Windshield Placards for Disabled Persons

Charlotte Klingler, et al. v. Director of Revenue, State of Missouri.

Fred Switzer was lead counsel for plaintiffs in a successful class action suit against the State of Missouri. The suit alleged the State of Missouri violated the Americans with Disabilities Act (ADA), by charging an annual fee for the use of removable windshield placards that allow disabled persons to park in reserved spaces.

That suit, filed in 1996, was vigorously opposed by Missouri. In 1998, the U.S. District Court for the Western District of Missouri granted the plaintiffs’ request for declaratory and injunctive relief, prohibiting Missouri from charging a fee for the placard.

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U.S. Supreme Court Affirms EEOC Position That the ADEA Authorizes Disparate-Impact Claims

Prior to March, 2005, there was considerable doubt as to whether a claim of age discrimination could be brought under a disparate-impact theory. The Federal Circuits were split on whether the ADEA permitted suits for discrimination in cases where an employer’s facially neutral policy or practice discriminated against older workers. While the Second, Eighth and Ninth Circuits recognized such a theory, the First, Seventh, Tenth and Eleventh Circuits held that there was no disparate-impact liability under the ADEA.

In March, 2005, the U.S. Supreme Court resolved the issue. In Smith v. City of Jackson, Mississippi, the Court held that the text of the ADEA, its “reasonable factors other than age” provision, and the EEOC’s regulations all support the conclusion that a disparateimpact theory is cognizable under the ADEA. As a result, disparate-impact claims are allowed under both Title VII of the Civil Rights Act of 1964 and under the ADEA. The only difference is that, under the ADEA, the scope of liability is narrower, because it permits an employer to cite “reasonable factors other than age” (the RFRA defense) to justify a practice that penalizes older workers.

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Effective June 1, 2005 — All Employers Must Comply With New FTC Rule on Disposal of Consumer Report Information and Records

The Rule, 16 CFR Part 682, implements Section 216 of the Fair and Accurate Credit Transaction Act of 2003. It is designed to reduce the risk of consumer fraud and related harms, including identity theft, created by improper disposal of consumer information. It applies to every person over which the Federal Trade Commission has jurisdiction, that, for a business purpose, maintains or otherwise possesses consumer information. Thus any company, regardless of industry or size, that possesses or maintains consumer information for a business purpose is subject to the Rule. Obvious examples are consumer reporting agencies, lenders, insurers, employers, landlords, government agencies, mortgage bankers, automobile dealers and other users of consumer reports.

“Consumer information” is defined as any record about an individual, whether in paper, electronic, or other form, that is a consumer report or is derived from a consumer report. It also includes a compilation of such information. It does not include information that does not identify individuals, such as aggregate information or blind data.

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The ADA: Alcohol and Drug Abuse in the Workplace

Alcohol and drug abuse are recurrent problems in the workplace, costing the economy billions of dollars annually in lost production, lost wages, medical expense and injury. Thus employers have an economic selfinterest in confronting alcohol and drug abuse. In doing so, those with 15 or more employees risk incurring substantial liability for discrimination if they fail to comply with the Americans With Disabilities Act (ADA).

The ADA protects job applicants and employees with drug and alcohol problems against discrimination in employment if they are qualified individuals with a disability. A “qualified individual with a disability” is an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such person holds or desires. Under the ADA, a “disability” is: (a) a physical or mental impairment that substantially limits one or more major life activities; (b) a record of such impairment; or (c) being regarded as having such an impairment. Alcoholism and drug addiction are disabilities.

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Major Changes in the Tax Treatment of Nonqualified Deferred Compensation Plans, Agreements and Arrangements

On October 22, 2004, President Bush signed the American Jobs Creation Act of 2004. It adds a new Section 409A to  the Internal Revenue Code. Code Section 409A makes fundamental changes to the taxation of amounts deferred under “nonqualified deferred compensation plans.” Under Section 409A, severe penalties will be incurred by participants in a nonqualified deferred compensation plan if the plan fails to meet or is not operated in accordance with Section 409A and the regulations to be issued by the Internal Revenue Service.

Section 409A applies to amounts deferred after December 31, 2004 and earnings thereon, and to amounts deferred and related earnings if the deferral arrangement is materially modified after October 3, 2004. The IRS is required to issue guidance within 60 days after October 22, 2004, providing a limited period of time during which nonqualified deferred compensation plans adopted before December 31, 2004 may be amended to (1) permit participants to terminate participation or cancel an outstanding deferral election with regard to amounts deferred after December 31, 2004, provided those amounts are includable in the participant’s income as earned (or, if later, when no longer subject to a substantial risk of forfeiture), and (2) conform to the requirements of Section 409A for amounts deferred after December 31, 2004.

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DOL’s New Fair Play Overtime Rules

The new Fair Play Rules amend the overtime regulations of the Fair Labor Standards Act. They become effective August 18, 2004. Under the Fair Play rules, workers earning less than $23,600.00 per year-or $455.00 per week-are guaranteed overtime protection.

The rules simplify the process of determining whether an employee is exempt from the FLSA’s overtime pay requirements under the “white collar” exemptions, i.e., the executive, administrative, professional, computer and outside sales exemptions.

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OSHA Ergonomics Program: Final Rule

The U.S. Occupational Safety and Health Administration (OSHA) published its final Ergonomics Program Standard (Rule) in the Federal Register on November 14, 2000. It became effective on January 6, 2001. Employers subject to the Standard must commence compliance no later than October 14, 2001.

The purpose of the Standard is to reduce the number and severity of musculoskeletal disorders (MSD’s) caused by exposure to risk factors (awkward posture, contact stress, force, repetition and vibration) in the workplace. MSD’s are injuries and disorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs. Examples include carpal tunnel syndrome, tendinitis, sciatica, herniated disc and low back pain. The Standard does not address injuries caused by slips, trips, falls, vehicle accidents or similar accidents.

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Salting the Non-Union Contractor

Following World War II, construction union membership comprised over 87 percent of the construction labor force. Since then this percentage has declined to about 17 percent, despite the fact that the construction labor force has increased by over 1.5 million since 1970. That decline in union membership is directly related to market penetration by non-union contractors.

Construction unions have developed a variety of tactics to counter this decline and to restore their near monopoly of the labor force and construction work. These tactics include salting, job targeting, environmental permitting delays, government mandated project agreements and legislative initiatives. Salting is the tactic encountered most often by the average open-shop contractor.

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Employer’s Liability for Sexual Harassment by Supervisors

Charges of Sexual Harassment Are a Small Business Nightmare – Statistics Bare This Out.

Last year, 15,222 charges of sexual harassment were filed with the EEOC and state FEPA’s with which the EEOC has work sharing agreements – 12.1% of them by males.

Last year, charging parties recovered some $50.3 million dollars through resolution of sexual harassment charges by these agencies. This does not include amounts received through litigation.

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Employment Manuals: An Ounce of Prevention

In few areas are employers more heavily regulated than in their employment relationships. At the federal level, such regulation includes: the Fair Labor Standards Act, the National Labor Relations Act, the Immigration Reform and Control Act of 1986, the Rehabilitation Act of 1973, the Americans with Disabilities Act, the Family and Medical Leave Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act, the Employee Retirement Income Security Act, and executive orders applicable to federal government contractors. At the local level, state common law and numerous statutes, regulations and ordinances affect virtually every aspect of the employment relationship, and in some cases, impose pre- and post employment obligations.

Some employers attempt to navigate this regulatory minefield without clearly defined written policies and procedures that take into account the federal, state and local laws applicable to their operations. The larger the employer, or the more jurisdictions encompassed by its operations, the more hazardous this becomes.

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