Posts tagged with "Americans with Disabilities Act"

Americans With Disabilities Act

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Defining “Disability”

State and county laws dilute the effect of disability rulings. The U.S. Supreme Court ruling that narrowed the definition of a disability under the Americans With Disabilities Act (ADA) will have limited use for Westchester employers struggling with the issue, a pair of lawyers specializing in employment law said.

That’s because the Empire State defines a “disability” more liberally as a medical impairment rather than the national standard that defines it as a condition that impairs at least one major life activity, such as bathing or brushing one’s teeth.

Supreme Court Ruling

Using that narrower meaning, the Supreme Court unanimously ruled that an automobile plant worker from Kentucky could not be considered disabled because she failed to prove that her carpal tunnel syndrome “substantially limited” a major life activity.

“It is insufficient for individuals attempting to prove disability status under this test to merely submit evidence of a medical diagnosis of an impairment,” Justice Sandra Day O’Connor wrote in the court’s 18-page decision.

Ella Williams, a paint inspector at the Toyota Motor Corp. plant in Georgetown, Ky., was fired for poor attendance that she blamed on her illness. She sued Toyota in a U.S. District Court, claiming the automaker refused to provide her with an ADA-required “reasonable” accommodation from her job polishing cars on the assembly line. Her claim was dismissed by the district court but reinstated by a federal appellate court in Cincinnati.

The Supreme Court referred Williams’ case back to the appellate court for further review (Toyota v. Ella Williams, No. 00-1089).

Who will this ruling affect?

“Before the ruling, employees lost 94 percent of claims filed under ADA because they could not establish that they were disabled to the extent called for under the law. This certainly isn’t going to make it any easier for them,” said Robert Heiferman of Jackson Lewis, the employment law firm that has an office in White Plains.

“Nationally, this ruling is probably a lot more significant than it is in New York,” he said. Heiferman cited the state’s human rights law, which bars discrimination against people with disabilities, as well as the state’s disability definition, which is broad enough to include carpal tunnel syndrome.

In addition, the Human Rights Commission created by Westchester County in 2000 can take action on complaints from individuals alleging discrimination on the basis of a disability.

A lawyer with practices in New York and Connecticut says Westchester employers may benefit from the ruling, notwithstanding the state and county laws.

“For employers, the Supreme Court ruling now creates the ability to allege a new defense in ADA cases,” said Joseph Maya, whose Maya & Associates P.C. specializes in employment and labor law. The firm has offices in New York City and Fairfield, Conn.

The Impact of the Ruling Going Forward

“The Supreme Court ruling is a very significant decision that will provide strong guidance for the lower courts, administrative agencies and certainly the appellate courts in cases concerning disability and employees bringing claims against employees,” Maya said. Disability community advocates criticized the Supreme Court decision, though one advocate said the decision highlighted an issue he said merited further study.

“Part of the problem we see is that there has to be a more universally accepted definition of a disability. A very well-meaning piece of legislation has a lot of confusing language in it. It warrants a second look,” said Robert S. Cole, a principal with his wife, Susan, in Cole Communications of Eastchester, and a board member of the 26 million-member American Association for People With Disabilities, an advocacy group based in Washington, D.C.

By ALEX PHILIPPIDIS
Fairfield County Business Journal

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The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment law practitioners and assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County. Should you have any questions about age discrimination and workplace discrimination or any other employment law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut, by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

What Services Are Required for School-Aged Children with Autism in Connecticut?

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Children with autism are eligible for special education and related services in Connecticut.  State and federal law does not require local school districts to provide particular services for children with autism.  These laws do require school districts to identify children with disabilities that affect their educational performance and provide them with a free and appropriate public education tailored to their individual needs.

Specific services for autistic children depend on his or her disability and individualized educational program.  This program is established by the child’s planning and placement team.  A planning and placement team is a group consisting of the child’s parents, teachers, and educational specialists that evaluate the child’s services annually.

If you have any questions related to education law in Connecticut, please contact Joseph C. Maya, Esq. at (203) 221-3100 or e-mail him directly at JMaya@Mayalaw.com.

Did Basketball Powerhouse Force Coach to Resign Due to Her Disability?

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Most people who have lived for some period of time here in Connecticut are amply familiar with the Lady Huskies and Lady Vols fierce decade-long rivalry. Before regular season matches were discontinued five years ago, these games were the highlight of the season. Thus, fans have come to form a love-hate relationship with Pat Summitt, Head Coach of the Lady Vols who has the most wins of any (both male and female) NCAA basketball coach.

It came as a shock to hear on April 18, 2012, after thirty-eight years of coaching, Summitt would be retiring from her post after being diagnosed with early-onset dementia-Alzheimer’s disease just before the start of the 2011-2012 season.[1] “I’ve loved being the head coach at Tennessee for 38 years, but I recognize that the time has come to move into the future and to step into a new role,” explained Summitt.[2]

As it turns out, the decision may not have been entirely that of Summitt.

The Coach’s Resignation

In a recently released affidavit,[3] Summitt revealed that on March 14, 2012, she met with the University of Tennessee (UT) Athletics Director David Hart, who informed her that she would no longer be the coaching the Lady Vols. Summitt further explained:

This was very surprising to me and very hurtful as that was a decision I would have liked to have made on my own at the end of the season after consulting with my family, doctors, colleagues, and friends and not be told this by Mr. Hart. I felt this was wrong.[4]

UT spokeswoman Margie Nichols denied allegations that Summitt was forced out of her position. “It’s absolutely not true… It was Pat’s idea to become the head coach emeritus. I think she made that really clear at her press conference earlier this year.”[5] Regardless, this leaves many asking: was Summitt forced to resign because of her disability?

Discrimination in the Workplace

Under Connecticut law, employees enjoy a very comprehensive statutory scheme prohibiting discriminatory practices in the workplace. Unless the employer and its agents (such as administration or management) have a “bona fide occupational qualification or need,” it is a violation of the General Statutes:

To refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness.[6]

In addition, employees enjoy federal protection of their rights through such legislation as the Americans with Disabilities Act, the Rehabilitation Act, and the Family Medical Leave Act, to name just a few.

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Discrimination on the basis of disability or another protected class is unfortunately a common occurrence in the workplace, but its prevalence in no way makes it lawful. If you are a teacher, coach, or any employee and you find yourself being the target of adverse employment action on any of the above bases, it is imperative that you consult an experienced and knowledgeable school or employment law practitioner.

Should you have any questions regarding employment discrimination or other education law or employment law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

 

[1] “Pat Summitt’s Early-Onset Dementia: Lady Vols Coach Resigns Less Than A Year After Diagnosis.” Published April 18, 2012. Accessed October 5, 2012: http://www.huffingtonpost.com/2012/04/18/pat-summitt-dementia-early-onset-alzheimers-memory_n_1435380.html

[2] Id.

[3] “Affidavit of Coach Pat Head Summitt.” Accessed October 5, 2012: http://www.documentcloud.org/documents/452632-pat-summitts-affidavit.html

[4] Id.

[5] “Pat Summitt Affidavit: Ex-Tennessee Coach Initially Felt Forced Out Of Job Over Early-Onset Dementia,” by Steve Megargee. Published October 3, 2012. Accessed October 5, 2012: http://www.huffingtonpost.com/2012/10/04/pat-summitt-affidavit-tennessee-coach-job_n_1937730.html

[6] Connecticut General Statutes § 46a-60(a). Accessed October 5, 2012: http://www.cga.ct.gov/current/pub/chap814c.htm#Sec46a-60.htm

Special Education and COVID-19: Impact on your Child’s Section 504 Plan or IEP

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Special Education During Remote Learning

In March of 2020, many Governors across the country closed their schools due to the COVID-19 pandemic.  On March 21, 2020, the U.S. Department of Education (“DOE”) published guidance for local school agencies on how to appropriately handle special education and services to children with disabilities during the ongoing public health crisis.

The DOE has emphasized that school districts’ compliance with the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act (“ADA”) school districts should not prevent distance instruction.  Accordingly, special education services should continue during the period of remote learning from home as much as feasible.

Responsibility of LEAs

During school closures due to the virus, if local education agencies (“LEAs”) continue to provide educational opportunities to general student populations, children with disabilities are entitled to receive the same educational opportunities that are being afforded to general student populations.  Specifically, children with disabilities are entitled to a free and appropriate education (“FAPE”), pursuant to Section 504 and the ADA.

LEAs must ensure that, to the greatest extent possible, each student with a disability be provided the special education and related services set forth in the student’s IEP or Section 504 Plan.  In the event of school closures, an IEP Team or PPT may, but is not required to, consider remote or distance learning plans in your child’s IEP, as long as the instruction is meaningful.

During the COVID-19 national emergency, schools may not be able to provide all services in the same manner that are typically provided to students.  While it may be unfeasible or unsafe for some school districts, during current emergency school closures, to provide hands-on physical therapy, occupational therapy, or sign language educational services, some disability-related modifications and services may be effectively provided online.

For example, extensions of time for assignments, videos with accurate captioning or embedded sign language interpreting, accessible reading materials, and speech or language services by way of video conferencing may all be successfully instituted remotely for students with disabilities.  Teachers providing special education plans may have to create more specific daily or weekly plans for a special needs child who is now at home for the rest of the school year.

IDEA Eligibility 

Additionally, the DOE guidance includes IDEA timelines for state complaints, IEPs, reevaluations, and due process hearings and encourages school teams and parents to work collaboratively and creatively to meet IEP timeline requirements. If a child has been found eligible to receive special education and related services under the IDEA, the IEP Team must meet and develop an initial IEP within 30 days of that determination and IEPs must be reviewed on an annual basis.

However, due to COVID-19, parents and school districts may agree to conduct IEP meetings through alternate means, including video conferences or telephonic conference calls.  Of note, due to the pandemic, when making changes to a child’s IEP, the parent of a child with a disability and the school district may agree to not convene an IEP Team meeting for the purposes of making changes and can develop a written amendment or modification to the child’s IEP.

A reevaluation of a child with a disability must occur at least every three years, unless both the parents and school district agree that a reevaluation is unnecessary. However, a reevaluation may be conducted through a review of existing evaluation data when appropriate, without a meeting and without obtaining parental consent, unless it is determined that additional assessments are needed.

Extended Absence from School

In regard to state special education complaints, absent agreement by the parties, a state may be able to extend the 60-day timeline for complaint resolution, if exceptional circumstances exist.  The DOE has now stated that exceptional circumstances include a large number of state workers unavailable or absent from work for an extended period of time due to the pandemic.  In regard to due process hearings, the parties can come to a mutual agreement to extend the 30-day resolution deadline due to COVID-19.  Additionally, a due process hearing officer may grant a specific extension of time at the request of either party to the hearing.

Moreover, when a child with a disability is classified as needing homebound instruction because of a medical problem, as ordered by a physician, and is home for an extended period of time, generally more than ten (10) consecutive school days, an individualized education program (IEP) meeting could be necessary to change the child’s placement and the contents of the child’s IEP.  If a child with a disability contracts COVID-19 and has to be absent from school for an extended period of time while school is open, parents or guardians may be able to make arrangements with the LEA to provide homebound instruction special education and related services.

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If you have any questions about special education and related services during the COVID-19 pandemic, contact Attorney Joseph Maya at (203) 221-3100 or JMaya@mayalaw.com for a complimentary consultation regarding your matter.

What to Know About Your Non-Compete Agreement

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In the current economic environment, understanding your obligations under a non-compete agreement could be essential to finding new employment. In uncertain times, an employee may not understand that not all non-compete agreements are enforceable. Here are seven (7) important things to know about non-compete agreements.

(1)        Courts Do Not View All Non-Compete Agreements Equally:

Courts view non-compete agreements ancillary to the sale of a business or between partners differently than they view non-compete agreements between an employee and employer. “When an employee agrees to be subjected to future work restrictions, he or she does so in order to obtain employment and ordinarily gets nothing in return for giving up this important freedom.  Thus the employee is at a great bargaining disadvantage.”  CT Cellar Doors, LLC v. Stephen Palamar, 2010 Conn. Super. LEXIS 3247, J.D. of Waterbury, Docket No. UWY-CV-10-5016075-S (2010). Therefore, the courts will view such a non-compete with great scrutiny.

(2)        Reasonableness Requirement:

By definition, a non-compete is a restrictive covenant that prevents employees from competing with their former employers after termination, thereby creating a restraint on the free market. Given this, Connecticut courts may find that these covenants are against public policy. Consequently, non-compete agreements are only enforceable if the restraint imposed is reasonable.

(3)        Courts Consider Multiple Factors in Evaluating the Reasonableness of a Non-Compete:

In deciding whether a particular non-compete agreement is reasonable, the court will look to the following factors: “(1) the length of time the restriction operates; (2) the geographical area covered; (3) the fairness of the protection afforded to the employer; (4) the extent of the restraint on the employee’s opportunity to pursue his occupation; and (5) the extent of interference with the public’s interests.” Robert S. Weiss and Associates, Inc. v. Wiederlight, 208 Conn. 525 (1988). The Connecticut Appellate Court has instructed that “the five pronged test is disjunctive; a finding of unreasonableness in any one of the criteria is enough to render the covenant unenforceable.” New Haven Tobacco Co., Inv. v. Perrelli, 18 Conn. App. 531 (1989).

(4)        Involuntarily Termination Not Required:

A prevalent feeling among employees is that if “let go,” a non-compete should not apply.  However, this is not the law. When reviewing a non-compete agreement for reasonableness, the Court will not look to whether the employee left his position voluntarily or involuntarily.

(5)        Geography:

“The general rule is that the application of a restrictive covenant will be confined to a geographical area which is reasonable in view of the particular situation.” Scott v. General Iron, 171 Conn. 132 (1976) (upheld statewide restriction). Geographic restrictions should be “narrowly tailored to the plaintiff’s business situation.” Robert S. Weiss & Associates, Inc. v. Wiederlight, supra, 208 Conn. at 531. In CT Cellar Doors, LLC v. Stephen Palamar, supra, the Court held that a three-year restriction that covered the entire State of Connecticut was unenforceable, unfair and an unreasonable restraint of trade and was contrary to public policy.

Compare that to Robert S. Weiss and Associates, Inc. v. Wiederlight, supra, where the Supreme Court held that a two-year restriction that covered a 10-mile radius of Stamford, was narrowly tailored and therefore reasonable.  See also, Access America, LLC v. Mazzotta, 2005 Conn. Super. LEXIS 2597, J.D. of Middlesex, Docket  No. CV-O5-4003389 (2005)(15-mile restriction upheld); compare, Trans-Clean Corp. v. Terrell, 1998 Conn. Super. LEXIS 717, J.D. of Fairfield, Docket No. CV-97-0348039-S (1998) (60-mile restriction held unreasonable).

(6)        Duration:

Connecticut courts have frequently enforced non-compete periods of a year or more.  However, the courts have stated that the reasonableness of time and geographic restrictions in non-compete agreements are intertwined and “that broad geographic restrictions may be reasonable if the duration of the covenant is short, and longer periods may be reasonable if the geographic area is small.” Van Dyck Printing Company v. DiNicola, 43 Conn. Supp. 191 (1993), affirmed per curiam 231 Conn. 272 (1994) (one year);  Robert S. Weiss & Assoc. v. Wiederlight, supra (two years); Hart Nininger & Campbell Assoc. v. Rogers, 16 Conn. App. 619 (1988) (two years); Scott v. General Iron & Welding Co., 171 Conn. 132 (1976) (five years); Torrington Creamery, Inc. v. Davenport, 126 Conn. 515 (1940) (two years).

(7)        Forfeiture Clauses:

Forfeiture clauses differ from non-compete agreements in that the employee does not make an express promise not to compete, but rather agrees to a forfeiture of benefits if the employee engages in competition with its former employer. Despite this difference, the Connecticut Supreme Court has held that “a covenant not to compete and a forfeiture upon competing are but alternative approaches to accomplish the same practical result.” Deming v. Nationwide Mut. Ins. Co., 279 Conn. 745 (2006). Consequently, forfeiture clauses are subject to the reasonable requirement of non-compete agreements.

Conclusion

Before signing a non-compete agreement, speak to an attorney who is well versed in the law surrounding restrictive covenants and employment contracts.  If you have already signed the non-compete agreement, contact an attorney before pursuing a course of conduct that might violate a non-compete clause. A violation of a non-compete may result in legal action brought against you by your former employer, whether or not such agreement is enforceable.  Situations involving non-compete agreements are very fact specific, requiring case-by-case analysis.

If you have any questions relating to your non-compete agreement or would like to discuss any element of your employment agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com

What To Know About Your Severance Package

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During these economic times, many companies big and small, are facing the hard reality of layoffs. As hard as it is for companies, it is even harder for employees. Faced with no job and a bare economy, accepting a severance package might seem like the best choice.  But before signing anything, it is important to understand the basics of the severance package and the potential rights that might be relinquished in the process.

(1)        Time to Consider the Severance Package:

A prevalent misconception is that all employees are entitled to twenty-one (21) days to review severance package offers. Unfortunately, that is not the case.  In the case where the employer is only offering a severance package to one employee, and that employee is under the age of forty (40), there is no specific time to review the documents that is required by law. However, as the severance package must be made “knowingly and voluntarily,” that allows the employee some time to consider the severance agreement.  There is no statutory minimum amount of time.

If, however, the employee being offered the severance agreement is forty (40) years or older, he or she is protected by the Age Discrimination in Employment Act (“ADEA”) of the Older Workers Benefit Protection Act (“OWBPA”). By law, when only one employee is offered the severance agreement and a release of ADEA claims is included, the employer must provide the employee with twenty-one (21) days to review and consider the proposed severance agreement. Moreover, if the employer and employee engage in negotiations, the consideration period commences on the date of the employer’s final offer.

If more than one employee is terminated at or around the same time, it is considered a “group layoff.”  By law, when a severance agreement is offered as part of a group layoff, and a single employee is over the age of forty (40), and a release of ADEA claims is included, then every employee regardless of age must be given forty-five (45) days to consider the agreement.

(2)        Release of Claims:

Most severance agreements contain a release of a variety of claims, including claims you may have based upon your age, race, national origin, gender, disability, religion, among others. It may also include a release of all claims, whether known to you or not at the signing of the agreement.

However, the United States Equal Employment Opportunities Commission (“EEOC”) has held that, although the severance agreement may restrict the employee’s ability to file a lawsuit, the release cannot restrict the rights of an employee to file a charge of discrimination with the EEOC, nor can the severance agreement limit an employee’s right to testify, assist or participate in an investigation, hearing or other proceeding conducted by the EEOC. Furthermore, the EEOC has declared that an agreement cannot waive an employee’s rights regarding acts of discrimination that occur after the signing of the agreement.

(3)        Seven (7) Day Revocation Period:

When a severance agreement contains an ADEA release of claims, by law, the employer must provide you with seven (7) days to revoke the agreement after signing it. This seven (7) day window cannot be waived or changed by either party.

(4)        Ability to Consult with an Attorney:

Severance packages generally contain more than just the release of ADEA claims, but also claims under Title VII of the Civil Rights Act, Americans with Disabilities Act, Employee Retirement Income Security Act, retaliation, whistle blowing, breach of contract, invasion of privacy, among others. Given the breadth of the claims released, before the signing of a severance agreement, it is extremely important to consult with an attorney prior to its execution.

Moreover, when the severance agreement contains a release, the agreement must specifically advise the employee to seek the advice of any attorney.  Faced with financial distress because of the layoff, you may not be able to think objectively concerning your rights and options. It is best to consult an attorney.

(5)        Consideration:

Consideration is required for every agreement. That means that an employee must receive something of value in exchange for giving up certain rights. That “something of value” must be above and beyond what the employee would otherwise be entitled to.

(6)        Ability to Negotiate:

Despite the “take it or leave it” undertones of an employer, generally, many employers will negotiate severance on some level. Given that, there is also a risk that an employer will revoke the offer of severance if negotiation is attempted.  Your chances of negotiating successfully increase if there is a claim that your particular severance package is not fair in light of your industry, your position, or the circumstances of your employment.  Additionally, the negotiations do not need to focus on the dollar amount connected with the severance agreement.  Employers might be willing to extend insurance coverage, disability benefits, or other items.

(7)        Gather All Information:

Before deciding to accept, negotiate, or reject a severance package, it is important to understand completely what is being offered to you, including compensation, benefits and insurance.  If you are in an industry that provides for deferred stock options or bonus, it is important to understand whether you would still be entitled to it.   You should gather information concerning your employer’s welfare plans, health plans, vacation and sick leave policies, as well as any structured bonus plans or stock options.  If the severance package is only offering you what you would be entitled to, the agreement may lack adequate consideration.

(8)        Restrictive Covenants:

Many employers will place some kind of restrictive covenant into the severance package. These range from confidentiality clauses, to non- disclosure agreements, to non-solicitation agreements, to non-compete agreements.  Therefore, it is important to understand how signing the severance agreement may restrict your ability to find new employment.

Before you sign a severance agreement, it is important to fully understand your rights and the consequences of accepting the offer. The attorneys at Maya Murphy, P.C., have years of experience in all sectors of employment law. If you have any questions relating to your severance agreement, please contact Joseph C. Maya, Esq. by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.