emZiNE - May 2011 edition

Final Regulations On ADAAA

The Equal Employment Opportunity Commission (EEOC) issued final regulations on the 2008 ADA Amendments Act (ADAAA) which broadened the definition of disability - namely by implementing Congress's intent to provide predictable, consistent and workable standards by adopting rules of construction when determining whether an individual is substantially limited in performing a major life activity.

According to the EEOC, these rules of construction are derived directly from the statute and legislative history and include the following:

The term "substantially limits" requires a lower degree of functional limitation than the standard previously applied by the courts. An impairment does not need to prevent or severely or significantly restrict a major life activity to be considered "substantially limiting." Nonetheless, not every impairment will constitute a disability.
The term "substantially limits" is to be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.
The determination of whether an impairment substantially limits a major life activity requires an individualized assessment, as was true prior to the ADAAA.
With one exception ("ordinary eyeglasses or contact lenses"), the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids.
An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
In keeping with Congress's direction that the primary focus of the ADA is on whether discrimination occurred, the determination of disability should not require extensive analysis.

For more information about the regs, go to the EEOC's website, http://www.eeoc.gov/laws/statutes/adaaa_info.cfm

A Simple Lesson In

How To Avoid A $2.25M Retaliation Award

Here's a simple lesson on how to avoid being sued for retaliation. It's a lesson this company is now wishing it had learned before finding itself on the hook for $2.25 million in retaliation damages.

The Age Discrimination Lawsuit That Went From Bad To Worse

Lawrence Trainor worked for HEI Hotels & Resorts, an investment company which owns, operates and acquires hotels. Trainor started with the company working as a dishwasher and, over several decades, worked his way up to a senior vice president. At 63, Trainor's job was to oversee hotel acquisition operations - basically, purchasing a Hilton and turning it into a Marriott.

In 2009, Trainor noticed certain corporate behaviors which led him to believe that the company was discriminating against him due to his age, so he filed an internal complaint. However, instead of investigating the complaint, the company told him that his job was being eliminated. In response, Trainor filed an age discrimination claim against HEI with the Massachusetts Commission Against Discrimination (MCAD). Now facing an outside investigation, HEI did the unthinkable; it fired him - the very same day.

A $2.25M Jury Verdict & A Bit Of Irony To Boot

A jury ruled that HEI retaliated against Trainor and awarded him $2.25 million - $500,000 in back pay, $750,000 in lost future wages and a cool $1 million in emotional distress. Now for the irony. The jury ruled that HEI did NOT discriminate against Trainor based upon his age. So, had HUI simply investigated his claim fairly and thoroughly, it could have saved itself millions. Aren't you glad you're not the employee who made that termination decision?

DOL May Want Proof That Employers Sought To Hire U.S. Employees First

The Department of Labor (DOL) has proposed new regulations that would require employers to document that they sought to hire U.S. employees before hiring foreign guest workers under the H-2B program.

No More Word Of Honor

In the past, the DOL simply asked employers to do their best to find U.S. workers to fill jobs before offering those jobs to foreign guest workers under the H-2B program - which allows foreign workers to take jobs when, 1) qualified U.S. workers were not available and 2) foreign workers did not adversely affect the wages and working conditions of U.S. workers. This "word of honor" seemed to work well enough until the U.S. economic decline - and some DOL fact-finding.

DOL Audits Suggest Employers Not Complying

According to the DOL, audits have revealed that, "employers are attesting to compliance with program obligations with which they have not complied, and that employers do not appear to be recruiting, hiring and paying U.S. Workers - and in some cases, the H-2B workers themselves, in accordance with established program requirements."

The proposed rule, 1205-AB58, would require employers to document their actions on searching for U.S. workers. The DOL is accepting public comments on the proposed rule at www.regulations.gov through May 17, 2011.

Need a Classroom Management Feature or Webinar Functionality?

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Click here for more information on our Special Training Offer.

Join us in a webinar next Tuesday, May 18th as we discuss the current legal requirements and government regulations surrounding training and highlight some effective approaches to delivering engaging training solutions. We will also describe how to articulate a compelling ROI to your senior management to support your training programs. Lastly, we’ll point out the signs of a solid training program and what to look for when building or selecting training.

Date: Wednesday, May 18, 2011

Time: 2 PM - 3 PM, EDT

Cost: Free

Presenters: