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March 2011
Not today Boss, I have a Headache!
By Gary Smith

Not today Boss, I have a Headache!

     What if you had an employee that just couldn’t quite make it to work or perform his or her duties? What if he told you he was going through a rough time and just did not feel good? In one case, the employer decided to fire the employee. The employee then claimed a violation of the Americans with Disabilities Act (ADA).

     The court ruled in favor of the employer. The employee’s claims did not support the conclusion that the employee was substantially limited in major life activities. This factor is necessary in order to meet the requirement for disability under the ADA. In this case, one point in issue was the employee’s inability to attend a sales conference because of the rough time being had by the employee. The court did not find the inability to attend a sales conference was a substantial limitation to being able to work.


Terminating for the Wrong Reason

     Be careful when you decide to terminate an employee’s employment. One employer decided to fire an employee when a former employer contacted the current employer about a non-competition covenant restricting the employee. The current employer appears to have used words like “respect and understanding” for others in the same industry in its decision to fire the employee. Because the non-competition provision was unenforceable under state law, a court held that the employee could file a claim for wrongful termination.


What your employees say matters…

     Your employees may “joke” with each other in some pretty harsh and discriminatory ways. You’re safe as long as your supervisors don’t do it, right? Not anymore. At least one court has decided that all evidence regarding discrimination should be considered in any discrimination case.

     This approach varies from the idea that statements made by people other than supervisors or otherwise made outside of the employment decision-making process should not be considered. This means that employers must be careful to monitor the language and treatment of coworkers by other coworkers to avoid claims of discrimination even when actual employment decisions are not discriminatory.



Arbitration Knowledge

     A court has found an employee arbitration agreement to be unenforceable. In this case, the arbitration agreement was “buried” in an employment agreement, the employee was required to sign the agreement and the arbitration provision was not specifically brought to the employee’s attention.

     When you decide to have employment disputes subject to mandatory arbitration, you cannot rely simply on provisions in an agreement. Make certain that you review your hiring policies and procedures with your legal counsel. Otherwise, you may have a lawsuit in your future.


I Hired a Contractor and Got an Employee

     The Internal Revenue Service (IRS) has been very interested this past year in cases where it believes that workers should be classified as employees instead of independent contractors. The results have been much higher taxes and, potentially, penalties for employers. Keep in mind that any person working for you can request that the IRS determine his or her employment status. As one company discovered, even a person who only worked for you for one month can decide to start this process for the employer.

     The IRS has simplified its criteria to determine employment status. There was a 20 factor test that was reviewed to determine where a person was more like an employee or more like an independent contractor. Now, the criteria consist of 11 points under three categories. The categories are behavioral control, financial control and relationship of the parties.

     These “new” categories and criteria don’t really change the law or the test. The questions are still very much the same. A few of the questions include the level of control you have over the person’s activities, the level of investment the person makes in the business venture, the level of investment you make in the person and how much the person operates like a truly independent business from your business.


Americans with Disabilities New Rules

     New standards have been adopted for the Americans with Disabilities Act (ADA). The new standards address technical specifications for the design and use of buildings and other areas:

     • Wheelchairs and other devices designed for use by people with mobility impairments must be permitted in all areas open to pedestrian use.

     • When making reservations for lodging, the lodging place must allow disabled individuals to make reservations for accessible guest rooms during the same hours and in the same manner as other guests and must identify and describe accessible features in the hotels and guest rooms. Also, reserved accessible guest rooms must actually be available for those disabled guests upon their arrival.

     The regulations also provide guidance with regard to the sale of tickets for accessible seating.

     • Facilities built in compliance with the 1991 standards for the ADA are not required to comply with the new rules until future renovations impact areas covered by the 2010 standards. However, to the extent that the 2010 standards address requirements not covered by the 1991 standards, those features must be modified to comply with the new standards.

     Content provided by Wishart, Norris, Henninger & Pittman, P.A., which partners with owners of closely-held businesses to provide comprehensive legal services in all areas of business, tax, estate planning, succession planning, purchases and sales of businesses, real estate, family law, and litigation. For more information, contact Gary Smith at 704-364-0010 or visit

Gary Smith is an attorney at Wishart, Norris, Henninger, P.A.
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