BIA REPORT
Employment Law Update
State and federal developments of interest to New Hampshire employers
December 1999 issue:
By Andrea Johnstone and Anne Scheer*
1st Circuit Rules Carpal Tunnel Protected Under ADA
In a recent decision, Quint v. A.E. Stanley Mfg. Co., the 1st Circuit, which includes New Hampshire, ruled that carpal tunnel syndrome is a cognizable disability under the ADA, and that under the facts presented, it "substantially limits" the major life activity of "working." Plaintiff was employed in a geographic area (Maine) where, not unlike in New Hampshire, physically demanding jobs are the mainstay. Plaintiff's work history entailed manual labor ranging from potato harvesting, house cleaning and painting.
The court explained that the employee's burden of proof to establish a substantial limitation of the major life activity of working only required the presentation of general employment, demographic and/or recognized occupational classifications that indicate the approximate number of jobs from which an individual would be excluded. In this case, the employee successfully met her burden by adducing "competent evidence that her training, knowledge, skills, a high school education and work history of heavy physical labor likely would restrict her to such jobs, which were the most prevalent in her geographical area." The Court also recognized the right of a plaintiff to preemptively limit a major life activity to avoid a future risk of injury. New Hampshire employers should be mindful of this decision when considering whether or not to reasonably accommodate workers suffering from carpal tunnel and other repetitive motion disorders.
Health Insurance Waiver Incentive = Wages
The New Hampshire Department of Labor found in favor of a former employee seeking payment of her health insurance waiver incentive bonus. The Company provided employees with incentive pay twice a year if they did not enroll in the employer's health insurance program. The insurance waiver policy was silent as to whether payment would be made and, if so, how it would be made upon termination from employment. The employee claimed that she was entitled to a pro-rated share of the incentive bonus. The employer argued, unsuccessfully, that only persons who were active employees when the semi-annual payment is made, were entitled to the incentive pay. The Department of Labor ruled that the employer had failed to adequately inform the claimant of this alleged requirement and awarded the laid off worker the health insurance incentive pay, prorated through her layoff date. Employers are once again reminded of the need to expressly state, in writing, to all employees, through individual or posted notice, how compensation, benefits (e.g. sick, vacation, earned time, etc.) and other payments (e.g. bonuses, commissions, etc.) will be handled upon separation from employment.
Handbook Disclaimer Upheld As Creating No Contract
Contract disclaimers in employee handbooks just got easier. The U.S. District Court, District of New Hampshire in Young v. Plymouth State College, dismissed plaintiff's breach of contract claims in reliance on the disclaimer contained the College faculty handbook's receipt signed by the employee. The disclaimer language, stated that the handbook did not create a contract of employment and that this handbook and its provisions do not, and should not be construed to establish any legally binding conditions of employment. The Court ruled that this language was sufficient to disclaim both the durational aspects of employment and any contractual right to the implementation of procedures in the handbook. Therefore, plaintiff's claims for breach of the termination and complaint procedures contained in the handbook were precluded.
Comfort For Those Giving References
Many companies cite fear of legal action as the basis for refusing to provide references or other accurate work history information about former employees to perspective employers. The Noyes v. Moccia and SAU #51, decision, however, should give employers greater confidence in sharing accurate work history information with inquiring workplaces. In Noyes, the former employee was fired for falsification of her time card. The Court held that she was precluded from going forward with defamation and intentional interference with contractual relations claims because she consented in writing on her application for employment, to the inquiries being made of her former employer. The court found that there was no defamation or intentional interference liability for the former employer's disclosure about the reason for her discharge because plaintiff had authorized the contact. To benefit from this decision, employers should require written authorization before releasing information about an employee's work history. Employers seeking information can facilitate this process by having applicant's sign written authorizations to former employers as part of the application process.
Effort To Fix Overpayment Results In Illegal Deduction
An erroneous increase to an employee's wages from $8.17 to $11.00 per hour could not lawfully be corrected through payroll deduction according the New Hampshire DOL in Brown V. Oxford Health Plans. In this case, after paying the employee at the rate of $11.00 per hour for 12 months, the employer realized that she was getting paid at the wrong hourly rate. The Company then began deducting approximately $100.00 from each paycheck to recoup approximately $3,362.03 in overpaid wages. In concluding that the employer could not recoup any of the allegedly overpaid wages, the DOL cited the employer's obligation under RSA 275:49, I and II, which require an employer to notify and employee at hire and prior to any changes, of their rate of pay. Here, DOL found that the employee received written notice of her rate of pay at hire, and later was notified of the increase to her rate of pay on her pay stub and that the error was not of the employee's making. The DOL's decision also noted that the withholding, for the alleged overpayment, was also made without written authorization.
Overlapping Family and Medical Leave Act Leave
An employee took eight weeks of leave under the Family and Medical Leave Act ("FMLA") between July 16, 1996 and September 11, 1996. The employee then took a second six weeks of leave between July 1, 1997 and August 18, 1997. The employer refused to reinstate the employee after the second leave maintaining the employee had exceeded his FMLA leave.
The Court disagreed with the employer finding the employee had not exceeded his allowed FMLA leave. The Court stated that the employee's first leave, lasting eight weeks, left the employee with four weeks of FMLA leave in that twelve-month period. The second leave began during this same twelve-month period, for which the employee was still entitled to four weeks of FMLA leave. The Court further found that the second leave continued past July 15, 1997, at which time a new twelve-month period began, entitling the employee to an additional twelve weeks of leave. Thus, the Court ruled the entire second leave was covered under the FMLA. Neal v. Children's Habilitation Ctr., (N.D. Ill. 9/10/99). This decision is noteworthy for employers using a rolling, as opposed to a calendar year, basis for determining FMLA entitlements.
Americans with Disabilities - Employees Must Help
Courts have begun to rule that employees are obligated to participate in reasonable accommodation talks with their employer. In one such case, the Court unanimously held that an employee's failure to participate in a reasonable accommodation dialogue with the employer bars any claim under the Americans with Disabilities Act ("ADA"). Loulseged v. Akzo Noble, Inc., 78 F.3d 731 (5th Cir. 1999). Ms. Loulseged's job had some lifting responsibilities. Over time, the employer had made a number of accommodations for Ms. Loulseged's physical restrictions. When Ms. Loulseged's physical restrictions increased, the employer, on its own, made several additional changes to accommodate these restrictions. She remained silent with respect to these accommodations and later quit and sued the employer for failing to provide reasonable accommodations.
While noting that the ADA requires an employer to provide reasonable accommodations for employees, in this case the Court stated that "[w]hat occurred here was not a refusal...to reasonably accommodate..., but a breakdown in the interactive process designed to create those reasonable accommodations." The Court noted that "the interactive process requires the input of the employee as well as the employer." And, the employer will not be found to have violated the ADA when "responsibility for the breakdown of the informal interactive process is traceable to the employee and not the employer."
The Court found that the employer's proposed accommodations were reasonable and that the employee's decision to quit prevented any further discussions as to accommodations that could have been provided. The Court maintained that the employee's silence with respect to the employer's proposed accommodations lead to the conclusion that the breakdown of the interactive process was caused by the employee and not the employer. As a result, the Court held the employer was not liable for failure to accommodate.
As this case illustrates, the ADA places a burden on both the employer and the employee to determine what constitutes reasonable accommodation. As long as an employer remains available and amenable to provide reasonable accommodation to a qualified individual with a disability, the employer greatly reduces its exposure under the ADA.
Copyright 1999. This article originally appeared in BIA Update, December 1999.
* Anne Scheer is admitted in New Hampshire.
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