You
likely know that the ADA protects employees from discrimination “because of the
known disability of an individual with whom the qualified individual is known
to have a relationship or association.” But did you know that the ADA has three
different theories to define this associational disability?
Expense
(the cost of insuring the associated disabled person under the employer’s
health plan);
Disability
by association (a fear by the employer that the employee may contract the
disability, or the employee is genetically predisposed to develop a disability
that his or her relatives have); and
Distraction
(the employee is inattentive at work because of the disability of the
associated person).
In Williams v. Union Underwear Co., (6th Cir. 6/5/15) [pdf],
the court rejected the plaintiff’s attempt to use each of these theories to
challenge his termination after his wife was diagnosed with Wagner’s Vascular Disease, which weakened her immune
system. Other than the coincidental timing between the the wife’s diagnosis and
the alleged beginning of Williams’s adverse treatment at work, the court could
not find any other evidence of disability discrimination. Absent something in
addition to timing, the court could not conclude that Williams had presented
sufficient evidence to get his discrimination claim to a jury.
We, as
employers, often treat employee’s with family medical issues with kid gloves.
We not only worry about potential liability under the ADA, but also the FMLA.
Yet, these employees are not bulletproof. In Williams, the plaintiff had
suffered years of marginal performance, and the employer had enough. Without
something in addition to the mere fact that his wife suffered from a rare
disease, this court was unsympathetic to his claim, which should provide hope
to employers that want to hold all employees accountable to reasonable
performance standards.
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Later
this morning, I’ll board a flight for New York City to tape a segment for John Stossel’s Fox News show, to air Friday at 8 pm on Fox
Business. We’ll be discussing the over-complexity of labor and employment laws,
and their over-regulation of American businesses.
I’m certain one topic to be covered is our wage-and-hour laws. Serendipitously,
according to Employment Law 360 [subscription required],
Department of Labor Wage and Hour Division administrator David Weil recently
announced that he will shortly publish an “administrator interpretation” to
clarify who qualifies as an independent contractor.
The distinction between employee and contractor continues to beguile employers,
and is ripe for problems under both wage-and-hour laws (among other legal
entanglements).
Individuals continue to file multi-million dollar class-action
lawsuits claiming mis-classification as contractors cost them years of
unpaid overtime. And, courts continue to take a hard line against companies that
try to skirt their legal responsibilities via these mis-classifications.
Is it too much to hope for a reasonable interpretation from administrator Weil
that permits bona fide contractors to remain classified as such? He speaks of a
"holistic," as opposed to "mechanical" approach, which
"requires a careful consideration of the economic realities and multiple
aspects of the relationship." Expect a fuzzy standard with lots of gray
area, which will continue to cause employers fits. Or, in other words, expect
the status quo to continue, with employers who classify all but the clearest of
workers as employees taking a huge wage-and-hour gamble.
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