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KAREN CARRERA

Karen Carrera Consulting can help you with your mediation needs. Karen Carrera just concluded 40 hours of mediation training with respected mediator, Steve Rosenberg. Ms. Carrera serves as a settlement conference panelist and mediator for the Early Settlement Program of the San Francisco Bar Association and on the Alternative Dispute Resolution Panel of the Marin County Superior Court. Ms. Carrera is available to conduct workplace conflict resolution mediations between employees, teams, managers and supervisors. She can also conduct mediations in any employment law matter, landlord tenant disputes, real estate and personal injury lawsuits. Also, Ms. Carrera conducts neutral fact-finding workplace investigations into sexual harassment and discrimination complaints.

Longer Time Limits for Pay Discrimination Claims

The Lilly Ledbetter Fair Pay Act of 2009 - Expanded Statute of Limitations for Discrimination Charges.

On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009 (the Ledbetter Act). The Ledbetter Act modifies four discrimination statutes-Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act of 1990 (ADA), and the Rehabilitation Act of 1973 by resetting the clock for the statute of limitations each time an employee is affected by a discriminatory compensation decision or other practice.

The history of this statute is as follows: Lilly Ledbetter began working for Goodyear in 1979. She filed a charge of discrimination with the EEOC in 1998. She claimed each paycheck gave rise to a new violation. The U.S. Supreme Court held that the “decision date” started statute of limitations, not the “payment date.” Several U.S. Senators took action in response to Ledbetter decision and drafted the Lilly Ledbetter Fair Pay Act.

After passage of the Ledbetter Act, wage discrimination claims will no longer run from the “decision date”, instead they will run from the “payment date”. Now, the payment date will be date of “unlawful practice” and each payment date will give rise to a new claim. The Ledbetter Act will affect claims under Title VII, the Equal Pay Act, the ADEA and the ADA.

It would be advisable to re-evaluate how pay decisions are made and explained to employees at your company or organization. It is recommended that businesses and organizations document all business decisions related to wage payments in a detailed manner. It would also be advisable to adopt policies to ensure documents evidencing pay decisions are retained for at least 180 (or 300) days after last wages, benefits, or other forms of compensation are paid to employees.

This is a brief overview of the Ledbetter Act. For more information and a full text on the Ledbetter Act click on http://www.whitehouse.gov/briefing_room/
LillyLedbetterFairPayActPublicReview.

Amendments and Changes to the Americans with Disabilities Act (ADAAA) - 2009

On September 25, 2008 and effective on January 1, 2009, President Obama signed the Americans with Disabilities Act Amendments Act of 2008 (ADAAA or “the Act”). Employers with 15 or more employees must comply with the federal ADA law and the new amendments, and employers with five or more employees must continue to comply with California's disability law. Employers covered by both state and federal laws (those with 15 or more employees) must apply the standard most beneficial to the employee. The federal ADA now comports with the provisions pertaining to disability in California’s Fair Employment and Housing Act.

The Act makes important changes to the definition of the term "disability" by rejecting several Supreme Court decisions and portions of the EEOC’s ADA regulations. The Amendments Act expands the protections of the original ADA to include more individuals with less severe impairments, and many expect this will result in more discrimination claims filed under the ADA.

The Act retains the ADA's basic definition of a disability as having a physical or mental impairment that substantially limits one or more major life activities. However, the ADAAA has expanded the definition of "major life activities" to include:

• Caring for oneself
• Performing manual tasks
• Seeing
• Hearing
• Eating
• Sleeping
• Walking
• Standing
• Lifting
• Bending
• Speaking
• Breathing
• Learning
• Reading
• Concentrating
• Thinking
• Communicating
• Working

The ADAAA also adds a new major life activity category – "major bodily functions", which includes, but is not limited to:

• Functions of the immune system
• Cell growth
• Digestive, bladder, and bowel functions
• Neurological and brain functions
• Respiratory and circulatory functions
• Endocrine functions
• Reproductive functions

Other significant elements of the ADAAA include the following: The determination of whether an impairment substantially limits a major life activity must be made without regard to the use of mitigating measures such as medication, medical equipment, prosthetics, hearing aids, mobility devices, oxygen equipment, etc. Simply put, if an employee's condition would qualify without such aids, consider the person to have a protected disability.

An impairment that is "episodic or in remission" is a disability even when inactive "if it would substantially limit a major life activity when active." Examples may include cancer, epilepsy, and post-traumatic stress disorder.

Broad Coverage:

The ADAAA states that "the definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted under the terms of the Act." In other words, it is clear that the changes in this Act will benefit employees by making it more likely that they will now qualify for reasonable accommodations and the ADA's protections.

Additionally, the ADAAA states that the intent of these changes is that employers stop engaging in "extensive analysis" to determine what constitutes a disability under the law, and focus instead on complying with their obligation not to discriminate and to provide reasonable accommodations to individuals who are otherwise qualified to do a job.

Recommendations:

Here are some practical steps and actions for employers to take:

• Review your employment policies on disabilities and reasonable accommodations. Most employers have brief policies that will not need to be changed in light of the new law, but employers that have lengthy, detailed policies that include definitions of what constitutes a disability should consult with outside professionals about whether any changes are necessary.
• Review job descriptions to ensure that elements of the job listed as essential functions are truly job-related and consistent with business necessity.
• Ensure there is a formalized process in place for addressing requests for reasonable accommodations.
• Educate supervisors and managers about the ADAAA changes and the importance of engaging in interactive discussions with employees potentially covered by the Act.
• Encourage supervisors and managers to consult with Human Resources or outside professionals whenever an employee requests an accommodation, if there is any question as to the validity of the request. Stress that they should never immediately refuse the request or retaliate in any way against the individual for making the request.
• Reconsider past accommodation requests from current employees who were denied accommodation because it was determined that the employee's impairment did not satisfy the ADA's definition of a disability.
• When in a position to take adverse action or not accommodate an employee with a medical condition, be sure to have well drafted documentation of the legitimate, non-discriminatory reason for the action and the interactive steps taken to arrive at the decision.

In a statement on their website the EEOC says it will be evaluating the impact of these changes on its enforcement guidance and other publications addressing the ADA.

While many of the changes in the new Act will change how we interpret the law going forward, good common-sense practices such as promoting a respectful workplace and being open-minded and thoughtful when employees request reasonable accommodations will continue to help employers comply with the law and avoid liability.

It is also important to remember that a key organizational goal is to recruit and hire the best employees possible. The ADAAA doesn’t require employers to hire unqualified candidates, it requires all employers to do what most good employers do already: reduce the barriers to success.

Karen Carrera Consulting encourages all employers who must comply with the ADAAA to train all managers and supervisors on an annual basis. Onsite training, policy updates, job descriptions review and other related services are available, including telephone consultations.

This article is a brief and general overview of the new law. If you have any questions about how the ADA Amendments Act may effect your organization directly, please give us a call.

To read the notice of ADA Amendments Act on the EEOC website click here www.eeoc.gov/types/ada

To read the amendments to the Act click here
www.access-board.gov/about/laws/ada-amendments

Employee Who Was Interviewed During Internal Investigation Was Protected From Retaliation

Crawford v. Metropolitan Gov’t of Nashville & Davidson County, 555 U.S. ___, 129 S. Ct. 846 (2009)

Plaintiff, Vicky Crawford was interviewed during the course of an investigation into “rumors of sexual harassment” involving the Metro School District’s employee relations director, Gene Hughes. Crawford described several instances of sexually harassing behavior that Hughes allegedly directed at her; two other employees also reported being sexually harassed by Hughes. Although Metro took no action against Hughes, it fired Crawford and the two other accusers soon after completing the investigation, saying in Crawford’s case that she was terminated for embezzlement. Crawford filed suit under Title VII, which prohibits retaliation against an employee who “opposes” an unlawful employment practice or who “participated” in an investigation thereof. The district court granted summary judgment in Metro’s favor on the ground that Crawford had not “instigated or initiated any complaint” and that she had “merely answered questions by investigators in an already-pending internal investigation initiated by someone else.” The Court of Appeals for the Sixth Circuit affirmed the judgment. The Supreme Court unanimously reversed, holding that “[t]here is… no reason to doubt that a person can ‘oppose’ [within the meaning of the statute] by responding to someone else’s question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.”

This case exemplifies the importance of internal investigations. The Court cited the seminal sexual harassment cases of Faragher v. Boca Raton, and Burlington Industries, Inc. v. Ellerth throughout its opinion. Internal employment investigations following a claim of workplace harassment, sexual harassment or discrimination are highly recommended. Many employers skimp on paying for investigations to later be hit with a six figure lawsuit or million dollar settlement or jury award. It is recommended that employers not be short sited and spend the time and money to investigate the harassment or discrimination complaints and take action following the investigation. If you have your own HR department, consider sending your HR directors to training on how to conduct a proper, unbiased and neutral investigation and report following the interviews of all relevant witnesses. Keep the investigation as confidential as possible and do not retaliate against the complainant. But keep in mind that the California Business and Professions Code requires that investigators be licensed attorneys or licensed investigators. Hiring an experienced licensed employment attorney to handle your internal investigation is a good investment in your business’ and organization’s future.

Contact     Karen Carrera ConsultingThe Employment Law Update was sent to our clients and interested parties via email and by U.S. mail. To receive future Newsletters via email contact Karen@e-licenciados.com and ask to be added to our mailing list. If you have any questions, please call Karen Carrera at 415-789-9798. This communication is provided for your information only and is not intended to constitute professional advice as to any particular situation. www.ConsultingCarrera.com
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