An Employer’s Effective Accommodation Under The ADA Need Not Be An Employee’s First Choice

The Second Circuit recently affirmed the Southern District of New York’s grant of summary judgment to technology giant IBM, finding that the provision of real-time, on-call American Sign Language interpreters and/or written transcripts to a deaf software engineer was an “effective” accommodation under the Americans with Disabilities Act (“ADA”).

In Noll v. Int’l Bus. Machines Corp., 787 F.3d 89 (2d Cir. 2015), the court rejected the plaintiff’s arguments that (1) IBM must provide closed captioning for all video files uploaded to IBM’s intranet (which contains over 46,000 files) and (2) IBM failed to engage in the interactive process even after it provided the accommodation through interpreters and transcripts.

The court’s opinion offers a strong defense to employers who provide effective accommodations and clarified that those employers cannot be held liable for failing to engage in the “interactive process” when the employee is already effectively accommodated. Further, the court offered some specific insight in the limitations of accommodating deaf persons.

The court held that reasonable accommodation may take many forms, but “[a]ll that is required is effectiveness.” Employers are not required to provide a perfect accommodation or the employee’s preferred form of accommodation, but an employee’s preference should be given “primary consideration.” Employers may consider the expense and the difficulty of procuring any form of accommodation specifically requested by an employee.

With regard to deafness, the court recognized that because deaf persons necessarily receive auditory information from other senses (principally sight), IBM’s accommodation through live interpreter or written transcript was not ineffective, even if the plaintiff found them tiring and annoying. This reinforces the proposition that the employer’s duty to provide an effective accommodation “does not require the perfect elimination of all disadvantage that may flow from an employee’s disability.”

Finally, the court concluded that the ADA imposes no liability for an employer’s failure to explore alternative accommodations when the accommodations provided to the employee were plainly reasonable. Employers are not required to engage or re-engage in the interactive process when the end it is designed to serve—a reasonable, effective accommodation for the employee—has already been achieved.

Laconic Lookout:

While the Noll decision undoubtedly provides a strong defense for employers who provide “effective” accommodation to employees with disabilities, an employee’s preference should still be given serious consideration during any initial interactive process.

Although IBM won on summary judgment, other employers should look to avoid litigation altogether—and the legal fees involved—by re-engaging in the interactive process whenever an employee is reasonably dissatisfied with their existing accommodation. The key is good faith participation in the interactive process.

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Updated EEOC Guidance Tightens Pregnancy Discrimination Guidelines in Response to Young vs. UPS Decision

On June 25, 2015, the Equal Employment Opportunity Commission (EEOC) issued an update of its Enforcement Guidance on Pregnancy Discrimination and Related Issues (Guidance), along with a Q & A document and a fact sheet for small businesses.

All are available on the EEOC website. The new Guidance was issued by the EEOC in response to the U.S. Supreme Court’s decision in Young v. United Parcel Service, Inc.

In Young, the Supreme Court held that an employee stating a claim under the Pregnancy Discrimination Act (PDA) can defeat summary judgment, and thus reach a jury, by providing evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.

The Supreme Court further held the PDA requires courts to consider the extent to which an employer’s policy treats pregnant workers less favorably than non-pregnant workers who are similar in their ability or inability to work.

The Supreme Court refused to defer to the EEOC’s 2014 EEOC Guidance, after concluding the 2014 Guidance was inconsistent with prior guidelines and had been issued after the Supreme Court had already granted certiorari in the case.

The new EEOC Guidance makes changes to the sections on disparate treatment and light duty as well:

Disparate Treatment: This section now cites Young in support of the Guidance’s additional language that evidence indicating disparate treatment based on pregnancy includes “[e]vidence of an employer policy or practice that, although not facially discriminatory, significantly burdens pregnant employees and cannot be supported by a sufficiently strong justification.”

Light Duty: This section now mirrors the holding in Young. To establish a prima facie case of pregnancy discrimination, an employee must show she belonged to a protected class, she sought accommodation, the employer did not accommodate her, and the employer accommodated others with a similar ability or inability to work.

The employer then may demonstrate a legitimate, non-discriminatory reason for treating the pregnant employee differently than non-pregnant workers similar in their ability or inability to work.

The Guidance now notes that this reason normally cannot consist simply of a claim that it is more expensive or less convenient to accommodate pregnant employees. Even if the employer can assert a legitimate, non-discriminatory reason for the different treatment, the Guidance provides that the employee may demonstrate pretext if the reason is not sufficiently strong to justify the burden on pregnant employees.

The new Guidance states that a policy of accommodating most non-pregnant employees, while categorically denying accommodation to pregnant employees, would present a genuine issue of material fact.

The new EEOC Guidance also deletes a section that provided employers with guidelines on how to treat pregnant employees and persons similar in their ability or inability to work. This section had stated that “[a]n employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee’s limitations (e.g., a policy of providing light duty only to workers injured on the job.).”

Laconic Lookout:

Employers need to be aware of this new Guidance and ensure that their policies and procedures are in compliance. Employers should treat requests from pregnant workers for light duty the same as they would treat requests from others with similar abilities. Employers should reevaluate their policies or practices if they exclude pregnant workers from light duty, but accommodate similarly situated employees.

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Proposed DOL Changes May Set the Stage for Overtime Shift with Salaried Employees

New regulations pertaining to overtime pay proposed by the Obama administration may force many employers to correct a longstanding assumption about employee classification, particularly as they come to terms with changes that will significantly expand employee eligibility for overtime pay.

For years, American employers have equated the word “overtime” with “hourly employee”. As a result, employers have generally assumed the opposite to also be true, namely that “no overtime” is equated with “salaried employee” as well. In summary, the common rule of thumb was that hourly employees were eligible for overtime pay, and that salaried employees were not, in simple terms.

In reality, the Fair Labor Standards Act (FLSA) examines far more than just an employee’s form of compensation to identify eligibility for overtime pay.

The FLSA uses the terms “exempt employee” and “non-exempt employee” specifically to classify personnel as regards their eligibility for overtime pay. Under the FLSA, the exemption test considers the following factors:

1. Form of Compensation – Every employee who is compensated using hourly pay is automatically eligible for overtime under the law.

2. Level of Compensation – Under the FLSA presently, any salaried employee who makes $455 per week ($23,660 per year) or less is also eligible for overtime pay. This is true regardless of the nature of their duties.

3. Nature of Duties – In addition, salaried employees who make more than $455 per week ($23,660 per year) may still be eligible for overtime pay, based upon the nature of their job duties. This is called the ‘duties test’.

The reason that so many employers have equated exempt with salaried pay and non-exempt with hourly pay is primarily due to the FLSA provision that lists many common white-collar positions as exempt from the overtime requirement.

These administrative, executive and professional positions include many office jobs as well as specific positions in computer and network administration and outside sales. There is also an exemption in the FLSA for some retail and service management positions.

However, many employers are simply not aware either that there is a compensation threshold that applies to employee classification, or that some salaried employees are also eligible for overtime based upon the nature of their duties.

The increasingly blurred lines in terms of job duties and level of compensation between historically ‘blue collar’ and ‘white collar’ jobs has further complicated the common understanding of overtime pay.

For example, it is not uncommon in the retail sector for some store managers to make a salary that classifies them as exempt, but which results in a level of total take-home pay equal to or even lower than the take-home pay that the hourly employees they supervise may average, when overtime pay for the hourly workers (and additional uncompensated work time required of the manager) is also taken into account.

In response to this, the Obama administration has issued a Notice of Proposed Rulemaking (NPRM) through the U.S. Department of Labor that would raise the overtime salary threshold to as much as $50,400. Part of the reason for the literal doubling of the proposed threshold is that the mandated salary level is not tied to inflation, and had not been previously updated to do so. The new proposed rule would index future adjustments of the salary threshold to inflation to account for this.

While the rule is proposed and would not likely go into effect until 2016, the NPRM process is akin to an executive order and does not require submission of the change to Congress for approval. Therefore, there is a strong likelihood that it will be instituted as law.

Employers should take particular note of this statement from the Department of Labor’s FAQ page about the proposed rule:

“Job titles do not determine exempt status, and the fact that a white collar employee is paid on a salary basis does not alone provide sufficient ground to exempt that employee from the FLSA’s minimum wage and overtime requirements. For an exemption to apply, an employee’s specific job duties and salary must meet all of the applicable requirements provided in the Department’s regulations.”

Laconic Lookout:

While the proposed rule does not fundamentally alter the Department of Labor’s standards for employee classification or determining overtime eligibility, the dramatic increase in the salary threshold effectively repositions a sizable portion of the salaried workforce as being overtime-eligible.

Employers would do well to audit their current positions, compensation and employee classifications and also ensure that proper mechanisms are in place for tracking of employee time worked and overtime pay for now and the future.

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Multi-State Employers Face Potential Wage and Hour Claim Complications in the Washington DC Region

In a significant decision earlier this year, the Court of Appeals of Maryland found that employees performing work in Maryland on behalf of their Virginia employer may pursue claims for unpaid wages under the Maryland Wage Payment Collection Law (“MWPCL”) in certain circumstances. Continue reading

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Supreme Court Decision on Pregnancy Discrimination Act Expands Employer Responsibilities

In March 2015, the U.S. Supreme Court overturned a lower court’s decision and re-instated a pregnancy discrimination lawsuit brought against United Parcel Service (UPS). The case concerned a UPS employee who, upon becoming pregnant, was advised by her physician to avoid heavy lifting during her pregnancy. Continue reading

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Colorado Supreme Court Subordinates Employee Rights to Employer Policies on Medical Marijuana

The Colorado Supreme Court ruled on June 15, 2015 that an employee of Dish Network who was terminated in 2010 for failing a company marijuana test was fired legally, despite the fact that Colorado law allows individuals to use marijuana for medical reasons. Continue reading

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Staples Decision Reiterates the Importance of FMLA Notifications for Employers

On June 4, 2015, the Department of Labor issued a News Release entitled “Staples to pay fired employee $275K in wages, benefits and damages after failing to inform him of job protections to care for ill family member.” A review of the details and finer points in this case demonstrate that it is an ideal teaching case to reiterate the importance for employers of complying with *all* of the FMLA’s provisions. Continue reading

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New OFCCP Discrimination Rules on the Horizon for Federal Contractors

Federal contractors should be on the lookout for new OFCCP rules this fall and winter instituting new reporting requirements for federal contractors and updating federal contractor regulations regarding sex and gender discrimination. These new rules demonstrate significant changes to contractors’ obligations to applicants and employees under federal law. Continue reading

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California Employers Cannot Rely on PAGA Claim Waivers in Arbitration Agreements with Employees

California’s Private Attorneys General Act of 2004 (PAGA) permits an “aggrieved employee” to bring a private right of action against an employer to recover civil penalties for specifically enumerated violations of the California Labor Code. See Cal. Lab. Code §§ 2698 et seq. Continue reading

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Online Application Systems Open a New Front in FCRA Class Actions

Any company that requires job applicants to complete an application and submit to a background investigation as part of the employment process should be familiar with the Fair Credit Reporting Act (“FCRA”).

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Washington DC Tightens Regulation of Wage and Hour Compliance for Employers

In 2014, the Government of the District of Columbia (Washington DC) enacted the Wage Theft Prevention Amendment Act (WTPAA), which formally went into effect on February 26, 2015. The act made broad changes to Washington DC wage and hour laws, impacting existing legislation including laws covering the minimum wage, living wage, wage payment, wage collection and accrued sick and safe leave among others.

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Abercrombie Decision Places Burden on Employers to Avoid ‘Accidental’ Discrimination in Pre-Employment Practices

Employers looking to project their brand through the “look” of their employees take notice: Ignorance of an employee’s need for religious accommodation is not a shield against liability.

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California’s Uber Decision Deepens the Employee vs. Independent Contractor Debate in Emerging Industries

On June 3, 2015, the California Labor Commission found that a driver for the wildly popular ride-hailing service Uber was in fact operating as an employee, and not as an independent contractor, making her eligible for reimbursement of work expenses and other costs required of employers. The driver filed an initial complaint with the California Labor Commission in September 2014. The ruling became public when Uber filed its appeal on June 16 of this year.
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California Chamber of Commerce Announces “Job Killer” Bills of 2015

The California Chamber of Commerce has released its 2015 preliminary list of “job killer” bills. The list focuses on proposed measures currently pending before the California legislature that, if passed into law, the Chamber believes would have a negative impact on California’s job climate and economic recovery.
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New York City Bans the Box and Sets Strict Limits on Pre-Employment Actions by Private Employers

On June 10, 2015, the New York City Council passed the Fair Chance Act, which “bans the box” for private employers. The Act is on its way to the Mayor’s desk, where if signed, it will come into effect in 90 days and will add to New York’s already complicated Ban the Box landscape, consisting of a variety of different state and city laws that impact the pre-employment process for both employers and employees.

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