Chinese Drywall revisited

BP employee sues over relocation, alleged mold contamination

by Glenna Herald | May 31, 2011 2:37 pm

A BP employee is suing after, she says, her participation in the company’s relocation program caused her to purchase a mold-infested home in Katy.  

Fort Bend residents Katherine and Joseph O’Connell filed a lawsuit on May 26 in Harris County District Court against Weichert Relocation Resources, Katy resident Blake Tillack and others alleging, among other things, fraud, negligence and violations of the Deceptive Trade Practices Act.

The O’Connells say that in 2008, BP required Katherine O’Connell to use the defendants’ services to help her relocate from LaGrange, Illinois, to BP’s corporate headquarters, located in Memorial. Based on the defendants’ misrepresentations, the O’Connells purchased a home in Katy, located at 25419 Terrace Arbor Lane.

According to the brief, defendant Tillack’s inspection report failed to alert the O’Connells to the new home’s many defects, including leaky windows and mold contamination, as well as problems with the foundation, electrical work, structure and roof. The O’Connells claim that the mold contamination sickened their 10-year-old son to such a point that they were forced to send him to live with his grandmother for a few months.

The house was in such poor condition, the family says, that they had no choice but to evacuate the premises on April 2, 2010, leaving most of their furniture and belongings behind due to the mold contamination. According to the suit, BP has adequately resolved other employees’ relocation problems, but they have yet to fairly compensate the O’Connells for their troubles.

The O’Connells are seeking actual, exemplary and punitive damages, as well as attorney’s fees and court costs. They are being represented in the case by Houston attorney Jeffrey Diamond.

Harris County District Court Case No. 2011-32225.

This is a report on a civil lawsuit filed at the Harris County Courthouse. The details in this report come from an original complaint filed by a plaintiff. Please note, a complaint represents an accusation by a private individual, not the government. It is not an indication of guilt, and it only represents one side of the story.

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Are we missing the message?

We recently offered to present a breakout session for a state SHRM council and was told thanks but no thanks. When we questioned the reason, we were informed that feedback from the membership said it was just not a topic that generated must interest. The presentation was entitled "In Plain Sight: Hidden Wastes that Affect the Vitality of Your Human Resource Organization."

So here is our question if we know that every process within our organizations have hiccups. We also recognize these hiccups can have a very dramatic affect on the organization. This could be as small as missed deadlines to as large as huge wastes of resources.

So lets pose another perspective on this scenario? What if we knew that on the premise of it all that there are hiccups in the process but we have never sought to identify them, does that lessen the impact on the organization? Because the non-value added activities flounder just under the radar does that make it any less real as to the impact on the organization?

We have peers who cringe every time they hear one of our HR professionals talk about gaining a seat at the partnership table. We can understand their frustration, but I would suggest it is not so much taking a seat at the table as it is a manifestation that as HR professionals want to to be judged based on what we deliver to the organization.

So when we hear that the subject matter does not interest the HR audience we are confronted with a couple of thoughts. First, are we as a profession so entrenched in the  idea we are there as administrative gate controls for the organization that we do not care to hear about ways to improve the operations  or we so afraid of being ineffective that we we will fight any opportunity to make the changes necessary to sustain our organizations?

Here is the message as plain as we can state it. Every single organization in the world is performing process steps which are directly holding back the organization in the long run. If human capital professionals can't see that or choose not to look at them then the outcome is of their own doing. Every process has its hiccups and it is the hidden one that will come back to bite in ways that can cause great harm to the organization.

We recently heard one of our colleagues talking about how the organization she works for had moved an employee's desk from the second floor to the first floor but left all her necessary files on the second floor. In order for the duties of the position they had to go bakc to the second floor to recover the filed required at any given moment. To get there, they had to walk the entire length of the office go up stairs and bring the file back downstairs to their desk. The result was a loss of 25 minutes in productivity each time the task was performed. If we figure that the task is performed about four times a day, that means over the course of a normal work year the organization has lost 30,000 minutes or 500 man hours, If we figure that the professional is paid $24 per hour, this means that the organization has lost $12,000 annually in time spent working on non-value added work.

So are wearing blinders or did we not hear the message? If we are so ingrained in the way we do things then we are wearing the blinders that will never get us beyond where we are and a small part of the total organization. If on the other hand, we just missed the message than we need to go back and listen again about how HR can play a vital role in the sustainability and the success of the organization.

The choice is yours. The choice as to your future is yours. The choice as to where the organization is headed is yours.You can either be the ostrich in the sand or you can be the strategist who really considers the role of human capital within the organization.

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Time for some reconsideration

Despite the objections of the ultra conservatives and evangelicals, based on some new research out of 2010 Census suggestes that as organizations we need to refocus how we treat our human capital assets. The 2010 Census indicates that in 32 states the number of traditional households in a decline reaching the point where there are more couples living together outside of marriage then ever before. In seven states the number has reached the point where there are more unmarried couples then there are married ones.

The result is that organizations are going to need to align their corporate culture with the expectations of these couples. Domestic partners are going to demand equal treatment and due to their reaching a point of majority they will expect to get it or they will move on. In the pending talent shortage that os just down the pike, organizations can't afford the knowledge drain nor the potential for your competitors to gain the upper hand.

Take a look at your policies and seriuosly consier whether you want the status quo or are you willing to make the adjust for the new reality.

 

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As the world turns

One of the HR blogs that I read everyday is the HR Capitalist. His blog post for today raises all kinds of different options

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Human Resources and Human Capital Pros:  Listen Up.

Costs are dramatically shifting when it comes to using China to plug in offshore production/outsourcing into your workforce planning model.

Consider this:

"The Chinese coastal region's wages were 48 percent of Mississippi's in 2010 and will reach an estimated 69 percent in 2015.

Read the rest of the detail in a post I did over at Fistful of Talent earlier in the week.

Mississippi is the new China?  Interesting.  And wacky...

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Supreme Court upholds state immigration requirements

CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING

The Immigration Reform and Control Act (IRCA) makes it “unlawfulfor a person or other entity . . . to hire, or to recruit or refer for a fee,for employment in the United States an alien knowing the alien is anunauthorized alien.” 8 U. S. C. §1324a(a)(1)(A). Employers that vio-late that prohibition may be subjected to federal civil and criminal sanctions. IRCA also restricts the ability of States to combat em-ployment of unauthorized workers; the Act expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or re-cruit or refer for a fee for employment, unauthorized aliens.” §1324a(h)(2). IRCA also requires employers to take steps to verify an employee’seligibility for employment. In an attempt to improve that verificationprocess in the Illegal Immigration Reform and Immigrant Responsi-bility Act (IIRIRA), Congress created E-Verify—an internet-basedsystem employers can use to check the work authorization status ofemployees.Against this statutory background, several States have recently enacted laws attempting to impose sanctions for the employment ofunauthorized aliens through, among other things, “licensing and similar laws.” Arizona is one of them. The Legal Arizona WorkersAct provides that the licenses of state employers that knowingly orintentionally employ unauthorized aliens may be, and in certain cir-cumstances must be, suspended or revoked. That law also requires that all Arizona employers use E-Verify. The Chamber of Commerce of the United States and various busi-ness and civil rights organizations (collectively Chamber) filed this federal preenforcement suit against those charged with administer-ing the Arizona law, arguing that the state law’s license suspensionand revocation provisions were both expressly and impliedly pre-empted by federal immigration law, and that the mandatory use of E-Verify was impliedly preempted. The District Court found that the plain language of IRCA’s preemption clause did not invalidate theArizona law because the law did no more than impose licensing con-ditions on businesses operating within the State. Nor was the state law preempted with respect to E-Verify, the court concluded, because although Congress had made the program voluntary at the nationallevel, it had expressed no intent to prevent States from mandatingparticipation. The Ninth Circuit affirmed.
Held: The judgment is affirmed. 558 F. 3d 856, affirmed. THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I and II–A, concluding that Arizona’s licensing law is not ex-pressly preempted.Arizona’s licensing law falls well within the confines of the author-ity Congress chose to leave to the States and therefore is not ex-pressly preempted. While IRCA prohibits States from imposing “civilor criminal sanctions” on those who employ unauthorized aliens, it preserves state authority to impose sanctions “through licensing and similar laws.” §1324a(h)(2). That is what the Arizona law does—it instructs courts to suspend or revoke the business licenses of in-state employers that employ unauthorized aliens. The definition of “li-cense” contained in the Arizona statute largely parrots the definition of “license” that Congress codified in the Administrative Procedure Act (APA).The state statute also includes within its definition of “license” documents such as articles of incorporation, certificates of partner-ship, and grants of authority to foreign companies to transact busi-ness in the State, Ariz. Rev. Stat. Ann. §23–211(9), each of which has clear counterparts in APA and dictionary definitions of the word “li-cense.” And even if a law regulating articles of incorporation and the like is not itself a “licensing law,” it is at the very least “similar” toone, and therefore comfortably within the savings clause. The Chamber’s argument that the Arizona law is not a “licensing” law be-cause it operates only to suspend and revoke licenses rather than to grant them is without basis in law, fact, or logic. The Chamber contends that the savings clause should apply only tocertain types of licenses or only to license revocation following an IRCA adjudication because Congress, when enacting IRCA, elimi-nated unauthorized worker prohibitions and associated adjudicationprocedures in another federal statute. But no such limits are even remotely discernible in the statutory text. The Chamber’s reliance on IRCA’s legislative history to bolster itstextual and structural arguments is unavailing given the Court’sconclusion that Arizona’s law falls within the plain text of the savingsclause. Pp. 9–15.
THE CHIEF JUSTICE, joined by JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE ALITO, concluded in Part II–B:
The Arizona licensing law is not impliedly preempted by federal law. At its broadest, the Chamber’s argument is that Congress in-tended the federal system to be exclusive. But Arizona’s procedures simply implement the sanctions that Congress expressly allowed the States to pursue through licensing laws. Given that Congress spe-cifically preserved such authority for the States, it stands to reasonthat Congress did not intend to prevent the States from using appro-priate tools to exercise that authority. And here Arizona’s law closely tracks IRCA’s provisions in all ma-terial respects. For example, it adopts the federal definition of who qualifies as an “unauthorized alien,” compare 8 U. S. C. §1324a(h)(3)with Ariz. Rev. Stat. Ann. §23–211(11); provides that state investiga-tors must verify the work authorization of an allegedly unauthorized alien with the Federal Government, making no independent deter-mination of the matter, §23–212(B); and requires a state court to “consider only the federal government’s determination,” §23–212(H). The Chamber’s more general contention that the Arizona law is preempted because it upsets the balance that Congress sought to strike in IRCA also fails. The cases on which the Chamber relies in making this argument all involve uniquely federal areas of interest, see, e.g., Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S. 341. Regulating in-state businesses through licensing laws is not such an area. And those cases all concern state actions that directly inter-fered with the operation of a federal program, see, e.g., id., at 351. There is no similar interference here. The Chamber asserts that employers will err on the side of dis-crimination rather than risk the “ ‘business death penalty’ ” by “hir-ing unauthorized workers.” That is not the choice. License termina-tion is not an available sanction for merely hiring unauthorizedworkers, but is triggered only by far more egregious violations. And because the Arizona law covers only knowing or intentional viola-tions, an employer acting in good faith need not fear the law’s sanc-tions. Moreover, federal and state antidiscrimination laws protect against employment discrimination and provide employers with a strong incentive not to discriminate. Employers also enjoy safe har-bors from liability when using E-Verify as required by the Arizonalaw. The most rational path for employers is to obey both the law barring the employment of unauthorized aliens and the law prohibit-ing discrimination. There is no reason to suppose that Arizona em-ployers will choose not to do so. Pp. 15–22.
THE CHIEF JUSTICE delivered the opinion of the Court with respect to Part III–A, concluding that Arizona’s E-Verify mandate is not im-pliedly preempted.
Arizona’s requirement that employers use E-Verify is not impliedlypreempted. The IIRIRA provision setting up E-Verify contains no language circumscribing state action. It does, however, constrain federal action: absent a prior violation of federal law, “the Secretaryof Homeland Security may not require any person or . . . entity” out-side the Federal Government “to participate in” E-Verify. IIRIRA, §402(a), (e). The fact that the Federal Government may require the use of E-Verify in only limited circumstances says nothing aboutwhat the States may do. The Government recently argued just thatin another case and approvingly referenced Arizona’s law as an ex-ample of a permissible use of E-Verify when doing so. Moreover, Arizona’s use of E-Verify does not conflict with the fed-eral scheme. The state law requires no more than that an employer, after hiring an employee, “verify the employment eligibility of theemployee” through E-Verify. Ariz. Rev. Stat. Ann. §23–214(A). And the consequences of not using E-Verify are the same under the state and federal law—an employer forfeits an otherwise available rebut-table presumption of compliance with the law. Pp. 23–24.
THE CHIEF JUSTICE, joined by JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE ALITO, concluded in Part III–B:
Arizona’s requirement that employers use E-Verify in no way ob-structs achieving the aims of the federal program. In fact, the Gov-ernment has consistently expanded and encouraged the use of E-Verify, and Congress has directed that E-Verify be made available inall 50 States. And the Government has expressly rejected the Cham-ber’s claim that the Arizona law, and those like it, will overload the federal system. Pp. 24–25.

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Why Don;t You Listen to Me?

Knowledge@Wharton e-letter released an article about the role of middle management executives in the knowledge age

Normal 0 false false false EN-US X-NONE X-NONE Why Middle Managers May Be the Most Important People in Your Company
Wharton management professor Ethan Mollick has a message for knowledge-based companies: Pay closer attention to your middle managers because they may have a greater impact on company performance than almost any other part of the organization. Mollick's research, based on an in-depth analysis of the computer game industry, is presented in a new paper titled, "People and Process: Suits and Innovators: Individuals and Firm Performance."
http://knowledge.wharton.upenn.edu/article/2783.cfm

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Hey I don't care how long you have worked here, take it or leave it

How many of you have a policy which reads that if you don't take your earned vacation time, you loose it at the end of the year?

According to CNNMoney and Expedia , US workers gave up 448 million earned but unuded vacation days in 2010. That equates on average to 4 days per employee. If you take the average US wage of $39,208 that is $67.5 billion worth of time that employees did not use.

 

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Don't bother me with the details, I don't care

Have you heard these words or something similar within your organizations? I recently returned from Las Vegas, where I conducted a three day review seminar for a national certification exam. During the course of the three days there were several instances where one of the participants said in regards to some legal situations that their management said they did not care if the process involved something that might lead to adverse conditions they just wanted the situation taken care of.

The difficulty here is that in many cases management has not gotten the message. David Ulrich in his book HR Value Proposition makes the argument that management needs to change its outlook about what it is we in HR do. We need to be judged based on what we deliver not what we do. When I was in the mode of trying to find a full time human resource slot I was getting ruled out because my resume stated I worked a consultant. The logic thread read that because I had worked as a consultant I would have the tendency to rock the boat.

The old school says that the responsibility of HR is to be the administrative arm of the organization. Do the paperwork, follow the status quo, don't try and make things better, we know what we are doing and the organization is not interested in change.

The new world looks upon the total organization, including the human capital management arena, as needing to satisfy the needs of the internal and external customers. In order to do that we need to look at the affect of our actions on both the community as a whole and our organizations. We should not and even more important can't overlook environmental issues that could detrimentally affect the organizational sustainability.

The IRS and other government agencies have stated in numerous cases that ignorance is no excuse. You can't tell your departments we don't care about the details. It is the details that can come back to haunt the organization.Source out the talent you need but don't impact the results by putting constraints on the hiring process centered around the perfect candidate. Work on succession planning but do so by seeking the candidate that is working within your organization who is your mirror. Help the organization to grow by misclassification of an employee because it is the convenient way to do it. You might very well find yourself in the FedEx Massachusetts case where by ignoring the details you just cost the organization three million dollars to rectify an error in judgement.

If you are the future of the organization then it is your duty and responsibility to care about the details. Think before you decide that that short cut is the way you want to go. If Human resources or one of your vendors tells you are headed in the wrong direction don't just sweep it under the rug. Inevitably when a new manager comes in they will find the dust under the rug and it will be detrimental to everyone involved down the road.

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Manpower Releases Talent Survey Results

ManpowerGroup today releases the results of its sixth-annual Talent Shortage Survey, revealing that 52 percent of U.S. employers are experiencing difficulty filling mission-critical positions within their organizations, up from 14 percent in 2010. The number of employers struggling to fill positions is at an all-time survey high despite an unemployment rate that has diminished only marginally during the last year. U.S. employers are struggling to find available talent more than their global counterparts, one in three of whom are having difficulty filling positions.

According to the more than 1,300 U.S. employers surveyed, the jobs that are most difficult to fill include Skilled Trades, Sales Representatives and Engineers, all of which have appeared on the U.S. list multiple times in the past. The survey also highlights the most common reasons employers say they are having trouble filling jobs, including candidates looking for more pay than is offered, lack of technical skills and lack of experience.

"The fact that companies cite a lack of skills or experience as a reason for talent shortages should be a wake-up call for employers, academia, government and individuals," said Jonas Prising, ManpowerGroup president of the Americas. "It is imperative that these stakeholders work together to address the supply-and-demand imbalance in the labor market in a systematic, agile and sustainable way. There may also be an increasing imbalance between employers willingness to pay higher salaries in what is still a soft general labor market compared to the salary expectations of prospective employees, especially those with skills that are in high demand."

In the United States, the top 10 hardest jobs to fill include:

U.S. Hardest Jobs to Fill in 2011

1. Skilled Trades
2. Sales Representatives
3. Engineers
4. Drivers
5. Accounting & Finance Staff
6. Drivers
7. Management/Executives
8. Teachers
9. Secretaries/Administrative Assistants
10. Machinist/Machine Operator

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Judge rules insurance should pay in Chinese drywall case

TAMPA --

In a ruling that could have widespread implications on Florida's insurance industry, a Hillsborough County Circuit Court judge says an Odessa homeowner's damage from toxic, Chinese-made drywall is covered by his homeowner's insurance policy.

Judge Robert Foster said the gas emanating from the drywall was an "unforeseen occurrence" which caused a "chemical reaction." He said he found no exclusion in the Springfield, Illinois-based Teachers Insurance Co.'s policy that should keep the company from paying to fix Craig and Melissa Walker's Odessa home.

"These (gases) then circulated throughout the house causing an odor, damage to the components within the home and creating an irritant and hazard to human beings," Foster said in his order.

Foster's ruling is particularly noteworthy because it's the first-known ruling in Florida, and perhaps in the nation, in which a judge ruled a homeowner's insurance policy covers Chinese drywall.

Thousands of homeowners have the bad drywall, and most of them are in Florida. The drywall emits a gas that corrodes metal, destroys appliances and, some owners, say, makes people sick. The only way to remediate a home is to gut it down to the studs and rebuild, the federal government has said. This typically costs a whopping $100,000 – even more depending on square footage.

Some builders have done this, but others either won't or have gone out of business. Insurance companies have said their policies typically don't cover defective drywall. Many homeowners have been stuck with uninhabitable homes or have been forced to make the costly repairs themselves.

The Walkers went to their insurance company for help.

"They didn't even send anybody out," Craig Walker said. "They just immediately told us, 'We don't cover that.'"

Lynne McChristian, the Florida representative for the New York-based Insurance Information Institute, said companies have various ways of wording what they cover in policies.

"Homeowner's insurance policies were never designed to cover defective materials and defective building," McChristian said.

Most policies have exclusions that pertain to defects, she said, and that's why many insurance companies have denied Chinese drywall claims.

"Coverage would depend on the interpretation of that language," McChristian said.

That's the case in the Walker's lawsuit. The homeowners sued the insurance company for not covering their damages.

"Our clients paid for insurance and had loss," said Anthony Martino Sr., a Tampa lawyer who represented the homeowners. "This is no different that any other unexpected loss and should be treated no differently than other losses, like lightening or fire."

The Tampa lawyer representing Teachers Insurance Co. argued that a "wear and tear" exclusion and a defective material exclusion pertained to the corrosion of the drywall.

But Judge Foster disagreed. He said the drywall was not defective because it "serves its purpose and functions as drywall." But, he said, the drywall also does something else; it emits a corrosive gas.

Scott Frank, the lawyer for the insurance company, declined to comment for this story.

Foster said the Walker's policy should also cover damage to personal belongings. The policy specifically covered smoke damage, and he interpreted smoke to be the same as gas.

"The court finds that the ordinary meaning as found in a Merriam-Webster dictionary, defines 'smoke' as a 'suspension of particles in a gas.'" Foster wrote in his order. "The court has applied the definition that allows coverage, which is at least as reasonable as the definition that might exclude coverage.

Foster did not determine how much money the policy should pay out to the Walkers. That will be determined by a jury. A trial date has not yet been set.

The Walkers lived in their home for two years before moving out two years ago. All this time, they say they paid their mortgage in addition to rent for another house for their three children.

"I hate that we have to keep waiting," Walker said. "But I feel a lot better now that we have this judge's decision."

Reporter Shannon Behnken can be reached at (813) 259-7804 or sbehnken@tampatrib.com. Follow her on Twitter @TBORealtyCheck.

via tbo.ly

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Interesting argument. True or false?

On the CNN Money site this morning Fortune is currently showing an article from Colin Barr in which he states that the circumstances are right for the hiring levels to increase because they HAVE TO. Mr, Barr's argument for this rests in  the following points:

1. Productivity gains are beginning to decrease after dramatic increases
2. Employerd have harvested al the low-hanging fruit

The result has been that organizations have been asking their human capital to do more with less since the beginning of these economic times. However they have reached the point where these assets can't do more with less so the only recourse is to bring in more bodies to handle the increased workload. It is time that corporations realize that their human capital assets are the reason why they continue to operate, not because they cut expenses to the bare bones.

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Make my HR Day!

I recently had the opportunity to sit down with William Tincup and he turned me on to a website which takes a poke at goings on in the workplace. Each day the site posts a new cartoon looking at life in the workplace. As of April 30 the site contains 500 different cartoons. For a break from the toils of the day visit http://www.onefte.com. Enjoy.

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ADAA Changes

Constangy Brooks and Smith LLP has released a client update regarding the changes to ADAA and employment practices

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NO MORE "BUSINESS AS USUAL":
ADAAA Regulations Will Be a Bear for Employers

By Kristen Allman and Robin Shea
Tampa, FL and Winston-Salem, NC Offices

May 2, 2011

The Americans with Disabilities Act Amendments Act of 2008 and the Final Rule interpreting the ADAAA, which was issued last month by the U.S. Equal Employment Opportunity Commission, will mean significant changes for employers who are dealing with employees' medical conditions.

Simply put, the ADAAA and the EEOC's new regulations mean that virtually anyone with a medical condition will arguably have a "disability" within the meaning of the ADA. The express purpose of the ADAAA was to significantly ease, if not eliminate, the plaintiff's burden of showing as a threshold matter that he or she had a "disability" and thus was entitled to the non-discrimination and reasonable accommodation protections of the Act.

On the surface, the Amendments Act and the regulations do not change an employer's other ADA obligations. However, the breadth of the new definition of "disability" means that many more employees and applicants will be "protected," which in turn means that employers are vulnerable to claims from a larger class of individuals and will have to consider reasonable accommodations in many more cases than before.

The original ADA defined "disability" as a physical or mental impairment that "substantially limited" a "major life activity," or a record (history) of such an impairment. It also protected individuals who were "regarded as" (or perceived as) having such impairments. As interpreted by the courts, "substantial limitation" meant a significant limitation when compared with the general population, and generally required that the condition be both long-term and severe. The original list of "major life activities" was relatively short, and included walking, speaking, caring for oneself, performing manual tasks, seeing, hearing, breathing, learning, and working. To be substantially limited in the major life activity of working, the individual had to be substantially limited in working, plus one additional major life activity.

The New "Substantially Limits": Not Very "Substantial"

By its terms, the ADAAA still requires a "substantial limitation," but "substantial" no longer means what it says. The ADAAA legislatively overruled several decisions from the U.S. Supreme Court that had taken a restrictive view as to who qualified as "disabled." Among other things, the Supreme Court had held that "mitigating measures" had to be considered in determining whether an individual was "substantially limited" – in other words, if the condition could be controlled through medication, surgery, or other means, then the individual was not "disabled" even though he or she might have had a medical condition that in its untreated state would be substantially limiting.

EXAMPLE: Linda has epilepsy, but because of her medication, she has not had a seizure in 20 years. She is able to drive a car and operate other heavy machinery. Under the "old" ADA standards, Linda would not have been "disabled" because her medications allowed her to function normally – therefore, she was not "substantially limited." Under the ADAAA, however, Linda has a "disability" simply because she has the underlying condition of epilepsy. The fact that her medicine has eliminated the effects of her condition cannot be taken into account.

(NOTE: Vision impairments that are corrected by normal eyeglasses and contact lenses are not considered "substantially limiting," even under the ADAAA. Also, although the ADAAA prohibits an employer from considering the positive effects of mitigating measures in determining whether an individual is disabled, the employer can consider both positive and negative effects of mitigating measures when determining whether an individual requires reasonable accommodation or poses a direct threat.)

The ADAAA and the regulations also provide that episodic conditions, or conditions that are in remission, are "disabilities." In short, the EEOC says, the determination of whether an individual has a "substantial limitation" "should not demand extensive analysis." According to the EEOC, the employer's attention should focus on whether it has met its ADA obligations and not whether an individual's impairment substantially limits a major life activity.

·         "Substantial limitation" is determined by a common sense assessment of the individual's ability to perform a specific major life activity or bodily function compared with that of most people in the general population.

·         A lesser degree of "limitation" is required than was required under the original ADA.

·         An impairment that substantially limits one major life activity, such as working, need not limit other major life activities in order to be a disability.

·         An impairment substantially limits "working" when it limits an individual's ability to perform or meet the qualification for a "type of work," including (1) the nature of the work in which the individual is limited when compared with most people having similar training, skills and abilities (for example, DOT-regulated commercial motor vehicle driving jobs, assembly line positions, food service jobs, clerical jobs and law enforcement positions); or (2) job-related requirements that an individual is limited in meeting due to an impairment as compared to most people performing those jobs (for example, repetitive bending, reaching or manual tasks; repetitive or heavy lifting; prolonged sitting or standing; extensive walking; working in high temperatures, high noise levels or high stress; or ability to work rotating, irregular or excessively long shifts).

·         An individual who claims to be substantially limited in the "performance of manual tasks" no longer has to show that he or she is unable to perform a variety of tasks central to daily living.

·         Although positive effects from mitigating measures are not to be considered in determining whether an individual has a disability, negative effects (such as side effects of medication) are to be considered.

·         An actual impairment or record of impairment can be "substantially limiting" even if it lasts or is expected to last less than six months.

• A "substantial limitation" may exist even if the individual has overcome obstacles and achieved success.

EXAMPLE: Harold has dyslexia, but through hard work and determination has managed to get a Ph.D. in nuclear physics from MIT. Under the "old" ADA, he would not be considered to have a "disability" because he achieved and outperformed most people in the general population. However, under the ADAAA and the new regulations, Harold would still be considered to have a "disability" because of the additional time or effort required for him to read, write, and learn when compared with the non-dyslexic population.

·         Certain conditions are "substantially limiting" per se: deafness, blindness, intellectual disabilities, missing limbs, mobility impairments, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, obsessive-compulsive disorder, and schizophrenia.

·         A person who has been misclassified in educational, medical or employment records as having a substantially limiting physical or mental impairment has a "record of impairment."

Expanded List of "Major Life Activities"

The Amendments Act keeps the original ADA's conservative list of "major life activities," but adds eating, standing, lifting, bending, concentrating, thinking, communicating, reading, and sleeping. The EEOC regulations issued last month add three more major life activities – sitting, reaching, and interacting with others – and provide that even this long list is not "exhaustive." The Amendments Act explicitly overruled the Supreme Court's 2002 decision in Toyota Manufacturing Co. of Kentucky v. White, meaning that, now, only one major life activity need be limited for the person to be considered "disabled."

"Major Bodily Functions"

Additionally, under the ADAAA, an individual will be disabled if he or she is "substantially limited" in a "major bodily function," a completely new category. The statute lists the following "major bodily functions": immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive. The EEOC regulations add the hemic, lymphatic, musculoskeletal, special sense organs and skin, genito-urinary, and cardiovascular systems.

"Regarded As"

Because the proof is so much simpler, the EEOC is aggressively encouraging charges to be filed under the "regarded as" prong, even if the charging parties have "actual" or "record" disabilities. (Although employers do not have to make reasonable accommodations for individuals whose disabilities are only perceived, they must not discriminate against such individuals.)

In order to meet the ADAAA's "regarded as" prong, the individual must show (1) that the employer engaged in a "prohibited action" (and note that this does not mean an "illegal action" but only an adverse employment action, such as a failure to hire or promote, or a termination) and (2) that the adverse action was based on the employer's perception that the individual was impaired. This is enough to establish that the employer "regarded" the individual as having a disability.

The employer still theoretically has the opportunity to show that it did not unlawfully discriminate against the individual, even if the individual wins on the "regarded as" prong. However, it is difficult to see how an employer can prevail if the individual has already established that he or she had only a "perceived" impairment – in other words, not an actual impairment that might hinder the individual's ability to perform the job – and that the adverse action was based on that perceived impairment.

The only perceived impairments that are excluded from "regarded as" are those that are both "transitory" (short in duration, generally less than six months) and "minor" (not serious).

The EEOC regulations provide that the following will not result in a "regarded as" finding: (1) asking an employee who seems to be having trouble performing the job because of an impairment whether he or she needs a reasonable accommodation; (2) requesting medical information during the reasonable accommodation "interactive process"; or (3) requesting medical information based on an objectively reasonable belief that the individual presents a "direct threat."

"Regarded as" claims are likely to escalate, not only because of the EEOC's aggressive promotion of the claims, but also as older workers try to cope with the recent economic downturn. These employees will be in a position to claim that non-transitory conditions attendant with aging, such as arthritis, diabetes, hearing loss, vision loss and mobility issues, have resulted in adverse action.

As stated above, the ADAAA does not change the employer's non-discrimination and reasonable accommodation obligations, apart from making them applicable to a much larger population. But because these issues will arise more often now, employers should re-familiarize themselves with the reasonable accommodation process and their obligations, as well as reasonable accommodations that they do not have to make. In addition, employers should

·         Realize that the changes to the ADA will also have an effect on other laws, such as the Family and Medical Leave Act, the Genetic Information Non-Discrimination Act, the HIPAA privacy rule, the Occupational Safety and Health Act, and state workers' compensation laws.

·         Realize that ADA case law based on actions or omissions that occurred before January 1, 2009 (the effective date of the ADAAA) are of limited or no precedential value if they were based on a finding of "no disability." (Older cases dealing with non-discrimination and reasonable accommodation may still be valid.)

·         Realize that it will be difficult, if not impossible, to defend an ADA case on the ground that the plaintiff or charging party is not "disabled."

·         Review (and, if necessary, amend) post-offer medical screening to ensure that offers are withdrawn only after an individualized assessment and attempt at reasonable accommodation.

·         Review (and, if necessary, amend) policies governing "automatic" termination at the conclusion of medical leaves of absence to ensure that any such terminations are based on a "final" individualized assessment and attempt at reasonable accommodation.

·         Ensure that operations management and front-line supervisors are trained in the "original" ADA and are aware of the ADAAA's expansion of coverage. Under the Supreme Court's recent decision in Staub v. Proctor Hospital, an employment decision that was "tainted" by a supervisor with a discriminatory motive could result in liability for the employer, even if the decisionmaker had a pure heart.

Posted via email from hrstrategist@Net-Speed