Wash & Thomas Blog
Commentary on Employee Rights, Bankruptcy, Personal Injury, and Social Security Disability laws in Texas

Texas Employee Rights

Recent Developments in Overtime Exemption Law-Fluctuating Workweek and Home Care Workers
By Danny Wash

Two areas have been in the news relating to overtime pay for employees.

The first area deals with the “fluctuating workweek”. The Fair Labor Standards Act (FLSA) requires that employees that are not qualified as exempt (usually called “non-exempt employees”) from overtime receive one & one-half times their regular rate of pay for any hours worked in excess of 40 in a workweek. This general rule applies to hourly employees and to salaried, non-exempt employees, such as clerical or certain administrative employees. The area of exempt vs. non-exempt is fairly complicated and information about these classification can be found by clicking on this link. If an employer makes a mistake in classifying an employee as exempt and does not pay overtime, the employer would owe the employee back pay at a rate of 150 percent of the employee’s regular rate for the overtime hours worked.

The fluctuating workweek exception (FWE) may apply to salaried, non-exempt employees but not to hourly employees. The key to whether or not the FWE may be utilized is the actual agreement between the employee and employer. The bottom line is whether or not there was an agreement made between the employer/employee before the method was utilized. The agreement does not have to be written and can be proven by statements or actions of the parties. The importance of the FWE is that if there is an agreement that the salary paid is intended to cover all hours worked by the employee during the workweek, then any hours worked over 40 in the week will be compensated as overtime by payment of an additional 50% of the weekly rate (instead of 150%) for each overtime hour worked (calculated by dividing the number of hours actually worked in the subject week by the salary amount for the week). An example would be if the weekly salary was $1,000 and the employee worked 50 hours during the week, the overtime would amount to $100 ($1000/50 hrs.= $20/hr; 50% of $20= $10/hr overtime rate; $10 x 10 hrs= $100 overtime pay). Here and here are postings by a law firm blog discussing in more detail and criticism of certain court rulings concerning the FWE.

The second important overtime area is one that will not be effective until January 1, 2015. This area involves home care employees. At present, home care companies can compensate their home care employees utilizing the “companionship” exemption to paying overtime and pay them on a salary basis. The exemption is generally applicable to any employee who provides services for the care, fellowship, and protection of persons who, because of advanced age or infirmity, cannot care for themselves. The exemption covers employees engaged in a wide variety of care jobs of the home bound persons. Under the new rule, the exemption will change and will only apply to individuals employed directlyby the household. Those workers who continue to work through an agency will become hourly workers subject to the duty to pay them overtime for each hour worked over 40 hours during a workweek.

October 28th, 2013 Comments Off


HIPAA Does Not Provide an Employee a Right to Sue for Violations
By Danny Wash

The Health Insurance Portability and Accountability Act (HIPAA) does not contain any express language conferring rights to sue upon a person or employee if the privacy regulations are violated. The Fifth Circuit in Acara v. Banks, 470 F.3d 569 (5th Cir., 2006) held that HIPAA does not provide a private cause of action to an individual for privacy violations but that Congress left the enforcement of the law to the Secretary of Health and Human Services. Therefore, an individual or employee who believes their privacy rights under HIPAA have been violated would need to file a complaint with said agency. Here is where you may find information on filing a complaint.

An individual may still have a common law suit for invasion of privacy for the unauthorized revelation of medical information; however, this would be separate and not involve any HIPAA protections or violations.

September 18th, 2013 Comments Off


Right to Work vs. Employment at Will
By Danny Wash

Many people confuse the term “right to work” with “employment at will”. I hear a lot of people say that Texas is a “right to work” state and what they mean to say is that Texas is a state in which you can be fired at will. The term “right to work” state actually means that a person has the right to work at a company that has a union without having to be a member of the union. Without a the right to work law, a so-called “union shop” company could refuse to hire or be forced to hire only union employees. The right to work law does not prevent a company from having a union or union employees, it just simply means that a non-union person can still work at the company, if the company wants to otherwise hire that person.
The term “employment at will” means that an employee can be fired for any or no reason (just like an employee can quit for any or no reason), as long as the real reason does not involve a violation of a state or federal law. For example, a company can terminate an employee because of your personality, because the boss had a bad morning, maybe a fight with his wife or someone cut him off in traffic, it doesn’t have to be a reasonable reason or a fair reason. But, if a boss needed to fire several employees because of a business downturn, and part of the reason he let one or more of the employees go was their gender, race, and/or their age, this violates specific laws that make it illegal to discriminate based on age, race, or gender. Another example would be if a male owner or supervisor decides to let a female go because she refused his sexual advances, this violates a specific law regarding sexual harassment.
We all know that no one does anything for no reason. So, if you are fired with no reason being given and the company refuses to give you a reason, you will need to try to find out the reason should you want to bring a suit for wrongful discharge. Normally, an easy way to do this is to file for unemployment. If the employer opposes your unemployment, they will have to come forward with a reason in order to prevent you from getting unemployment and then you will find out. However, if an employer has fired you for an illegal reason they will normally come forward with a pretextual reason. Should you sue them for wrongful discharge, it would then be your burden to come forward with evidence to show that the reason was a pretext for illegal discrimination or to show that the pretextual reason is not believable for whatever reason.

August 8th, 2013 Comments Off


The Dog Ate My Medical Certification
By Danny Wash

The Family Medical Leave Act (FMLA) is a great benefit for employees who are eligible and comply with the rules of the law. However, some people have the erroneous impression that they can’t be fired when they are under “doctors care”. This is absolutely wrong and believing this urban legend can get you fired. While the FMLA helps an employee out with some beneficial rules, it has a rule called “medical certification” that if ignored by the employee will cause you to lose your FMLA protection for your leave. Even if the doctor and you notify the employer that you are off with an illness that you and he believe are covered by the FMLA, if the employer sends the doctor a “medical certification” allowed by 25 CFR 825.313 (b), the doctor still must comply with the request. The doctor must fill out the medical certification and return it to the employer within 15 days. Now, here is the big catch- It is your duty as the employee to see that the medical certification is filled out properly and returned timely! Even if it is the doctor’s fault, the mailman’s fault, or the dog ate your medical certification; it is still your fault that it did not get back to the employer on time and you lose your FMLA leave protection thereby letting the employer off the hook and free them up to fire you (there is an exception is it was not “practicable due to extenuating circumstances” to return it within 15 days but this is living dangerously to depend on this exception). So, be persistent and forceful with the doctor and his staff to get the certification done and then you make sure its either timely mailed or you deliver it yourself (or someone on your behalf). I know this doesn’t seem fair but sometimes life isn’t fair and we have to accept it and follow the rules.

July 23rd, 2013 Comments Off


Recent Cases Affecting Employment Law
By Danny Wash

Vance v. Ball State University, U.S. Supreme Court, No. 11-556, Decided 6/24/13
Title VII- Definition of Supervisor- Supreme Court ruled that, under the federal Title VII discrimination statute, an employer can be held vicariously liable for an employee’s unlawful harassment only where that particular employee has been empowered with the authority “to take tangible employment actions against the victim.” The term “supervisor” is not defined in Title VII. Instead, it was adopted by the Supreme Court as a way to identify those individuals whose actions could give rise to vicarious employer liability in the two earlier decisions of Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). As established in Ellerth and Faragher, the standard to determine the employer’s liability is different based on whether or not the alleged harasser held a “supervisor” position. First, where the alleged harasser is only the individual’s co-worker (and not a supervisor), the employer is liable only if it was negligent in failing to prevent the harassment from taking place. Conversely, where the alleged harasser is the individual’s supervisor, and the harassment results in an adverse tangible employment action, the employer will be strictly liable. However, if no tangible employment action is taken, the employer can avoid liability if it can demonstrate, as an affirmative defense, that (1) it exercised reasonable care to prevent and eliminate harassment, and (2) that the plaintiff unreasonably failed to take advantage of the preventive or remedial opportunities provided by the employer. The Supreme Court rejected guidance issued by the Equal Employment Opportunity Commission – and adopted by several other circuit courts -that links supervisor status, in part, to an employee’s ability to direct another’s daily tasks. Accordingly, according to the Majority decision, “an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a ’significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’”

University of Texas Southwest v. Nassar, U.S. Supreme Court, No. 12-484, Decided 6/24/13
Title VII Retaliation- In this case the Supreme Court held that Title VII retaliation claims must be proved according to traditional principles of “but-for” causation, not the lessened causation test stated in §2000e–2(m). An employee alleging status-based discrimination under §2000e–2 need not show “but-for” causation. The Court stated that it suffices instead to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives for the decision. However, Title VII’s anti-retaliation provision appears in a different section from its status-based discrimination ban. And, like §623(a)(1), the Age Discrimination in Employment Act (ADEA) provision in Gross, §2000e–3(a) makes it unlawful for an employer to take adverse employment action against an employee “because” of certain criteria. The Court decided that given the lack of any meaningful textual difference between §2000e–3(a) and §623(a)(1), the proper conclusion is that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.

EEOC v. Houston Funding II, LLC, 2013 U.S. App. LEXIS 10933; May 30, 2013
Pregnancy Discrimination- Plaintiff EEOC sued defendant employers alleging a former employee was unlawfully discharged because she was lactating and wanted to express milk at work. The U.S. District Court for the Southern District of Texas granted summary judgment to the employers, finding that, as a matter of law, discharging a female employee because she was lactating or expressing milk was not sex discrimination. The EEOC appealed to the 5th Circuit. The employee had regularly kept in touch while she was absent on maternity. When she called to say she had been released to return to work, and again mentioned she was lactating and asked if she could use a back room to pump milk, there was a long pause after which she was told her job had been filled. A later termination letter stated she was discharged due to job abandonment, effective 3 days before the phone call. The EEOC’s argument that the employee was discharged because she was lactating or expressing milk stated a cognizable sex discrimination claim under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, § 2000e(k). Lactation, the physiological process of secreting milk from mammary glands and directly caused by hormonal changes associated with pregnancy and childbirth, was a related medical condition of pregnancy for purposes of § 2000e(k). It is a physiological result of being pregnant and bearing a child. The EEOC had also proffered evidence showing that the stated reason for the discharge, job abandonment, was pretextual. There was thus triable evidence from which a factfinder could find a violation of Title VII.

El Paso County Juvenile Board v. Aguilar, 387 S.W.3d 795 (Tex.App.-El Paso 2012)
Immunity-Worker’s Comp Retaliation- Former employee of county juvenile board brought suit alleging termination for filing a worker’s compensation claim in violation of Sec. 451 Texas Labor Code. Board filed a plea to the jurisdiction alleging governmental immunity in the wake of the Texas Supreme Court’s decision in Travis Central Appraisal District v. Norman, 342 S.W.3d 54 (Tex.2011). Sovereign immunity protects the State, its agencies, and its officials fro lawsuits for damages. A political subdivision enjoys governmental immunity from suit to the extent it has not been abrogated by the Legislature. A cause of action under Section 451 Texas Labor Code cannot proceed against a governmental entity absent Legislative consent. The Political Subdivisions Law (PSL) did not waive immunity for political subdivisions according to the Texas Supreme Court in Norman. A county juvenile board is a political subdivision of the State according to the PSL. Therefore, the employee’s suit was dismissed for lack of jurisdiction.

El Paso County v. Kelley, 390 S.W.3d 426 (Tex.App.- El Paso 2012)
Exhaustion of remedies- Texas Commission on Human Rights Act- Former county employee filed a complaint with the Texas Workforce Commission-Civil Rights Division (Commission) alleging he was terminated in retaliation for reporting illegal discrimination. The complaint was filed within 180 days of the retaliation; however, the Commission dismissed his claim prior to the 180 day period from the date he filed the complaint. The employee did not request a right to sue and actually filed suit prior to the running of the 180 day period. The county filed a plea to the jurisdiction claiming that the suit was jurisdictionally barred because the employee failed to obtain a right to sue and filed a suit prior to the exhaustion of the 180 day period. The trial court denied the plea and the county appealed. The court of appeals held that the exhaustion of the 180 day period after filing the complaint, nor obtaining a right to sue, were jurisdictional. The court stated that the county could have filed a plea in abatement to abate the suit until the running of the 180 days but since they failed to do so, the time had expired and the suit was not barred jurisdictionally by either the 180 day limit or the failure to secure a right to sue letter.

Armendariz v. Redcats USA, L.P., 390 S.W.3d 463 (Tex.App.-El Paso 2012)
Worker’s Comp Retaliation- Employee brought suit for wrongful discharge against her former employer. The trial court granted the employer’s motion for summary judgment. The employee appealed. The employee was injured on the job and filed a worker’s compensation claim. The employee had a poor attendance record and the employer used a point system for attendance. Prior to the absence that the employer claims was the reason for termination, the employee had been on final notice for prior attendance issues. The court reviewed the standards for establishing a causal link between the claim and the termination. When circumstantial evidence is used there are five factors the court generally uses: (1) knowledge of the claim by those making the decision; (2) expression of a negative attitude toward the employee’s injured condition; (3) failure of the employer to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false. While an employee is not required to produce evidence on all five of the factors, the courts generally require an employee to establish at least a majority of them. The court examined the evidence related to the five factors and ruled that the employee fail to establish a majority of them.

Lotito v. Knife River Corporation-South, 391 S.W.3d 226 (Tex.App.- Waco 2012)
Promissory Estoppel- Employee sued his former employer alleging promissory estoppel as an independent cause of action that the employer promised to employ him in Texas for four years and then relocate him to California and employee him for an additional four years. The trial court granted a summary judgment in favor of the employer. The court of appeals held that despite having held that promissory estoppel was a viable cause of action in a bid construction case, it was not an available offensive cause of action in an employment case. The court stated that it has held that in the context of an employment case, promissory estoppel is a “shield, not a sword”. Judge Davis concurred with the result but disagreed on the holding that promissory estoppel could never be used a an offensive cause of action in an employment case citing other cases. Judge Davis stated that where there is no actual contract, promissory estoppel may be used to supply the injured party with a remedy which will enable the party to be compensated for his forseeable, definite and substantial reliance. However, in this case, the promise of eight years of employment would have been prevented from enforcement by the statute of frauds and therefore, the employee’s reliance was not reasonable and justified.

Echostar Satellite LLC v. Aguilar, 394 S.W3d 276 (Tex.App.-El Paso 2012)
Worker’s Comp Retaliation- Employee brought action against employer alleging that he had been discharged for filing a worker’s compensation claim. The case was tried to a jury and the employer appealed an adverse verdict. The court of appeals cited the five factors of circumstantial evidence quoted above in the Armendariz case. However, the court included two additional factors- temporal proximity of the claim to the date of termination and providing incentives to refrain from reporting injuries, as being further proof of a causal link. The employer alleged that it had a uniformly enforced absence policy and that this was the reason for discharge. The Texas Supreme Court has held that a uniformly enforced absence control policy is a defense to a wrongful discharge case. The evidence showed that when the employee’s leave was over, he did not show up for three consecutive days and did not call. The company had a policy that anyone having three no-call, no-shows was to be automatically terminated. However, the company failed to terminate the employee for three weeks after the three absences, with no explanation for why they did not terminate him for that length of time. The court held that the unexplained failure to enforce the policy in this manner justified the jury’s finding.

July 10th, 2013 Comments Off


Discrimination Based on Breast Feeding Protected By Pregnancy Discrimination Act & Title VII
By Danny Wash

The Fifth Circuit Court of Appeals has ruled in EEOC v. Houston Funding II, Ltd. that the plaintiff should receive a jury trial on whether the company violated the Pregnancy Discrimination Act (PDA) and Title VII, when she requested the right to use a breast milk express pump at work and was fired. The plaintiff was an employee who gave birth and was on leave for the birth. She was breast-feeding the baby at home and, in order to continue the feeding and return to work, she needed to use a breast pump at work. The company was reluctant to oblige and when she pushed the issue they fired her allegedly for other reasons. She sued in federal court and the company convinced the judge to dismiss her case. She appealed to the Fifth Circuit, which has the reputation of being hostile to employees. However, in this case, the panel came down on the side of the employee holding that she should get a jury trial on the issue. The Fifth Circuit stated that “The PDA provides that “[t]he terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions[.]” 42 U.S.C. § 2000e-(k). The court went on to use the dictionary definition of “medical condition” and state that “given that this definition includes any physiological condition, it is difficult to see how it could not encompass lactation.” The court stated that lactation is a normal aspect of female physiology that is initiated by pregnancy and concludes sometime thereafter. Therefore, the court held that lactation is an aspect of female physiology that is affected by pregnancy and seems readily to fit into a reasonable definition of “pregnancy, childbirth, or related medical conditions.” The court further held that “because discriminating against a woman who is lactating or expressing breast milk violates Title VII and the PDA, we find that the EEOC has stated a prima facie case of sex discrimination with a showing that Houston Funding fired [plaintiff] because she was lactating and wanted to express milk at work.”

June 6th, 2013 Comments Off


MENTAL ANGUISH REVISITED BY TEXAS SUPREME COURT
By Danny Wash

The Texas Supreme Court is once again “tinkering” with the proof necessary to recover mental anguish damages.  Although the case involved defamation, in  Hancock v. Variyam, the court revisted  the necessary amount of proof to support damages for mental anguish.  This is important to employment cases because they frequently involve an attempt to recover mental anguish damages and frequently fail for insufficient proof. The court has in the past set forth the requirement that in order to recover mental anguish a plaintiff must show evidence of a substantial disruption in daily routine or a high degree of mental pain and distress.  Also, the plaintiff must additionally show the nature, duration, and severity of the mental anguish.  The court had laid down these requirements in earlier cases.  However, in the Hancock case the court showed in a negative manner how the plaintiff had not provided enough evidence of mental anguish.  If you are a lawyer representing plaintiffs you should put a copy of the case in your notebook in order to review all of the necessary requirements with your client to determine if the mental anguish claimed will pass the rather high standard of the court. Also, you should talk with your client about the level of necessary proof so that the appropriate level of proof and words may be presented at deposition and trial, if the proof and words are true.  Many times the appropriate emotions and interference with the plaintiff’s life is present but is not effectively presented because of insufficient preparation or just the inability of the client to express the level of mental anguish.  It may be that others (such as a spouse or friend) can express the necessary evidence better than the client.  The problem with the Supreme Court’s insistence on the high level of “magic words” and testimony necessary to clear the high hurdle the court has erected is that it ignores the problem of people who are not very expressive or have difficulty talking about their emotions.  The court seems to ignore the role of a jury in assessing the demeanor of the plaintiff regarding the mental anguish and penalizes the ones who are not able to express themselves orally very well.  In that event, it makes it even more important to some how convey the level of suffering by other means, either spouse, friends, or a counselor.

May 17th, 2013 Comments Off


Corporations Are Robbing Us Of Our Right to a Fair Trial
By Danny Wash
Being wronged by a corporation is painful enough, but just try getting your day in court. Most Americans don’t realize it, but our Seventh Amendment right to a fair jury trial against corporate wrongdoers has quietly been stripped from us. Instead, we are now shunted into a stacked-deck game called “Binding Mandatory Arbitration.” Proponents of the process hail it as superior to the courts — “faster, cheaper and more efficient!” they exclaim.
But does it deliver justice? It could, for the original concept of voluntary, face-to-face resolution of conflict by a neutral third party makes sense in many cases. But remember what Mae West said of her own virtue: “I used to be Snow White, then I drifted.” Today’s practice of arbitration has drifted far away from the purity of the concept.
All you really need to know about today’s process is that it’s the product of years of conceptual monkey-wrenching by corporate lobbyists, Congress, the Supreme Court and hired-gun lobbying firms looking to milk the system for steady profits. First and foremost, these fixers have turned a voluntary process into the exact opposite: mandatory. Let’s look at this mess.
— Unlike courts, arbitration is not a public system, but a private business.
— Far from being neutral, “the third-party” arbitration firms are — get this! — usually hand-picked by the corporation involved in the case, chosen specifically because they have proven records of favoring the corporation.
— The corporation also gets to choose the city or town where the case is heard, allowing it to make the case inconvenient, expensive and unfair to individuals bringing a complaint.
— Arbitrators are not required to know the law relevant to the cases they judge or follow legal precedents.
— Normal procedural rules for gathering and sharing evidence and safeguarding fairness to both parties do not apply in arbitration cases.
— Arbitration proceedings are closed to the media and the public.
— Arbitrators need not reveal the reasons for their decisions, so they are not legally accountable for errors, and the decisions set no legal precedents for guiding future corporate conduct.
— Even if an arbitrator’s decision is legally incorrect, it still is enforceable, carrying the full weight of the law.
— There is virtually no right to appeal an arbitrator’s ruling.
That adds up to a kangaroo court! Who would choose such a rigged system? No one. Which is why corporate America has resorted to brute force and skullduggery to drag you into their arbitration wringer.
By “force,” I mean practically every business relationship you have with a corporation (customer, employee, supplier, etc.) begins with you blindly signing away your right to go to court. Written in indecipherable legalese, these sneaky provisos are usually secluded in the tiny-type of pre-printed, take-it-or-leave-it, non-negotiable contracts.
By “you,” I mean everyone one of us who: takes a job, gets a credit card, subscribes to cable TV, buys an insurance policy, rents an apartment, purchases nearly any new product (from cellphone to house), has a home remodeled or car repaired, enters a nursing home, becomes a franchisee or corporate supplier or signs up with a landscaping service.
If you seek justice because you’ve been gouged by your bank, discriminated against, sexually harassed, unfairly fired, cheated on wages, sold a shoddy product, denied health care coverage or otherwise harmed by a corporation, you’ll most likely find that you’re barred from the courthouse door. That document you unwittingly signed has shackled you to the corporation’s own privatized court.
Since binding mandatory arbitration “agreements” are written by corporate lawyers, it’s no surprise that they stack the deck in favor of corporations. But — wow! — the percentage of rigged wins is disgusting.
For example, Public Citizen found that one giant firm, the National Arbitration Forum, heard over 34,000 consumer-versus-bank cases in California. It sided with financial giants 95 percent of the time. Even more astonishing, the city of San Francisco found that of the 18,045 cases brought by banks and other powers against overmatched California consumers, NAF’s private judges sided with the corporations 100 percent of the time.
As a consumer or employee, I wanted you to know about this so I have reproduced the following article by Jim Hightower of AlterNet.org.:
Being wronged by a corporation is painful enough, but just try getting your day in court. Most Americans don’t realize it, but our Seventh Amendment right to a fair jury trial against corporate wrongdoers has quietly been stripped from us. Instead, we are now shunted into a stacked-deck game called “Binding Mandatory Arbitration.” Proponents of the process hail it as superior to the courts — “faster, cheaper and more efficient!” they exclaim.
But does it deliver justice? It could, for the original concept of voluntary, face-to-face resolution of conflict by a neutral third party makes sense in many cases. But remember what Mae West said of her own virtue: “I used to be Snow White, then I drifted.” Today’s practice of arbitration has drifted far away from the purity of the concept.
All you really need to know about today’s process is that it’s the product of years of conceptual monkey-wrenching by corporate lobbyists, Congress, the Supreme Court and hired-gun lobbying firms looking to milk the system for steady profits. First and foremost, these fixers have turned a voluntary process into the exact opposite: mandatory. Let’s look at this mess.
— Unlike courts, arbitration is not a public system, but a private business.
— Far from being neutral, “the third-party” arbitration firms are — get this! — usually hand-picked by the corporation involved in the case, chosen specifically because they have proven records of favoring the corporation.
— The corporation also gets to choose the city or town where the case is heard, allowing it to make the case inconvenient, expensive and unfair to individuals bringing a complaint.
— Arbitrators are not required to know the law relevant to the cases they judge or follow legal precedents.
— Normal procedural rules for gathering and sharing evidence and safeguarding fairness to both parties do not apply in arbitration cases.
— Arbitration proceedings are closed to the media and the public.
— Arbitrators need not reveal the reasons for their decisions, so they are not legally accountable for errors, and the decisions set no legal precedents for guiding future corporate conduct.
— Even if an arbitrator’s decision is legally incorrect, it still is enforceable, carrying the full weight of the law.
— There is virtually no right to appeal an arbitrator’s ruling.
That adds up to a kangaroo court! Who would choose such a rigged system? No one. Which is why corporate America has resorted to brute force and skullduggery to drag you into their arbitration wringer.
By “force,” I mean practically every business relationship you have with a corporation (customer, employee, supplier, etc.) begins with you blindly signing away your right to go to court. Written in indecipherable legalese, these sneaky provisos are usually secluded in the tiny-type of pre-printed, take-it-or-leave-it, non-negotiable contracts.
By “you,” I mean everyone one of us who: takes a job, gets a credit card, subscribes to cable TV, buys an insurance policy, rents an apartment, purchases nearly any new product (from cellphone to house), has a home remodeled or car repaired, enters a nursing home, becomes a franchisee or corporate supplier or signs up with a landscaping service.
If you seek justice because you’ve been gouged by your bank, discriminated against, sexually harassed, unfairly fired, cheated on wages, sold a shoddy product, denied health care coverage or otherwise harmed by a corporation, you’ll most likely find that you’re barred from the courthouse door. That document you unwittingly signed has shackled you to the corporation’s own privatized court.
Since binding mandatory arbitration “agreements” are written by corporate lawyers, it’s no surprise that they stack the deck in favor of corporations. But — wow! — the percentage of rigged wins is disgusting.
For example, Public Citizen found that one giant firm, the National Arbitration Forum, heard over 34,000 consumer-versus-bank cases in California. It sided with financial giants 95 percent of the time. Even more astonishing, the city of San Francisco found that of the 18,045 cases brought by banks and other powers against overmatched California consumers, NAF’s private judges sided with the corporations 100 percent of the time.
March 29th, 2013 Comments Off


DEFINITION/EXPLANATION OF IMPORTANT TERMS of the ADA (ADAAA)
By Danny Wash
Americans with Disabilities Act Disability (as amended by ADAAA) means-
A Physical or Mental Impairment that Substantially Limits one or more of the
Major Life Activities (MLA) or being
Regarded As having such an impairment or
A Record Of such an impairment
Definitions/explanations of the above terms:
Physical or Mental Impairment means a physiological or mental disorder, cosmetic
disfigurement, or anatomical loss affecting a body system or mental disorder or disability,
emotional/mental illness, & specific learning disabilities.
Substantially Limits to be construed broadly in favor of coverage and is measured against ability
of an individual to perform as compared to most people in the general population.
Major Life Activities are activities such as caring for oneself, manual tasks, numerous bodily
operations, and working. Also, operation of a major bodily function or an individual organ.
“Major” shall not be interpreted strictly.
Determination of whether impairment substantially limits a MLA shall be made without regard to
effects of mitigating measures. An impairment that is episodic or in remission is a disability if it
qualifies when active.
The following impairments will almost always result in coverage: deafness substantially limits
hearing; blindness limits seeing; intellectual disability limits brain function; autism limits brain
function; cancer limits normal cell growth; diabetes limits endocrine function; multiple sclerosis
limits neurological function; depression, PTSD, obsessive compulsive disorder limits brain
function.
Considering the manner, condition, or duration of performing the MLA, as opposed to general
population, should be done to determine a disability. The focus is on how a MLA is substantially
limited and not on what outcomes a person can achieve. For example, someone with a learning
disability may achieve a high level of academic success, but may be substantially limited because
of the additional time and effort involved compared to general population.
Regarded As (RA)- A person is RA if the person is subjected to a prohibited action because of an
actual or perceived physical or mental impairment, whether or not that impairment substantially
limits, or is perceived to substantially limit a MLA. A person is RA any time an employer takes
a prohibited action against the person because of an actual or perceived impairment, even if the
employer asserts, or may or does establish a defense to such action.
Record Of (RO)- A person needs a written record of an impairment to qualify.
Americans with Disabilities Act Disability (as amended by ADAAA) means-
A Physical or Mental Impairment that Substantially Limits one or more of the
Major Life Activities (MLA) or being
Regarded As having such an impairment or
A Record Of such an impairment.
Definitions/explanations of the above terms:
Physical or Mental Impairment means a physiological or mental disorder, cosmetic disfigurement, or anatomical loss affecting a body system or mental disorder or disability, emotional/mental illness, & specific learning disabilities.
Substantially Limits to be construed broadly in favor of coverage and is measured against ability of an individual to perform as compared to most people in the general population.
Major Life Activities are activities such as caring for oneself, manual tasks, numerous bodily operations, and working. Also, operation of a major bodily function or an individual organ. “Major” shall not be interpreted strictly.
Determination of whether impairment substantially limits a MLA shall be made without regard to effects of mitigating measures.  An impairment that is episodic or in remission is a disability if it qualifies when active.
The following impairments will almost always result in coverage: deafness substantially limits hearing; blindness limits seeing; intellectual disability limits brain function; autism limits brain function; cancer limits normal cell growth; diabetes limits endocrine function; multiple sclerosis limits neurological function; depression, PTSD, obsessive compulsive disorder limits brain function.
Considering the manner, condition, or duration of performing the MLA, as opposed to general population, should be done to determine a disability.  The focus is on how a MLA is substantially limited and not on what outcomes a person can achieve.  For example, someone with a learning disability may achieve a high level of academic success, but may be substantially limited because of the additional time and effort involved compared to general population.
Regarded As (RA)- A person is RA if the person is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit a MLA.  A person is RA any time an employer takes a prohibited action against the person because of an actual or perceived impairment, even if the employer asserts, or may or does establish a defense to such action.
Record Of (RO)- A person needs a written record of an impairment to qualify.
(This is a brief explanation and for a more expansive explanation please consult the EEOC website for further clarification)
February 27th, 2013 Comments Off


FMLA-CLARIFICATION OF SON OR DAUGHTER DEFINITION BY DOL
By Danny Wash

The Department of Labor released a new interpretation and clarification of the definition of “son or daughter” under Section 101(12) of the Family and Medical Leave Act (FMLA) as it applies to an individual 18 years or older and incapable of self-care because of a mental or physical disability.  The FMLA entitles an eligible employee to take up to 12 workweeks of unpaid, job-protected leave during a 12-month period to care for a son or daughter with a serious health condition. The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is—(A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.” However, in order to meet the FMLA’s definition of a “son or daughter,” an adult child (i.e., one who is 18 years of age or older) must have a mental or physical disability and be incapable of self-care because of that disability. The FMLA regulations adopt the ADA’s definition of “disability” as a physical or mental impairment that substantially limits a major life activity (as interpreted by the EEOC) to define “physical or mental disability.”

A parent will be entitled to take FMLA leave to care for a son or daughter 18 years of age or older, if the adult son or daughter:

  • (1) has a disability as defined by the ADA;
  • (2) is incapable of self-care due to that disability;
  • (3) has a serious health condition; and
  • (4) is in need of care due to the serious health condition

It is only when all four requirements are met that an eligible employee is entitled to FMLA-protected leave to care for his or her adult son or daughter.

Based on the purpose of the FMLA, the legislative history of the definition of “son or daughter,” and WHD’s enforcement experience, as well as the example in the preamble to the 2008 FMLA Final Rule, it is the Administrator’s interpretation that the age of onset of a disability is irrelevant in determining whether an individual is a “son or daughter” under the FMLA. An employee is entitled to take FMLA leave to care for a son or daughter with a serious health condition who is 18 years of age or older and incapable of self-care because of a disability regardless of when the disability commenced.

Therefore, for a parent to take FMLA leave for an adult child, the son or daughter must not only be incapable of self-care due to a disability but must also need care due to a condition that qualifies as a serious health condition under the FMLA regulations. While the adult son or daughter’s serious health condition need not be directly related to his or her disability, the same condition may satisfy both the ADA definition of disability and the FMLA definition of serious health condition.

The interpretation by the Department of Labor gives two helpful examples in order to understand these rules:

Example 1: An employee’s 37-year old daughter suffers a shattered pelvis in a car accident which substantially limits her in a number of major life activities (i.e., walking standing, sitting, etc.). As a result of this injury, the daughter is hospitalized for two weeks and under the ongoing care of a health care provider. Although she is expected to recover, she will be substantially limited in walking for six months. If she needs assistance in three or more activities of daily living such as bathing, dressing, and maintaining a residence, she will qualify as an adult “daughter” under the FMLA as she is incapable of self-care because of a disability. The daughter’s shattered pelvis would also be a serious health condition under the FMLA and her parent would be entitled to take FMLA-protected leave to provide care for her immediately and throughout the time that she continues to be incapable of self-care because of the disability.

Example 2: An employee’s 25-year old son has diabetes but lives independently and does not need assistance with any ADLs or IADLs. Although the young man’s diabetes qualifies as a disability under the ADA because it substantially limits a major life activity (i.e., endocrine function), he will not be considered an adult “son” for purposes of the FMLA because he is capable of providing daily self-care without assistance or supervision. Therefore, if the son is admitted to a hospital overnight for observation due to a skiing accident that does not render him disabled, his parent will not be entitled to take FMLA leave to care for him because he is over the age of 18 and not incapable of self-care due to a mental or physical disability.

If the son later becomes unable to walk and is also unable to care for his own hygiene, dress himself, and bathe due to complications of his diabetes, he will be considered an adult “son” as he is incapable of self-care due to a disability. The son’s diabetes will be both a disability under the ADA and a chronic serious health condition under the FMLA because his condition requires continuing treatment by a doctor (e.g., regular kidney dialysis appointments). If his parent is needed to care for him, his parent may therefore take FMLA-protected leave to do so.


January 16th, 2013 Comments Off