Tag: Disability

HAVEN ACT Provides Military Veterans With Increased Income Protections In Bankruptcy

Military veterans often pay a heavy toll for their service from a physical, emotional and even financial standpoint. A new federal law— the Honoring American Veterans in Extreme Need Act of 2019 or the HAVEN Act— aims to address the latter hardship, providing disabled military veterans with greater protections in bankruptcy proceedings.

Prior to the passage of the HAVEN Act, federal Department of Veterans Affairs (VA) and Department of Defense disability payments were included when calculating a debtor’s disposable income when in bankruptcy. In other words, this income is subject to the reach of creditors.

By contrast, Social Security disability benefits are exempt from calculating a debtor’s disposable income. The HAVEN Act places military disability benefits in the same protected category as Social Security disability.

The actual language of the new exception reads as follows:

“(IV) any monthly compensation, pension, pay, annuity, or allowance paid under title 10, 37, or 38 in connection with a disability, combat-related injury or disability, or death of a member of the uniformed services, except that any retired pay excluded under this subclause shall include retired pay paid under chapter 61 of title 10 only to the extent that such retired pay exceeds the amount of retired pay to which the debtor would otherwise be entitled if retired under any provision of title 10 other than chapter 61 of that title.”

The HAVEN Act received strong bipartisan support in both the House and Senate, and was endorsed by both the American Bankruptcy Institute and a host of veterans’ advocacy organizations, including the American Legion and VFW. Reps. Lucy McBath (D-GA) and Greg Steube (R-FL) co-sponsored the legislation in the House, while Sen. Tammy Baldwin (D-WI) and John Cornyn (R-TX) co-sponsored the Senate legislation. President Donald Trump signed the HAVEN Act into law August 23, 2019 and it became effective immediately.

Specific benefits protected under the Haven Act are:

  • Permanent Disability Retired Pay

  • Temporary Disability Retired Pay

  • Retired or Disability Severance Pay for Pre-Existing Conditions

  • Disability Severance Pay

  • Combat Related Special Compensation

  • Survivor Benefit Plan for Chapter 61 Retirees

  • Special Survivor Indemnity Allowance

  • Special Compensation for Assistance with Activities of Daily Living

  • VA Veterans Disability Compensation

  • VA Dependency and Indemnity Compensation, and

  • VA Veterans Pension.

Veterans advocates pushed for the HAVEN Act following five recent Bankruptcy Court Decisions that held that under previous bankruptcy law, disabled veterans were required to include military disability in their disposable income in bankruptcy proceedings.

The new law also provides relief to a segment of the population that needs assistance. According to the 2018 VA Annual Benefits Report, 4.74 million US veterans—or 25 percent of the total veteran population—receive VA disability benefits.

Veterans also make up a disproportionate share of bankruptcy filers. Nearly 15 percent of both Chapter 7 and Chapter 13 bankruptcy filers are veterans, who make up approximately 10 percent of the overall population. Approximately 125,000 veterans filed for bankruptcy in 2017 alone.

Copyright © 2019 Womble Bond Dickinson (US) LLP All Rights Reserved.

For more on veteran’s affairs, see the Government Contracts, Maritime & Military Law page on the National Law Review.

OFCCP Releases Disability Self-Id Public Service Video

OFCCP Logo on paperAs part of its ongoing effort to provide employers with tools to educate and inform employees and non-employees about affirmative action obligations, Office of Federal Contract Compliace Programs, OFCCP, has released a new disability self-identification public service-like video entitled Disability Inclusion Starts With You. 

Coinciding with its recognition of National Disability Employment Awareness Month, the Agency invites employers and community organizations to download the video and use it as a way to inform employees (and potential employees) about the importance of self-identification.  The video also explains the regulatory obligation employers have to request this information and emphasizes the voluntary nature of the process.

The video and additional information can be found of OFCCP’s webpage.

Article By Laura Mitchell of Jackson Lewis P.C.

Jackson Lewis P.C. © 2015

United Airlines to Pay over $1 Million To Settle EEOC Disability Lawsuit

In a case that garnered nationwide attention, air transportation giant United Airlines Inc. has agreed to pay more than $1 million and implement changes to settle a federal disability lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.U.S. Equal Employment Opportunity Commission Seal

The EEOC’s lawsuit charged that United’s competitive transfer policy violated the Americans with Disabilities Act (ADA). The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would impose an undue hardship for the employer. By requiring workers with disabilities to compete for vacant positions for which they were qualified and which they needed in order to continue working, the company’s practice frequently prevented employees with disabilities from continuing employment with United, the EEOC said.

The consent decree settling the suit, signed by Hon. Judge Harry Leinenweber and entered today, requires United to pay $1,000,040 to a small class of former United employees with disabilities and to make changes nationally. United will revise its ADA reassignment policy, train employees with supervisory or human resource responsibilities regarding the policy changes, and provide reports to the EEOC regarding disabled employees who were denied a position as part of the ADA reassignment process.

This resolution concludes a lengthy and complicated lawsuit. Although the EEOC originally filed the lawsuit on June 3, 2009 in U.S. District Court for the Northern District of California – San Francisco, United successfully moved for a change of venue to the Northern District of Illinois. Bound by an earlier precedent which held that a competitive transfer policy similar to United’s policy did not violate the ADA, the lower court dismissed the EEOC’s case in February 2011.  However, in a decision reviewed by the full court, the Seventh Circuit agreed with the EEOC that EEOC v. Humiston Keeling, 227 F.3d 1024 (7th Cir. 2000) “did not survive” an intervening Supreme Court decision, U.S. Airways v. Barnett, 535 U.S. 391 (2002).  The Seventh Circuit reversed the lower court’s dismissal and found that “the ADA does indeed mandate that an employer assign employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to the employer.” The Supreme Court refused United’s subsequent request for review on May 28, 2013. EEOC Appellate Attorney Barbara Sloan handled the appeal and Supreme Court briefing for the agency.

“The appellate court’s decision provided an important clarification regarding an employer’s responsibility under the ADA to provide a reasonable accommodation so qualified employees may lead economically independent lives,” said EEOC General Counsel David Lopez. “I am pleased this major decision also served as a springboard for the strong monetary and non-monetary remedies in today’s resolution.”

EEOC Regional Attorney William Tamayo said, “If a disability prevents an employee from returning to work in his or her current position, an employer must consider reassignment. As the Seventh Circuit’s decision highlights, requiring the employee to compete for positions falls short of the ADA’s requirements. Employers should take note: When all other accommodations fail, consider whether your employee can fill a vacant position for which he or she is qualified.”

EEOC San Francisco Acting District Director Michael Connolly noted, “We commend United for agreeing to make these important companywide changes that will enable employees with disabilities to stay employed at jobs they are qualified to do, as was intended under the ADA’s protections.”

According to the company website, United Airlines has almost 84,000 employees in every U.S. state and in many countries around the world. The air carrier has the world’s most comprehensive route network, including U.S. mainland hubs in Chicago, Denver, Houston, Los Angeles, New York / Newark, San Francisco and Washington, D.C. and operates an average of nearly 5,000 flights a day to 373 airports across six continents.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

ARTICLE BY U.S. Equal Employment Opportunity Commission
© Copyright U.S. Equal Employment Opportunity Commission

Is ‘Loss of Value’ Insurance Worth The Price For Student-Athletes, Universities??

Disability insurance policies are frequently secured by college football players, especially those who expect to be selected in the early rounds of the NFL draft. These policies are typically secured by the player in one or two forms. One option allows players to secure coverage to protect against “total permanent disability”. Such coverage would only pay the athlete in the event of a catastrophic, career ending injury. Alternative policies can protect the athlete against the potential “loss of value” tied to the player’s projected draft position. This type of insurance coverage provides a player protection in the event his projected draft position drops because of injury. Typically, the policy would make up the difference the projected bonus money and the actual contract amount secured by the player. Unfortunately, ‘loss of value’ insurance policies, may not be as easy to collect on as initially thought.

High-profile players, including 2015 NFL Draft’s No. 1 pick Jameis Winston, have secured the insurance expecting that if an injury causes their draft stock to fall, thus resulting in a lesser contract, they can collect on the policy to recoup some of the lost earnings. Jameis Winston’s premium for “loss of value” insurance was reportedly paid out of the Florida State University’s Student Assistance Fund (SAF). The SAF allows schools to “assist student-athletes in meeting financial needs that arise in conjunction with participation in intercollegiate athletics, enrollment in an academic curriculum or that recognize academic achievement.”

In addition to schools using the NCAA authorized Student Assistance Fund to pay insurance premiums for star athletes, the NCAA issued a waiver after the start of the 2014 football season creating a new avenue for college football players to secure loss of value insurance. While student-athletes had previously been able to secure the loss of value insurance only with their own funds or the use of SAF, purchasing the insurance became easier in October, when the NCAA began granting waivers to student-athletes, allowing them to purchase the insurance by borrowing against their future earnings to secure a loan from an established, accredited commercial lending institution, for the purpose of purchasing loss-of-value insurance. However, despite the increasing popularity of the loss of value insurance, no collegiate student-athlete has been able to collect on a policy, according to ESPN’s Darren Rovell. Former University of Southern California wide receiver Marqise Lee is currently experiencing the challenges of trying to collect on his policy.

Lee, once projected as a first round pick, purchased loss of value insurance in August 2013. He paid a $94,600 premium for $9.6 million in coverage. Lee believed that the coverage protected him if his draft position dropped and he signed a rookie contract worth significantly less than that the projected $9.6 million amount. Lee injured his left knee just two games into the 2013 season. As a result of the injury, Lee’s draft position dropped to the 39th overall pick in the 2014 NFL draft. Ultimately, he signed a contract with the Jacksonville Jaguars for $5.17 million. Lee filed an insurance claim and attempted to collect on the policy, but was unable to do as the insurance company raised a defense that Lee had misled with regard to pertinent medical information. In March 2015, Lee, along with a former USC teammate facing a similar issue, sued the insurance company over their failure to honor the policy.

Lee’s lawsuit highlights the potential challenges of collecting on loss of value policies. While the securing of insurance policies for student-athletes has indeed become a tool for universities to help keep star players remain in school and to temporarily forego the NFL, the possible issues related to collection are apparent. The University of Oregon utilized its SAF to purchase policies for its players, including cornerback Ifo Ekpre-Olomu. Ekpre-Olomu, once projected as a first round pick, likely will attempt to collect on his policy after an ACL injury in December 2014 caused him to fall to the seventh round of the 2015 Draft. The cornerback’s policy, which cost the University of Oregon $40,000, calls for a $3 million payout since Ekpre-Olomu late round selection was well after the coverage threshold of the first picks of the third round of the 2015 Draft.

All athletes that utilize the NCAA waiver to purchase insurance or universities that allocate SAF to purchase loss of value insurance will need to monitor Lee’s lawsuit and Ekpre-Olomu’s attempt to collect on his policy. If student-athletes continue to face difficulties collecting on their policies, both student-athletes and their universities will need to reconsider whether such policies are worth the cost.

Authored by Michael B. Ackerstein  and Gregg E. Clifton of Jackson Lewis P.C.

Jackson Lewis P.C. © 2015

EEOC Sues Wal-Mart for Age and Disability Discrimination – Equal Employment Opportunity Commission

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Keller Store Manager Harassed and Then Fired Because of His Age; Also Denied a Reasonable Accommodation for His Diabetes, Federal Agency Charges

Wal-Mart Stores of Texas, LLC discriminated against a store manager by subjecting him to harassment, unequal treatment and discharge because of his age, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed in federal court today. The EEOC’s suit also alleges that Wal-Mart violated federal anti-discrimination law when it refused the manager’s request for a reasonable accommodation for his disability.

The EEOC charges in its suit that David Moorman, the manager of a Keller, Texas Walmart store, who was 54 at the time, was ridiculed with frequent taunts from his direct supervisor including “old man” and the “old food guy.” The supervisor also derided Moorman with ageist comments such as, “You can’t teach an old dog new tricks.” The EEOC further alleges that, after enduring the abusive behavior for several months, Moorman reported the harassment to Wal-Mart’s human resources department. The EEOC contends that not only did Wal-Mart fail to take any corrective action, but the harassment, in fact, increased, and the store ultimately fired Moorman because of his age.

The suit also alleges that Wal-Mart unlawfully refused Moorman’s request for a reasonable accommodation for his disability. Following his diagnosis and on the advice of his doctor, Moorman, a diabetic, requested reassignment to a store co-manager or assistant manager position. Wal-Mart refused to consider his request for reassignment, eventually rejecting his request without any dialogue or consideration.

Such alleged conduct violates the Age Discrimination in Employment Act (ADEA) which prohibits discrimination on the basis of age 40 or older, including age-based harassment. It also violates the Americans with Disabilities Act (ADA), which protects employees from discrimination based on their disabilities and requires employers to provide disabled employees with reasonable accommodations. The EEOC filed suit, Case No. 3:14-CV-00908-M, in U.S. District Court for the Northern District of Texas after first attempting to reach a pre-litigation settlement through its conciliation process.

The EEOC seeks injunctive relief, including the formulation of policies to prevent and correct age and disability discrimination. The suit also seeks damages for Moorman, including lost wages and an equal amount of liquidated damages for Wal-Mart’s willful conduct. The EEOC will also seek damages for harms suffered as a result of the non-accommodation.

“Employers should be diligent about preventing and correcting conduct that can amount to bullying at the workplace,” said EEOC Senior Trial Attorney Joel Clark. “They have an obligation to stop ageist harassment after it is reported. The company’s failure to take remedial action to stop the harassment, as well as the denial of a reasonable accommodation for a disability, and the ultimate termination of the discrimination victim demonstrate a disregard for equal opportunity laws. The EEOC is here to fight for the rights of people like Mr. Moorman.”

Robert A. Canino, regional attorney for the EEOC’s Dallas District Office, added, “The open mockery and insulting of experienced employees who have committed themselves to work for a company are totally unacceptable. It’s unfortunate when supervisors and managers lose sight of the importance of valuing employees. But we are hopeful that a constructive resolution which promotes the common goal of achieving a respectful work environment will emerge from this process.”

Article by:

U.S. Equal Employment Opportunity Commission

Of:

U.S. Equal Employment Opportunity Commission

4th Cir. First to Apply "Disability" Definition Under ADAAA – ADA Amendments Act of 2008

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On January 23rd, in a ground-breaking decision under the ADA Amendments Act of 2008 (“ADAAA”), the United States Court of Appeals for the Fourth Circuit held that an injury that left the plaintiff unable to walk for seven months and that, without surgery, pain medication, and physical therapy, likely would have rendered the plaintiff unable to walk for far longer can constitute a disability under the Americans with Disabilities Act.  The Fourth Circuit in Summers v. Altarum Institute, Corp. indicated that it is the first appellate court to apply the ADAAA’s expanded definition of “disability.”

The Court reversed a District Court’s dismissal of the plaintiff’s case pursuant to a Rule 12(b)(6) motion.  The U.S. District Court for the Eastern District of Virginia based its dismissal of the plaintiff’s disability-based discharge claim on its view that the plaintiff’s impairment was temporary and therefore not covered by the Americans With Disabilities Act. In its reversal, the Fourth Circuit held that the plaintiff “has unquestionably alleged a ‘disability’ under the ADAAA sufficiently plausible to survive a Rule 12(b)(6) motion.”

Article by:

Timothy M. McConville

Of:

Odin, Feldman & Pittleman, P.C.