Archive for the Americans With Disabilities Act Category

Federal Court Rejects ADA Suit Over Random Alcohol Testing of Probationary Plant Employees

Yet another hair-brained suit by the EEOC gets batted down by the courts.

A federal judge in Pennsylvania has dismissed an Equal Employment Opportunity Commission challenge to U.S. Steel Corporation’s random alcohol testing of probationary employees at one of the company’s most safety sensitive facilities. The Court’s ruling in this carefully watched suit is significant for employers because it represents a forceful rejection of one of the more extreme positions the EEOC has taken in interpreting how the Americans with Disabilities Act (ADA) regulates workplaces.

via Federal Court Rejects ADA Suit Over Random Alcohol Testing of Probationary Plant Employees | Bracewell & Giuliani.

Slidecast: Working with Generation Y

Our latest slidecast for the Austin Human Resource Management Association deals with the impact the Millenials (Generation Y, the Net Generation) are having on the workforce and ways that employers are attracting their talent. Doug Douglas of Stark Talent will be speaking on this topic during AHRMA’s November 15th meeting.

If you will be in the Austin area, you can see the full agenda and register for the meeting at austinhumanresource.org

Enjoy the podcast

A Hazy Legal Issue

 With the medical use of marijuana deemed legal in Colorado, employers face competing legal issues in deciding how to respond to positive drug screens. Safety and legal issues may be at odds and with no case law to guide them, Colorado employers’ compliance efforts may be up in smoke.

Read more at Portfolio.com.

The Wrong Way to Use Social Networking in HR

There are bad ideas and then there are REALLY BAD ideas. Yansi.com, which claims to be “the world’s leading people search engine” (Ever heard of ‘em? I didn’t think so), is promoting use of its search engine by “hiring managers to check applicants social status, online identity, and soft references not available from paid financial and criminal background checks.” In other words, they want employers to check out applicants’ MySpace or Facebook sites before making a hiring decision.

There are a couple significant reasons why this is a REALLY BAD idea.


First, there are equal employment opportunity problems. The Civil Rights Act, the Americans with Disabilities Act, and other laws protect individuals from discrimination because of age, sex, race, religion, country of origin, union involvement, disability, and a host of other reasons. Many social networking profiles, particularly those focused on friends and family connections,  would suggest whether an individual may be a member in one of these protected classes. Once an employer has that information in their possession, the burden will be on them to prove that the information didn’t influence the employment decision if a discrimination claim is made. (There’s a reason that information isn’t included on your employment application, after all.)

Secondly, how do you know where the information really came from? Just because a site claims to be your applicant, can you know for sure that it is? Anyone can create an online profile for anyone else. By grabbing photos from legitimate sites and using basic Photoshop skills, you can create images that make the person look like they were partying like it was 1999. Add some choice links to lurid websites and a few status updates that reflect political persuasion or opinions about employer-employee relationships and you’ve got a profile for an unemployable person.

Perhaps one of your open positions is for one of the 2% of jobs where the applicant’s lifestyle is relevant (Obama administration appointment, C-level leadership, or other high-profile, media-scrutinized positions) and you feel certain that in this narrow case due diligence requires that you review a candidate’s online presence. Proceed with caution and the advice of your employment law counsel. Have clear guidelines about the nature of the information you are seeking and segregate all other information from the hiring authority’s decision making process.

In some cases, we’ve conducted this kind of research on behalf of our clients. We use the social networking sites strictly as indicators of potentially relevant information and independently verify all information (good or bad) before reporting it to our client.

Social networking sites are great for identifying potential job candidates in the recruiting process. However, once an individual has expressed interest in a position, HR should be very wary of using this information.

See my other recent thoughts on social networking and HR. Next week, I am interveiwing Shama Hyder of Click to Client, an expert in social networking. We are also scheduling future podcasts with recruiters who are using social networking in identifying candidates, so stay tuned.

Mike Coffey is president of Imperative Information Group, a Fort Worth, Texas-based background investigations and business due diligence firm dedicated to clients who can’t afford a cheap background check. For more information about Imperative Information Group’s services, please contact Micah Taylor at 877-HR-FACTS (877-473-2287) or visit us online at http://www.imperativeinfo.com.

The Imperative Podcast: Employment Law Changes With the New Administration

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President-elect_obama
On January 30th, the Mid-Cities HR Association in cooperation with the Fort Worth HR Management Association and North Texas SHRM, will present their second annual Employment Law Symposium titled “What You Need to Know Under the New Administration.” Imperative is a proud sponsor of this event again this year.

In this podcast, Mike interviews Michael Layman, the keynote speaker for the symposium. Michael is the Manager of Employment and Labor Legislation for the Society for Human Resources Management and he will be discussing the many federal public policy issues expected to impact human resources professionals in the coming year.


For more information about the Employment Law Symposium, please visit MCHRA’s website at www.mchra.org. During the podcast, Michael Layman refers to SHRM’s HR Voice webtools, so be sure to check those out!

Also note that during the month of January, Imperative is hosting the first Imperative Podcast Listener Contest. The winner of the contest will receive a new iPod nano. For details on how to enter, please click here.

We hope you enjoy the podcast!

Three ways to listen to the podcast:

1. You can listen using our java-enabled player at the top of this post.

2. Or you can listen to the podcast in your computer’s mp3 program by clicking the “Play mp3″ button below (or right-click on the button and select “save target as…” to save the mp3 to your computer).

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3. Or you can download the podcast and subscribe to future podcasts via iTunes.

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Imperative Information Group is a Fort Worth, Texas-based background investigations and business due diligence firm dedicated to clients who can’t afford a cheap background check. For more information about Imperative Information Group’s services, please contact Micah Taylor at 877-HR-FACTS (877-473-2287) or visit us online at http://www.imperativeinfo.com.

The transcript for this podcast follows:

Mike Coffey: Hello I’m Mike Coffey and you’re listening to The Imperative Podcast. Barack Obama will become the 44th President of the United States on January 20, 2009. This year will mark the first time in seventeen years that one political party has held control of the White House and both houses of Congress. Ten days after President Obama is sworn in, the Mid-Cities HR Association in cooperation with the Ft. Worth HR Management Association and North Texas SHRM will present their second annual law employment symposium titled “What You Need to Know Under the New Administration”. The symposium will be held at Lone Star Park in Grand Prairie on the afternoon of January 30 and topics covered will include the Employee Free Choice Act, the ADA Amendments Act, the new FMLA regulations, and HR compliance in the information age. Following those sessions there will be a seated dinner and our guest today, Michael Layman, will be the keynote speaker. Michael is the Manager of Employment and Labor Legislation for the Society for Human Resources Management and he’ll be discussing the many federal public policy issues expected to impact human resources professionals in the coming year. Michael thanks for joining us today on The Imperative Podcast.

Michael Layman: Thanks for having me Mike.

Mike: We’ve got a new administration coming in office on January 20, so when this symposium takes place on January 30, President Obama will have been in office for ten days. What do you think the single most pressing issue for HR professionals is gonna be with this new administration?

Michael: I appreciate you having me on Mike. I’m very excited to be down in Dallas coming up in a coming weeks and there just couldn’t be a better time for all of us to get together and talk about issues affecting the HR profession and employers generally. As you noted we will have had a new administration just newly settled on the day of the speech and while the national news and even more regional news are giving a great deal of coverage to stimulus packages and bailouts for certain segments of industry and certainly some of the combat operations abroad, there’s very little attention given to some of the issues that we’ll talk about and particularly in the labor law and HR/public policy areas the new administration and the new Congress have the potential to enact some really transformative, really dramatic changes in the workplace and by now most people are aware, certainly in the crowd that we’ll have on January 30, most people are aware of the Employee Free Choice Act. That certainly has a chance to transform the workplace by allowing unions to organize workplaces more easily. It’s the simplest way to describe the bill. But Congress obviously already got started on January 6 when actually they were sworn in. So they’ve already been at this for a few days and got a head start on the administration and the House of Representatives has already passed two sweeping, two very significant measures that intend to address pay discrimination. So along with the Employee Free Choice Act I would want to highlight the Ledbetter Fair Pay Act and the Paycheck Fairness Act. These are two bills that again, purport to address wage inequity between different classes of employees and they may have a great effect on how HR professionals do their jobs.

Mike: Okay then let’s start with those pay discrimination acts. The Supreme Court said in the Ledbetter decision that under current law an employee claiming pay discrimination must file a complaint within 180 days of the discriminatory action by the employer. I take it that the Ledbetter Fair Pay Act is an effort to make it easier for employees to file claims long after a potential discriminatory decision is made?

Michael: Yeah that’s right Mike. In May 2007 the US Supreme Court in the Ledbetter v Goodyear decision effectively held that the time limit for filing a charge under Title VII of the Civil Rights Act starts after the alleged unlawful employment action. But the time clock does not restart upon the receipt of each successive paycheck, each paycheck that an employee receives. So what this Ledbetter bill would do is effectively reverse that and say instead every time an employee receives a paycheck he or she will have a new 180 or actually 300 days depending upon which state you live in. You will have a new period to file a claim against your employer. But the bill goes further than that. The bill would also apply to pension payments. So conceivably an employee could work at a company and leave that company for other employment and his or her time clock would run out for filing a claim. But then upon receiving a retirement benefit of some sort at say age 65, that employee’s time clock for filing a claim would restart and you can certainly see that that has the potential to keep employers liable for decisions years and even decades down the road when there may be no witnesses available, there may be no records available. The statute of limitations in any area of criminal or civil law is very important in encouraging claims to surface so that cases can be properly adjudicated. The final aspect of the Ledbetter bill is that it would also allow family members and others affected by a discrimination to file a claim. So it really would expand the pool of potential plaintiffs under the act and would have a vast new application in employment law.

Mike: Okay so we’re all opposed to discrimination. That’s what the professionalization of human resources over the last 30 years has really accomplished in many cases. But I take it that the Ledbetter Fair Pay Act will expose employers to claims long after a possible discriminatory action has taken place especially where those actions weren’t intentional by an employer but perhaps they were institutional or just unintended consequences of an employer’s policy.

Michael: Well that’s true Mike and by institution what’s known as the paycheck rule where each paycheck would restart the time clock, everything gets fuzzier about when discrimination occurred and how employers can be liable for previous decisions. But if one employee’s pay is lower than another or vis-à-vis other colleagues, an employer can have significant liability under the Ledbetter bill for the first time because of the way the statute of limitations would be held open and paychecks would be scrutinized more closely; so certainly a big, big deal to HR professionals and all these reasons and the essence of SHRM’s opposition to the Ledbetter bill.

Mike: Did SHRM have an alternative solution to the problem that the Ledbetter ruling pointed out? I mean, I think a lot of people probably agree that the Ledbetter ruling was trying to remedy maybe a legitimate issue and maybe Congress has gone too far in the other direction. Is there a happy medium that HR professionals should be supporting?

Michael: Well you said it earlier Mike when you said that certainly SHRM and HR professionals and everyone is opposed to unlawful discrimination in the workplace. SHRM and its members have a long history of preventing discrimination and just have a tremendous record in that area. But we’ve opposed these two bills, the Ledbetter and the Paycheck bills, based on the way they were written and the approaches that they take. You asked about alternatives to the Ledbetter bill. There are a number of ideas that we have discussed and I think reasonable people could discuss to think about ways to allow aggrieved employees to be able to seek redress when they are discriminated against in the workplace. But on day number three of the new Congress with no hearings or much discussion of any kind the House of Representatives already passed both of these bills and didn’t consider any alternative to the bills as they were written and as they were considered in the previous Congress over the past two years. So there’s been very little opportunity to influence the process to this point although we’re hopeful that things will slow down. But SHRM will continue to work with members of Congress and their staffs and we’ll be listening to our members on instances like the presentation on January 30 in Dallas when we’ll take our message to our friends and members in Dallas and hear what our friends have to say and it’s those times when we can really get good give and take and take ideas back to Washington and try to have an influence in the process.

Mike: Well we talked about Ledbetter. What exactly does the Paycheck Fairness Act do?

Michael: Sure, the Paycheck bill is probably even more dramatic in the way that it would affect specifically the Equal Pay Act. The Ledbetter bill actually affects a number of employment laws, the Civil Rights At, the Age Discrimination in Employment Act, the ADA, and the Rehabilitation Act. So in effect, Ledbetter would affect all those employment protected classes. The Paycheck Fairness Act zeroes in on the Equal Pay Act. Equal Pay Act obviously requires that jobs requiring comparable functions and skills and responsibility must compensate equally and what the Paycheck Fairness Act would do really are a number of sort of unrelated things but I’ll just go through them. The Paycheck Fairness Act would change the dynamics of how class actions occur under the Equal Pay Act. Right now an individual must give his or her written consent to join a class action. But the Paycheck Fairness Act would require that employees opt out of any gender discrimination class action. So this would just have a very significant effect in increasing the number of plaintiffs in class actions. You’d be forcing employees to take the affirmative step of opting out of a class action as opposed to opting in under current law. The other primary thing the Paycheck Fairness Act, it would create unlimited punitive and compensatory damage awards under the Equal Pay Act for which employers would be liable and that’s on top of current liability for back pay. So the combination of the class action dynamic and then lifting, or excuse me, just creating an unlimited damage awards would be potentially devastating for employers and certainly one would have to believe that that combination would encourage more employers to settle cases even in instances where no intentional discrimination occurred. One other note about the Paycheck bill is there is some complex language. It would make it significantly more difficult for an employer to use legitimate factors such as education, training, and experience are three that I’ll name as a component of its pay system. It really restricts what an employer can base its pay system off of and may have the effect of really prohibiting the employer’s use of a locality pay as well as prior salary history in basing compensation for current employees. So the Ledbetter bill would have a dramatic effect on the statute of limitations in the Civil Rights Act but the Paycheck Fairness Act really opens up opportunities for plaintiffs to challenge their employers’ pay decision.

Mike: Can you help me understand better how the Paycheck Fairness Act will limit employers’ flexibility in deciding what to pay employees?

Michael: Under the Equal Pay Act there are three identified basically bona fide reasons for paying employees different wages. Those three areas are I believe seniority, merit, and production. Then there’s a fourth prong in the Equal Pay Act that is effectively a catch-all that says many other factors can be considered but with the exception of sex. What the Paycheck Fairness Act would do is really, really tighten up that fourth prong, that catch-all prong and limit it to – well really limit it. the bill actually names education, training, ability, and experience as legitimate factors to base a pay system on but then there’s a very high, almost an ADA like standard, that employers must affirmatively prove to justify using training or using experience as a foundation of its pay system. Because of this high standard the use of locality pay may be really restricted and thus an employer would have a hard time justifying that the reason they pay an employee in Midland, Texas different than they do an employee at their Lower Manhattan branch, it’s just going to be much more difficult to justify pay decisions and compensation when an employer has employees in vastly different parts of the country.

Mike: Wow both of these sound like bills that HR professionals need to be heard on. I know SHRM has some really useful tools on their website for identifying and communicating with our representatives and senators.

Michael: That’s right and we appreciate every time our members engage legislators through our HR Voice program and through other means. Our SHRM strength is the quality of its members and the fact that we have 250,000 members largely across the US. We can have and we have had a significant effect on influencing all sorts of past legislation and it’s only more important here n the new administration and the new Congress in 2009 with so many potential landmark bills on the docket.

Mike: Immigration’s been a hot topic for a number of years now and last year President Bush signed the executive order requiring that federal contractors begin using E-Verify and then on just this past Friday, largely in response to a SHRM lawsuit, SHRM and several other organizations, a suit against that order, the Department of Justice delayed that until February 20. What do you think is going to happen in the next year related to E-Verify and immigration in general?

Michael: Well that’s right Mike. We appreciate that plug for some of SHRM’s efforts in the employment verification arena with you mentioning the delay to federal contractor rule. The other sort of short term item on the immigration front is that the federal government’s employment verification system that’s known as E-Verify and other’s may know it better as Basic Pilot, that system actually has been extended, was extended last fall by Congress but will now expire in March 2009 here unless a change is made. So Congress will have to consider whether they want to kick the can down the road once more with E-Verify and extend it in its current voluntary form or there are a number of proposals out there to do all sorts of things with E-Verify. One prominent proposal would make E-Verify mandatory for all US employers over a phased in timeline. SHRM has a proposal that would create a new electronic employment verification system that we think would be easier for HR professionals to use. It would be more reliable. It would be more secure for employees’ identity and would just go a long way in helping to secure a legal workforce. The E-Verify program is only used by about 1% of employers nationwide on a voluntary basis and we’re concerned about its error rate. I mean, a program like E-Verify is almost useless if it doesn’t have 100% accuracy rate and if there’s any threat of error it becomes very problematic. So SHRM is very interested in this arena. I think something to point out that immigration reform is such a third rail of American politics, it’s just almost too hot to touch for any politician that it’s likely – I think it’s reasonable that the Obama administration may not be interested in digging too deeply into immigration reform too early in their term here. There are certainly a number of other issues facing the country. They can probably try to gain some momentum through some legislative victories on some other fronts before tackling immigration reform which has just proved to be so difficult to find a sweet spot where you can pass any bill through Congress. So we’ll see. But immigration reform, I think we view immigration reform as more of a longer term item on the legislative agenda.

Mike: I know you’re going to talk about a lot of these issues during the Employment Law Symposium but I don’t want to get away without talking about the Employee Free Choice Act. Every chance we get we’re sounding the drum to all our HR colleagues about that. Can you tell us what your take on the chances of the Employee Free Choice Act passing in this session of Congress are and what you think the impact to employers would be if it were to pass?

Michael: Sure Mike. Based on the election and the pending legal challenge in Minnesota, Democrats and Democratic leaning Independents in the Senate may have 58 or 59 senators for the 111th Congress here and the Senate is really where the playing field for the Employee Free Choice Act will be played out. The Senate will frankly be the key playing field for a number of these issues we’ll be talking about on the 30th just because it’s so easy to pass bills through the House. It only takes a majority vote. There’s a number of other procedural mechanisms that the minority can use to protect itself in the Senate and things tend to take longer there and as a result we certainly hope the Senate is more contemplative. So the Employee Free Choice Act, as other bills need, would need 60 votes to defeat a filibuster over there in the Senate. So the Senate would be right on 59 Democrats and there was one Republican who voted in favor of cloture last year. So conceivably if everyone votes the same way, proponents of the Employee Free Choice Act would have enough votes to defeat a filibuster this year and proceed to consideration of the bill. Who knows what’s going to happen from there and if the bill will look identical when it’s brought up this year as it was considered in the previous Congress. The bill has not been introduced to press time here so it remains to be seen what the proponents’ strategy will be. But certainly this is the number one priority of organized labor. This is why organized labor threw so many millions of dollars into the election. This is what they want. So it’s likely that some form of the bill will become law in 2009 or 2010 potentially and SHRM will be continuing to aggressively engage that debate to ensure the HR perspective is shared there.

Mike: For those who aren’t aware the Employee Free Choice Act basically takes away the secret ballot process from the union vote in a company. So if you get 50% plus one of the employees who sign what we traditionally have considered interest cards in a union then you’ve got a union and I’m wondering have you heard what the arguments for that are? It just seems odd to me that the United States Senate would support something that takes away what we all consider a fundamental right, to vote our consciences without intimidation or coercion. What are the arguments for that?

Michael: Sure Mike. What I think is the most common response that we hear when we’re making our case with legislators and their staff is that some proponents of the bill are simply very concerned about wage inequity issues in the country. Proponents of the bill will highlight that the rich are getting richer and the poor are getting left behind and they view the Employee Free Choice Act as perhaps a means to an end to address that. There’s been a lot of talk about unions and their impact in employees’ lives and on the marketplace through the discussion of a financial rescue for the automakers in recent week and that has highlighted a lot of what unions can offer and what they mean to an employer in an employment setting. That’s had an effect that is yet to be determined on the Employee Free Choice Act because there’s renewed interest in union issues and the fact that union membership has declined so steadily for almost half a century. Many proponents of the bill on Capitol Hill see the Employee Free Choice Act as a way to reverse the decline in union membership and therefore increase the living standards of the middle class and these are the arguments we’re hearing in favor of the bill. We continue to argue that the Employee Free Choice Act is a lousy means to those potentially admirable ends and I will be happy to discuss that at further length on January 30 with everyone.

Mike: Michael, thank you for your time today and I’m looking forward to meeting you face to face on January 30.

Michael: Thanks a lot Mike, looking forward to seeing you in Dallas.

Mike: Michael Layman will be the keynote speaker at the Mid-Cities HR Association’s January 30 Employment Law Symposium. This is an event you don’t want to miss and you can register by visiting their website at MCHRA.org and thanks for listening to The Imperative Podcast. Hey, in January, we’ll be giving away an IPod nano to a lucky listener. To enter the contest, just go to our website that’s ImperativeInfo.com and click on the listener contest graphic. To enter the contest you’ll need an entry code so here it is: MCHRA (Mid-Cities HR Association). Just type “MCHRA” in the entry code box and you’ll be entered in the contest to win an IPod nano. The winner will be announced on February 2 so be sure to enter soon. While you’re on our website you can hear all of our previous podcasts or read our HR related blog items. You can also learn more about background checks and the other services we offer. Finally, in today’s economic climate it is critical to get every hiring decision right. Do you really have the time or budget to recruit, hire, train, manage, and then terminate a bad hire? A good background check needs to be a critical piece of your employee selection process. If you don’t absolutely love your current background screening partner, please give me a call. I’m Mike Coffey at 877-473-2287 or visit us online at ImperativeInfo.com. Thanks and have a great 2009.

The Imperative Podcast: ADA Amendments Act with Gregg Kronenberger

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Gregg KronenbergerIn this episode of The Imperative Podcast, Mike interviews Gregg Kronenberger, a partner with Boulette & Golden, an Austin-based law firm. Gregg’s legal focus in on labor and employment law issues with public and private employers.

Gregg will be the speaker during the morning session of the Austin Human Resource Management Association’s January 15th meeting. He’ll be addressing both the ADA Amendments Act and the recent changes to the FMLA regulations.


For more information about Boulette & Golden Attorneys, visit their website at www.boulettegolden.com. Or contact Gregg at (512) 732-8903.

We hope you enjoy the podcast!

Three ways to listen to the podcast:

1. You can listen using our java-enabled player at the top of this post.

2. Or you can listen to the podcast in your computer’s mp3 program by clicking the “Play mp3″ button below (or right-click on the button and select “save target as…” to save the mp3 to your computer).

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3. Or you can download the podcast and subscribe to future podcasts via iTunes.

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Imperative Information Group is a Fort Worth, Texas-based background investigations and business due diligence firm dedicated to clients who can’t afford a cheap background check. For more information about Imperative Information Group’s services, please contact Micah Taylor at 877-HR-FACTS (877-473-2287) or visit us online at http://www.imperativeinfo.com.

The transcript for this podcast follows:

Mike Coffey: Hello I’m Mike Coffey and you’re listening to The Imperative Podcast. The Americans with Disabilities Act was first signed into law in 1990. Over the last nineteen years employers have come to rely on a number of court decisions when interpreting key ADA topics such as reasonable accommodation and the definition of major life activities. Many of those interpretations changed last year when President Bush signed into law the ADA Amendments Act, leaving employers much more vulnerable to claims of discrimination. Our guest today is Gregg Kronenberger. He’s a partner with Boulette & Golden, an Austin based law firm. Gregg’s legal focus is on labor and employment law issues with public and private employers. Gregg will be the speaker during the morning session of the Austin Human Resource Management Associations’ January 15 meeting. He’ll be addressing both the ADA Amendments Act and the recent changes to the FMLA regulations. Gregg thanks for joining us today.

Gregg Kronenberger: Thank you Mike.

Mike: Employers have kind of become real comfortable with the ADA over the last almost twenty years, especially with some of the cushion they had with some more favorable court decisions. What’s going to really change now that these amendments have been passed?

Gregg: Well there are several changes. First of all I want to point out that the amendments are already in effect. They went into effect on January 1, 2009. The first thing that happened under the ADAAA, I’ll just call it the Act, was the amendment of the term “major life activities”. As a matter of fact in the original ADA major life activities wasn’t defined in the statute but was later defined in EEOC regulations. We’ve all come to know what they are. They are functions such as caring for oneself, performing manual tasks, waling, seeing, hearing, breathing, learning, and working. Pretty tough to make up a list like that but there it is and it was actually a pretty good list although working has given us trouble over the years. The ADAAA expands the definition and it adds a bunch of other activities and I’ll just read them off: eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, communicating. It says that these are major life activities and what the act does is it actually defines major life activities in the statute rather than just leaving it to the EEOC to define. The act also goes on to describe major bodily functions as major life activities, like the functioning of the immune system, normal cell growth, digesting, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Now some of those have been held by courts to be major life activities over the years and some of them haven’t. So not in this little discussion but we will have to go one at a time now here going forward to see whether or not somebody’s particular condition is covered by that and that’s a big change in my view because the ADA as it was initially interpreted was to say, “Hey look, this is for serious conditions. The definition of disability is a physical or mental impairment that substantially limits one or more major life activity,” and all the components of that definition have been defined in the regulations and by the courts and the bottom line has been up until this act that it’s pretty difficult to have a disability. Not every condition is a disability. Well after this act just about every condition is going to be a disability, or at least be available to be one.

Mike: So if an employee comes to an employer and says, “I know my job performance is slipping. I’m not able to focus on my work lately. I’m having a hard time paying attention and I’m not sure what’s going on,” might that trigger an ADA responsibility on the employer’s part?

Gregg:: It absolutely would. Under the old law, where you would listen to that employee and you would make an evaluation of whether or not it’s possible that employee is talking to you about a disability and you would still do that under the new law but the thing that’s going to happen now much more often is you’re going to have to conclude that the employee is talking about a disability and then you’re gonna have to start to work on reasonable accommodations.

Mike: What other key definitions have changed under the new ADA?

Gregg:: Under the original ADA, as I told you, the original definition of disability was “physical or mental impairment”, that’s the first element, that “substantially limits”, that’s the second element, the third element is “one or more major life activities”. None of those elements was defined in the original ADA. Now under this new act, “major life activities” is defined and the new act talks about “substantially limits”. It doesn’t define it but what it says is that the regulatory definition set up with the EEOC sets too high a standard, in quotes. That’s exactly what it says: “sets too high a standard,” and the Congress instructs the EEOC to make a new definition for “substantially limits” that is much broader than what the courts have come to right now. They do give some guidance in the act about what that’s gonna mean and some of these things are pretty important. For example, the substantial limitation has always been used to say if somebody has a broken arm and they can’t use their arm for six weeks or somebody has some kind of condition that is episodic and it only lasts for a little while and then it comes back after a little while, but generally speaking it’s just a small portion of that person’s life or that person’s work time, that that’s not a substantial limitation because it’s not significantly limited n duration or effect. But the new act allows for that to be changed. What they say is if it’s episodic or in remission then it can’t be considered a substantial limitation. There are cases that say for example if you have cancer and it’s in remission, you don’t have a disability. Well now that’s not going to be the case anymore. One of the other things that has to do with the substantial limitation that is specifically mentioned in the act is that the new act specifically rejects the holding of the court in the United Parcel Service v. Murphy case the United Airline cases. Both of those had to do with employees who had a condition but the condition was, this is actually more the second case, but the condition was corrected by some kind of prosthetic device or some kind of other assistive technology and the courts there said if somebody can generally use a medication or a device like glasses or like a prosthetic limb or some kind of drug like insulin or something like that and can have a normal and productive life while they’re using those assistive devices, then they’re not disabled. That’s a perfectly common sense thing to say because what the court’s realized, what the Supreme Court realized was if we did it any other way then everybody’s gonna be disabled and that’s not really the intent, that everybody should have some kind of protection. Well, Congress has decided that that’s wrong and they have basically said that when it comes to mitigating measures under the new act, when it comes to mitigating measures, that they are not to be considered when you determined whether somebody has a substantial limitation on a major life activity. They have carved out one exception though and that is for corrective lenses. If somebody can’t see without their glasses or can’t see very well without their glasses, they won’t be considered disabled if their glasses return their vision to normal ranges. But with respect to all other assistive devices, other prosthetics and things like that, you’re not allowed to consider those when you’re determining whether somebody has a substantial limitation.

Mike: Gregg thank you for spending this time with us on The Imperative Podcast and we look forward to hearing your full briefing on both the ADA Amendments Act and the new FMLA regulations at the Austin Human Resource Management Association’s January 15 meeting.

Gregg:: Thank you.

Mike: And you can get more information about Austin HR or register for their January 15 meeting featuring Gregg Kronenberger by visiting AutinstHUmanResource.org, and thanks for listening to The Imperative Podcast. In January we will be giving away an IPod nano to a lucky listener. To enter the contest, just go to our website. That’s ImperativeInfo.com and click on the listener contest graphic. To enter the contest you’re going to need an entry code so here it is: AHRMA (Austin Human Resource Management Association). Just type AHRMA in the entry code box and you’ll be entered in the contest to win an IPod nano. The winner will be announced on February 2 so be sure to enter soon. While you’re on our website you can hear all of our previous podcasts or read our HR related blog items. You can also learn more about background checks and the other services we offer. Finally, in today’s economic climate it is critical to get every hiring decision right. Do you really have the time or budget to recruit, hire, train, manage, and then terminate a bad hire? A good background check needs to be a critical piece of your employee selection process. If you don’t absolutely love your current background screening partner, please give me a call. I’m Mike Coffey at 877-473-2287 or visit us online at ImperativeInfo.com. Thanks and have a great 2009.

New ADA Implications for Online Employment Applications

The Americans with Disabilities Act has caused a lot of confusion since its inception. Specifically, the definition of who is disabled and covered under the law. Effective January 1, 2009, the ADA has been beefed up with an expanded broader defintion of who is covered, among other revisions.

EEOC and OFCCP will be looking at disability accessibility particularly with your web site. At the very least, employers should prominently display an alternate means of accepting applications or applying for a job (paper, mailed, faxes). If the web is the only way that a prospect can apply, be certain it is accessible or that reasonable accommodations can be provided.

Complimentary website reviews are done through the Job Accommodation Network (JAN) http://www.jan.wvu.edu

Visit this site for more information http://www.w3.org/WAI/gettingstarted/Overview.html

Our friend Terri Swain at The HR Consultant shared this information in her monthly newsletter. The HR Consultant is a consulting firm dedicated to helping employers with equal employment opportunity and other employee relations issues. You can reach Terri at (817) 887-8009 or http://www.thehrconsultant.net/.


Imperative Information Group is a Fort Worth, Texas-based background investigations and business due diligence firm dedicated to clients who can’t afford a cheap background check. For more information about Imperative Information Group’s services, please contact Micah Taylor at 877-HR-FACTS (877-473-2287) or visit us online at http://www.imperativeinfo.com.