New Amendments to the Americans with Disabilities Act

Last month, President Bush signed into law new amendments to the Americans with Disabilities Act (”ADA”). The amendments were a bipartisan effort and compromise between disability rights groups and business groups, including the Society for Human Resources Management, the U.S. Chamber of Commerce, and the National Association of Manufacturers. Overall, Congress made clear its legislative intent of the amendments: to reject certain holdings in Supreme Court decisions that limited the application of the ADA to certain individuals, and to expand coverage of the ADA by making it easier for individuals with disabilities to qualify for protection under the ADA.

The text of the amendments specifically references Congress’ goal of rejecting the Supreme Court’s holdings in Sutton v. United Air Lines Inc. and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams. In general, Congress felt that those decisions narrowed the scope of the ADA with respect to who qualified as “disabled” and was therefore protected from discrimination based on disability. Congress also expressed its expectation that the regulations promulgated by the Equal Employment Opportunity Commission will be revised to include this broader definition of “disability.”

To expand upon the definition of “disability,” the amendments kept the ADA’s general definition that a “disability” is a 1) “physical or mental impairment” that “substantially limits” the “major life activities” of the individual; 2) a record of an impairment; or 3) being “regarded as” having an impairment. However, the amendments provide greater guidance of how “major life activities” are defined by including two non-exhaustive lists of such activities. Specifically, “major life activities” which may be substantially limited by an impairment (and therefore qualify as a disability under the Act) include: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. While some of these have always been recognized as major life activities under the ADA, some, like reading, bending, and communicating, have not. Further, the amendments list “major bodily functions” that are also considered major life activities as: “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

The other primary change in the amendments is to instruct courts with rules regarding how to determine if someone has a disability under the Act. These instructions include a directive that the question of whether someone is disabled under the Act “shall not demand extensive analysis,” and that courts should construe the Act to provide “broad coverage” of individuals. In addition, the amendments clarify that an impairment that is episodic or in remission, such as cancer, which was previously treated as an impairment that was not a disability under the Act when in remission, is now to be considered as if the impairment was active. Moreover, now impairments should not be considered with regard to their mitigating measures, such as medication or assistive technology, except for “ordinary eyeglasses or contact lenses.” This change may allow individuals with insulin-controlled diabetes to potentially be covered under the ADA.

So what does this mean for employers? As the ADA prohibits discrimination based on an individual’s disability, now more employees may qualify as disabled under the ADA and may request reasonable accommodations to perform their jobs. Particularly with respect to the amendments related to mitigating measures and episodic impairments, requests may come from employees who were never previously known to have impairments. Now is a good time to familiarize yourselves with the requirements of the ADA, including the interactive process and reasonable accommodations.

Managing Workplace Misconduct

Business Controls, Inc. will be hosting a three-part training series November 4th, 5th, and 6th at our Littleton, CO office. These full-day trainings are designed to provide guidance on improving internal controls and processes and help organizations detect, investigate, and prevent employee misconduct. Attendees can register for one training or all three.

November 4, 2008 - The Process of Workplace Investigations; Conducting Proper Internal Investigations, only $199
November 5, 2008 -
Workplace Violence Prevention and Intervention, only $129
November 6, 2008 -
Fraud,Theft, and Internal Controls, only $129

Complimentary breakfast and lunch provided by Business Controls.

Trainer Biographies
Eugene F. Ferraro, CPP, CFE, PCI - CEO and Founder
SteveFoster, CPP, PCI - President
Elizabeth Imhoff Mabey, Esq. - Vice President of Professional Services and General Counsel 

Continuing Education Credits
8 CLE credits already approved for each training, and HRCI credits pending

Registration
Limited space availableRegistration deadline is October 28, 2008. Don’t wait,
Register Now!

Discounts
Attend all three trainings for only $399! 

When and Where
All trainings will be from 8:00am-4:30pm. Registration begins at 7:30am. Business Controls office is located in the Siemens Building at
7810 Shaffer Parkway Suite 125 Littleton, CO 80127

Who Should Attend?

  • Human Resource Professionals
  • In-house Counsel and Attorneys
  • Internal Audit
  • Security and Loss Prevention Managers
  • Risk Managers
  • Employment Law Attorneys
  • Corporate Executives, Managers, Supervisors and Decision-makers

 

BONUS PRESENTATION SPONSORED BY:
TERRAFIRMA Logo

Following the Nov. 4 and Nov. 5 programs, Patrick Wieland, President of Terra Firma PEO, will offer a briefing on important upcoming changes to small group insurance regulations. This brief presentation will outline information of critical importance to all small businesses. Don’t miss it!

For more information about Business Controls, Inc. or the training series please call 303-526-7600 or visit www.BusinessControls.com.

Lost and Found

U.S. airlines carried an estimated 660 million passengers last year and only .005% of all checked baggage was permanently lost. Yet mishandled baggage, the term used by the airline industry for missing or delayed baggage, continues to frustrate thousands of travelers every day.

Reporting your lost luggage

Your luggage is the responsibility of the airline that flew you to your destination. Always report your missing items to the airline before leaving the airport and present your luggage receipt as proof of what you checked in. Asking to fill out a Property Irregularity Report (PIR) is also advisable as it will help with any future compensation claim that may be necessary.

Limits on liability

Under the terms of the Montreal Convention of 1999, compensation for lost or damaged luggage on an international flight is limited to a maximum of roughly $1,500—a figure that fluctuates because it is tied to the exchange rate of the dollar against various other currencies. For domestic flights, compensation is a maximum of $3,000 (Information about lost and damaged baggage is available at airconsumer.ost.dot.gov/publications/flyrights.htm.) When your luggage and its contents are worth more than the liability limit, you may want to purchase “excess valuation,” if available, from the airline with which you are traveling. This is not insurance, but it will increase the carrier’s potential liability. The airline may refuse to sell excess valuation on some items that are especially valuable or breakable, such as antiques, musical instruments, jewelry, manuscripts, negotiable securities and cash.

Keep in mind that the liability limits are maximums. If the depreciated value of your property is worth less than the liability limit, this lower amount is what you will be offered. If the airline’s settlement doesn’t fully reimburse your loss, check your homeowner’s or renter’s insurance; it sometimes covers losses away from the residence. Some credit card companies and travel agencies offer optional or even automatic supplemental baggage coverage.

Things the Airlines usually Refuse to Cover

Different airlines may have slightly different lists, but in general, they will usually refuse liability for the loss, delay, or damage to the following:

  • Antiques
  • Computer Equipment and related items
  • Documents (personal or business, negotiable papers)
  • Electronic Equipment
  • Film
  • Fragile Items
  • Irreplaceable Items
  • Jewelry
  • Keys
  • Manuscripts
  • Medication
  • Money
  • Paintings or one of a kind works of art
  • Perishable Items
  • Pets/Animals
  • Photographs
  • Photographic Equipment
  • Samples
  • Securities
  • Silverware
  • Watches

$234 Million Dollar Whistleblower Settlement

According to Amerigroup’s website, they are a company “dedicated exclusively to caring for the financially vulnerable, seniors and people with disabilities through publicly-funded programs”. This past Tuesday they settled the largest jury verdict ever awarded under the False Claims Act to the tune of $234 million

In 2006, Cleveland Tyson, a former Amerigroup VP of government relations blew the whistle on the organization. According to the Denver Post article Amerigroup ”deliberately avoided enrolling recipients with costly health conditions or who were pregnant and in their third trimester. These actions were taken while Amerigroup received Illinois Department of Public Aid (IDPA) payments calculated on Amerigroup providing healthcare to all enrollees.”

On a side note, under federal whistleblower law, Tyson stands to collect 15 to 25 percent of the final judgment.

The Right to Bear Arms….At Work

Florida has joined a small number of states, including Georgia and Tennessee, to pass legislation that prohibits business owners from implementing policies that restrict employees and others from bringing legally-licensed firearms onto their property. On April 15, 2008, Florida Governor Charlie Crist signed into law legislation that will allow employees to bring firearms onto company property, without repercussion from their employers, beginning on July 1, 2008. The law covers only those Florida residents who have lawfully obtained a concealed weapons permit, and, if they bring a gun onto company property, it must be locked in their vehicles, out of sight. The law does not extend, however, to select workplaces including prisons, schools, public hospitals, and nuclear power plants. Businesses found to have violated any provisions of the new law face a fine up to $10,000.

The National Rifle Association (“NRA”) has primarily spearheaded the effort with the backing of some labor unions, asserting that this measure is a step forward in the ongoing fight to protect individuals’ Second Amendment right to bear arms. The business lobby, on the other hand, including the Florida Chamber of Commerce and the Florida Retail Federation, are actively fighting the new legislation and are hoping to prevent its July 1 effective date. Those opposed to the legislation argue that it violates the privacy rights of employers to decide what is best for their businesses. Additionally, these critics have expressed concern about the potential risks to workplace safety this new measure poses, citing studies which show that organizations that allow firearms on their property suffer higher rates of workplace homicide on company property.

Does this represent a statutory trend? Can we anticipate similar legislation to follow in other states? Do the constitutional rights of individuals trump the rights of private employers to govern their businesses and their property as they see fit? Many outstanding questions remain, fueling the political firestorm this legislation has created in Florida.

Supremes Affirm Second Amendment

Last week the Supreme Court ruled that Americans have a right to own guns for self-defense and hunting. The 5-4 decision struck down the District of Columbia’s 32-year-old ban on handguns and became the Court’s first major pronouncement on gun rights in U.S. history.

The Second Amendment, ratified in1791, reads: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Writing for the majority, Justice Antonin Scalia said that an individual right to bear arms is supported by “the historical narrative” both before and after the Second Amendment was adopted. He said the Constitution does not permit “the absolute prohibition of handguns held and used for self-defense in the home.” Scalia also reasoned “Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, A well regulated Militia, being necessary to the security of a free state, the right of the people to petition for redress of grievances shall not be infringed. That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause. But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.”

The court also struck down D.C.’s requirement that firearms be equipped with trigger locks or kept disassembled, but left intact the licensing of guns.

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The Firm

The class-action law suit giant Milberg Weiss finally admits criminal conduct and agrees to pay $75 million and not fight federal charges of paying kickbacks to several clients. The agreement ends a seven year probe into the practices of the law firm (renamed Milberg LLP). To date four former Milberg partners including trial bar barons Melvyn Weiss and Bill Lerach have admitted to felonies.

The firm perfected what’s known as a “strike-suit,” in which a corporation is sued over a dubious claim of fraud merely because its stock price falls. Milberg’s website claims it was “one of the first law firms to prosecute class actions in federal courts on behalf of investors and consumers. The Firm pioneered this type of litigation and is widely recognized as one of the nation’s leading defenders of the rights of victims of corporate and other large-scale wrongdoing.” In a press release dated June 16, 2008, regarding the settlement, Milberg partner Sanford Dumain states, “We are pleased that the government specifically recognizes that none of the lawyers now at the firm [my emphasis added] was involved in any of the misconduct, and that in fact our former partners who were prosecuted were deliberately concealing their illegal activities from us.” The press release makes no mention of the $75 million settlement or that its former partners had paid kickbacks to plaintiffs in 165 suits from which the firm earned $240 million in fees. Most interestingly, it fails to explain how the firm’s accountants expensed the kickbacks it paid Mr. Paul L. Tullman, the Wall Street broker who steered clients to Milberg, to whom Milberg paid some $9 million in finder’s fees over a 20 year period.

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An Ethical Look at Pretexting

I have received a great deal of feedback from readers regarding my thoughts on pretexting. Additionally, I have also heard from many members of the investigative community, most of whom are outraged by the position (or lack there of) taken by ASIS International. One such individual is Ms. Kitty Hailey, CLI, a long-time friend and colleague. Kitty is also the author of Code of Professional Conduct: Standards and Ethics for the Investigative Profession, published by Lawyers & Judges Publishing Company, Inc. She graciously offered me permission to publish the following piece on the ethical aspects of pretexting. I thought the piece so compelling, I offer it unedited and without commentary:

 

The concept of pretexting or rusing is nothing more than method acting; temporarily being someone else.  However, instead of for entertainment, it is for the purpose of eliciting information not obtainable in any other manner.  Pretexting by investigators is not done without discretion.  It is not used upon the public in general to abuse bank accounts or steal credit cards.  It is a tool that is helpful in determining where a thief is hiding assets, where a fraud is actually working, the name of the creep who has abused the child, the location of the parent who doesn’t pay child support, and the place to serve process upon the dead-beat who has successfully hidden from law enforcement for the last five months. Putting an operative undercover in a workplace to identify product theft or drug abuse is sometimes the only way to prove such secretive activity.  Like any other undercover operation, it is the use of a mild deception for the greater good. The simple ruse should hurt no one, but can uncover information of value to many.

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Workplace Shooting; Gunman Kills Five Co-workers

According to the Associated Press, “work has resumed at a western Kentucky plastics plant where an employee shot five people dead and killed himself early Wednesday morning. Police say 25-year-old Wesley N. Higdon fatally shot his supervisor and four others early Wednesday and then turned the gun on himself. Another person was wounded in the shooting. Police say the shooting happened hours after an argument between Higdon and a supervisor over safety goggles and cell phone use on the assembly line.”

It is sadly ironic that our firm has been providing Workplace Violence trainings along with Holland & Hart, LLP throughout the greater Denver area over the past several months. Our Workplace Violence training has become increasingly popular as more organizations are getting serious about this topic and learning how to prevent these tragedies. Four more trainings/seminars are already planned for later this summer and fall.

Also, I’m sure we’ll receive a phone call or two from the media to comment on this event because of our Behavioral Science expertise in this area. Our thoughts and prayers are with the families and co-workers affected by this most recent shooting.

TJX Companies Offers Victim Compensation

A couple of posts ago I wrote about TJX Companies (the operator of TJ Maxx, Marshalls, and a number of other retail chains) and its decision to fire an employee for allegedly disclosing confidential information. Nick Benson, an employee at the TJ Maxx outlet in Lawrence, Kansas, had complained to management that coworkers could access company servers using blank passwords and began voicing his concerns on the Internet. Benson denies he disclosed confidential company information and says he was wrongly fired. He has yet to assert legal protection as a whistleblower. Interestingly, prior to his disclosures, the central servers at TJ Maxx had been hacked and credit card information of over 94 million customers had been potentially compromised. TJX quickly contacted those customers and offered them compensation.

Since my post, I have been able to obtain a copy of the TJX claim form “to be used by claimants for merchandise vouchers/checks-in-lieu”. TJX’s settlement offer of merchandise in lieu of cash is restricted to one claim per household and all claims must be submitted no later than October 13, 2008. Other restrictions apply as well (see form). Claimants who meet the requirements of the offer will be provided a store credit of $30 against any merchandise purchase at a TJX store. For more information about filing a claim go to www.TJXsettlement.com.

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