HoosierEmploymentLawyer.com

Coast to coast, both Federal and state governmental agencies are increasingly targeting companies in several industries, including trucking, over employee misclassification, stepping up their audits and enforcements and working together as never before to share information on companies they perceive as misclassifying workers as independent contractors. Plus, newly-enacted state regulations and proposed federal legislation are set to turn the screws ever tighter.

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HHS Office for Civil Rights (“OCR”) announced last week that its pilot for HIPAA compliance audits will begin this month and end in December 2012. The American Recovery and Reinvestment Act of 2009 requires periodic audits of covered entities and business associates to ensure compliance with the HIPAA Privacy and Security Rules and Breach Notification standards.

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On August 31, 2010, a federal district court in Indiana decided that an employee whose cancer was in remission must be considered by his employer as “disabled” under the Americans with Disabilities Act, as amended in 2009.  More than a year after the employee had surgery for stage III renal cancer and having fully returned to full duty work as a service technician, the employer requested that the employee begin working 65 to 70 hours per week rather than the 40 hours per week that he had been working.  The employee then submitted a doctor’s note saying that he was limited to 40 hours per week, which the employer said that it could not accommodate.  The employer did, however, propose that the employee work out of an office that was located an hour further from the employee’s home, where he could work 40 hours per week.  The employee refused and simply stopped showing up for work.  The employee then sued the employer for violating the Americans with Disabilities Act, and the court agreed that although the employee was not substantially impaired in any major life activity, the fact that he had previously suffered from cancer required the employer to consider the employee as disabled.  The court ruled that a trial was needed to determine whether the company’s offer to move the employee’s work location was a reasonable accommodation.

This case highlights the fact that employers need to be extremely careful in considering whether their employees may be considered a qualified individual with a disability under the Americans with Disabilities Act, as amended in 2009.  The employee in the highlighted case may be able to force his employer to consider other reasonable accommodations (or pay him a lot of money), even though his physician found him to be cancer free.  Therefore, once a person suffers from cancer or any one of many other bodily conditions, employers need to be careful of considering them to be “cured.”  Now, instead of a person having a past record of a disability, which would not require a reasonable accommodation, an employer may be faced with having to accommodate an employee who used to have a bodily condition.  It is more than semantics.  You must be careful in these situations.  

It is essential to understand the emerging developments in employment law, as well as the distinction between employees and independent contractors. If your workers are properly classified, you can avoid the costly risks and looming penalties associated with worker misclassification. This seminar addresses issues “beyond the basics,” including Health Care Reform and wage & hour classification crack down.

Speakers include an impressive team of attorneys who specialize in all aspects of labor and employment law at both the state and federal level. They have significant expertise in counseling clients on labor, employment, and human resources issues and representing employers in state and federal courts and administrative agencies.

For more information and to register, please click here.

Once again, significant changes to the Americans with Disabilities Act (“ADA”) requirements have been adopted. Earlier this year, new regulations were adopted by the Department of Justice, which regulations take effect March 15, 2011. In addition, new “accessibility” design standards were also adopted, which take effect March 15, 2012. These changes will affect everything from internal and external access paths, to the location of wall outlets and lighting switches. While there are a variety of “safe harbor” provisions relating to existing facilities, businesses contemplating renovations or new construction should make certain that their design and other professionals are familiar with these requirements.

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“When to fire?” is a question I am often asked.  Employers always ask if there is enough evidence or if it is time yet to fire.  Stretching facts or firing based on assumption is never a good idea.

For example, years ago two bank tellers were in an island kiosk where they handled drive-up customers when a significant amount of money came up missing. Both tellers adamantly denied the theft.  Both also recalled a money bag on the floor of the booth, which was a violation of policy.

Following my advice, the two were not fired for theft as there was no proof of that, but both did admit to the policy violation of money on the floor.  That was the reason for the bank to terminate both, and neither could deny the rationale.

Similarly, in the sexual harassment context, an employee might admit to telling dirty jokes but adamantly deny much worse alleged conduct.  Consider firing the employee for the admission of telling a subordinate several dirty jokes rather than the conduct which is hotly disputed.

Listen carefully to what the employee admits and use that as a basis of the termination.

Employers should take note of three important recent events that could affect their leave of absence policies. To learn more about these events and how they could affect your business, please click here.