I have seen a steady increase in disability-related claims, which was expected, given the enactment of the ADA Amendments Act of 2008 (ADAAA). Congress overturned several U.S. Supreme Court decisions, some of which were more than 10 years old, grossly simplifying the determination as to who is disabled, and this has shifted the focus away from the threshold determination of whether an individual actually has a "disability." Instead, the term "disability" is now construed "broadly in favor of expansive coverage." Practically, this means that there are a lot more employees in this protected class who may be entitled to reasonable accommodations and who are bringing claims for discrimination, retaliation, and/or failure to provide reasonable accommodations. Once filed, it may be more challenging to get these claims dismissed on summary judgment. With the potential for expanded litigation, it is really important for employers to identify and understand the risks associated with employment decisions that may trigger a disability-related claim and to aggressively defend these claims.
Patti Ramseur routinely counsels businesses on labor and employment matters. She was recently named one of Business North Carolina’s Legal Elite, Young Guns, for 2010, and was selected in 2011 by Law & Politics magazine as a rising star in Labor and Employment Law.
Over the past 18 months, we have seen an increase in claims asserting overtime violations that result from misclassifying non-exempt workers as exempt, refusing to provide uninterrupted meal or break periods, and improper deductions from the salaries of exempt employees. Other claims have involved assertions that tipped employees were required to surrender their tips to make up cash shortages—a no-no if you are counting tips toward their minimum wages. Permitting employees to work off the clock is also a claim we are seeing more. From a state law perspective, we continue to see claims involving the failure to pay past due sales commissions, the failure to pay earned vacation time, and the failure to pay all wages due and owing upon termination.
In addition to employer counseling, Peter Rutledge litigates business disputes, including claims for breach of contract, unfair competition, tortious interference with contract, and claims arising under the South Carolina Trade Secrets Act.
Retaliation claims have increased significantly. Two things about these claims surprise many people:
1. the disgruntled employee doesn’t have to prove an underlying discrimination claim to have a viable retaliation claim -- the employee only has to oppose discrimination or participate in protected activity; and
2. retaliation claims are more likely to get to a jury than other types of employment claims.
Furthermore, once they make it through the motion stage and to the jury, retaliation claims can be a challenge for the defense. Not every juror will believe a plaintiff’s discrimination claim, but many jurors will believe that "it is only human nature" for a supervisor, once accused, to find a way to retaliate. Many pundits believe that recent opinions from the U.S. Supreme Court have made retaliation claims easier to prove. For these reasons, it is not uncommon to see retaliation claims added onto discrimination charges filed with EEOC as well as to civil lawsuits.
Julie Theall concentrates her practice in employment litigation, counseling, and training. Julie regularly litigates employment matters in both federal and state courts, as well as before the EEOC and the state and federal Departments of Labor.
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