Day 2 of the ADA Quiz Show. Since I am responsible for the questions and also supply the answers, I figure that also means that I am the winner of the show. Small victories.
Question 3: What triggers the interactive process?
Question 4: Can a job task that is rarely performed be considered an “essential” job task?
Enjoy the weekend!
I have found that every now and then it helps to break down a complex area of law into some simple (and some not so simple) questions. The quiz show today and Friday is all about the Americans with Disabilities Act. The focus today is on reasonable accommodations.
Question 1: Let’s start with the money. Who pays for the reasonable accommodation?
Question 2: Can offering additional leave following the exhaustion of FMLA leave be considered a reasonable accommodation?
Two more questions coming up later this week.
In the meantime, if you haven’t ‘liked’ the blog’s new Facebook page, you can find it here. I am also on Twitter – follow me there – my username is @Employment_Atty and, of course, if you aren’t signed up to receive email updates when there is a new blog post, you can subscribe to the right of this post.
Since this case comes out of the Northern District of Iowa, I figured my post needed a picture of a corn field to make it complete. The other option was a picture of me in high school during the one year I lived in Cedar Rapids. However, I made the executive decision that a picture of me with bangs, in a prom dress, and with a 5 pound cell phone wasn’t a good idea.
The past few weeks have been notable for EEOC litigation. In one recent case, EEOC v. CRST Van Expedited Inc., the Northern District of Iowa ordered the EEOC to pay almost $4.7 million in attorneys’ fees and costs to defendant CRST. This case received a lot of press because of the large attorneys’ fees award, but there are so many other aspects of the case that are interesting.
Quick background – the case is a hostile work environment/sexual harassment case. The EEOC alleged the lead plaintiff and other similarly situated females were harassed and that CRST allegedly failed to take prompt and appropriate action to prevent, correct and protect the women from the purported harassment.
First, before we get to discussing the case, I have to say that any time the court includes a Table of Contents at the outset in their Order, I am impressed. How wonderfully convenient and unexpected. And in reading the Order, I equally enjoyed the detailed litigation strategy woven throughout the Order. The Court went through the various motions for summary judgment filed in this case and they clearly spell out how the company chipped away at the flaws in the case – identifying the large number of individuals who were not aggrieved (thus, resulting in the company being identified as the prevailing party). The company filed:
- Motion for Summary Judgment on the EEOC’s Pattern and Practice Claim;
- Motion for Summary Judgment Based on Statute of Limitations and Other Grounds;
- Motion for Summary Judgment Based on Judicial Estoppel;
- Motion for Summary Judgment Against the Claims of Certain of the Interveners;
- Motion for Summary Judgment Based on Class Members’ Failure to Report the Alleged Harassment and/or CRST’s Prompt and Effective Response to Reported Harassment;
- Motion for Summary Judgment Against Class Members Who Did Not Experience Severe or Pervasive Sexual Harassment; and
- Motion for Summary Judgment Against Class Members Whose Claims Fail on Two or More Grounds.
Attorneys’ fees were available to defendants in this case pursuant to 42 U.S.C. 2000e-5(k) and Christiansburg Garment Co. v. EEOC – where the Supreme Court identified the requirement that a prevailing defendant must prove the plaintiff’s actions were “frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith” before attorneys’ fees and costs can be recovered. 434 U.S. 412 (1978). The court in CRST awarded fees and rejected the EEOC’s argument that “as long as it names an individual in a complaint and succeeds as to that individual, it can include as many frivolous allegations as it wishes in a complaint using the vague language ‘and a class of similarly situated individuals’ without ever being liable for a defendant’s attorneys’ fees.”
Sometimes the most helpful information a person can have at his or her fingertips is the information that answers the question: Where in the world do we start? It can be overwhelming to navigate employment laws — trying to figure out compliance issues, weave in and out of various regulations, and to determine how everything interacts and interplays with one another.
So here it is, whether you are an attorney delving into the nuts and bolts of employment law, a growing company with two employees, or a larger organization with hundreds of employees and are simply trying to setup a uniform set of policies, procedures, and practices – this infographic is the sort of thing you should print, store in your desk drawer and save.
The venn diagram shows:
- The Must-Haves – the items every company should consider to maximize compliance, uniformity, and to avail itself of various affirmative defenses;
- Protect the Business – the agreements, policies, and analyses to protect trade secrets and confidential/proprietary information and also to ensure the company doesn’t make costly mistakes by misclassifying workers; and
- Custom Considerations - identifying many important elements needed for a company to thrive and survive.
This infographic isn’t a one-size-fits-all sort of approach. Every company has different objectives, goals, and means of getting there (hence the questions in the grey box towards the bottom). This image should just start a dialogue between the key players in the business – whether they are the business owners, various executives, the legal team (in-house and outside counsel), risk management and/or the human resources department. In a perfect world, all these issues are sorted out on Day 1, but in reality, a company has to continually evaluate and re-evaluate its priorities and the various changes in local, state, and federal law. What might have been perfectly acceptable two years ago, might not be sufficient anymore.
**Hat tip to Tim Eigo. I was inspired to try my hand at infographics based on a post of his in the Arizona Attorney Blog discussing a great San Francisco blog post that gives some great tips on infographics for lawyers. As any competitive person would do, I immediately challenged Tim to an infographic war, and am already underway on making my next one. However, I think this one might not end in my favor. Next time, I have to remember not to challenge an editor of a popular magazine to engage in such a battle.
I’m glad to see you back for the second half of the FMLA Quiz Show. I’ll dive right in to the videos. Enjoy.
Question: How often can recertification be requested?
Question: What can be done to manage intermittent leave abuse?
I think it’s time to record a few more. Should I stick with FMLA or move on to a different area? Email me. Let me know.
Posted in FMLA