September 2009 Archives

September 29, 2009

Proposed ADA Regulations Take a New Approach

In the ADA Amendments Act, which went into effect at the beginning of this year, Congress told the Equal Employment Opportunities Commission (EEOC) that it had defined the term "substantially limits" too narrowly, in a way that inappropriately restricted the number of people protected by the ADA. Last week, the EEOC responded by issuing proposed regulations that represent a significant departure from the way the ADA has been interpreted by the agency and by courts. Here are a few changes I found interesting: 

List of disabilities. Courts -- and the EEOC -- have tended not to categorize a particular impairment as a disability, instead looking at the particular effect the impairment has had on the particular person in question. In the proposed regs, the EEOC has taken a very different approach: It provides a nonexhaustive list of impairments "that will consistently meet" the definition of disability, including deafness, blindness, intellectual disability, partially or completely missing limbs, mobility impairments that require use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia. The regs still nod to the need for an individualized assessment, but say it can be conducted "quickly and easily" in the case of these impairments.

"Substantially limits" redefined. Like the ADAAA, the proposed regs explicitly disavow the test created by Justice O'Connor in Toyota v. Williams, which held that someone is substantially limited only if he or she is unable to perform activities of central importance to daily life. Instead, the regs state that this term should be construed in favor of broad coverage, and that a substantial limit in one activity is sufficient. The regs also say that factfinders should use their common sense when determining whether someone is substantially limited in a major life activity as compared to the general population; scientific or medical evidence won't necessarily be required.

Working as a major life activity. The proposed regs make it easier for employees to show that they are substantially limited in the major life activity of working. Previously, employees had to show that they were unable to perform a class or broad range of jobs -- and the Supreme Court had expressed doubt as to whether working even counts as a major life activity. In the proposed regs, the EEOC makes clear that working is a major life activity, and that an employee has met this standard if he or she is substantially limited in performing or meeting the qualifications for the job he or she has held or for jobs with similar qualifications or requirements. It doesn't matter that the employee could find work elsewhere, could perform jobs with different requirements, or could perform the job with a reasonable accom

To learn more about the ADA Amendments Act, and all the employment laws that every employer and HR pro needs to know, see The Essential Guide to Federal Employment Laws, by Lisa Guerin and Amy DelPo (Nolo).


September 25, 2009

Low Wage Worker Survey Reveals Widespread Wage and Hour Violations

Earlier this month, a report was released on a 2008 survey of low-wage workers in the cities of Chicago, Los Angeles, and New York. The title of the report, "Broken Laws, Unprotected Workers: Violations of Employment and Labor Laws in America's Cities," kind of gives away the ending. The statistics are truly shocking:

  • More than a quarter of those surveyed reported that they had received less than the minimum wage in the previous week, and 60% of those reported being underpaid by more than $1 per hour.
  • More than three-quarters(!) of those surveyed reported not being paid for overtime worked in the previous week -- and they averaged 11 hours of weekly overtime.
  • Almost a quarter worked off the clock (and weren't paid for it), and nearly two-thirds of those entitled to a meal break didn't receive the full, uninterrupted, work-free break required by law.
  • 41% had illegal deductions taken from their paycheck (for breakage or to pay for tools or other items required for work, for example).
  • 43% of those who had made a complaint or tried to form a union in the past year faced retaliation. One-fifth reported that they had not complained about a serious workplace problem in the past year, primarily because they feared losing their job.

Secretary of Labor Hilda Solis told the New York Times that the report "shows that we still have a major task before us." She also indicated that she's in the process of hiring 250 more wage and hour investigators.

To find out more about wage and hour laws, including the minimum wage, overtime, and what counts as an hour worked, see the Compensation and Benefits section of Nolo's website.  

September 19, 2009

It's a Man's, Man's, Man's, Mancession

Despite some signs of an economic rebound in the stock market, housing sales, and other areas, unemployment continues to rise. Earlier this month, the Bureau of Labor Statistics announced that the national unemployment rate has reached 9.7%. The San Francisco Chronicle reported that the jobless rate in California has hit 12.2%, with 2.25 million residents of the Golden State out of work and actively looking for new jobs.

People are starting to refer to our current economic situation as a "mancession," because so many who have lost their jobs are male. Nationally, the BLS reports that the male unemployment rate is 10.1%, while the female unemployment rate is only 7.6%. As a result of this skew, women now make up virtually half of the workforce, for the first time in history.

This morning, the New York Times reported on one effect of these statistics: Women who left the workforce after having children are trying to return to work, often to replace a spouse's lost income or hedge against the possibility of a spouse's layoff down the road. 

The article focuses on women who had the option of staying home with their children, so it's necessarily limited in scope to the upper end of the economic spectrum. A lot of the women profiled were attorneys, for example. And, it's a little bit hard to find too much sympathy for someone who had to return to work in part to offset investment losses "in the healthy six figures." Still, it's one more fundamental change attributable to the recession.

I'm interested in hearing how this gender shift in employment will affect overall pay and benefits. Not every working woman is an attorney pulling down a six-figure salary. In fact, women tend to earn less than men on average (currently thought to be about 80 cents on the dollar), are more likely to work part-time jobs, and are less likely to receive benefits. Will the gender shift -- and the resulting increase in families being supported primarily by women's work -- lead to higher pay and benefits for women? Or will pay and benefits decrease as women increase their participation in the labor force?