Deaf Applicant for a Parking Valet Job? Security Guard With Bad Back Who Can’t Walk His Patrol Rounds? Beware the ADA!

The Americans With Disabilities Act (ADA) requires employers to reasonably accommodate employees and applicants with disabilities unless the employer can demonstrate that doing so would create an undue hardship. The ADA also requires employers to engage in an interactive process to determine if a reasonable accommodation for a given employee is available. Both the employer and the employee must enter in this process in good faith. A recent federal lawsuit and an EEOC settlement demonstrate the scope of these duties.

The Security Guard Who Can’t Walk His Patrol

In a case in federal court in Kentucky (Todd v. Covenant Security Services, Inc. ( W.D. Kentucky 2018), a security guard who claimed that his employer failed to accommodate him under the ADA and failed to enter into the interactive process was allowed to go to trial, despite the fact that the court found that his patrol rounds were an essential function of his job, and the security officer could not walk his rounds due to a back condition.

The plaintiff was employed as a security guard for approximately six years. For the first few years of his employment, he both walked patrol rounds and drove a vehicle for rounds. Approximately four years into his employment, the plaintiff suffered a disabling back issue. His hours were lowered and he was allowed to take additional breaks.

Approximately ten months before his termination, the employer sent an email to all security guards indicating that the employer was implementing a program that required all guards to perform patrol rounds. The plaintiff requested various accommodations, one of which was being provided some kind of mobility device to use to make rounds inside the plant. While the plaintiff’s employer temporarily excused him from performing some walking patrol rounds by having another officer handle them, the employer later indicated that the other employee no longer wished to perform all of the walking patrols. The plaintiff’s employer denied all of the accommodations requested, indicated that the plaintiff could not perform the job duties, and terminated the plaintiff. The plaintiff claimed that he was discriminated against under the ADA, as he could perform the job with accommodations. Plaintiff also claimed the employer did not engage in the interactive process as required by the ADA.

While the court found that walking patrols were an essential function of the job, the court found there was an issue for trial as to whether the plaintiff’s requested accommodations were reasonable, and whether he was qualified for the position of security officer. The court found that the employer’s rejection of the suggestion of a mobility device for safety reasons was “suspect”, given that the employer permitted security officers to walk patrols where there was a heavy volume of vehicles and foot traffic, and there was no indication that the employer considered any mobility devices to accommodate the plaintiff.

The district court also found that the employer failed to enter into the interactive process with the plaintiff, as no one met with the plaintiff regarding his reasonable accommodation requests for approximately seven months after making his requests. Also, it appeared the employer had already hired someone to replace the plaintiff before they met with him to discuss his requested accommodations.

The Deaf Applicant For A Parking Valet Job

On February 27, 2019, the EEOC announced it had reached an agreement with a valet parking company to pay $150,000.00 to settle a disability discrimination lawsuit brought by the EEOC on behalf of a deaf applicant. The EEOC indicated that its lawsuit claimed that the valet parking employer violated the law “by refusing to hire a deaf applicant for a valet attendant position based on the assumption that a deaf person could not perform the essential functions of the job rather than conduct an individualized assessment of his abilities.”

In addition to paying the $150,000.00, the consent decree requires the valet company to: affirmatively recruit applicants who are deaf and hearing impaired; add TTY capability its discrimination hotline; change the essential qualifications of the valet attendant position to make clear that the job can be performed by anyone who can effectively communicate with customers, whether verbally or in writing; educate its workforce on disability discrimination through annual management and employee training; and report to the EEOC periodically.

The EEOC stated it “will continue to fight for deaf job applicants’ rights under the ADA to be provided an interpreter when they are interviewed for employment.”

Takeaways

These are two examples of the scope of an employer’s obligations under the ADA. While it may seem reasonable that a deaf person cannot perform the duties of a parking lot valet’s job, or that a security officer that cannot walk his patrol rounds is not qualified for his job, these two cases demonstrate that additional inquiries must be made. Also, the ADA requires that the interactive process must be entered into by the employer in good faith before making job decisions.

If you have questions regarding the ADA or any other employment matters, do not hesitate to call or email Eric Metz at 316-630-8100, ebmetz@twgfirm.com.

This email is intended as an information source for the clients and friends of Triplett Woolf Garretson, LLC. Its content should not be construed as legal advice, and readers should not act upon information in its contents without professional counsel.

Be Careful in Requiring an Employee to Use PTO During FMLA Leave

The Family and Medical Leave Act (FMLA) is a complicated collection of federal laws and regulations, making compliance difficult. One trap for the unwary is how employers deal with paid leave during FMLA leave.

Most employers know that the FMLA allows employers to have a policy requiring an employee to substitute paid leave during FMLA leave. Typically, employers require employees to use earned vacation, PTO (paid time off), and/or sick leave concurrently with FMLA leave. This is done so employees cannot extend their leave by using FMLA and paid leave consecutively instead of concurrently.

Some employers, however, overlook a subtlety in the FMLA regulations that prohibits employers from requiring employees to use paid leave, such as PTO, during any time in which employees are receiving some other form of paid leave.

FMLA regulations provide that “the employer may require the employee to substitute accrued paid leave for unpaid FMLA leave.” However, the regulations also provide that if during FMLA leave, an employee also receives benefits in any amount from, for example, workers’ compensation or a disability plan, FMLA leave is not unpaid. Therefore, because the rule allowing employers to require employee substitution of paid leave only applies to unpaid FMLA leave, during any periods of FMLA leave when some type of income replacement is received by the employee, employers cannot require the substitution of paid leave. As noted, this prohibition from requiring the use of paid leave applies regardless of the amount of income replacement received by the employee.

For example, during the time an employee receives workers’ compensation benefits in any amount, the employer cannot require that the employee use PTO or other paid leave. If an employee taking FMLA leave is receiving short term disability benefits that replace some portion of his or her income, the employer cannot require the employee to use PTO or other paid leave. Policies can allow for an employee to elect to overlap their paid leave with any of these benefits received, but the employer cannot require the use of PTO or other paid leave under these circumstances. However, the employer can require the employee to use paid leave during a waiting period before disability benefits are received, because the limitation applies only when the employee is actually receiving income replacement benefits.

Employers should carefully review their FMLA policies, procedures, and employee handbooks to insure that they comply with FMLA regulations regarding the mandatory substitutions of paid leave. In certain states (Kansas is not one of them), there are state family and medical leave laws that also regulate the substitution of paid leave.

If you would like help in drafting or reviewing your FMLA policies and procedures, contact your TWG attorney or Eric Metz at ebmetz@twgfirm.com or 316-630-8100.

This email is intended as an information source for the clients and friends of Triplett Woolf Garretson, LLC. Its content should not be construed as legal advice, and readers should not act upon information in its contents without professional counsel.

Triplett Woolf Garretson, LLC recently secured a 1.3 million dollar judgment to recover squandered investment funds. Three sisters had invested more than $400,000 in a Nebraska ethanol plant pursuant to four separate promissory notes issued by the plant’s promoters. Their funds, however, were not invested in the ethanol venture but were commingled with personal funds in a corporate account used by the plant’s promoters. When the promoters told the sisters that their money was gone, they hired Triplett Woolf Garretson, LLC to investigate. Attorney Derek Casey sued the promoters and took the case to trial to secure the 1.3 million dollar verdict to recover the investment, interest, and attorney’s fees from the plant’s promoters.

Handbook Relief: NLRB Issues Helpful Guidance On Work Rules

Unless you are an HR professional, you may not have known how hard federal regulators had been making the drafting of legally compliant but reasonable employee handbooks. The National Labor Relations Board (NLRB) is, according to its own web site, the “federal agency vested with the power to safeguard employees' rights to organize and to determine whether to have unions as their bargaining representative” and “acts to prevent and remedy unfair labor practices committed by private sector employers and unions.” What many don’t know is that the NLRB has authority over essentially all private employers, not just those who have union employees.

In the recent past, the NLRB has taken very strong positions against employment policies that had long before been accepted as legal. Recently, following the change of administrations, the NLRB has backed off many of these positions. Earlier this summer, the NLRB’s General Counsel issued a memorandum in which he addressed a number of work rules that the Board had previously indicated were improper in some way. So, although you may not have even known there were problems with the following rules, the NLRB has now stated they are presumed lawful:

• Civility rules. Rules that prohibit rude behavior, disparaging the organization, or other such behavior are permissible.
• No-photography rules and no-recording rules. You can have rules prohibiting employees from taking videos or photos and recording conversations at work.
• Rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations. On-the-job conduct that negatively affects business operations can be prohibited.
• Disruptive behavior rules. You can ban disorderly conduct or other bad work behavior.
• Rules protecting confidential, proprietary, and customer information or documents. Be aware that you still can’t prohibit employees from discussing employee organizing, work conditions, or wages.
• Rules against defamation or misrepresentation. This seems obvious.
• Rules against using employer logos or intellectual property. It’s important to protect the company’s intellectual property.
• Rules requiring authorization to speak for the company. It is appropriate to have a policy that only certain persons can speak for the company or that authorization must be obtained to speak for the company.
• Rules banning disloyalty, nepotism, or self-enrichment. Once again, seems obvious.

While you may think it self-evident that these work rules are appropriate, before the Counsel memo was issued, the NLRB had indicated they presented problems. The Counsel memo also identified polices that remain generally unlawful because they would prohibit or limit NLRA-protected conduct, and the adverse impact on the rights guaranteed by the NLRA outweighs any justifications associated with the rule. These rules include:

• Confidentiality rules specifically regarding wages, benefits, or working condition, such as "Employees are prohibited from discussing wages, salaries, commissions, or bonuses."
• Rules against joining outside organizations or voting on matters concerning the employer.

With regulations and interpretations constantly changing, it is always a good time to review your employee handbook for compliance and improvement. If you need help in drafting or finalizing an updated handbook, or if you have any employment related questions, contact your TWG attorney or Eric Metz at ebmetz@twgfirm.com or 316-630-8100.

This email is intended as an information source for the clients and friends of Triplett Woolf Garretson, LLC. Its content should not be construed as legal advice, and readers should not act upon information in its contents without professional counsel.

TWG Attorney Eric Metz was recently invited to speak at the annual meeting of the Kansas Chapter of the International Public Management Association for Human Resources (IPMA-HR Kansas) on the topic of “Harassment After #MeToo: Today’s Landscape”.

The meeting took place April 6th in Andover, Kansas and was hosted by the Kansas Chapter President Elect, Jennifer McCausland, Assistant City Administrator of Andover. The IPMA-HR Kansas chapter members are a group of HR professionals working in the public sector, primarily for cities and counties.

TWG Attorney and Member Amy Cline braced the cold again this year to raise money for the Salvation Army. Amy has served on the Wichita Salvation Army Homeless Services Advisory Council as a Board Member since 2008. Attorney Cline, pictured with her children Ethan and Olivia on a particularly cold day last December, also personally collected donations for the Salvation Army in front of the Cabela’s store this last year. For more information about how Amy came by her passion to help the homeless as a young lawyer in Wichita, see her feature story in the Wichita Bar Association January 2017 Bar-o-meter.

Read Bar-o-meter article

TWG Attorney/Member Jeff Dahlgren recently presented the proceeds from the Charity Golf Tournament held on September 26, 2016 for the benefit of the Carmelite Nuns Monastery. This year’s tournament, with over 70 participants, was held at the Willowbend Golf Club in Wichita and raised $12,660 for the benefit of the local monastery. Jeff has chaired this fundraising effort for four years. The monastery is located at 7445 North Woodlawn. Attorney Dahlgren, pictured with Jerry Cornejo, presented the proceeds to Mary DeGraffenreid, who accepted the check on behalf of the Friends of the Carmelite Nuns.

TWG attorney J.T. Klaus again donned his lederhosen to preside over Newman University’s Party on the Plaza-Oktoberfest as the emcee for a fourth year. More than 460 people attended Newman’s premier fundraiser for student scholarships. Newman University holds its annual fundraiser on Founders Plaza and raises more than $125,000 each year for student scholarships, with a new record for donations expected for this year. Since 2011, “Oktoberfest” has been the theme, and it continues to grow in popularity.

J.T. Klaus serves on the Newman University Board of Trustees and serves as Chair of the Trustee & Bylaws Committee.

Read more about the event and watch the video recap  at http://news.newmanu.edu/party-plaza-2016-rewind

This year Triplett Woolf Garretson (TWG) is celebrating our 30th year as a Law Firm. In reflecting on our law practice, we felt our brand could be improved to reflect all TWG had become. We have grown both in size and practice areas and have embraced technology to make our firm more efficient. More significantly, we wanted our brand to represent our combined knowledge and the team effort that continually innovates solutions for our clients.

In developing the new look we explored many options, but kept coming back to the simple idea that it is the TWG people and experience coming together that really benefit our clients with forward thinking solutions. We hope you agree that our new, stronger identity is a proper reflection of our evolution.