Archive for June, 2012

DOJ, Law Firm Settle ADA Title VII Public Accommodation Claim

A case from New York is a reminder that employers have an obligation under the Americans with Disabilities Act to make their facilities accessible to persons with disabilities.  The U.S. Attorney for the Southern District of New York announced yesterday that an Orange County law firm settled a civil rights suit alleging discrimination on the basis of discrimination.

According to the announcement Larkin, Axelrod, Ingrassia and Tetenbaum, LLP and partner John Ingrassia, violated ADA’s Title III when they refused to meet a client in their office because she brought along a service animal.

The announcement said that the settlement took the form of a consent decree approved by U.S. District Court Judge Vincent Briccetti.

ADA Title III requires nondiscrimination on the basis of disability by public accommodations and commercial facilities. Under Justice Department regulations, that specifically includes an attorney’s office, among other places open to the public.

So this is a reminder that employers also come under Title III’s purview and must make sure that if they open their premises to the public–including their employees and job applicants–that they are accessible to disabled persons.

Health Care Mandate Is Constitutional, U.S. Supreme Court Holds

Congress can require Americans to purchase insurance or pay a fine, invoking its taxation powers under the constitution, a split U.S. Supreme Court ruled today.

The individual mandate was the central issue at stake in today’s rulings. Supporters contend it is needed to enlarge the insurance pool; otherwise insurance companies will refuse write policies for the sick. Opponents argue that the constitution does not permit the congress to require citizens to purchase a product that they don’t want.

In an opinion authored by Chief Justice Steven Roberts, the 5-4 majority ruled that whether the law is wise policy or not, it does not violate the constitution. Interestingly, the majority pegged its holding on Congress’ power to tax–and not its power to regulate interstate commerce.

“The most straightforward reading of the individual mandate is that it commands individuals to purchase insurance,” Chief Justice Roberts wrote. “But…the Commerce Clause does not give Congress that power. It is therefore necessary to turn to the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to ‘lay and collect taxes.'”

The court also ruled that Congress can offer the states additional funding if they agree to expand their Medicaid program for the poor. However, Congress cannot penalize states that choose not to participate by taking away their existing funding.


High Court Ruling Expected Tomorrow on Patient Protection and Affordable Care Act

The U.S. Supreme Court is expected to deliver its long anticipated decision on President Obama’s healthcare reform law tomorrow. Among other questions, the court will decide whether the law’s mandate that individuals purchase health insurance or pay a fine is constitutional.

Also at stake are whether Congress can require states to expand their Medicaid programs to take in more of the uninsured. If the court strikes down the mandate as unconstitutional, then the question is whether the remainder of the law can stand.

Whatever the court decides will have an impact on employers and employees, so stay tuned…

FedEx Freight, Three Other Companies Settle EEOC Charges

Monday was an especially busy day for the Equal Employment Opportunity Commission, which announced it has settled employment discrimination charges against four companies. Three of the cases involved gender discrimination or sexual harassment and retaliation against women, while the fourth provided relief on behalf of a class of employees with disabilities.

No one should doubt that the agency takes its mandate to enforce the naton’s employment discrimination laws seriously.

Here are the details of each settlement:

  • FedExFreight will pay $115,000 to settle sex discrimination charges stemming from is alleged passing over of three qualified women for a human resources job at its Phoenix office;
  • Country Fresh Market, based in Brownsville, Pa., agreed to pay $95,000 to settle allegations it tolerated sexual harassment and retaliation against female employees by the store’s meat department manager;
  • United  Road Towing, Inc., a Mokena, Ill.-based towing company, will pay $380,000 to 13  claimants and provide other relief resolving a disability discrimination  lawsuit brought on behalf of class of employees with disabilities; and
  • Frank A. Mora, individually, and as  the authorized corporate officer of Two Lac, Inc. d/b/a Oasis One Dry Cleaners,  a McAllen, Texas dry cleaning and laundry service, will pay $43,000 and provide  significant remedial relief to a former female employee who was subjected to a  sexually hostile work environment.

You can read more about each individual case by logging onto the EEOC’s home page. Look on the right for the newsroom section.


Monday was a busy day at the Equal Employment Opportunity Commission, which announced settlement of employment discrimination charges against four companies. It shows that enforcement of the law

U.S. Supreme Court Invalidates Most of Arizona’s Controversial Immigration Law

In a 5-3 decision, the U.S. Supreme Court today ruled that Arizona cannot enforce most provisions of S.B. 1070 because it intrudes on the federal government’s constitutional prerogative to legislate on immigration-related matters.

The statute has become a cause celebre for both immigration opponents and supporters and has inspired other states to pass similar legislation, most notably Alabama.

The high court struck down three of the law’s central provisions, including one that made it a crime for illegal aliens to seek work and another authorizing warantless searches of central aliens, concluding that “The government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.”

The court let stand, for the time being, the provision of the law requiring the police to check the immigration status of people they stop for traffic or other offenses.

Employer-Provided Insurance Is Subplot in High Court Ruling

As the nation awaits the U.S. Supreme Court’s ruling on the constitutionality of President Obama’s healthcare reform law,  employers know that there is more at stake in this controversy for them than simply whether the law is upheld or not.

That’s because under the current system, employers are the primary provider of health care insurance. Whether that remains the case may change depending on what the court decides.

What is indisputable is that the proportion of workers covered under employer plans is shrinking. In a survey released in April, the nonpartisan Employee Benefits Research Institute found that between 1997 and 2010, the percentage of workers offered health insurance by their employers decreased from 70.1 to 67.5 percent, and the percentage of workers covered by those plans decreased from 60.3 percent to 56.5 percent.

Some workers declined coverage because it is too expense. And workers whose employers do not offer health benefits are more likely to go without any insurance.

The court concluded that for now, the Patient Protection and Affordable Care Act–the law on which the high court will decide–is the backup to employer-provided healthcare coverage.

While much of the controversy over the law has focused on the mandate for individuals to purchase insurance, it also requires employers with 50 or more full-time workers either to provide coverage or pay a penalty. Will this prompt some employers to drop their coverage and pay the fine, or do an endrun around the law by increasing the proprortion of part-time employees?

Stay tuned.

9th Cir.: Remedies Exhaustion Unnecessary in Disability Benefits Case

It’s a maxim of employee benefits law that a claimant must exhaust remedies provided by the company prior to challenging the denial in court. On rare occasions courts will excuse the exhaustion requirement because of extenuating circumstances.

The U.S. Court of Appeals for the Ninth Circuit held that one such set of circumstances existed in the case of an employee who challenged the termination of her long term disability benefits under the Employee Retirement Income Security Act. Unum, the disability insurer, brought a counterclaim against the employee for restitution of oerpaid benefits.

The district court dismissed the employee’s claim for denial of benefits, concluding that she failed to exhaust admnistrative remedies. The appeals court ruled, however,  that exhaustion of remedies should be excused because the plaintiff acted reasonably in light of Unum’s ambiguous communications and failure to engage in a meaningful dialogue.

As a consequence, the appeals court vacated the judgment for Unum and ordered further proceedings in the case.

The case is Bilyeu v. Morgan Stanley Long Term Disability Plan, et al.

DOL: Webinar Will Answer Common FMLA Questions

Do you have questions about the Family and Medical Leave Act? Even almost 20 years after the law was passed, some employers and employees remain about uncertain about who is eligible to take leave and other aspects of leave.

To answer those questions, the DOL said it will  host a webinar next Wednesday, June 27. In today’s announcement, DOL said that the session is intended to make the law easier to understand, including recent guidance for nontraditional families.

“The webinar will give workers and employers a chance to  submit questions that will be answered by an FMLA expert from the department,” DOL said.

In conjunction with the webinar, DOL has prepared a 16-page booklet, available online,  that explains the FMLA and answers common questions.

The booklet, entitled “Need Time? The Employee’s Guide to the  Family and Medical Leave Act,” is designed to answer questions such  as who can take qualifying leave and what protections the law provides. It can be downloaded at

DOL’s announcement includes information on how to register, and for media planning to cover the session also.

Costs Drive Employers to Defined Contribution Model for Health Care Insurance

Employers aren’t waiting for the U.S. Supreme Court’s ruling on the healthcare reform law to consider what alternatives to put into place to replace traditional employer-provided insurance. Health care inflation continues as a primary driver of new insurance delivery models.

According to a just-released survey by J.D. Powers and Associates, nearly half–47 percent–of respondents said they definitely or probably will switch to a defined contribution model, in which the employer gives employees a set amount of money with which to shop for insurance.

Employees could then use the money to shop for the best insurance for their needs, using a private healthcare exchange or voucher system.

The cost of providing health care continues to be a top concern for employers, yet few of them say they plan on dropping coverage altogether.

You can read more about the 2012 Employer Health Plan Study here.

Internal Probe Participation Triggers Title VII Protection, Court Holds

An employee who allegedly was retaliated against because he cooperated in his employer’s internal investigation of another employee’s race discrimination claim may proceed with his claim under Title VII of the 1964 Civil Rights Act, a federal district court in Illinois ruled today.

In this case, Judge Gary Feinerman found that Title VII protected the former employee’s discussion of the race bias allegations with a company lawyer because it related to a lawsuit that had already been filed against the firm.

“Participating in an internal investigation commenced in response to an EEOC charge or Title VII lawsuit is statutorily protected activity,” the court held, ordering a trial in the case.

The ruling is the first one on this precise legal issue in the Seventh Circuit, which covers employers in Illinois, Wisconsin, and Indiana.