Monday, December 28, 2015

New Rule Interpreting FLSA Gives Overtime Pay Protections to HomeCaregivers

Purpose of the Home Health Care Exemption

The home health care exemption was initially implemented to protect people and their families who need health care but who want to remain in the home instead of going to a nursing home. Congress wanted to provide for this type of care without requiring the person receiving the care to pay overtime. They did this by carving out an exemption to the normal overtime rules. These workers were more akin to baby sitters than they were to doctors or nurses, so it made sense to not require a family paying out of their pocket to have to pay overtime.

Purpose of Overtime

This also makes a lot of sense because the purpose of requiring overtime compensation in the first place is to encourage employers to hire more people, therefore lowering the unemployment rate. The thought was that having to pay overtime to one employee who was working 60 hours per week would create an incentive for an employer to hire another employee to work the additional 20 hours instead of paying the overtime wage rate, thereby serving the additional purpose of providing more work for the otherwise unemployed worker.

New Rule Interpreting FLSA Gives Overtime Pay Protections to Home Caregivers

The new rule interpreting the overtime exemption for home caregivers takes into to account the fact that the home health care industry has developed into a model far different than the single person providing home care for an elderly family member or a family member with special needs. Today, the home health care industry is a powerful group with lobbyists on their payroll. Today, the Home Care Association of America represents more than 2,500 member organizations and over 300,000 employees throughout the United States. That's 300,000 employees who without the rule interpretation will be denied overtime compensation. Surely not the result that was intended when the rules were initially promulgated by the Department of Labor.

Wednesday, December 9, 2015

Steve Sarkisian’s Complaint for Disability Discrimination

How many employees does an employer have to have in order to be covered by the federal and Ohio disability discrimination laws?

Disability discrimination claims can be brought under either state law (if your state has an employment discrimination law) or federal law. Title I of the ADA applies to employers, employment agencies, labor organizations or joint labor-management committees. The Act became applicable to employers with 15 or more employees, beginning July 26, 1994. Under Ohio law, a minimum of 4 employees is required to file a claim for disability discrimination. Additionally, Ohio law allows an aggrieved party to file a “public policy” claim, which may be filed regardless of the number of employees.

What must an employee prove in order to win in a disability discrimination lawsuit?

A prima facie case of disability discrimination in Ohio is shown by proving the following elements: “(1) that he was [disabled or regarded as disabled], (2) that an adverse employment action was taken by an employer, at least in part, because the individual was [disabled], and (3) that the person, though disabled], can safely and substantially perform the essential functions of the job in question.” DeBolt v. Eastman Kodak Co., 146 Ohio App.3d 474, 2001-Ohio-3996, 766 N.E.2d 1040, ¶ 39 (10th Dist.), citing Columbus Civ. Serv. Comm. v. McGlone, 82 Ohio St.3d 569, 571, 697 N.E.2d 204 (1998).

What is the definition of disability under Ohio’s disability discrimination law?

Disability is defined in Ohio as follows: “a physical or mental impairment that substantially limits one or more major life activities, including the functions of caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment.” R.C. 4112.01(A)(13).
Since the amendments to the federal Americans with Disabilities Act in 2008, the definition of disability has been broadened, at least under federal law.

What happens after it is determined that the employee is disabled and that the employer is covered by the anti-discrimination laws?

Once it is determined that someone has a disability, certain other issues arise which must be ascertained before obligations on the part of the employer arise. Probably the most important issue is whether the employee can perform the essential functions of the position at issue, either with or without reasonable accommodation.

How is it determined whether there is a reasonable accommodation for the disabled employee?

In determining the availability of a reasonable accommodation, the employer and the employee must engage in an interactive process. The legal sufficiency of that interactive process depends on the factual circumstances of each individual case. However, the failure of an employer to engage in the interactive process at all can lead to liability. An important point in this regard is whether or not the accommodation settled upon makes it so that the employee can perform the essential functions of the position thereby making the employee qualified for the position.

How can Steve Sarkisian sue USC for disability discrimination because he is an alcoholic?

There is no doubt about it this is a very tricky area of law for employers. What makes it even more difficult to deal with is that with few exceptions, conduct resulting from disability is considered to be part of disability rather than separate basis for termination.
According to the Equal Employment Opportunity Commission, an employer is not required to excuse past misconduct that violated a uniformly applied conduct rule that is job-related and consistent with business necessity, but an employer must make a reasonable accommodation to enable an otherwise qualified employee with a disability to meet that conduct standard in the future, except when the punishment for the violation is termination.
A number of court decisions have dealt with the difficult issue of an employer’s entitlement to discipline an employee for conduct that is arguably the product of a mental disability or of a condition such as alcoholism or drug addiction.
In Humphrey v. Memorial Hospitals Ass’n, 239 F.3d 1128 (9th Cir. 2001), the Ninth Circuit, reversing summary judgment, held that the employer could not deny a requested accommodation by citing the plaintiff’s past disciplinary problems, where those disciplinary problems–lateness and absenteeism–had been the result of the same disability–obsessive-compulsive disorder–for which the employee was seeking accommodation.
Creating further uncertainty, is the fact that an employee who is an alcoholic may be held to the same standards of performance and behavior as other employees. 42 U.S.C. § 12114(c)(4). Rejecting ADA claims involving alcohol-related misconduct, see, e.g., Budde v. Kane County Forest Preserve, 597 F.3d 860 (7th Cir. 2010) ; Collings v. Longview Fibre Co., 63 F.3d 828 (9th Cir. 1995) , cert. denied, 516 U.S. 1048 (1996) ; Gonzalez v. California Personnel Bd., 33 Cal. App. 4th 422, 4 AD Cases 337 (Cal. App. 1995); Dovenmuehler v. St. Cloud Hospital, 509 F.3d 435 (8th Cir. 2007). Similarly, employers may continue to prohibit use of alcohol on the job and intoxication on the job.
So, in the case of Steve Sarkisian, if his workplace misconduct was related to his disability, then USC’s termination of him may have violated the ADA and California law. However, Steve Sarkisian may be held to the same standards of performance and behavior as other employees. Therefore, if other employees would have been terminated for the same behavior, then USC may have an argument.
It will be interesting to see how this case plays out in the Courts.