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SHRM Newsletter: Disability Job Bias Claims Increasing

08/31/2010

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August 31, 2010

This is Utah SHRM Legal-mail no. 2010-11 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).

CONTENTS:
-  DISABILITY JOB BIAS CLAIMS INCREASING

-  RECENT SETTLEMENTS

-  COMPANY PROPERTY WALKING OUT THE DOOR

-  LABOR DAY HOLIDAY READING SUGGESTIONS
-  GET MORE HR LAW INFORMATION AT 2010 CROSSROADS CONFERENCE

DISABILITY JOB BIAS CLAIMS INCREASING
:  Some twenty years after the passage of the Americans With Disabilities Act (ADA), the Equal Employment Opportunity Commission (EEOC) reports record filings under the Act in 2009.  Almost 21,500 disability discrimination charges were filed last year, more claims than ever before in the ADA’s history.  Commentators generally have attributed the record number of filings to bad economic times, which typically see more employment claims asserted, as well as to the 2008 amendments to the law that make it easier to prove that someone is disabled, and thus protected by the ADA.  What does this mean for you?  Disability bias lawsuits are a greater risk, so manage your employment activities to try to mitigate these risks and allow you to effectively respond to such claims when they arise.

RECENT SETTLEMENTS:  A court has approved the settlement of a major wage and hour lawsuit against a large, national retailer.  The employer in that case will pay some $85 million to resolve claims that the retailer forced employees to work off the clock, required that they skip meals and breaks and manipulated time card records.  The settlement also requires the retailer to use various electronic wage monitoring systems to try to avoid future problems.   A New York roofer has agreed to pay $1 million to settle claims of race discrimination made by African American employees.  The employees asserted they were subjected to racial slurs and poor assignments due to their race.  Finally, there are a lot more of these types of settlements.  Check out the EEOC’s webpage for a longer list and more details:  http://www.eeoc.gov/eeoc/newsroom/release/index.cfm

COMPANY PROPERTY WALKING OUT THE DOOR: 
A recent survey uncovered some disturbing attitudes among departing employees regarding their soon-to-be-former employer’s property.  An online survey of employees and contractors in the United States and Great Britain showed that about half of all such workers admitted they would take some of their employer’s property with them on termination of employment.  Almost a third said they would take customer data, 15% said they take product information and about a fifth said they would take office supplies.  For more details on the survey, go to:  http://www.sailpoint.com/news/press/press-release.php?release=70  You might also be interested to know that we have responded to more client’s concerns about employee theft and embezzlement in the last year or so than at any other time during the twenty five years I have practiced employment law.  Signs of the times?  Who knows?  The better question is: are you protecting yourself from such possible misconduct with such tools as appropriate confidentiality agreements, exit interview procedures and other security protocols?

LABOR DAY HOLIDAY READING SUGGESTIONS: Looking for some interesting reading ideas for the end-of-summer Labor Day holiday?  How about an interesting article dealing with the decriminalization of marijuana and “weed at work”?  See http://www.hreonline.com/HRE/story.jsp?storyId=489191411  Or perhaps check out an article dealing with one large employer’s struggle with the largest sex discrimination claim in American legal history:  http://www.nytimes.com/2010/08/26/business/26walmart.html  or  http://blogs.hrhero.com/hrnews/2010/08/26/wal-mart-asks-supreme-court-to-review-huge-class-action/?HLW  Maybe you want to know about how one company beat the current trend and recently prevailed in a lawsuit alleging its workers (delivery drivers) are employees instead of independent contractors:  http://www.shrm.org/LegalIssues/StateandLocalResources/Pages/KansasFedExGroundDrivers.aspx  National SHRM members may enjoy this case summary, in which a court indicated that an employer’s “common sense” notion that a pregnant employee cannot do a certain job must yield to a physician’s certification that she can do it: http://www.shrm.org/LegalIssues/FederalResources/Pages/6thCircuitPregnancyRestrictions.aspx   Or national SHRM members might prefer reading about the advantages and disadvantages of electronic storage of I-9 forms: http://www.shrm.org/LegalIssues/FederalResources/Pages/ElectronicandPaperStorage.aspx  Happy Labor Day holiday reading!

GET MORE HR LAW INFORMATION AT 2010 CROSSROADS CONFERENCE
:  You can get much more information about HR law and many other issues of importance to the HR profession at the 2010 Crossroads Conference, sponsored by the Utah Human Resources State Council, an affiliate of The Society for Human Resource Management (SHRM), and Utah State Partners in Business.  The conference will launch on September 20-21 in Layton, Utah.  General information is available here:  http://utahcrossroadsconference.org/   You can read about the conference agenda here:   http://utahcrossroadsconference.org/conference/session-descriptions/   And you can register here: http://utahcrossroadsconference.org/conference-registration/

Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Email: mobrien@joneswaldo.com
Phone: 801-534-7315
Website: www.joneswaldo.com

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.