SOME COMMON SENSE RELIEF FROM DISABLED ACCESS LAWSUITS
On October 8, 2008 Governor Arnold Schwarzenegger signed a bill that increases public access for individuals with disabilities while reducing unwarranted litigation. SB 1608 is a bipartisan comprehensive reform measure, authored by Senators Ellen Corbett (D-San Leandro), Tom Harman (R-Huntington Beach) and Ron Calderon (D-Montebello), and Assembly Members Cameron Smyth (R-Santa Clarita) and Lois Wolk (D-Davis). The bill received unanimous support by both houses of the Legislature before being sent to the Governor.
SB 1608 is designed to address two important goals: (1) promoting and increasing compliance with state and federal civil rights laws providing for equal access for individuals with disabilities in public accommodations; and (2) reducing unwarranted, unnecessary litigation that does not advance the goals of disability access. SB 1608 arrives at a solution through a combination of the following key reform provisions: (1) Clarifications in the law to help reduce unwarranted damages and attorneys' fees; (2) A new disability commission which will be tasked with evaluating and providing recommendations on further disability issues having an impact on the disability community and business; (3) Improved continuing education in disability access laws for building inspectors and architects; (4) Incentivizing building owners to use state-certified access specialists to ensure compliance; and (5) A new court procedure to encourage early resolution of disability access lawsuits.
One of the important reforms in SB 1608 is a provision clarifying that plaintiffs may recover damages only for a violation they personally encountered or that deterred access on a particular occasion, rather than for alleged violations that may exist at a place of business but did not cause a denial of access. In addition, SB 1608 clarifies that a court can consider reasonable written settlement offers made and rejected in determining the amount of reasonable attorneys fees to be awarded at the end of a case, which is aimed at reducing unnecessary protraction of litigation by either party.
Tuesday, November 11, 2008
PRESIDENT BUSH SIGNS LEGISLATIONAMENDING AND GREATLY EXPANDING THE ADA
On Thursday, September 25, 2008 President Bush signed legislation significantly amending the Americans with Disabilities Act. Some of the more significant changes:
Expanded Definition of Major Life ActivitiesA disability is defined as a physical or mental condition that substantially limits a "major life activity." The ADA currently does not include a definition of "major life activities." The EEOC regulations provide examples, such as: "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." President Bush's amendments now specifically incorporate these regulations into the ADA by the amendment. The amendment goes farther and also adds "major bodily functions" such as "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions." This will most likely lead to a substantial expansion of workers considered disabled under federal law. Now, conditions such as high blood pressure, asthma, and other conditions may be considered disabilities under the ADA. Finally, the amendment also expands the definition of disability to include a condition that is in remission or that is episodic, if it would otherwise substantially limit a major life activity when active.
"Substantially Limits" Liberalized
A disability must "substantially limit" a major life activity. The Supreme Court and the EEOC has set a relatively high standard for"substantially limits." An individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. The new ADA amendment categorically rejects this standard.
"Regarded As" Restricted
The ADA protects workers who, while not actually disabled, are regarded as disabled by the employer. The amendment excludes from "regarded as" claims minor/transitory conditions lasting six months or less.
Disregard of Mitigating Measures
U.S. Supreme Court decisions have held that mitigating measures, such as prosthetic devices, should be taken into account when determining whether the workers are disabled. For example, Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), involved myopic twin sisters who were rejected for employment by an airline because of their poor vision, although their vision was correctable with prescription lenses. The airline's policy required "uncorrected visual acuity" at a certain level, which the sisters did not have. The Supreme Court held that because the sisters' vision was correctable, they did not satisfy the ADA definition of "disability" and therefore could not make out a claim for discrimination.The ADA amendment rejects the Supreme Court's interpretation of the ADA. Now, a worker may qualify as disabled under the ADA regardless of whether corrective measures mitigate their condition. Mitigating measures that will not be considered under the new amendments to the ADA include items such as medication, hearing aids and cochlear implants, low-vision devices (which do not include ordinary eyeglasses or contact lenses), mobility devices, prosthetics including limbs and devices, or oxygen therapy equipment and supplies.
Conclusion
In California, a more liberal definition of disability is already in place. For example, the law in California, under the Fair Employment and Housing Act, already includes many of the provisions found in the ADA amendment.It will be some time before the effects of the ADA amendment can be gauged. The EEOC may issue new regulations or guides, which may help employers comply with the new standards. Ultimately, an increase in federal disability law litigation can probably be expected.
On Thursday, September 25, 2008 President Bush signed legislation significantly amending the Americans with Disabilities Act. Some of the more significant changes:
Expanded Definition of Major Life ActivitiesA disability is defined as a physical or mental condition that substantially limits a "major life activity." The ADA currently does not include a definition of "major life activities." The EEOC regulations provide examples, such as: "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." President Bush's amendments now specifically incorporate these regulations into the ADA by the amendment. The amendment goes farther and also adds "major bodily functions" such as "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions." This will most likely lead to a substantial expansion of workers considered disabled under federal law. Now, conditions such as high blood pressure, asthma, and other conditions may be considered disabilities under the ADA. Finally, the amendment also expands the definition of disability to include a condition that is in remission or that is episodic, if it would otherwise substantially limit a major life activity when active.
"Substantially Limits" Liberalized
A disability must "substantially limit" a major life activity. The Supreme Court and the EEOC has set a relatively high standard for"substantially limits." An individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. The new ADA amendment categorically rejects this standard.
"Regarded As" Restricted
The ADA protects workers who, while not actually disabled, are regarded as disabled by the employer. The amendment excludes from "regarded as" claims minor/transitory conditions lasting six months or less.
Disregard of Mitigating Measures
U.S. Supreme Court decisions have held that mitigating measures, such as prosthetic devices, should be taken into account when determining whether the workers are disabled. For example, Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), involved myopic twin sisters who were rejected for employment by an airline because of their poor vision, although their vision was correctable with prescription lenses. The airline's policy required "uncorrected visual acuity" at a certain level, which the sisters did not have. The Supreme Court held that because the sisters' vision was correctable, they did not satisfy the ADA definition of "disability" and therefore could not make out a claim for discrimination.The ADA amendment rejects the Supreme Court's interpretation of the ADA. Now, a worker may qualify as disabled under the ADA regardless of whether corrective measures mitigate their condition. Mitigating measures that will not be considered under the new amendments to the ADA include items such as medication, hearing aids and cochlear implants, low-vision devices (which do not include ordinary eyeglasses or contact lenses), mobility devices, prosthetics including limbs and devices, or oxygen therapy equipment and supplies.
Conclusion
In California, a more liberal definition of disability is already in place. For example, the law in California, under the Fair Employment and Housing Act, already includes many of the provisions found in the ADA amendment.It will be some time before the effects of the ADA amendment can be gauged. The EEOC may issue new regulations or guides, which may help employers comply with the new standards. Ultimately, an increase in federal disability law litigation can probably be expected.
CALIFORNIA BANS "TEXTING" BEHIND THE WHEEL
California has banned text messaging while driving, and employers need to respond promptly by updating policies.SB 28, signed by Governor Schwarzenegger on September 24, 2008, amends the California Vehicle Code to state: "A person shall not drive a motor vehicle while using an electronic wireless communications device to write, send, or read a text-based communication." The penalty for violating the law is $20 for the first violation and $50 for subsequent violations. No violation points will be given as a result of the offense.The new law closes a loophole left by Senate Bill 1613 (Summarized here). Effective July 1, 2008, that new law provides that it is illegal to drive a motor vehicle while using a wireless telephone, unless a hands-free device for the cell phone is used. But the law did not expressly ban texting. (Separate legislation has already banned drivers under age 18 from using cell phones or any texting device while driving.)
What about using your PDA's phone directory to dial out a call? That doesn't count as texting under the new law: "For purposes of this section, a person shall not be deemed to be writing, reading, or sending a text-based communication if the person reads, selects, or enters a telephone number or name in an electronic wireless communications device for the purpose of making or receiving a telephone call."
In order to minimize liability issues arising from employees using cell phones, PDAs, or other electronic communication devices on the road while in the course and scope of employment or while taking work-related calls, employers should implement a policy that prohibits employees from using cell phone or PDAs while driving. At a minimum, employers should require all employees to refrain from texting and to use "hands free" devices while driving on company business or when making business calls on the road.
California has banned text messaging while driving, and employers need to respond promptly by updating policies.SB 28, signed by Governor Schwarzenegger on September 24, 2008, amends the California Vehicle Code to state: "A person shall not drive a motor vehicle while using an electronic wireless communications device to write, send, or read a text-based communication." The penalty for violating the law is $20 for the first violation and $50 for subsequent violations. No violation points will be given as a result of the offense.The new law closes a loophole left by Senate Bill 1613 (Summarized here). Effective July 1, 2008, that new law provides that it is illegal to drive a motor vehicle while using a wireless telephone, unless a hands-free device for the cell phone is used. But the law did not expressly ban texting. (Separate legislation has already banned drivers under age 18 from using cell phones or any texting device while driving.)
What about using your PDA's phone directory to dial out a call? That doesn't count as texting under the new law: "For purposes of this section, a person shall not be deemed to be writing, reading, or sending a text-based communication if the person reads, selects, or enters a telephone number or name in an electronic wireless communications device for the purpose of making or receiving a telephone call."
In order to minimize liability issues arising from employees using cell phones, PDAs, or other electronic communication devices on the road while in the course and scope of employment or while taking work-related calls, employers should implement a policy that prohibits employees from using cell phone or PDAs while driving. At a minimum, employers should require all employees to refrain from texting and to use "hands free" devices while driving on company business or when making business calls on the road.
The New Kid on the Block! Getting to Know GINA
On May 21, 2008, President Bush signed the Genetic Information Non-discrimination Act (GINA) into law. However, GINA's employment-related discrimination provisions do not take effect until November 2009. GINA was enacted, in part, to protect individuals from discrimination in employment on the basis of their genetic information. The law's anti-discrimination provisions generally impact employers already covered by Title VII. GINA prohibits employer use of an employee's or applicant's genetic information as a basis fordiscrimination in the application process, or with regard to terms and conditions of employment. With a few enumerated exceptions, employers are also prohibited from requesting or acquiring an employee's genetic information or that of an employee's family member. Like the Americans with Disabilities Act (ADA), GINA contains a provision requiring that employers keep any genetic information maintained on employees in a separate, confidential medical file. Individuals making complaints pursuant to GINA will have to file a charge with the U.S. EqualEmployment Opportunity Commission (EEOC) as a prerequisite to file suit. Compensatory and punitive damages, as well as attorney's fees, may be available to a plaintiff prevailing on a genetic discrimination based claim.
Employers should be prepared to revise their policies and practices to ensure compliance with GINA.
On May 21, 2008, President Bush signed the Genetic Information Non-discrimination Act (GINA) into law. However, GINA's employment-related discrimination provisions do not take effect until November 2009. GINA was enacted, in part, to protect individuals from discrimination in employment on the basis of their genetic information. The law's anti-discrimination provisions generally impact employers already covered by Title VII. GINA prohibits employer use of an employee's or applicant's genetic information as a basis fordiscrimination in the application process, or with regard to terms and conditions of employment. With a few enumerated exceptions, employers are also prohibited from requesting or acquiring an employee's genetic information or that of an employee's family member. Like the Americans with Disabilities Act (ADA), GINA contains a provision requiring that employers keep any genetic information maintained on employees in a separate, confidential medical file. Individuals making complaints pursuant to GINA will have to file a charge with the U.S. EqualEmployment Opportunity Commission (EEOC) as a prerequisite to file suit. Compensatory and punitive damages, as well as attorney's fees, may be available to a plaintiff prevailing on a genetic discrimination based claim.
Employers should be prepared to revise their policies and practices to ensure compliance with GINA.
Is the Indigestion Caused By California's Meal and Rest Period Requirements Nearing an End?; California Court of Appeals Clarifies Meal and Rest Period Requirements
California employers have been under siege from plaintiffs claiming massive wage & hour violations. In a rare positive wage & hour decision for employers, a California Court of Appeal has clarified the meal and rest period requirements for California employees. In addition, the same Court significantly narrowed a plaintiff's ability to certify a putative class action based upon alleged meal and rest period violations.
In Brinker Restaurant Corporation et al. v. Superior Court (7/22/08), several waiters/waitresses brought a putative class action against Brinker for alleged meal and rest period violations, as well as for unpaid hours worked. The servers claimed Brinker failed to absolutely ensure employees received their meal and rest periods. The servers further claimed that Brinker's policy of requiring/permitting employees to take a meal period near the start of their shift, and then requiring the employee to continue working for five or more hours without an additional meal period violated the Labor Code. Finally, the employees claimed that they worked off-the-clock without compensation. Based upon the alleged "across the board" violations, the employees sought class certification of their claims. Brinker's position was that it provides employees with an opportunity to take an appropriate meal and rest period at some point during their shift.
The Court of Appeal rejected the employees' contentions and held that employers need only provide, not ensure, that meal and rest periods are taken. The court explained that the language in section 512 of the California Labor Code means that employers need only offer meal breaks and do not need to police their employees to ensure that meal breaks are actually taken. However, the court did provide examples of how an employer would be non-compliant, such as when an employer did not schedule meal periods, did not have a policy authorizing meal periods, or pressured employees to skip meals. The court noted that if an employer knew that employees were working while eating, and did not take steps to address the situation, the employer would be depriving employees of their breaks and therefore would have failed to "provide" meal periods. The court also expressly rejected the concept of a "rolling 5-hour meal period" advanced by the plaintiffs, holding that employers are not required to provide a meal period for every five consecutive hours worked. An employer need only provide a 30-minute break once at any time during a work period that does not exceed ten hours.In addition, while addressing the class certification issues, the Court of Appeal determined that "because the rest and meal breaks need only be 'made available' and not 'ensured,' individual issues predominate" over class claims as each putative class member's situation must be determined on a case-by-case basis. Thus, based upon the evidence presented to the trial court, the Court of Appeal determined that the employees' claims were not amenable to class treatment. The holding should, in effect, make it more difficult to certify class-wide claims for meal period, rest period, and overtime violations.
Going Forward
The Brinker decision is likely to be appealed, finally placing the issue before the California Supreme Court. Currently, the decision provides California employers with some flexibility in scheduling and permitting employees to take their meal and rest periods. In addition, where the court focused on the Company's policies regarding meal & rest periods, the decision highlights the importance of employers' policies and procedures regarding their wage and hour practices.
[UPDATE: THE CALIFORNIA SUPREME COURT HAS ACCEPTED REVIEW OF THIS DECISION. EMPLOYERS SHOULD SIT TIGHT UNTIL THE CALIFORNIA SUPREME COURT MAKES ITS RULING.]
California employers have been under siege from plaintiffs claiming massive wage & hour violations. In a rare positive wage & hour decision for employers, a California Court of Appeal has clarified the meal and rest period requirements for California employees. In addition, the same Court significantly narrowed a plaintiff's ability to certify a putative class action based upon alleged meal and rest period violations.
In Brinker Restaurant Corporation et al. v. Superior Court (7/22/08), several waiters/waitresses brought a putative class action against Brinker for alleged meal and rest period violations, as well as for unpaid hours worked. The servers claimed Brinker failed to absolutely ensure employees received their meal and rest periods. The servers further claimed that Brinker's policy of requiring/permitting employees to take a meal period near the start of their shift, and then requiring the employee to continue working for five or more hours without an additional meal period violated the Labor Code. Finally, the employees claimed that they worked off-the-clock without compensation. Based upon the alleged "across the board" violations, the employees sought class certification of their claims. Brinker's position was that it provides employees with an opportunity to take an appropriate meal and rest period at some point during their shift.
The Court of Appeal rejected the employees' contentions and held that employers need only provide, not ensure, that meal and rest periods are taken. The court explained that the language in section 512 of the California Labor Code means that employers need only offer meal breaks and do not need to police their employees to ensure that meal breaks are actually taken. However, the court did provide examples of how an employer would be non-compliant, such as when an employer did not schedule meal periods, did not have a policy authorizing meal periods, or pressured employees to skip meals. The court noted that if an employer knew that employees were working while eating, and did not take steps to address the situation, the employer would be depriving employees of their breaks and therefore would have failed to "provide" meal periods. The court also expressly rejected the concept of a "rolling 5-hour meal period" advanced by the plaintiffs, holding that employers are not required to provide a meal period for every five consecutive hours worked. An employer need only provide a 30-minute break once at any time during a work period that does not exceed ten hours.In addition, while addressing the class certification issues, the Court of Appeal determined that "because the rest and meal breaks need only be 'made available' and not 'ensured,' individual issues predominate" over class claims as each putative class member's situation must be determined on a case-by-case basis. Thus, based upon the evidence presented to the trial court, the Court of Appeal determined that the employees' claims were not amenable to class treatment. The holding should, in effect, make it more difficult to certify class-wide claims for meal period, rest period, and overtime violations.
Going Forward
The Brinker decision is likely to be appealed, finally placing the issue before the California Supreme Court. Currently, the decision provides California employers with some flexibility in scheduling and permitting employees to take their meal and rest periods. In addition, where the court focused on the Company's policies regarding meal & rest periods, the decision highlights the importance of employers' policies and procedures regarding their wage and hour practices.
[UPDATE: THE CALIFORNIA SUPREME COURT HAS ACCEPTED REVIEW OF THIS DECISION. EMPLOYERS SHOULD SIT TIGHT UNTIL THE CALIFORNIA SUPREME COURT MAKES ITS RULING.]
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