Employment Law Update

1. Employment Law Update Maria Elena Abate

2. The Americans With Disabilities Act (ADA) Amendments Act of 2008 • The Americans with Disabilities Act Amendments Act (ADAAA) • Signed into law on September 25, 2008 • Public Law No. 110-325 • Went into effect on January 1, 2009 • EEOC issued final regulations May 24, 2011 • So why did Congress pass the ADAAA?

3. The Americans With Disabilities Act (ADA) Amendments Act of 2008 • When it enacted the ADA, Congress intended it to be broadly construed. • But Supreme Court decisions interpreted the ADA narrowly, reducing the number of people who were protected from discrimination. • How does the ADAAA change the law and what do employers need to do?

4. The Americans With Disabilities Act (ADA) Amendments Act of 2008 • ADAAA explicitly states that the focus of disability nondiscrimination law: • should be on whether the covered entity has complied with its obligations to provide equal opportunities • shouldnot be on analyzing whether a particular individual’s impairment is, or is not, a “disability”

5. The Americans With Disabilities Act (ADA) Amendments Act of 2008 • Amendments make it much easier for an individual with a disability to: • meet the definition of disability • be protected from discrimination • be entitled to reasonable accommodations • These Changes Have Led to An Increase in Claims Filed • More people have filed claims in the last three years than in the 20 year history of the ADA.

6. The Americans With Disabilities Act (ADA) Amendments Act of 2008 • Core text of definition of “disability” is the same. • DISABILITY—The term ‘disability’ means, with respect to an individual— • (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; • (B) a record of such an impairment; or • (C) being regarded as having such an impairment.

7. The Americans With Disabilities Act (ADA) Amendments Act of 2008 • However, the EEOC Regulations Show the Significant Changes in interpretation of definition. • Specifically overruled the Supreme Court’s 2002 decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, which required that the “substantially limits” part of the definition had to relate to a “major life activity” that was of “central importance to most people’s daily lives.”

8. The Americans With Disabilities Act (ADA) Amendments Act of 2008 • Less Demanding Standard for “Substantially Limits” • ADAAA did not provide definition of substantially limits ON PURPOSE – did not want to focus on this • EEOC Regulations provides guidance with nine rules it will apply to determine whether an impairment “substantially limits” a major life activity

9. EEOC FINAL REGULATIONS ON ADAAA • 1. Interpret the term “substantially limits” broadly in favor of coverage. • 2. Compare the individual’s limitations against most people in the general population. • 3. Focus primarily on the employer’s compliance obligations and whether discrimination occurred, not whether an individual is substantially limited in a major life activity. • 4. Apply a lower standard during the individualized assessment than existed before the enactment of the ADAAA.

10. EEOC FINAL REGULATIONS ON ADAAA • 5. Scientific, medical or statistical analysis is not necessary when assessing an individual’s performance of a major life activity. • 6. Do not consider the helpful effects of mitigating measures (except for ordinary eyeglasses or contact lenses). • 7. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

11. EEOC FINAL REGULATIONS ON ADAAA • 8. Only one major life activity needs to be substantially limited to establish the existence of a substantially limited impairment. • 9. Conditions of short duration, which last or are expected to last for less than six months can be substantially limited.

12. EEOC FINAL REGULATIONS ON ADAAA BROADER MEANING OF MAJOR LIFE ACTIVITY • No longer needs to be “of central importance to daily life” • MAJOR LIFE ACTIVITIES INCLUDE: Seeing Hearing Reading Eating Sleeping Concentrating Walking Standing Thinking Lifting Sitting Communicating Bending Speaking Working Breathing Learning Reaching Interacting with Others Caring for Oneself Performing Manual Tasks

13. EEOC FINAL REGULATIONS ON ADAAA MAJOR LIFE ACTIVITIES INCLUDE “OPERATION OF A MAJOR BODILY FUNCTION”: Immune System Respiratory Special Sense Organs Genitourinary Digestive and Skin Bowel Bladder Normal Cell Growth Brain Respiratory Neurological Circulatory Endocrine Cardiovascular Hemic Lymphatic Musculoskeletal Reproductive Operation of individual organ within the body system

14. EEOC FINAL REGULATIONS ON ADAAA “VIRTUALLY ALWAYS DISABILITIES” Deafness Blindness Intellectual Disability Missing Limbs Autism Mobility Impairment Cancer Diabetes Cerebral Palsy Epilepsy HIV Multiple Sclerosis Bipolar PTSD Major Depressive Schizophrenia OCD Disorder

15. EEOC FINAL REGULATIONS ON ADAAA WHAT IS NOT COVERED? A temporary or chronic impairment of a short duration, such as the flu, sprained joint or broken bone, will not normally be considered as limiting a major life activity. Episodic conditions that impose only minor limitations will not normally meet the definition of disability. Individuals who are “regarded as” having a disability by their employers are not thereby entitled to a reasonable accommodation. However, if an employee falling into any of these categories is discriminated against in an adverse employment action, then an EEOC claim can be filed.

16. EEOC FINAL REGULATIONS ON ADAAA WHO IS NOT COVERED? In the case of Lewis v. Florida Default Law Group, 2011 WL 4527456 (M.D. Fla. September 16, 2011) a federal trial judge determined that the “swine flu” did not qualify as a disability under the ADAAA. The court reasoned: “The flu (whether seasonal or H1N1), however, is different from the more permanent—albeit episodic—conditions like cancer, epilepsy, asthma, bipolar disorder, schizophrenia, hypertension, diabetes and post-traumatic stress disorder that this provision was intended to include within the definition of disability.”

17. EEOC FINAL REGULATIONS ON ADAAA WHAT EMPLOYERS SHOULD DO: Be Hyper Aware of the Need to Provide Accommodations. Expect a jump in discrimination claims from turned-down job applications. An increase in claims for reasonable accommodations at work is also widely anticipated.

18. EEOC FINAL REGULATIONS ON ADAAA WHAT EMPLOYERS SHOULD DO: • Job descriptions should be carefully reviewed and reworded to describe its essential functions. • Interviewers should be extra careful not to ask questions that touch on health or impairment issues. • Though no one is required by law to hire someone who is unqualified, you don’t want the courts to find that you exclude people with disabilities.

19. EEOC FINAL REGULATIONS ON ADAAA WHAT EMPLOYERS SHOULD DO: • As for reasonable accommodations at work, engage in and document the interactive process • Thoughtfully consider whether an accommodation is feasible on an individual basis • Document legitimate, non-disability reasons for employment actions

20. Changes to Florida Unemployment Compensation Laws • Signed into law June 27, 2011 • Changes implemented to “weed out” individuals who take advantage of the system • Provides more resources to those individuals trying to get back to work

21. Changes to Florida Unemployment Compensation Laws • Misconduct – Under the new law, misconduct is defined as any action that demonstrates conscious disregard of an employer’s interests and is found to be a deliberate disregard or violation of reasonable standards of behavior, and may include activities that did not occur at the workplace or during working hours.

22. Changes to Florida Unemployment Compensation Laws • Examples of misconduct which can result in a denial of benefits can include:  Chronic absenteeism or tardiness;  Willful and deliberate violation of a standard or regulation which would jeopardize the employer’s Florida license or certification;  Violation of an employer’s rules under certain circumstances.

23. Changes to Florida Unemployment Compensation Laws • Effective August 1, 2011 • Online Filing and Certification of Weeks – Initial and continued claims must be filed over the Internet. • Work Search – Claimants are required on a weekly basis to contact five potential employers and provide this information via the Internet during their bi-weekly certification for benefits. • Skills Review – In order to receive benefits, claimants filing new claims must complete an initial skills review over the Internet.. • Severance Pay – If a claimant’s severance pay per week is equal to or greater than the claimant’s weekly benefit amount, the claimant is not entitled to benefits for that week.

24. Changes to Florida Unemployment Compensation Laws • Effective January 1, 2012 • Duration of Benefits •   For all claims filed on or after January 1, 2012, the duration of benefits adjusts from the prior maximum of 26 weeks to a range of 12 to 23 weeks, based upon the average unemployment rate in Florida for the third calendar quarter of the previous year. •   For example, the maximum number of weeks for 2012 will be based on the average unemployment rate in Florida for July, August and September 2011. •   When the average unemployment rate is 5 percent or less, the maximum duration of benefits will be 12 weeks. •   For each half-percent increase in the average unemployment rate, an additional week is added to the total available weeks beginning January 1 of the following calendar year. •   Should the average unemployment rate reach 10.5 percent or higher, a maximum of 23 weeks would be payable on a claim established during the following calendar year.

25. Changes to Florida Unemployment Compensation Laws How Do The Changes Effect Employers? • Changes will reduce the number of persons eligible • Employers will be able to more easily show whether an employee engaged in misconduct • Will No longer have to show “wilful or wanton” disregard • Only need to show “conscious disregard” to workplace rules and codes of conduct • Weekly filing requirements should also lower the amount of claims

26. IRS  Voluntary Classification Settlement Program • Employee vs. Independent Contractor – degree of control, supervision, discretion, ability to work for others, multiple factors and individualized determination • Classifying a worker as an independent contractor incorrectly can be very costly if they are not truly independent • Business may owe back taxes, penalties and interest if it is determined that they are incorrect in their classification

27. IRS  Voluntary Classification Settlement Program • Launched September 21, 2011 • Voluntary Classification Settlement Program (VCSP) is designed to increase tax compliance and reduce burden for employers • Meant as an option for employers who currently erroneously treat their workers or a class or group of workers as nonemployees or independent contractors, and now want to correctly treat these workers as employees

28. IRS  Voluntary Classification Settlement Program To be eligible, an employer must: • Consistently have treated the workers in the past as nonemployees • Have filed all required Forms 1099 for the workers for the previous three years • Not currently be under audit by the IRS • Not currently be under audit by the Department of Labor or a state agency concerning the classification of these workers

29. IRS  Voluntary Classification Settlement Program • Interested employers can apply for the program by filing Form 8952. • Employers accepted into the program will pay an amount effectively equaling just over one percent of the wages paid to the reclassified workers for the past year. • No interest or penalties will be due, and the employers will not be audited on payroll taxes related to these workers for prior years.

30. IRS  Voluntary Classification Settlement Program • Form 8952 should be filed at least 60 days before an employer wants to begin treating the class or classes of workers as employees. • If an employer wants to make a reclassification for the fourth quarter of 2011, it should file Form 8952 as soon as possible to provide the IRS sufficient time to process the application.

31. IRS  Voluntary Classification Settlement Program Other Considerations • Employer must agree to extend the limitations period for assessment of employment taxes for an additional three years for each of the first, second, and third years after it reclassifies its employees. • The IRS also has no obligation to accept an employer's participation in the VCSP. • While the IRS will limit an employer's federal tax liability under the program as described above, the DOL and various state agencies are not involved with the program at this time, and it is possible that any reclassification with the IRS may lead to back penalties and assessments by these agencies.