Each Sunday I briefly review the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.
First up, Monday we had a post about job descriptions and performance reviews being key to ADA cases. Why? Because they can help establish whether something is or is not an essential function that must be performed by an employee seeing protection under the ADA and whether or not the person is qualified for the position. For example, if the job description does not include the function, then it will be hard for the employer to say it is an essential function of that position. Likewise, if the performance evaluation(s) have been positive, then they tend to show that the person is qualified for the job.
TAKEAWAY: If an employer believes that a position should include one or more tasks/functions, then it should have a job description stating that; further, the person or people in the position should actually perform that task/function. Also, performance evaluations should not be positive if the person is not performing. Otherwise, the employer’s ability to assert defenses in an ADA accommodation matter may be harmed.
Next, on Tuesday we posted about 6 Documents You Should Have to Protect Your Money. Those documents are (1) beneficiary forms for what you want to happen to your money after you die for things like 401K or other retirement plans, life insurance and college savings accounts; (2) TOD/POD instructions tell a financial institution what to do with the account when you die; (3) Living Will to tell your loved ones and medical professionals your preferences if and when you are in a terminal condition and names your agent to communicate this to the professionals; (4) Power of Attorney to enable someone else to sign their name to things as your agent while you are alive. This is most common for financial matters but is not necessarily limited to that. Also, it is effective whether or not you are disabled; (5) Last Will and Testament to set forth your wishes as to distribution of assets, guardians for children, and who will carry out your wishes; and (6) Trust Documents for any trusts set up outside of your Last Will.
TAKEAWAY: No matter your age, you need to have in place one or more of these documents. If you don’t, you are leaving yourself or your loved ones unprotected and subject to laws over which you have no control.
Thursday brought a post on How NOT To Defend an ADEA Claim. It discussed a case in which the person sued for race and disability discrimination, retaliation for requesting an accommodation for the disability, and violation of the Equal Pay Act. The race discrimination and pay disparity claims were dismissed; the disability discrimination and retaliation claims were allowed to proceed because there were enough facts (including temporal proximity of disclosure of the disability and then discharge) to let those claims continue (even though there was also evidence of performance problems).
TAKEAWAY: If an employer is going to assert a defense, it should have actual support for the defense, hopefully documented support and not just someone’s testimony. If not, the employer might find itself on the short end of the stick.
Friday the post was about checking availability before approving FMLA leave. It seems like an obvious thing, but if an employer grants the leave and then determines the person was not eligible, the bell probably cannot be unrung. In the case that was cited, the FMLA leave was approved and then the employer determined it should not have been. The employee sued, saying she would not have taken the time off if she had been told she was not eligible. The court let the case proceed.
TAKEAWAY: Before any leave is approved, the employer should make sure all prerequisites are met. In the case of FMLA leave, that includes making sure the employee is eligible based on time and hours worked, number of employees, and other threshold requirements.
Finally, yesterday brought a post about protection for white men too. Employers tend to forget that it is not only those in a protected class – including those who are disabled or of a particular gender, age, race or ethnicity – who are covered by statute, but that some statutes cover ALL employees.
TAKEAWAY: Even though white men are not who an employer will think of when the matter of discrimination or violation of a law comes up, employers must take care to look at the statute, what protection it gives, and to whom.
Austin Law Firm LLC works with clients in the types of matters discussed in this blog and others occurring in the workplace or related to it. If you have questions, please contact us.
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