June 2011 Newsletter from Pleat & Perry, P.A.
4477 Legendary Drive
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|Volume 5 - June 2011|
NEWS & NOTEWORTHY FIRM ANNOUNCEMENTS:
David B. Pleat, Esq. --
* Selected as Business Person of the Year, Destin Area Chamber of Commerce at the Destin Area Chamber of Commerce Annual Awards & Installation Banquet on January 20, 2011, Mr. Pleat received the award. Mr. Pleat is the founding partner of Pleat & Perry, P.A. While Mr. Pleat's primary practice areas are personal injury, wrongful death, real estate, association law, commercial law, insurance claims and business/commercial litigation, other practice areas of the firm include criminal law, family law, bankruptcy, collections, estate planning, guardianship, wills/trusts, elder law, land use, labor/employment law, civil litigation and mediations.
* Selected to serve on the Shelter House Board of Directors for 2011-12. Mr. Pleat looks forward to working with the Shelter House and serving on its Board. He hopes to generate interest from others in the community to get involved. To find out more about Shelter House or to contribute, visit www.shelterhousenwfl.org.
* Named to the HandsAcrossTheSand, Inc. Board of Directors. Handsacrossthesand is a non-profit, worldwide environmental organization dedicated to preserving our coastlines, supporting clean, renewable energy and breaking our dependence on fossil fuels." To learn more about Hand Across The Sand, please visit http://www.handsacrossthesand.com/.
Amy A. Perry, Esq. --
* Elected Treasurer of the Board, Destin Area Chamber of Commerce
* Appointed to The Florida Bar Grievance Committee (2011-2014) to serve a three-year term on The Florida Bar Grievance Committee. Ms. Perry focuses her practice on real estate/closings, foreclosures, civil litigation, association law, corporate/business law and mediations/arbitrations. Ms. Perry is a Certified Mediator and Qualified Arbitrator.
You can also see Amy as the Host of the Destin Business Forum for the Destin Area Chamber of Commerce.
J. Jerome Miller, Esq., Of Counsel --
* Selected to serve on the Mattie Kelly Arts Foundation Board (2011-2012).
Recently named to the Mattie Kelly Arts Foundation Board of Directors (2011-2012). Mr. Miller's primary practice areas are estate planning, guardianship, wills/trusts, elder law and land use.
Elizabeth V. LaFollette, Esq.,Of Counsel--
* Currently Secretary of the Kiwanis Club of Destin, was recently elected to serve as President of the Kiwanis Club of Destin (2011-2012)
EMPLOYMENT LAW UPDATE - Article by Elizabeth V. LaFollette, Esq., Of Counsel
EEOC Issues New Regulations Under the Americans with Disabilities Act
Congress amended the Americans with Disabilities Act ("ADA") effective January 1, 2009. Late in March of this year, the Equal Employment Opportunity Commission ("EEOC") finally issued its long-awaited regulations reflecting the amendments. The regulations go into effect on May 24, 2011. As a reminder, all employers who have fifteen (15) or more employees must comply with the ADA.
The highlights of the new regulations are:
The definition of "disability" and who is protected under the law is broad and should not require "extensive analysis."
The following impairments will virtually always be a "disability" within the meaning of the law: deafness, blindness, intellectual disability (mental retardation), missing limbs, mobility impairments that require the use of a wheelchair, autism, epilepsy, multiple sclerosis, diabetes, cancer, HIV infection, cerebral palsy, muscular dystrophy, major depression, bipolar disorder, port-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.
An impairment does not need to severely or significantly restrict a major life activity in order to be "substantially limiting." Instead, "[a]n impairment is a disability . . . if it substantially limits the ability of an individual to perform a major life activity as compared with most people in the general population." 29 C.F.R. § 1630.2(j)(1)(ii) (emphasis added).
Similarly, the definition of "major life activities" has been expanded to make it easier for individuals to prove they are "disabled" within the meaning of the law.
When evaluating whether an individual is "disabled," the positive effects of medications or other mitigating measures (such as hearing aids, artificial limbs, psychotherapy, etc.) should not be considered. The only exceptions are ordinary eyeglasses and contact lenses. The negative effects of mitigating measures can be considered when determining if an individual is "disabled."
On the other hand, the positive and negative effects of mitigating measures (like medicine) can be considered when assessing whether an individual is entitled to a "reasonable accommodation" or poses a "direct threat" to others. For example, an employee with epilepsy may no longer need permission for unscheduled breaks as a reasonable accommodation if her medication is changed and her seizures are completely controlled. [As before, an employer cannot, however, require an employee to use a mitigating measure.]
An individual must actually be "disabled" or have a "record of" a disability within the meaning of the law in order to be entitled to a reasonable accommodation. Employers do not need to reasonably accommodate those who merely are "regarded as" disabled.
The definition of who is "regarded as" disabled has been expanded.
In sum, the new regulations expand upon the ADA amendments and make clear: it is now easier for employees to prove they are protected under the ADA. The focus of ADA disputes will now be whether an employer appropriately engaged in the interactive, reasonable accommodation process, not whether an individual is "disabled."
If you have questions about the new regulations or other aspects of your obligations under the ADA, please contact us.
Supreme Court Expands Anti-Retaliation Protections
In the recent case of Thompson v. North American Stainless, the United States Supreme Court continued on the path it began in the Burlington Northern case in 2006, and expanded the anti-retaliation protections in the employment law context.
In the Thompson case, Miriam Regalado and Eric Thompson both worked for North American Stainless ("NAS"). They were engaged.
Ms. Regalado alleged that NAS had discriminated against her because of sex, and she filed a charge with the EEOC. Three weeks later, Mr. Thompson was fired. He alleged he was fired in retaliation for his fiancé complaining of sex discrimination.
Mr. Thompson’s case proceeded to court. The federal district court threw out his case before it could get to a jury, reasoning that the federal anti-discrimination law "does not permit third party retaliation claims." The federal court of appeals affirmed.
The Supreme Court reversed. In reaching its decision, the Supreme Court repeated the standard set out in Burlington Northern: "Title VII’s antiretaliation provision prohibits any employer action that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." The court then noted that it was "obvious" that a reasonable worker might be discouraged from engaging in protected activity if it meant her fiancé would be fired as a result.
In response to the employer’s argument that the Court might be headed down a slippery slope, the Court explained, "We . . . decline to identify any fixed class of relationships for which third-party reprisals are unlawful. We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that, we are reluctant to generalize."
The Court then addressed what it believed was the more difficult issue, namely, whether Mr. Thompson could sue NAS on his own behalf. It concluded that he could. The Court reasoned that firing him was the "intended means" of harming Ms. Regalado, and he was therefore an aggrieved person who had standing to sue.
In sum, employers should continue to be wary of the ever-expanding anti-retaliation rules, and should make sure they are training their managers and supervisors accordingly.
When was the last time you conducted discrimination or harassment training for your employees? If you have not done so recently, you are passing up an opportunity to assert important legal defenses.
Have you changed your practices regarding doctors’ notes in accordance with the regulations under the Genetic Information Nondiscrimination Act ("GINA")? Specifically, have you added the GINA "warning" into your requests for sick leave notes and/or medical documentation for reasonable accommodation requests? If not, you may be violating GINA.
When was the last time you trained your supervisors and managers regarding employment law basics? Remember, employers will be held responsible for the actions of their supervisors and managers; ignorance of the law will not be an excuse.
Please contact us for help with these or any other employment law issues.
* Recently participated in a one-on-one session where business owners and people with questions about the BP claims process could speak to him. To read more about this recent event, you may click here or view the attached article
Contact the law firm of Pleat & Perry, P.A. for all of your legal needs.
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