requires courts to abandon current standards in determining whether a person is covered under the ADA and to adopt less restrictive interpretations of the ADA’s definition of disability.  In particular, the new law: 

• Rejects the Supreme Court’s narrow interpretation of the phrase “substantially limits” which required an individual to have an impairment that prevented or severely restricted that individual from doing activities that are central to most people’s daily lives”;
• Directs courts and the Equal Employment Opportunity Commission (“EEOC”) to interpret the phrase “substantially limits” in accordance with the findings and purposes of the Act;
• Expands the phrase “major life activity” to include major bodily functions such as functions of the bladder, brain, and circulatory system;
• Eliminates the effects of mitigating measures in determining whether an individual has a disability;
• Clarifies that an impairment that is episodic or in remission is a disability under the ADA if it limits a major life activity when active; and 
• Lowers the standard that an employee must meet to prove that she was discriminated against because she was “regarded as” disabled. 

The Employment Law Group® law firm routinely represents employees who experience discrimination in the workplace because of an actual or perceived disability.  Examples include:

• Representing an employee who was refused a promotion because she was “regarded as” disabled
• Litigating a former Contracting Executive’s disability discrimination Suit
• Representing a Regional Marketing Officer who was refused reasonable accommodations for her disability

For more information about disability discrimination litigation, click here.