Disability Accommodation No Longer Medical Necessity in Washington State

In a decision last week, Johnson v. Chevron, the Washington State Court of Appeals held that an employee was not required to prove that his disability accommodation was “medically necessary” to enable him to perfrom his job. Johnson had sued the employer, asserting state law claims for race discrimination (disparate treatment) and disability discrimination (disparate treatment and failure to reasonably accommodate). The trial court granted summary judgment in the employer’s favor on Johnson’s accommodation claim, and the employer prevailed after a jury trial on the remaining claims.

The Appeals Court reversed concluding that: 1) “[t]he evidence was sufficient for a jury to find either that Johnson’s impairment had a substantially limiting effect on his ability to perform his job, or that the evidence, including medical documentation, established a reasonable likelihood that engaging in job functions without accommodation would aggravate the impairment to the extent that it would become substantially limiting[;]” and 2) the trial court had erred when it instructed the jury that Johnson was required to produce comparator evidence in support of his disparate treatment claims.
Importantly, the Court of Appeals rejected the proposition that Johnson was required to show that accommodation was “medically necessary” to enable him to perform his job. The Appeals Court ruling states that the 2007 statutory changes, which retroactively revised the Washington Law Against Discrimination’s definition of “disability” for accommodation purposes supersede, the “common law definitions” used in earlier WA disability case law, and that:

“‘Medical necessity’ is no longer the sole basis for a right to accommodation. Under the new statute, either the impairment must be the source of a substantial limitation or there must be medical documentation indicating a reasonable likelihood that engaging in the job duties without accommodation ‘would aggravate the impairment to the extent that it would create a substantially limiting effect.’”

This decision runs afoul of earlier Washington case law including Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 194 (2001) and Pulcino v v. Federal Express Corp., 141 Wn.2d 629, 640 (2000). I suspect this case will be appealed by Chevron to our State Supreme Court. For the full decision, see: http://case.lawmemo.com/wa/johnson.pdf .

 

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

The Best of the Season's Greetings!

“Blessed is the season which engages the whole world in a conspiracy of love!” – Hamilton Wright Mabie

To my clients and my colleagues, thank you for your trust and your business this year. May your holiday season and your New Year be wonderful and bright.

The Definition of Independent Contractor in Washington State Is In The Wind...

The Washington State Court of Appeals has tackled a case of first impression in their decision on a 2004 case, Anfinson v. FedEx. The issue involves the definition of an “independent contractor” under the State’s Minimum Wage Act (MWA).

In 2004, a class action lawsuit was filed against FedEx in King County Superior Court alleging that FedEx misclassified 320 pick-up and delivery drivers as independent contractors. These drivers worked for the FedEx Home Delivery and FedEx Ground divisions between December 2001 and December 2004. After a four week trial in March, 2009, the jury returned a verdict for FedEx, finding that the drivers were independent contractors. The drivers appealed and, on December 20, 2010, the Court of Appeals issued a 40-page decision reversing the judgment against the drivers and remanding the case back to the trial court for further proceedings. The Appeals Court found that several of the key jury instructions were legally wrong.

Specifically, the Court held that the Fair Labor Standards Act (FLSA) ”economic realities” test applies because the Washington MWA is modeled on the FLSA. The specific “economic realities” test that the Court of Appeals used is the 6-factor test used by the majority of federal circuits, which includes the degree of the alleged employer’s “right of control” over the alleged employee as merely one of the 6 factors, not the most important factor.

The Court expressly rejected the use of Washington tort law for purposes of determining whether someone is an “employee” under Washington’s MWA. It stated that ”the purpose of the distinction between an employee and an independent contractor is … substantially different in these two areas of law. While the common law ‘right to control’ test was developed to define an employer’s liability for injuries caused by his employee, the purpose of the MWA is to provide remedial protections to workers.”

The Court also addressed several other instructional issues, including how one proves liability to a class under the Washington MWA, and whether the commonality standard used at the class certification has any remaining relevance at the trial phase. In short, FedEx’s victory was reversed and the case is being remanded for a new trial. The entire decision can be read here: http://case.lawmemo.com/wa/anfinson.pdf

It is expected that FedEx will seek review of this decision by the Washington Supreme Court. Stay tuned…

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

New Year's Resolution Time!

It’s that time of year, time to make your New Year’s resolutions. When you’re looking at the needs of your business and your clients’ businesses, do not forget the importance of respect and professionalism training for your staff and your managers.

Companies that incorporate a consistent diversity training program and advocate diversity in the workplace experience valuable benefits such as:

♦ Higher employee retention rates,

♦ Improved employee (individual and team) performance and morale,

♦ Reduced harassment incidences, charges, and discrimination lawsuits, and

♦ Improved workplace staffing (diversity recruitment).

Add respect and professionalism and performance management training to the top of your New Year’s resolution list!

Respect & Professionalism

Last night, I completed training for a Pacific Northwest client with approximately 200 employees. This endeavor included 12 sessions of Respect and Professionalism training (including 4 in Spanish with the help of an interpreter) and 5 sessions of manager training on Maintaining a Workplace Free of Discrimination, Harassment & Retaliation as well as Performance Management Training.

In conjunction with these training sessions, I am assisting the client in revising the Company handbook and policies. It was a pleasure for me to get to work so closely with this client while they tackle some of the big issues facing their workforce.

Happy Thanksgiving!

“If a fellow isn’t thankful for what he’s got, he isn’t likely to be thankful for what he’s going to get.” ~ Frank A. Clark

Criminal Backgrounds Checks, Credit Histories & Hiring

Recent Equal Employment Opportunity Commission (“EEOC”) initiatives are focused on eradicating what the EEOC views as more covert forms of discrimination, such as policies that exclude applicants with bad credit reports or criminal convictions. In light of this new scrutiny, employers who conduct credit or criminal background checks should make sure that their practices do not give rise to claims of “disparate impact” discrimination by members of protected classes.

EEOC Guidance on Criminal Background Checks

EEOC guidance provides that a blanket exclusion of individuals from employment due to a criminal record violates Title VII of the Civil Rights Act of 1964, unless the policy is consistent with business necessity or otherwise required by law. The EEOC has previously found that employment decisions based on this type of criteria disproportionately exclude African-American and Hispanic applicants. As a result, the EEOC has also stated that employers should not consider arrests, but only convictions.
If an applicant is excluded from employment because of a previous conviction, the EEOC calls for consideration of three factors: (1) the nature and gravity of the offense; (2) the time that has passed since the conviction and/or completion of the sentence; and (3) the nature of the job held or sought.

Use of Credit Information in Employment Decisions

The EEOC is also evaluating the common hiring practice of checking the credit history of applicants. In October of 2010, the EEOC held a public Commission meeting on the use of credit histories in the employment selection process. At this meeting, representatives of civil rights groups cited studies showing racial minorities and women tended to have lower credit scores than non-Hispanic white males. These groups emphasized studies that show little correlation between “bad credit” and job performance. Thus, a blanket exclusion of applicants with “bad credit” may have a disparate impact on protected groups, without being justified by business necessity. This would violate Title VII.

Employer representatives emphasized the use of credit histories as part of mandatory background checks for jobs that involve access to customer and company money. These same speakers noted that credit reporting agencies do not reveal actual credit scores to potential employers, but rather a narrative of the individual’s credit history. Finally, proponents of credit checks argued that no research has shown a relationship between use of credit reports and a disparate impact on minority job opportunities. The statements of the panelists at the October 2010 Commission meeting, along with their biographies, can be found on the EEOC’s website. http://www.eeoc.gov/eeoc/meetings/10-20-10/index.cfm

While the EEOC has no immediate plan of action on these issues, it reiterated that employers should ensure that any use of credit history in the employment process be entirely job-related.

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

"Work Is Key To The Soul" - Chai Feldblum

I recently saw a television advertisement for this organization: Think Beyond the Label | Evolve Your Workforce. Their website, www.thinkbeyondthelabel.com, says that they are ”committed to making the business case for employing people with disabilities.”

“Our goal is simple: to raise awareness that hiring people with disabilities makes good business sense. Employees with disabilities have unique, competitively relevant knowledge and perspectives about work processes, bringing different perspectives to meeting work requirements and goals successfully. Hiring someone who ‘thinks outside the box’ might be thinking too small when there’s an opportunity to hire someone who lives outside the box.”

The EEOC recently celebrated 20 years since the enactment of the Americans with Disabilities Act. One quote from the article stuck with me: “Work is key to the soul.” Chai Feldblum, the EEOC Commissioner, is quoted as saying that work is not just about paying bills. “It’s about feeling important, about feeling useful.” http://www.eeoc.gov/eeoc/newsroom/release/7-22-10.cfm

Anyone who ever met my cousin would understand this sentiment first hand. She was born with a host of physicial disabilities: legally blind, legally deaf, dwarfism, you name it. For more than 15 years, she has worked part-time at her local library alphabetizing and organizing. This job, which some would deem unimportant, means everything to her. The idea of missing a day of work is inconceivable to her. Work gives her purpose.

Many employers panic when it comes to handling issues related to employees with disabilities. The reality is that the multitude of laws surrounding disabilities, accommodations and leave are daunting. That said, I have witnessed many a success story involving an employer who took the time and the heart to work with a disabled employee. This website has pages devoted to such stories. They have a page devoted to debunking the myths associated with hiring individuals with disabilities. They also have a page devoted to the “Business Case” for hiring individuals with disabilities. Additionally, they have an informatin page related to the tax incentives for businesses who employee people with disabilities: http://www.thinkbeyondthelabel.com/Learning-Tools/TaxIncentivesTipSheet.aspx .

My cousin is an inspiration to me. She reminds me to value my good fortune and that my good fortunhe includes my abilitiy to work and be a productive member of society. I believe she has that impact on everyone she meets. Her very presence at the local library breaks down the barriers and the myths of working with individuals with disabilities.

"Try Not To Become A Man Of Success, Rather Try to Become A Man Of Value." - Albert Einstein

I spoke today with a law school classmate, a former partner in a long-standing national law firm. The firm, like so many of our institutions of late, went under. My friend found himself not only without a job but, as a partner, in debt to the bank for the firm’s outstanding loan. He told me that he had, in response, taken the job that was going to help him “make the most money.” He has a family and responsiblities and an urgent need to get back on track financially. He found work with little difficulty and is back on track for a “successful future.”

This got me thinking about the definition of success and thus the quote above from Albert Einstein. As a former “big firm” lawyer, opening my own firm was an adjustment in more ways than I ever imagined. Yes, I became responsible for the IT work in my office, the supplies, the marketing, and the book keeping. Yes, I alone am responsible for my earnings. But the hardest part of this transition has been redefining success to myself.

In that “big firm” world, I got sucked into the idea that success was partnership in a national, or international, firm. I felt the pull of competing for those positions and having the bragging rights that came with such a title. Yet, on my own, I have felt true pride and gratitude in knowing that my earnings are a direct result of my work, of my relationships with my clients and others in the community. I no longer have the fancy office with the fantastic view of Elliott Bay that I never had time to really appreciate. Instead, I have satisfaction in knowing that I provide a service, a value, to my clients. And somehow I now feel more successful than I ever did in my big firm years.

Officers & Senior Managers Liable for Unpaid Wages

Employers in Washington who fail to timely pay wages to an employee are liable for statutory penalties equal to twice the unpaid wages plus attorney’s fees. Even when an employer seeks bankruptcy protection, officers and senior managers remain personally liable for the unpaid wages, statutory penalties and attorney’s fees. This rule was recently reaffirmed by the Washington State Supreme Court and the Ninth Circuit Court of Appeals in two separate cases involving bankrupt employers. In light of the current downturn in the economy, these cases are a timely reminder of the personal risks that officers and senior managers face.

Both Washington’s Minimum Wage Act (MWA) and its federal counterpart, the Fair Labor Standards Act (FLSA), provide for penalties and attorney’s fees when an employer fails to timely pay wages to its employees. These same penalties apply equally to officers and senior managers with control over payment of wages. The recent cases illustrate how officers and managers working for insolvent companies may expose themselves to personal liability.

Under state law, it is a misdemeanor for an employer to “willfully” deprive an employee of any part of his wages, and/or pay any employee a lower wage than the wage such employer is obligated to pay by statute, ordinance or contract. RCW 49.52.050. Under the MWA, an employee who has willfully been deprived of wages may sue for the unpaid wages and double the unpaid wages and reasonable attorney’s fees. RCW 49.52.070. Double damages and fees may be avoided where lack of payment when the deprivation is careless versus intentional. They can also be avoided when there is a “bona fide” dispute regarding the payment of wages. Schilling v. Radio Holdings, Inc., 136 Wn.2d 152, 160-61 (1998). Willfulness may be found when the refusal to pay is “volitional,” even if it is not malicious. Id. at 159-60.

If the employer is unable to pay wages, the employee can also recover the wages, double damages and fees from any officer or manager of the employer who exercises control over the direct payment of the wages and acts pursuant to that authority when failing to pay wages. Ellerman v. Centerpoint Prepress, Inc., 143 Wn.2d 514 (2001). Both the employer and individual manager are liable for double damages and fees if found to have willfully withheld wages. The financial inability to pay wages is not a defense. Schilling, at 166.

In Morgan v. Kingen, 210 P.3d 995 (Wash. 2009), the Washington State Supreme Court reaffirmed that officers continue to face personal liability for unpaid wages under Washington’s MWA, even when the corporation is liquidated in bankruptcy court. The officers there sought to avoid personal liability for unpaid wages based on the conversion of the employer’s Chapter 11 reorganization to a Chapter 7 liquidation. Rejecting this defense, the Court ruled that the Chapter 7 liquidation of the corporation did not provide the officers a means to escape personal liability. The Court reasoned that prior to converting to a Chapter 7 liquidation, the officers controlled the payment of wages. Thus, it was appropriate for them to be held personally liable. Further, since the officers controlled how the corporation’s money was used, and made decisions such as whether to file for bankruptcy or close the business and pay debts, the Court held that the choice not to pay wages was willful and intentional by those officers.

The Ninth Circuit Court of Appeals recently reached a similar result under the Fair Labor Standards Act, which applies to employers engaged in interstate commerce. Boucher v. Shaw, 2009 WL 2217517 (9th Cir. 2009). Under the FLSA, an employer is liable for unpaid wages and an additional amount for liquidated damages, as well as attorney’s fees. Under the FLSA, individual managers who exercise “control over the nature and structure of the employment relationship” or “economic control” over the relationship may be personally liable. See Lambert v. Ackerly, 180 F.2d 997, 1011-12 (9th Cir. 1999).

In Boucher, the Ninth Circuit Court of Appeals ruled that a corporation’s managers can be held personally liable under FSLA for wages that a corporation failed to pay to employees before filing for bankruptcy. Like in Boucher, the managers argued that their duty to pay employees ended when the business’s Chapter 11 bankruptcy reorganization was converted to a Chapter 7 liquidation. In rejecting this argument, the Ninth Circuit held that the U.S. Bankruptcy Code’s automatic stay of claims against the bankrupt entity did not extend to the separate claims against the managers, but instead only to those claims against the debtor corporation. The result would be the same whether in Chapter 11 or Chapter 7, according to the Court. Further, imposing personal liability would not undermine the Bankruptcy Code’s automatic stay intended to preserve the estate’s assets, because the corporation’s assets were not affected by the independent claims against the managers. Significantly, the Court noted that if the managers’ liability were to affect the property of the bankruptcy estate, by virtue of the corporation’s agreement to indemnify or by payment of the liability from a director’s and officer’s insurance policy, it might be necessary for the employees seeking wages to proceed against the non-debtor party through the bankruptcy proceedings.

The Lesson: So how do employers, officers and managers protect themselves from liability for unpaid wages? Of utmost importance is ensuring that those responsible for payroll functions to issue paychecks in a timely manner, particularly when an employee is resigning or being terminated, or when the company is downsizing. In the absence of a bona fide dispute over the obligation to pay the employee, promptly correct any payroll problems by paying the employee to avoid liability for penalties and attorney’s fees. Finally, if the company is having financial difficulties, consider whether the company’s governing documents (such as articles or bylaws) address whether the company is responsible for defending and indemnifying managers who are sued personally for failing to pay wages.

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.

Got A Harassment Complaint? Respond Promptly!

The Case: In EEOC v. Prospect Airport Services (2010), a male employee, Rudolph Lamas, allegedly suffered hostile work environment sexual harassment at the hands of a female co-worker, Sylvia Munoz. His employer, PAS, supplies wheelchair assistance to disabled passengers at Las Vegas’s McCarran International Airport. Lamas was a well-respected employee who was promoted to a position of importance involving retention of an important client contract. Starting in the fall of 2002, shortly after Lamas’s wife passed away, Munoz, who was married, made a series of rejected sexual overtures toward Lamas. Munoz’s efforts included several explicit notes to Lamas, including one note where Munoz said,”Seriously, I do want you sexually and romantically,” giving Lamas suggestive pictures of herself, repeatedly approaching Lamas and asking him out or soliciting him for sex, including in front of other co-workers and airline passengers, and enlisting Lamas’s co-workers to pressure Lamas into going out with Munoz. Munoz’s behavior continued from the fall of 2002 through the spring of 2003.

PAS had a policy prohibiting sexual harassment and encouraging employees to report any violations of the policy to a supervisor so that PAS could investigate complaints. Lamas, bothered by Munoz’s repeated advances, reported her overtures to PAS’s Assistant General Manager, who told Lamas he should tell Munoz that the advances were not welcome, and that Lamas should let him know if the behavior continued so he could take care of it. Lamas also complained to his immediate supervisor, who promised to talk to Munoz, but did not. Finally, Lamas complained to PAS’s General Manager (“GM”), who acknowledged that Munoz’s behavior violated PAS’s policy, but told Lamas that he did not want to get involved in “personal matters.” PAS’s GM did eventually talk to Munoz, telling her that if her advances continued he “would have to take action.”

Despite Lamas’s repeated complaints, Munoz’s behavior continued and even worsened. Lamas consulted with a psychologist. He also raised his complaints anew with four different PAS managers, including a manager who told Lamas that the advances were just a joke and he should feel flattered. During this period, Lamas’s job performance declined and he was eventually fired. Lamas attributed his declining performance to the stress caused by more than half a year of harassment.

On these facts, the Ninth Circuit held that Lamas had more than met his burden to overcome summary judgment. Specifically, Lamas had presented sufficient evidence that he was subjected to conduct of a sexual nature, that he repeatedly rejected Munoz’s advances and communicated his displeasure with those advances to Munoz and his managers, and that Munoz’s conduct had contributed (or caused) the performance decline resulting in his termination. Lamas also presented evidence sufficient to show that PAS failed to take effective action to stop the harassment where, despite repeated reports of bad behavior, Munoz’s conduct continued and worsened.

The Lesson: Nearly all employers, just like PAS, have adopted “anti-harassment” policies requiring employees to report incidents of sexual harassment to specific individuals so that any alleged harassment can be promptly investigated and corrected. The lesson of PAS is that simply having a policy is not enough to avoid liability for hostile work environment harassment. The policy must also be followed in every instance. Complaints of harassment should be processed in accordance with your policy including prompt investigation and effective punishment for any instances of harassment that are found to have occurred. A slap on the wrist may be enough for minor violations, but continued violations or more egregious conduct likely call for something more severe. The ultimate test is whether the corrective action could reasonably be expected to stop the inappropriate conduct and deter such conduct in the future.

In addition, employers should train their managers and supervisors on their procedures for harassment reporting because the potential for liability starts once a management-level employee learns of the bad behavior. Managers should understand the potential risks to the company and to their own reputations and financial well-being is they do not pass complaints up the chain. They should also understand that every complaint is important, no matter how minor it may seem.

Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.