Interactive Process under the Americans with Disabilities Act: What You Don’t Do Can Hurt You


For the most part, employers are familiar with and make every effort to comply with the Americans with Disabilities Act, as amended (“ADAAA”).  These compliant employers understand that the ADA prohibits discrimination against qualified applicants and employees because of a disability. These employers also understand that they must provide a reasonable accommodation to such individuals with a disability, absent an undue hardship. To determine if a reasonable accommodation exists, employers must engage in the “interactive process.” What I find to be an area of frequent misunderstanding . . . how does the interactive process – a mandatory requirement – work? Often employers take a solo approach to evaluating whether an accommodation can be made. This action, while well-intentioned, fails to satisfy the requirements of the ADA. The ADA requires covered employers to engage in an interactive process to determine the limitations created by the applicant’s or employee’s disability and how […]

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Internal Investigations in the Workplace


Do you have clear policies in place that enable supervisory personnel to respond promptly to complaints of harassment and discrimination in the workplace? Are you training your employees to handle subsequent investigations? My thoughts: All employers should have a grievance procedure clearly outlining the steps an employee should take to make such a complaint. The policy should outline who the employee should contact and offer the employee the ability to bypass their direct supervisor should that person be the harassing party. A good grievance policy emphasizes that confidentiality will be maintained to the greatest extent possible, but, makes it clear that an investigation will require interviewing the alleged harasser, as well as relevant witnesses. Although confidentiality cannot be guaranteed, investigators should only disclose appropriate information on a need-to-know basis. Investigations should involve an interview with the complainant, as well as other involved parties and/or witnesses. Open-ended questions offer both parties […]

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Avoid Litigation: 10 Fast Facts About FMLA


 (1) Private employers are subject to the FMLA if the business employs 50 or more employees within 75 miles of the worksite for at least 20 workweeks in the current or preceding calendar year. (2) Employees (men and women) are eligible for FMLA if they have a “qualifying health condition,” which includes: Birth of a child or need to care for a newborn child Need to care for a family member with a serious health condition Employee’s own serious health condition Qualifying exigency arising out of active military duty of employee’s child, spouse, or parent (3)  When FMLA leave is complete, an employee has the right to return to either the same position or an equivalent position, i.e., a position with equal pay, benefits, and working conditions. (4)  FMLA covers incapacity for 3 or more consecutive days or a condition that requires periodic medical treatment over an extended period of time. […]

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Are You Calculating Overtime Correctly?


A non-exempt employee works over forty (40) hours in one workweek. For each hour over forty, you pay the employee time and one-half.  Have you met your obligation under the Fair Labor Standards Act? The answer will depend on whether you calculated the employees’ “regular rate of pay” correctly. Non-exempt employees are entitled to overtime pay for hours worked over 40 in a work week “at a rate of not less than one and one-half times the regular rate.” What many employers forget is that an employee’s “regular rate” includes “all remuneration for employment paid to, or on behalf of, the employee,” subject to a limited number of defined exclusions.  In other words, the “regular rate of pay” is not just the employee’s hourly rate, but also, includes certain additional payments that the employee received during the relevant time period. For instance, if an employee is paid $10.00 per hour […]

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Essential Employer Review: EEOC Guidance on Leave as a Reasonable Accommodation


Let’s start off the New Year by avoiding litigation, shall we? A helpful resource to do so comes to you courtesy of the EEOC. Last year, the EEOC issued a resource document addressing leave as a reasonable accommodation under the ADA, entitled “Employer-Provided Leave and the Americans with Disabilities Act.”  New Year’s Resolution – employers and human resource professionals should print and read a copy of this resource in full. Although this document does not carry the weight of official EEOC guidance, you can bet your bottom dollar that Investigators of Charges of Discrimination filed against your company will be using it to assess liability. Below, I highlight key aspects from the resource essential to those owning and operating within a business: (1) Equal Access to Leave Under Employer’s Paid Leave Policies. Employer’s should treat requests for leave for a disability the same as they would any other request for […]

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