On September 23, the EEOC published it’s proposed regulations for the ADA to conform to the ADA Amendments Act of 2008. The 93 pages of proposed regulations start the 60 day period for public comments on the proposal, although it is not clear when the final regulations will be published. It is unlikely that the final regulations will be issued in 2009. The EEOC published a series of questions and answers last week, and the proposed regulations can also be found on the EEOC website. The proposed regulations appear to be much more specific then the existing regulations, listing specific physical and mental impairments that will "consistently" qualify as disabilities under the ADA, addressing types of action that will constitute "regarded as" discrimination and looking at how to determine impairments when mitigating measures are used by the employee.
Practice pointer. It is important to keep in mind that these are only the proposed regulations to be adopted by the EEOC. After comments are received, the final regulations will be published, probably early next year. I believe that no matter what the final regulations are, the number of people who are considered "disabled" will increase, and the cost of implementing the new regulations will exceed the $100 million per year the EEOC estimates.
Recently, Cindy F. Crawford and Jennifer Nycz-Conner wrote an article in the Birmingham Business Journal titled "Reading References". The article dealt with some of the problems with giving references, and how to get additional information when employers only give the dates of employment. Providing references is a potential pitfall for employers, and may subject both the employer and the person giving the reference to various causes of action. These causes of action may include defamation and fraud. The employer may be subject to additional claims if they provide different types of references for different employees. For example, a white male may get a glowing reference, but an African American female may get no reference at all other then dates of employment. This may lead to claims of discrimination based on race and gender. The law does not require that employers provide references for current or ex employees. It is up to the employer to decide what it’s policy will be: providing just dates of employment, providing more detailed information, and whether the reference needs to be in writing.
Practice Pointer. Whatever the employer’s position is on giving references, it is important that there be a written policy about what type of reference can be given, and just as importantly, who gives it. Only a particular individual or a small select group of people should be responding to requests for references. This will help reduce the potential exposure to employers and individuals when responding to requests for references.
The Alabama Court of Civil Appeals recently addressed the continuing attempt of workers injured on the job, with a scheduled member, trying to get around the schedule relying on disabling pain. In Wehadkee Yarn Mills v. Harris, Deborah Harris was a long time employee at the mill, and at the time of her injury was a lab technician. Her job required her to lift packages of yarn weighing 3 to 12 pounds. On February 7, 2006, she was lifting a package of yarn when she felt pain in her right thumb. She was treated by numerous doctors, and had surgery on her right hand. She continued to have constant pain, rating it a 5 or 6 on a scale of 10, and that simple activities, such as washing dishes or putting on makeup increased her pain to an 8 on a scale of 1-10. She testified that the pain did not go more than 2 inches above her wrist. She returned to work at Wehadkee, but the plant shut down shortly thereafter. She applied for and received unemployment compensation for about 5-6 months, and then took a job at Wal-Mart, where she worked for approximately 5 months, before quitting due to the pain in her right hand. At the time of trial, she had been approved for Social Security Disability. The trial court found her 100% permanently disabled as a result the disabling pain, and did not treat her injury as a scheduled injury.
On appeal, the Alabama Court of Civil Appeals remanded the case to the trial court since the trial court did not apply the test set forth in Norandal U.S.A. Inc, v. Graben, which held that "a worker who sustains a permanent injury to a scheduled member resulting in chronic pain in the scheduled member that is so severe that it virtually totally physically disables the worker would not be limited to the benefits set out in the schedule."
Practice Pointer. In a workers’ compensation case, many times the injured worker who otherwise has a scheduled injury is claiming pain that results in a permanent total disability. The court can find for such a claim, so long as the facts support it. As I have frequently said, the 2 most important factors in a workers’ compensation case are the judge and the demeanor of the injured worker. The judge has the discretion to make almost any finding in a non-jury setting, so long as it is supported by a reasonable interpretation of the facts. And the injured worker, when he/she makes a credible witness, has a much better chance of succeeding on the claim.
Last week, the Federal District Court in Maryland ruled that federal contractors must use the E-Verify system to confirm the eligibility of all newly hired as well as current employees working directly on a federal contract. Unless there is a stay pending the appeal of this order, starting September 8, most federal contracts must include a provision mandating the use of the E-Verify system. The United States Citizenship and Immigration Services has a website with frequently asked questions dealing with E-Verify. A copy of the court’s decision can be found here.
E-Verify is also having an impact on the state of Alabama. Effective January 1, 2010, the city of Huntsville will require any city contractor to use the E-Verify system to screen employees. According to the Huntsville Times, Councilman Bill Kling "called it a "very modest proposal" to try to deter illegal immigration in a way that won’t get the city sued." Huntsville’s new E-Verify requirement applies to any vendor with a city contract that totals $15,000 or more.
Last week, at our regularly scheduled employment law seminar, Kelli Robinson spoke on how to conduct an I-9 audit. She pointed out that U.S. Immigration and Customs Enforcement (ICE) launched an audit initiative in July by issuing Notice of Inspection to 652 businesses. This is more notices than ICE issued in all of 2008. With ICE data mining the E-Verify database to determine if employers are using the system to verify all workers and terminate those after receipt of final non-confirmation of work authorization, there may be more audits coming in the near future. ICE is also using the information to detect identity theft, where the same social security number or permanent resident card is being used at multiple locations.
Practice Pointer. Now that Huntsville has adopted the use of the E-Verify system, I anticipate that other cities and counties, and maybe even the state, will require contractors to use the E-Verify system to check the legality of their workforce. With the increasing use of the E-Verify system, more audits are likely by ICE for government contractors and others who are required to use the system. Employers should audit their I-9 files to make sure that they are in compliance with immigration laws.