Pautsch, Spognardi & Baiocchi Legal Group LLP
Monday Morning Minute
In This Issue
                  June 4, 2018


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On May 21 , the Supreme Court issued its decision in Epic Systems v. Lewis, together with Ernst & Young v. Morris, and NLRB v. Murphy Oil, USA.  In this decision, the Court concluded that arbitration agreements providing for one-on-one resolution of employment disputes, and the waiving of the right to participate in class or collective actions are lawful and enforceable.
Employers should carefully consider the pros and cons of arbitration, and whether is right for their organization.  Arbitration is a private forum, which when carefully crafted,  can be kept confidential, and streamlined.  It is generally thought that arbitration is cheaper than the courts, but that is not  always the case.  Careful consideration must be given to what types of claims the employer and employee are agreeing to arbitrate: all discipline and discharge disputes?; are you seeking to depart from "employment-at-will," to some contractual standard such as "just cause."  If so, why?
Other pitfalls of arbitration are: 
  • there is rarely any right to appeal, and it is rare to get an arbitration award vacated;
  • the arbitrator may be as irrational as any jury;
  • unless you specify your procedures, you may not be able to have the dispute thrown out on a motion;
  • arbitrator's often "split the baby;"
Please feel free to contact any PSB attorney if you are considering developing a mandatory arbitration procedure for your organization.  Despite all the benefits of arbitration and the ability to waive class action rights, there are serious issues that must be closely examined before adopting any mandatory dispute resolution procedure.  
True or False? 

1. Congress passed, and President George W. Bush signed into law, the Americans with Disabilities Act Amendments Act of 2008 which sharply curtailed the definition of "disability" under ADA because the Supreme Court had interpreted it too broadly.
FALSE. President G. W. Bush did sign ADAAA of 2008 into law (just as his father signed ADA of 1991 into law), but the 2008 amendments broadened the definition of an individual with a "disability" essentially overturning several US Supreme Court definitions that had taken a narrow view of the Act's protections on such issues as whether or not corrective measures should be taken into account when assessing whether someone is disabled and whether "working" is its own "major life activity" under the Act.
2. If it is obvious that you will not be able to accommodate an employee's or applicant's  clear and obvious disability you need not ask the employee/applicant about ways that you might be able to accommodate it.
FALSE. This is a significant mistake to make in the accommodation process. Some courts have found that the mere, simple failure to engage in the interactive process of determining whether an accommodation is feasible, or at the end of the analysis----reasonable, is a violation of ADA. Even in jurisdictions which don't find this to be an automatic and separate violation, you will have some severe explaining to do as to why you didn't at least start the interactive process, particularly in termination cases.
3. If an applicant for a job cannot fill in your job application due to a disability, you need not consider them further.
FALSE.  The need to accommodate disabilities in your work place, as we like to put it, begins at Day Zero----meaning BEFORE the applicant is hired. So if an applicant needs an accommodation during the application process and it can be given without undue hardship, then it should be. The easiest example is an application in braille for an individual with a visual impairment. More difficult questions are being faced in this world of virtual or computer driven hiring.
4. Even if you provide "light duty" for individual employees returning from workers compensation leave, you can maintain a rule which  states that you need not provide it to employees who are injured off the job.
FALSE. At least without a great degree of scrutiny from the EEOC and plaintiff, who are pressing numerous cases testing this sort of light duty program. The argument they are making is that if the employer can provide such a program for worker compensation claimants in an effort to get them back to gainful employment (and off comp) then it is reasonable to hold that it is reasonable to apply such a program to other workers with a disability.
5. Leukemia is a "disability" covered by ADA.
FALSE----in the sense that it is a flat-out assertion that it is. There are cases of leukemia that are covered as a "disability" under ADA, while there are cases where it is not. Remember each case is decided on an "individualized assessment" of whether the employee presents with having  "physical or mental impairment or condition" that "substantially limits a major life activity" including "working" or is perceived as having such an impairment or a record of such an impairment.
6. Major Depressive Disorder is a "disability" covered by ADA.
FALSE----for the all of the same reasons as set forth with regard to leukemia.
7. If an employee or applicant is collecting Social Security Disability under the SSDI program they can still make a viable claim under ADA to request or demand a job accommodation.
TRUE---It is "viable" only in the sense that it is not an automatic bar to such a claim if the employee or applicant can establish reasons or extenuating circumstances why he or she is able to claim that they can do the job in question and also be able to simultaneously claim that they are sufficiently able to meet the SSDI definition of "disability." Not an easy task, but the Supreme Court said they should at least be given a chance to explain why this is not incongruent before their case is dismissed.
8. An individual who suffers a severe compound fracture of the arm that completely heals in three months' time is likely to be considered covered by ADAAA's definition of "disability."
TRUE and FALSE------This presents a very close case and we would need more facts (and a judge) to decide whether or not this is a disability. In Summers vs. Altarum, the Fourth Circuit US Court of Appeals wrestled with similar facts involving a severely fractured leg but one that would impact the employee's walking abilities for seven months, instead of being completely healed after three months as in our example. The court held that the employee had a covered disability emphasizing ADAAA's more expansive definition of "disability." Query as to whether this analysis would hold true if the impairment was expected to last less than seven months, given that ADAAA does contain a provision that states that a presumption favoring coverage of a disability starts at the length of six months.
9. It is completely acceptable and a "best practice" to limit all leaves of absence to 180 days.
FALSE-- It is a particularly dangerous practice as this has become a target for the EEOC's class action program as they are relying on the accepted teaching from the Supreme Court that the assessment of and accommodation for disabilities must be done on an INDIVIDUALIZED basis. The EEOC contends that a "one rule fits all" approach to this violates this fundamental principle of ADA.
10. If an employee is not eligible for FMLA leave, then they need not be considered for leave under ADA.
FALSE. Probably the most common error that employers make is to consider the two leaves as synonymous. There are many situations where ADA leave must or should be considered as a possible accommodation where the employee is ineligible for FMLA for many reasons-----not eligible because of too few hours worked  in a 12 month period, is a new employee, does not work at a facility that is covered, has used up all of eligible leave, etc. For the ADA eligible and qualified employee coverage is available in all of these circumstances where it can serve as a reasonable accommodation.
Small projects?  Big projects? Transitional needs while you hire your next your Human Resources person?  Or perhaps you are a smaller company that needs only a part time dedicated person to assist you in HR!  
Contact PSB Consulting to see how we can help.   We work on a project basis or as an extension of your team.
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PAUTSCH, SPOGNARDI & BAIOCCHI LEGAL GROUP is a law firm dedicated to finding common sense, affordable solutions for businesses to labor, employment, human resource and general business needs. With over 75 combined years of experience among its 3 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues.  And as litigators, who combined have over thousands of trials  "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner. 


For more information on the firm, please go to our website at or Lisa at