Tag: Law Offce Management

Which Employers Will Be Responsible For Health Coverage In 2014?

Recently posted at the National Law Review by Abby Natelson  of  Greenberg Traurig, LLP – provides more details about which employers will be responsible for providing healthcare coverage in 2014:

The new health care law, otherwise known as the Patient Protection and Affordable Care Act (PPACA), requires that, beginning after December 31, 2013, “applicable large employers” must provide affordable health coverage to their full-time employees.   Failure to do so may subject these employers to a shared responsibility payment, or an “assessable payment,” pursuant to Internal Revenue Code §4980H.

An “applicable large employer” is defined as “an employer who employed an average of at least 50 full-time employees on business days during the preceding calendar year.” A full-time employee with respect to a given month is defined as “an employee who is employed on average at least 30 hours of service per week.”

While these definitions may appear to be straightforward, the recent Notice issued by the Internal Revenue Service, together with the Department of Labor and the Department of Health and Human Services, indicates that the analysis is not so simple.

Notice 2011-36 was issued on May 2, 2011, seeking comments and providing suggested rules for interpreting and applying the meaning of “full-time employees” for purposes of IRC §4980H.

Notably, the Notice provides rules for determining whether an employer has “50 full-time employees,” which includes full-time equivalents. This means that, on a monthly basis, an employer must take the following steps to determine whether 50 full-time employees are employed:

1)                  Determine the number “full-time” employees. 
This group includes seasonal employees and all employees of a controlled group, an affiliated group, and a predecessor employer. This group does not include leased employees.

2)                  Determine the “full-time equivalents.”
This number is determined by aggregating the number of hours of service for all employees determined not to have a full-time status for the month, and then dividing these hours by 120.

At the end of a calendar year, the employer must add together the 12 monthly calculations, and divide the sum by 12 to get the average monthly full-time employees for the prior year. If the final number is 50 or more, the employer is an “applicable large employer.” 

For example, if a business employs 40 full-time employees with 40 hours of service per week and 20 part-time employees with an average of 20 hours of service per week, the employer will still be considered an “applicable large employer.”   This is because each month, the employer will have to add approximately 13.3 “full-time equivalents” (approximately 80 hours worked per month by each part-time employee, multiplied by 20 part-time employees, divided by 120) to the 40 full-time employees, bringing the total “full-time employees” for purposes of health coverage obligations to 53.3. As this example demonstrates, an employer that relies on part-time employees may still be subject to the shared responsibility provisions of the PPACA.

The Notice provides for an exception in the case of seasonal workers. This seasonal employees exception applies where an employer’s workforce exceeds 50 full-time employees for 120 days or less during a calendar year and the employees in excess of 50 were employed during those days as seasonal employees. In this case, the employer is not considered an “applicable large employer.”

Employers “not in existence during an entire preceding calendar year,” are not exempt from assessment payment liability pursuant to the Notice, and will be considered an applicable large employer if the employer reasonably expects to employ an average of at least 50 full-time employees on business days during the current calendar year.

The Notice also indicates the intent of the IRS, DOL, and HHS to allow employers to measure 130 hours of service per month to determine full-time status, rather than 30 hours of service per week. Further, the Notice includes a safe harbor for determining an employee’s full time status for future months based on the employee’s status as a full-time employee in prior months, which is intended to make administration of this rule for full-time employees easier.

In short, the proposed guidance set forth in Notice 2011-36 expands upon the inclusive definition of “full-time employees” set forth by the PPACA and reinforces the continuous burden imposed on employers to evaluate the “full-time” status of each of their employees.

©2011 Greenberg Traurig, LLP. All rights reserved.

Wage and Hour Headaches for Employers: The Department of Labor Has an App for That

Posted this week at the National Law Review  by Mitchell W. Quick, Brian P. Paul and Steven A. Nigh of Michael Best & Friedrich LLP – details for employers about the Department of Labor’s (DOL) new App to track wages and work hours….

The U.S. Department of Labor Wage & Hour Division (“WHD”) recently released a free application (“app”) for iPhone and iPod Touch that allows employees to track their wages and work hours. The “Timesheet” app allows employees to enter their hourly rate and hours worked for multiple employers. The app also lets employees record time spent on meal breaks and “other” breaks. Time can be recorded manually or by using the app’s embedded stopwatch. Timesheet calculates employee pay, including overtime, and lets employees export Timesheet data via e-mail in Microsoft Excel format. While the current version calculates pay based on an hourly rate, WHD is exploring the possibility of adding functions for commission pay, shift differentials and other methods of compensation in future versions, along with Android- and Blackberry-compatibility. The app currently is available in both English and Spanish.

Timesheet presents a number of challenges to employers. WHD perceives the app as an enforcement aid that contains potentially “invaluable” information about alleged hours worked. Timesheet also encourages employees to file claims by giving them contact information for both local and national wage and hour agencies.  Furthermore, employee complaints about pay for alleged “off-the-clock” work—such as voluntarily checking work e-mails when at home—may increase as such time can be easily recorded. Employees might also record any work issues raised during break time, raising the specter of employers having to treat that time as compensable “hours worked.” Finally, employees improperly classified as exempt and for whom the employer kept no time records would now have “documentation” to support their damage claims.

Fortunately, employers can take steps to protect themselves:

  • Keep accurate records. This obvious best practice has only become more important now that some employees may keep records of their own.
  • Require non-exempt employees to sign off on company time sheets. This will help ensure both sides agree on the number of hours worked, and can help wage and hour disagreements surface—and get resolved—sooner rather than later.
  • Audit exempt employees to make sure they are exempt. This is particularly true for employees for whom the company has limited time records
  • Update employee handbooks. Make sure employees know that they cannot falsify any company records, including time records. Also consider establishing a complaint process for employees to use when they are told not to report work time.
  • Do not retaliate against employees who keep their own time records. Retaliation claims are on the rise, and Timesheet is another possible pitfall for employers.

“Timesheet” should serve as a reminder of the importance of maintaining complete, accurate wage and hour records.

© MICHAEL BEST & FRIEDRICH LLP

Additional Information on this is also available here:

Comprehensive Summary of the Final Regulations to the ADA Amendments Act

This week’s guest blogger at the National Law Review is Jeffrey S. Nowak of  Franczek Radelet P.C..  Jeffrey provides a very comprehensive overview of the final regulations implementing the ADA Amendments Act of 2008 (ADAAA):   

On March 25, 2011, the U.S. Equal Employment Opportunity Commission (EEOC) published final regulations implementing the ADA Amendments Act of 2008 (ADAAA), a statute that now greatly expands the number of employees and applicants who will be considered “disabled.”  The final regulations fundamentally change the manner in which an employer must treat and manage employees with medical conditions in the workplace, since it now will be much easier for individuals to establish that they are disabled.  This Comprehensive Summary provides an overview of some of the key provisions in the final ADAAA regulations to help employers better understand the key changes in the law and adopt strategies to minimize liability.

Background

As originally enacted, the Americans with Disabilities Act (ADA) defines an individual with a disability as a person who has a physical or mental impairment that “substantially limits” one or more “major life activities.”  Individuals may also be covered under the ADA if they have a “record of” a disability or are “regarded as” disabled.  Since the ADA took effect, the Supreme Court and lower federal courts have construed the definition of disability in a relatively narrow fashion.  On September 25, 2008, President Bush signed the ADAAA into law.  Although the ADAAA retains the same definition of “disability” under the original Act, it makes sweeping changes to the manner in which these terms are to be construed.

In short, the ADAAA and its final regulations now shift the focus of virtually every situation that implicates the ADA.  Before the amendments, the interpretation of the ADA largely focused on whether an individual was substantially limited in a major life activity and, therefore, disabled under the ADA.  Under the ADAAA’s broader construction, the focus is not directed toward the actual definition of disability, but rather on discrimination and reasonable accommodation.  Given the ADA’s new statutory framework and new regulations that stretch the statute even further, employers should be prepared now more than ever before to respond to accommodation requests, make accommodations where necessary, and take precautions to avoid discriminatory decisions involving employees and applicants with medical conditions.

A copy of the final regulations can be found here.  The EEOC also has issued a guidance sheet and a fact sheet to aid employers in understanding the final regulations.

The final regulations address key issues, which are covered in this executive summary.

  • Will certain impairments always be considered “disabilities”?
  • What constitutes a “major life activity?”
  • What does it mean to be “substantially limited” in a major life activity?
  • To what extent are temporary or episodic impairments considered disabilities?
  • How do “mitigating measures” affect the analysis of whether an individual is disabled?
  • What does it mean for an employee to be “regarded as” disabled?

Broad Construction of the Definition of “Disability”

Taking its lead from the ADAAA, the final regulations provide that the definition of “disability” should be “broadly” construed “to the maximum extent permitted by the terms of the ADA.”  (The message from Congress and the EEOC to employers could not be any clearer: Stop focusing on whether an individual is disabled and focus instead on reasonable accommodation.)  Although the final regulations track the definition of “disability,” a term which remained intact, the regulations clarify that there is a shift in focus to whether employers have complied with their obligations and whether discrimination occurred, as opposed to whether an individual meets the definition of a “disability.”

Certain impairments “virtually always” covered

Further illustrating the point, in spite of the ADAAA’s (and the final regulations’) rejection of the notion of a “per se” disability, the final regulations take the extraordinary step of listing certain impairments that “will, as a factual matter, virtually always be found to impose a substantial limitation on a major life activity.”  The EEOC suggests that these assessments should be “particularly simple and straightforward” (tellingly, the title of the subsection is “Predictable Assessments”).  These impairments include:

  • Deafness
  • Blindness
  • Intellectual disability (formerly known as mental retardation)
  • Partially or completely missing limbs
  • Mobility impairments requiring the use of a wheelchair
  • Autism
  • Cancer
  • Cerebral palsy
  • Diabetes
  • Epilepsy
  • HIV or AIDS
  • Multiple sclerosis
  • Muscular dystrophy
  • Major depression
  • Bipolar disorder
  • Post-traumatic stress disorder
  • Obsessive compulsive disorder
  • Schizophrenia

This list includes many conditions that often were not substantially limiting impairments under the pre-ADAAA.  Nevertheless, the list tends to undermine the EEOC’s long-held position that an “individualized assessment” should be conducted to determine whether an impairment is indeed a disability.

Notably, the final regulations removed a section from the proposed regulations that listed certain impairments that “may be disabling for some individuals but not for others,” such as asthma, back/leg impairment, carpal tunnel syndrome, high blood pressure, psychiatric impairment (less severe than major depression) and learning disability.  In light of the expansive sweep of the final regulations, however, plaintiffs with impairments like these, as well as others, likely will not face a difficult task in convincing a court that they are disabled.

Less Demanding Standard for “Substantially Limits”?

To be disabled, one must have an impairment that “substantially limits” a major life activity.  Under the pre-ADAAA, employers often questioned the extent to which an impairment must “substantially limit” before an individual is considered disabled.  Unfortunately for employers, the EEOC declined to quantify the term “substantially limits” in the final ADAAA regulations, explaining that “a new definition would…lead to greater focus and intensity of attention on the threshold issue of coverage than intended by Congress.”  As such, the final regulations offer employers little concrete guidance in identifying the threshold at which an impairment qualifies as “substantially limiting,” aside from the presumption that it must be a lower threshold than previously adopted by the U.S. Supreme Court in its decisions leading up to passage of the ADAAA.

Instead, the regulations provide “nine rules of construction” to be applied in determining whether an impairment “substantially limits” a major life activity.  Most of the rules come directly from the language of the ADAAA, but several have been added by the EEOC:

  1. “The term ‘substantially limits’ shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.  ‘Substantially limits’ is not meant to be a demanding standard.”
  2. The determination of whether an impairment is “substantially limiting” should be made by comparing the ability of an individual to the general population.  The impairment does not need to “prevent, or significantly or severely restrict” the performance of a major life activity in order to be substantially limiting.
  3. In all ADA cases, the focus should be on whether the employer has complied with its statutory obligations, since the “threshold issue” of substantially limits should not require extensive analysis.
  4. “The determination requires an ‘individualized assessment,’ but the assessment should be done by requiring “a degree of functional limitation that is lower than the standard for ‘substantially limits’ applied prior to the ADAAA.”
  5. Comparing an individual’s performance of a major life activity to the general population should not generally require scientific, medical or statistical analysis.
  6. The determination should be made without regard to the “ameliorative effects of mitigating measures” other than ordinary contact lenses and eyeglasses.
  7. “An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”
  8. An impairment need not limit more than one major life activity.
  9. The effects of an impairment lasting or expecting to last fewer than six months can be “substantially limiting.”

The Effect of Condition, Manner and Duration

Commenting further on the “substantially limits” prong, the final regulations explain that, to determine whether an individual is “substantially limited” in a major life activity, it may be useful to consider the condition under or the manner in which an individual performs a major life activity; the duration of time it takes the individual to the activity as compared to most people in the general population; and the difficulty, effort, pain or amount of time required to perform the activity.

For example, under the new regulations, it does not matter whether an individual with a learning disability can read and write like the majority of people in the general population.  The regulations focus instead on how difficult it was for the individual to reach the level of literacy, (i.e., how long it took and the conditions which the individual had to overcome).  As a result, an individual may be substantially limited in a major life activity even if he or she can perform the activity at the same level as the general population, if it took more time, effort or work to become proficient compared to most people in the general population.

The Interpretation of “Major Life Activities” is Expanded Further

To be disabled under the law, one must have a physical or mental impairment that “substantially limits” one or more “major life activities”.  When determining whether an individual is substantially limited in a major life activity, according to the final regulations and EEOC’s interpretive guidance provide, the process should “not demand extensive analysis” and “usually will not require scientific, medical or statistical analysis.”

Notably, the final regulations expand an already “non-exhaustive” list of what may be deemed major life activities to include eating, sleeping, standing, lifting, bending, reading, concentrating, thinking and communicating.  The final regulations also include additional examples of major life activities, such as sitting, reaching and interacting with others.  When determining other examples of major life activities, the final regulations expressly reject the pre-ADAAA interpretation that the activity must be of “central importance to daily life,” a rule which expressly rejects the Supreme Court’s ruling in Toyota Motor Manufacturing v. Williams.  In effect, an activity no longer is required to be of “central importance.”

In a significant departure from the past, the ADAAA and final regulations expand the definition of “major life activities” to include the “operation of major bodily functions,” such as the immune system and normal cell growth, and neurological, bowel, bladder, circulatory and reproductive functions.  The final regulations list several additional functions, such as cardiovascular, lymphatic and musculoskeletal, and specify that the operation of a major bodily function includes the operation of an individual organ within the body (such as the liver or heart).  The appendix to the final regulations provides several examples of impairments that affect major bodily functions, e.g., cancer affects normal cell growth; diabetes affects functions of the pancreas and endocrine system; and rheumatoid arthritis affects musculoskeletal functions.

Work as a “major life activity”

The regulations also breathe new life into the “major life activity” of working.  Under the pre- ADAAA, a plaintiff’s claim that he or she was substantially limited in the major life activity of work almost always was dismissed by the court, largely because the employee was unable to show that the impairment substantially limited the employee’s ability to perform a “broad range” of jobs.  The final regulations maintain this requirement but lower the employee’s burden, claiming that this previous standard was “overly strict.”  Under the new regulations, if an individual’s job requires heavy lifting but the employee cannot lift heavy items and cannot perform the job or other jobs that require heavy lifting, then the employee is substantially limited in performing the class of jobs that require heavy lifting.  Is this shift in the rule all for naught?  As the final regulations point out, an impairment that substantially limits working will in most situations also substantially limit another major life activity.

Other Significant Regulatory Changes

Nearly All “Mitigating Measures” Are No Longer Considered

Under prior Supreme Court and federal appellate court precedent, employers were allowed to consider “mitigating measures” in determining whether an individual’s impairment substantially limits a major life activity under the ADA.  For example, if an individual used a hearing aid or cochlear implant due to a hearing impairment, it typically was not considered a disability because the individual was not substantially limited in the major life activity of hearing.  Because of the mitigating measure (i.e., the hearing aid), they could hear perfectly well.  Under the new regulations, however, employers are no longer allowed to consider such measures.  As a result, employers will be required to analyze each individual’s impairment in its unmitigated state.  Thus, the individual with a hearing aid would likely be substantially limited in hearing because we are obligated now to consider them without the use of a hearing aid.

The final regulations do provide one important exception: employers are permitted to consider the ameliorative effects of using ordinary eyeglasses or contact lenses.  The term “ordinary eyeglasses or contact lenses” is defined as lenses that are intended to fully correct visual acuity or to eliminate refractive error.  For example, an individual with severe myopia whose visual acuity is fully corrected is not substantially limited in seeing because the ameliorative effect of the lenses must be considered.  Similarly, eyeglasses or contact lenses that are the wrong or outdated prescription may nevertheless be “ordinary” if there is evidence that a proper prescription would fully correct visual acuity or eliminate refractive error.

What is also important to note is that both the ameliorative and non-ameliorative effects of mitigating measures, as well as the individual’s use or non-use of such measures (e.g., taking or refusing to take medication, even though prescribed by a physician) can be considered when determining whether the employee is a “qualified” individual with a disability or whether the employee poses a direct threat to safety; however, it will not affect whether the individual meets the definition of being disabled.

Temporary and Episodic Impairments May Constitute disabilities

Under the final regulations, short-term impairments and chronic impairments with short-term symptoms may be considered disabilities.  In the past, many courts declined to extend ADA coverage to individuals whose impairments were substantially limiting for only a short or limited period of time.  The new regulations reject this reasoning and prescribe that the duration of an impairment or symptom should not be dispositive in determining whether an individual is disabled.

Temporary and Short-Term Impairments

Clearly, one of the most significant changes to the final regulations is the EEOC’s decision to reject the long-held view that temporary impairments are not substantially limiting.  The EEOC previously took the position that the duration or expected duration of an impairment should be considered in determining whether the impairment is disabling.  That no longer appears to be the case.  The final regulations ambiguously state that “an impairment lasting or expected to last fewer than six months can be substantially limiting.” (Emphasis added).  When this language was first proposed, many commenters expressed that the new language would create confusion as to how long an employer’s impairment must last or be expected to last in order to impose ADA obligations on the employer.  (Further complicating matters, the regulations state that an employee who is regarded as having a “transitory and minor” impairment that is expected to heal shortly is not considered disabled.  Thus, it is conceivable that individual with a temporary impairment, such as a broken hand, may be disabled because the impairment substantially limits a major life activity, but may not be “regarded as” disabled for purposes of the Act.)

In response to these concerns, the EEOC opined that specifying a durational minimum for a disability would impose a more stringent standard than what Congress required.  In fact, the final regulations go even further than the proposed regulations on this point.  In the proposed rules, the EEOC identified a category of temporary non-chronic impairments that usually would not be considered a disability—for example, the common cold, seasonal influenza, a sprained joint, minor and non-chronic gastrointestinal disorders, a broken bone expected to heal completely, appendicitis and seasonal allergies.  The EEOC deleted this category in the final regulations, explaining that the provision caused confusion and was too limiting.

The EEOC’s position on the issue of temporary impairments is debatable.  It is not clear that Congress intended to extend ADA coverage to short-lived impairments.  Moreover, it is still likely that certain impairments of short duration which are expected to heal quickly, such as a common cold or a sprained ankle, will not be considered disabilities.  However, the regulations make clear that employers must consider all impairments, even short term ones, on a case-by-case basis.

Episodic Impairments

Under the ADAAA and the final regulations, an episodic impairment or impairment in remission is a disability if the impairment would substantially limit a major life activity when active.  This means that an individual with a serious chronic condition such as epilepsy or cancer could be considered disabled under the Act even if that person rarely or never experiences symptoms that would impact their employment.  The regulations provide specific examples of impairments that may be episodic in nature, including epilepsy, cancer, multiple sclerosis, hypertension, diabetes, asthma, major depressive disorder, bipolar disorder and schizophrenia.

The Act’s express inclusion of episodic impairments presents some practical challenges for employers.  Many episodic impairments are unpredictable in their effects on the individual.  For example, an employee diagnosed with asthma may not experience an attack for several months.  However, the fact that an asthma attack could limit a major life activity may require the employer to provide a reasonable accommodation.  The same is true for progressive impairments, such as Parkinson’s or Alzheimer’s Disease.  Many Parkinson’s and Alzheimer’s patients do not experience any symptoms in the early stages of the disease.  Nevertheless, the fact that an individual could at some point in the future experience symptoms that would substantially limit a major life activity likely would render the person disabled even before the condition worsens and (practically speaking) substantially limits a major life activity.

“Regarded As” Individuals Need Only Prove Perception of an “Impairment”

Under the original ADA as interpreted by the courts, an individual was “regarded as” disabled only when the employer perceived the individual to have an impairment that “substantially limited” him or her in a major life activity.  Under the final regulations, the same individual seeking to bring a “regarded as” claim need not prove that the employer believed the individual to have an impairment that substantially limits a major life activity, but merely that the employer perceived the employee as having an “impairment,” and based an employment decision on that perception.

Under the ADAAA, an individual subjected to a prohibited action (e.g., failure to hire, denial of promotion, termination or harassment) because of an actual or perceived impairment will meet the “regarded as” definition of disability whether or not the impairment “substantially limits” a major life activity unless the impairment is both transitory and minor.  The ADAAA further clarifies that a person who is “regarded as” disabled is not entitled to a reasonable accommodation unless the person also fits within one of the other two prongs of the definition of “disability.”

Notably, the final regulations specify that the “regarded as” prong should be the primary means of establishing coverage in ADA cases that do not involve reasonable accommodation, and that consideration of coverage under the first and second prongs will generally not be necessary except in situations where an individual needs a reasonable accommodation.

The final regulations further clarify that establishing that an individual is “regarded as having such an impairment” does not, by itself, establish liability.  Thus, even where an individual proves that an employer made a decision on the basis of an actual or perceived impairment, the employee must still show that he was “qualified” for the position in question in order to establish an ADA violation (i.e., he can perform the essential job functions of the position with or without a reasonable accommodation).   The employer may also utilize any otherwise available statutory defenses.  For example, an employer may still defend a decision to refuse to hire an applicant on the grounds that the individual would pose a “direct threat” to health and safety due to the nature of his impairment.

The proposed regulations originally identified several concrete examples of “transitory and minor” impairments that would not be sufficient to meet the “regarded as” prong of the statute, such as a broken bone that is expected to heal normally or a sprained wrist that was expected to heal in three weeks.  Unfortunately, these concrete examples were omitted from in the final regulations, leaving employers without clear guidance as to what constitutes a “transitory and minor” impairment.  Instead the appendix to the final regulations stress only that the inquiry as to whether an impairment is “transitory and minor” is an objective standard and provides these examples:

For example, an employer who terminates an employee whom it believes has bipolar disorder cannot take advantage of this exception by asserting that it believed the employee’s impairment was transitory and minor, since bipolar disorder is not objectively transitory and minor.  At the same time, an employer that terminated an employee with an objectively ‘‘transitory and minor’’ hand wound, mistakenly believing it to be symptomatic of HIV infection, will nevertheless have ‘‘regarded’’ the employee as an individual with a disability, since the covered entity took a prohibited employment action based on a perceived impairment (HIV infection) that is not ‘‘transitory and minor.’’

Notably, the final regulations give no example of an impairment that EEOC would find to be “transitory and minor” under this standard.

What about an employee’s symptoms?

In a nod to employers, the final regulations do not include a provision contained in the proposed regulations providing that actions taken because of an impairment’s symptoms (or because of the use of mitigating measures) constitute actions taken because of an impairment under the “regarded as” prong.  Employer commentary pointed out that this proposed standard could create liability for an employer when, for example, disciplining an employee for violating a workplace rule, even where the violation resulted from a symptom of an underlying impairment of which the employer was unaware.  This would have resulted in a clear departure from the EEOC’s existing policy guidance and court decisions, which recognize, among other things, that an employer may discipline an employee for job related misconduct resulting from a disability if the rule or expectation at issue is job related and consistent with business necessity.  EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC Notice No.  915.002 Mar. 25, 1997 http://www.eeoc.gov/policy/docs/psych.html.  The preamble to the Final Regulations states that this prior Guidance remains in effect, at least for now.

How Do Employers Respond to the New Regulations?

One might ask whether any employee is considered disabled under these new regulations.  Clearly, the ADAAA and its final regulations change how employers respond to and manage employees with medical conditions and who request accommodations in the workplace.  At a minimum, we suggest employers take the following approach to the “new” ADA.

  • The range of impairments that may substantially limit a major life activity has widened considerably.  Although not every impairment will constitute a disability, the analysis of whether an impairment “substantially limits” a major life activity will not be the focus of a court’s inquiry.  In light of this change in emphasis, employers should not focus on whether an employee is actually “disabled;” rather, they should focus on insuring that they are in compliance with the statute.  Therefore, as an initial matter, employers should review and revise workplace reasonable accommodation policies to ensure employees are aware of the policies and to make clear the lines of communication as to accommodations in the workplace.  Similarly, employers should maintain processes for identifying, evaluating, documenting and providing reasonable accommodations as required.
  • Employers should be proactive about engaging in an interactive process with employees who have an impairment.  In doing so, they should identify which among their personnel will be responsible for addressing issues of accommodation, and actually engage in an interactive process when an individual makes a request for assistance in the workplace.  An employer’s best tactic in defending an ADA lawsuit is to demonstrate that it made good faith efforts to accommodate an employee, rather than questioning or challenging the employee’s medical condition.  Thus, the interactive process above must become the norm.
  • Review all job descriptions to ensure they specifically and accurately describe the essential functions of the job.  Notably, under the new definition of a “regarded as” disability, any decision that relies in whole or in part on any perceived or actual physical impairment will be subject to scrutiny under the ADAAA.  It is now more important than ever to insure that any physical or mental job requirements are truly necessary.Employers should insure that all anti-harassment policies explicitly prohibit harassment based on disability, or perceived or actual physical or mental impairments.  Potential liability for disability-related harassment claims has increased because offensive statements that relate in any way to a mental or physical impairment may give rise to liability, regardless of whether the alleged victim actually suffered from an impairment or was otherwise disabled.  For example, an employee who calls a co-worker “psycho” or “retarded” could potentially create an actionable hostile work environment under the ADA even if the co-worker has no mental health history and has an above-average IQ.
  • Properly and contemporaneously document employment decisions involving an employee who is an individual with a disability or has a record of a disability.
  • Analyze pre- and post-employment testing and screening (including language contained in employment applications) to ensure they are job-related and consistent with business necessity.
  • Train supervisors and managers as to the broad coverage of the ADAAA and their responsibilities under the new Act.  At a minimum, the focus of training should include: 1) how they identify requests for workplace modifications; and 2) who they partner with in Human Resources as to the “interactive process” regarding modifications.

© 2011, Franczek Radelet P.C. 


Ark Group/Managing Partner’s 4th Annual – At the Forefront of Diversity WOMEN LEGAL 2011 Forum- June 8th AMA Executive Conference Center ~ New York, NY

The National Law Review is a proud media partner of the ARK Group’s WOMEN LEGAL Forum 2011– June 8th AMA Executive Conference Center ~ New York, NY which is dedicated to advancing the increasingly-important dialog on gender diversity in the American legal profession. 

The Business Imperative for the Retention and Succession of Female Leadership:

Why do so many Fortune 500 companies require their network of law firms to engage in diversity best practices that illustrate growth and change? Because evidence today not only supports that diversity practices are a sign of a well-managed company, but also because women make up almost half of the U.S. workforce and are assuming greater leadership roles in corporations across the board.

Is the “business of law” itself a detriment to the retention and succession of women leadership? Gender-based discrimination that equates to marginalized access to resources and decision-making continues to plague women in law firms.  There should be far more women serving as managing partners, executive and compensation committee members and filling additional critical leadership roles than there are today. Yet with increasing frustration, we continue to bring attention to the institutional impediments to women’s success and advancement.

For More Details and to Register:

New Ways of Navigating Today’s Legal Market

Some more legal marketing best practices quick tips recently posted at the National Law Review by Marcie L. Borgal Shunk of

BTI Consulting Group:

Savvy law firm leaders can define new ways of navigating today’s legal market by drawing on a combination of proven tactics and innovative best practices including:

  1. Systematic client feedback every 18–24 months
  2. Quarterly in-person meetings with each attorney’s top 5 clients
  3. Client-specific profiles on the firm intranet, replete with preferences from communication-style to level of detail included in invoices
  4. Brief, relevant highlights of anticipated changes and how they impact your clients distributed online, by email or social media
  5. Draft invoices to share with clients before submitting them for payment
  6. Targeting precise areas of growth within your practice (e.g., Securities Litigation with Energy companies or opportunistic mergers in the Telecom industry — read BTI’s Litigation Outlook 2011 and BTI’s Premium Practices Forecast 2011 for more ideas)
  7. Monthly and event-driven client team meetings to discuss changes in client’s goals, objectives and business needs and identify at least one specific growth opportunity

©2011 The BTI Consulting Group Wellesley, MA

 

Gateway Practices Promise Premium Law Firm Rates for 2011 – and More

This week’s Business of Law Guest Blogger at the National Law Review is Marcie L. Borgal Shunk of  BTI Consulting Group. I recently had the pleasure of hearing Marcie speak at Dechert’s offices in Philadelphia at a Delaware Valley Law Firm Marketing Group event – and she ‘put a lot of meat on the bones’ concerning what differentiates law firms in the eyes of inside counsel and what forces drive business to one law firm or one lawyer over another.  The following is a  very brief  post by Marcie on what will be the premium rate legal work in 2011 and why legal consumers are willing to pay top dollar for some legal services and not others:

Gateway Practices are a law firm’s exclusive invitation into an elite club. They not only provide intimate insights into a client’s most sensitive, high-value needs, but also offer priority access to new business opportunities in other areas (such as high-rate, high-growth opportunities). Gateway Practices are, in essence, the equivalent of a hidden shortcut to the king’s treasures.

BTI Premium Practices Forecast 2011, based on input from more than 250 corporate counsel, predicts there are 4 Gateway Practices for 2011. These are:

  • Bet-the-Company Litigation
  • Investigations
  • Bankruptcy
  • IP Litigation

Opportunities in Gateway Practices, however, are not abundantly available. In terms of market size, they are smaller than most other practice areas. Fewer companies have existing matters—for example, just 24.2% of companies have an active bet-the-company litigation at any given time—and the growth prospects for Gateway Practices, most of which are negative, mean competition is intense.

The only way to win new business in a shrinking practice area is to (1) take work from a competitor, or (2) be first in line for new opportunities.

Three best practices to position your firm to capture—and keep—this high-powered, top-rate work are:

  1. Be the driving force behind new thinking in how to use legal strategy for business advantage
  2. Take a bullet for your client. Commitment to help is the single most powerful differentiator when hiring for Gateway Practices.
  3. Host regular online or live events which anticipate major risk factors in Gateway Practices

©2011 The BTI Consulting Group Wellesley, MA

 

 

 

 

The Six Biggest Mistakes Law Firms Make When They Upgrade Technology

Recent featured blogger at the National Law Review –  Ben M. Schorr of Roland Schorr & Tower – provides some great insights into common mistakes made by lawfirms when upgrading technology.   

As an information services professional I’ve spent the past two decades helping law firms with their technology. Over that time I’ve come to identify 6 major mistakes that they tend to make when they install or upgrade new technology.

#1. They Don’t Have A Goal.

It’s important before you even consider upgrading your technology to ask this question: What problem are we solving? Too many firms forget what business they’re in and run around installing fancy new systems that don’t address any specific needs. Sometimes they’re talked into it by vendors or consultants; sometimes it’s the brainchild of a computer-savvy associate or staff member. Far too often the result is a lot of money spent for new systems and no increase in productivity. If you don’t have a goal, you’ll never reach it. Back home in Indiana folks say “If you don’t know where you’re going, pull over and stop ’cause you’re there.” This is rarely truer than in technology where you are constantly bombarded with possible routes – in the form of cool toys – but unless you have a destination it makes no sense to even start the car.

How can I avoid making this mistake?

Start by identifying the problem. Write it down. Write down the proposed answers. Review the problem (and proposed solutions) with the users and with your information services people (or consultants). Once you have a clearly defined (and agreed upon) problem and solution, set a timetable. Make it realistic. This can be one of the hardest parts of this step because you don’t want to rush things and end up with a hastily implemented, and poorly constructed, solution.  But at the same time you can’t drag your feet too much or the technology will change right out from under you and you may find that your preferred solution has been discontinued in favor of a new and improved (read that “more sophisticated and expensive”) solution.

#2. They Don’t Talk To Their Users.

Too many firms get a great idea for a new technology, throw the switch and roll it out to their users without even much warning to the users that it’s going to happen. As a result there is confusion, resentment, fear and a LOSS of productivity.

How can I avoid making this mistake?

Don’t just impose change from the top down or you’ll end up with users who resent and are intimidated by the new technology. Ask them what they need. Ask how they will use it. Have them compose a “wish list”. Observe their procedures. You’ll find that the users will accept the new systems much faster and easier if they have some input into its selection/creation. If you’re in a large firm consider putting together a users group of various staff members. Try to include at least two members of each category (partners, associates, paralegals, support staff, accounting, etc.) and don’t just pick the ones who know a lot about technology. Oftentimes the most valuable input will come from that partner or secretary who is awkward with the computers. Have them meet each month and ask them to talk about how the technology is (or isn’t) working for them. Have them suggest improvements. It’s important that you listen to their input and let you know that you value their contributions.

#3. They Don’t Do Their Homework (Or Pay The Smartest Kid In Class To Do It For Them).

I often see firms that buy a solution they don’t understand. What is it? How does it work? Why do we need this again? Many times they see a flashy ad or get a presentation from a salesman and sign the papers in the excitement of the moment.   They don’t clearly understand the problem or how this solution solves it.

How can I avoid making this mistake?

Do your research. Visit the Internet sites for the products you’re interested in. Visit the sites of some of their competitors. Read the trade magazines and try to keep a handle on what’s happening in the industry. Talk to the users (see #2) and vendors. Attend demos and seminars. You’ll probably have to start learning about the technology at least 3-4 months before you plan to upgrade or the hill will be too steep to climb. If you can’t (or don’t want to) do the research yourself, find a consultant that you feel comfortable with. Get recommendations from other firms in your area of people they’ve enjoyed working with. Ideally the consultant should be familiar with the solutions you’re interested in, but shouldn’t sell those solutions themselves (that way he has no financial interest in selling you something you don’t need). Never hire a consultant that you don’t trust completely. Your consultant should be able to explain the basics of the relevant technology to you in language you can understand and, most importantly, should be able to clearly explain the expected benefits to you.

#4. They Don’t Document Everything.

At one firm I worked for, I discovered that they had an entire floor of the building wired for network cabling but didn’t have a map or any other documentation about the cabling. All they had was plugs in the walls and loose wires in the computer closet. As you can imagine troubleshooting cabling problems became quite an adventure. It’s far too common to ask what kind of hardware is in use and have firms not know for sure.   Documentation failures go well beyond cabling – system configurations, numbers of licenses, software in use…oftentimes goes unrecorded and when it’s time to troubleshoot or upgrade there is not enough information available to make good decisions or accurately foresee potential problems.

How can I avoid making this mistake?

The solution is easy, but can be tedious. Insist upon complete documentation from your vendors. Maps of cabling. Labels on everything. When you deploy new equipment keep a file that indicates serial numbers and specifications (RAM, hard drive, processor, operating system, etc.). Often you can get that information from the invoice you received for the machine. Keep a list of what software you have in use, how many licenses you own, and what versions you’re running.  Document the date that the system or application was deployed and from where it was purchased. This documentation can make troubleshooting MUCH easier down the road.

#5. They Skimp On Training.

This is a VERY common error. It never fails to surprise me when I see a firm that will spend $50,000 on computer equipment but won’t spend $500 to train the users.

How can I avoid making this mistake?

The most important part of your system is the user – upgrade them! Would you fly an airline that advertises that “All of our pilots have driver’s licenses and we have a copy of “Big Planes for Dummies” in every cockpit!” I doubt it…yet many of you are flying your firms with crucial personnel who haven’t had even 20 minutes worth of training in the products that you depend upon to get your work done. Even long after the installation training can be productive. You may think that your assistant knows the ins & outs of your word processor, but what if a 2-hour class could teach him or her new tricks or secrets to get things done faster? If these new tricks saved them just 12 minutes a day that would be an entire HOUR each week that they’d gain. In a month they’d have recouped all of the time invested in the class, twice over. This goes for executives as well, by the way…

Consider bringing in an outside trainer (or even an inside resource) to do a 1-hour lunchtime training in your conference room.  Try producing an internal e-newsletter with tips and tricks for the products you use (ProLaw, Word, Excel, WordPerfect or whatever).  Encourage your users to have interest and discussions about technology.

Consider creating a “Trick of the Week” award where the person in your firm who submits the best new trick or tip for using your systems wins some prize – maybe a prime parking space in your lot for the week, an extra-long lunch break on Friday or a box of chocolates.

#6. They Don’t Follow-Up.

This comes back to talking to your users. If you don’t look out the window how do you know if you reached your destination? Don’t find out 6 months later that the staff hates the new software or that the new printers don’t work properly.

How can I avoid making this mistake?

After the upgrade is in place you need to contact your users and ask them if they’re happy. Try to be there when they first use it to get their initial reaction. Check in with them again the following day. Check in again the next week…and again weekly or bi-weekly for the next month or two. Look back at your written “goal” from #1 and see if you’ve solved your problem. If you didn’t, figure out why and make adjustments. Users will often forgive you if you find and fix problems quickly they often won’t forgive you if you give them a “solution” that doesn’t work and then leave them to deal with it on their own. Many times you’ll find that the problems are really “pilot error” and can be corrected with more (or better) training. Sometimes the problems will be equipment or software problems and finding them in the first days or weeks can mean the difference between getting your vendor to replace the inadequate product with something more suitable and getting stuck with it for the long term.

Preventing these mistakes takes a little effort but it’s not expensive. What’s expensive is making these mistakes and ending up with a system that you paid considerable money for and that leaves your users frustrated and your productivity down.

Copyright ©2011 Ronald Schorr

IQPC’s 11th eDiscovery Summit – April 27-29, 2011 San Francisco, CA – Save Big if Registered Before April 1st!

The National Law Review is a proud media partner for IQPC’s 11th eDiscovery Summit – April 27-29, 2011 San Francisco, CA

IQPC’s 11th eDiscovery Summit features hands on sessions and practical instruction to bring back to your eDiscovery teams. You will engage with IT and legal focus groups to candidly discuss anticipated push back issues, observe how different roles within your company approach imminent litigation and put bridging the gap strategies into practice.

It is no secret that you want to reduce the cost of eDiscovery, yet how do you know if you are paying a reasonable price for ESI processing and review? Do not miss this unique opportunity to learn about outside the box pricing structures and benchmark with your peers to gain a realistic picture of fair pricing for electronic information management.

Why attend the 11th eDiscovery Summit?

  • United States District Court Judges share their experiences with companies committing costly electronic discovery mistakes
  • Bridge the gap between IT and legal through a practical exercise with IT and legal focus groups
  • Learn practical steps to create a solid cross-functional eDiscovery team fostering communication and effective workflow between departments
  • Gain valuable metrics to assess the repeatability and defensibility of your eDiscovery procedures
  • Maximize the benefits of social networking and cloud computing without compromising security and increasing risk
  • Earn CLE Credits! Find out more

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  • April 27 – 29, 2011 The Hyatt Regency San Francisco, CA

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The Economy has Changed – InHouse Law Departments are Changing – Law Firms You Need to Change Too. Exhibit A: Howrey LLP

Lead, Follow or Get Out of the Way.  attributed to Thomas Paine 

Lead Me, Follow Me, or Get Out of My Way.  General George S. Patton 

Much has been written lately about the demise of Howrey, LLP.  Reasons cited for the downfall include: alternative fee arrangements, discovery outsourcing and the decline in overall litigation.  As a former in-house counsel, I had a few cases with them and always found them to be very effective litigators. Howrey’s emphasis on litigation, according to some is the main reason of their demise.  From the Wall Street Journal’s Law Blog March 9th:

Howrey, which once employed as many as 750 attorneys and uses the slogan “In Court Every Day,” had built what many corporations described as “go-to” litigation and intellectual property practices in the U.S. and Europe.

A former general counsel highlighted the ‘over effectiveness’ of Howrey’s – In Court Every Day  motto, but  he may be missing a bigger business trend:

But here’s the problem: clients may want to hire lawyers with deep litigation experience. I am very confident, however of the following:

Clients do not want to be in court every day.

Sometime in the last five years or so, most general counsel came to a realization: all litigation is bad. Some is worse than others, and some necessary for a while, to be sure. A bottom line for litigation is emerging: you don’t want to be in court and if you are you want to get out fast.  .  Howrey 3: When is a Law Firm Brand Too Good?  – from John Wallbillich of Wired CG. 

Many general counsel have believed for some time that litigation is often a resource drain.  The change is that many C-Level Managers now understand the time, cost, and often slim chance of collecting on a judgment even if you win often involved with  litigation.  Blame the economy for this increased scrutiny by businesses on legal expenses vs. financial outcomes from litigation.   

Competitive businesses have to look closely at all major expenditures, including…Alert the Media legal costs.  Inside counsel have to explain their costs, perform cost benefit analyses, and provide detailed budgets to executives. Guess what happened along the way,  business demanded that the law firms they retain be run like …. businesses!

  • Businesses that had project mangers on staff for years began to wonder why their law firms didn’t.  
     
  • Businesses that had to devise thier own internal litigation budgets questioned why their litigators seemed reluctant to do so.  
     
  • Businesses that had to estimate costs and develop estimates for their clients began to wonder why law firms weren’t willing to shoulder some of the estimation risk too.

There will always be situations where companies need good litigators, maybe just not as many as they did before.  Which brings me back to the other reasons frequently mentioned for Howrey’s demise:  alternative fees and  the advent of third-party discovery vendors.  

Alternative Fees & the Advent of Third Party Discovery Vendors

Alternative fees and discovery vendors are just low hanging fruit.  In the aptly titled blog post:  A BS Detector’s Review of the Latest Howrey News, Patrick McKenna interprets:

Ooooooooo, here it comes……wait for it…….alternative fees and low cost service providers unexpectedly arose and killed a healthy, well run law firm!

So, although there may be less of a demand for litigators, a well run firm could adjust.  And although clients may want alternative fee arrangements (AFA) the tipping point for Howrey was the response to client pressure for a small percentage of cases to be converted to AFA?  Astutely noted by Patrick Lamb in his follow-up blog post: The BS of the “Howrey Story” :  

AHA. SO, the firm survived on overcharging clients for mundane administrative discovery service. And did not have the acumen to adjust its fundamental practice accordingly. That was certainly not anything that was foreseeable or addressable by management.

In the end, Howrey CEO Robert Ruyak, summed it up the best: 

What we found is that partners at major law firms have very little tolerance for change and very little tolerance for fluctuation in profits…. Wall Street Journal’s Law Blog March 9th. 

Change, Grow, Innovate – From Legal Advisor to Strategic Partner – also save  a $100 

InsideCounsel’s 11th Annual SuperConference – May 23-24 in Chicago is designed to provide senior legal professionals insights, ideas and solutions to help them meet their growing responsibilities and evolving needs.   Specific Topics addressed include: 

  • The Great Reset – From Legal to Strategic Business Partner
  • In-House vs. Outside Counsel – 5 Challenges & Solutions from Both Perspectives
  • Value Based Billing
  • Taking Control of Document Review – Strategies and Methods to Finishing Projects Faster while Keeping Costs Under Control and many, many more….

Earn up to 12 CLE Credits.  For More Information and to Register – CLICK HERE.   

Register Prior to April 1st and Enter Promo Code WBNLR2 & save $100 !

Copyright ©2011 National Law Forum, LLC

Social Media Posts by a Third Party: Florida Bar Rules

From Business of Law Guest Blogger at the National Law Review Margaret Grisdela of  Legal Expert Connections – a great quick  overview of those tricky Florida State Bar rules concerning social media:  

Ethics in Blogging was the topic of a presentation I made this morning at the Broward County Bar Association, with co-presenter Alan Anthony Pascal, Esq. of The Florida Bar.

Posts to a lawyer’s social media page by a third party was one of the topics we covered. Below please find some highlights from the Florida Bar Guidelines for Networking Sites, which applies to Florida attorneys as well as lawyers from other states who are soliciting business in Florida.

Third Party Posts

“Although lawyers are responsible for all content that the lawyers post on their own pages, a lawyer is not responsible for information posted on the lawyer’s page by a third party, unless the lawyer prompts the third party to post the information or the lawyer uses the third party to circumvent the lawyer advertising rules.”

Removal of Non-Compliant Information from a Lawyer’s Page

“If a third party posts information on the lawyer’s page about the lawyer’s services that does not comply with the lawyer advertising rules, the lawyer must remove the information from the lawyer’s page.”

Request for Removal of Info on a Page Not Controlled by the Attorney

“If the lawyer becomes aware that a third party has posted information about the lawyer’s services on a page not controlled by the lawyer that does not comply with the lawyer advertising rules, the lawyer should ask the third party to remove the non-complying information. In such a situation, however, the lawyer is not responsible if the third party does not comply with the lawyer’s request.”

Lawyer Social Media Pages are Exempt from Filing

“Finally, the Standing Committee on Advertising is of the opinion that a page on a networking site is sufficiently similar to a website of a lawyer or law firm that pages on networking sites are not required to be filed with The Florida Bar for review.”

Page references in these guidelines can include a LinkedIn profile, a blog comment, Twitter profile, Facebook page, etc.

Read the Florida Bar Guidelines for Networking Sites here.

© Legal Expert Connections, Inc.