August 20, 2013

Legal tools for dealing with a workplace bully in Nebraska

Bullying isn’t limited to the schoolyard. Bullying in the workplace is also a hot topic among employment lawyers and human resource professionals.  One study states that 35 percent of employees are bullied at work  In general, if you are being bullied at work you should document the bullying, try to constructively confront the bully and speak with HR if the bullying continues.  If bullying is persistent you should also consider looking for other employment.

Currently there are no state or federal laws in Nebraska that specifically address workplace bullying. However there are laws in place employees can use to protect themselves  legally against workplace bullying in many situations. Exercising your rights under these laws may not stop the bullying. However by exercising your rights under the laws described below you could force a smart employer to take some action against a bully. Also by using these legal tools you could also possibly expose your employer to a retaliation suit if you are fired after trying to stop a workplace bully

1.Title VII and the Nebraska Fair Employment Practices Act:  Both of these laws make it unlawful to harass a worker based protected classes such as sex, race, nationality, disability, age and religion. If you are being harassed based on one of these factors, the law forces you to address these complaints with management in order for you to successfully bring suit. While it is difficult to win a harassment case in Nebraska, the fact that you bring the harassment to the attention of management at least forces management to address the situation. If management is smart they will realize that they need to address the harassment or else they could be subject to legal liability. If management is enlightened they will realize the cost of employee turnover (link2) and address the situation regardless of any potential legal liability.

Many people believe that harassment based on sexual orientation is not against the law in Nebraska.  However gays and lesbians in Nebraska may be protected from harassment in some situations under the legal theory of “sex plus” discrimination.

So what if workplace bullying is not based on a protected class?  Even then,  employees might have legal protections under two laws, the  National Labor Relations Act (link 4)and the Americans with Disabilities Act and Family and Medical Leave Act.

2. The National Labor Relations Act. The NLRA protects workers rights to act together to address workplace conditions. The NLRA applies regardless of whether a workplace is unionized. If a boss or co-worker truly is a bully then other people will likely believe they are being bullied as well. By acting collectively employees stand a better chance of remedying the situation. For example, in the case of Teetor v. Dawson County Public District (link7) essentially forced management to fire a longtime supervisor who was notorious for bullying subordinates. The supervisors bullying was one of the reasons why employees tried to unionize.

Also by acting collectively, employees give themselves legal protections against retaliation by complaining against a bullying boss. Employees have no protection if they complain individually against a boss. The abscence of other people complaining about a workplace bully could also lead a court to believe that what one person views as workplace bullying is really just evidence of a personality conflict.

3. The ADA and FMLA. If bullying is severe enough to either cause or aggravate a mental illness an employee may be able to invoke the ADA. The ADA forces employers to make reasonable accommodations to employees with disabilities.  In theory an employee should be able to suggest an end to bullying on part of the co-worker or boss as the reasonable accommodation. Also by asking for an accommodation an employee gives themselves legal protection against retaliation by their employer. Under the FMLA an employee can job protected leave to treat a serious medical condition. Asking for FMLA leave can leave your employer open to legal liability if they wrongfully deny you FMLA leave or retaliate against your taking FMLA leave.

I hedge a little bit on the use of the ADA and the FMLA  as anti-bullying tools.  Employees who use the ADA and FMLA as an anti-bullying tools need to be confident that their situation is more than just a personality conflict with a boss or co-worker. An honest counselor or psychologist should be able to tell you this. It would also be helpful to get some confirmation of the bullying from co-workers and trusted friends. Employees also need to make sure that they aren’t using the ADA as an excuse for unsatisfactory performance and poor attendance. Defense lawyers are expert at sniffing out people use the ADA and the Family Medical Leave Act to cover up for bad attendance and poor performance.

But if an employee can clear those hurdles it can make sense to ask for an end to bullying as a reasonable accommodation under the ADA. I think the NLRA is a better tool to deal with workplace bullies than the ADA, but sometimes  co-workers are too afraid to support a co-worker in confronting management so asking for accommodation under the ADA is the best option for confronting workplace bullying that isn’t covered by other fair employment statutes.

June 26, 2013

Overturning DOMA will increase LGBT rights in the workplace

The impact of the Supreme Court decision overturning the Defense of Marriage Act (DOMA) will be felt in the workplace.

First of all overturning DOMA will expand anti-discrimination protections and partner benefits to gay, lesbian and transgendered employees who are employed by the federal government.

Overturning DOMA will also probably benefit LGBT employees not working for the federal government. One argument is that that banning LGBT discrimination in federal employment will ease acceptance of extending anti-discrimination protections to gays and lesbians in the workforce as a whole. Legislation has been introduced that would explicitly extend protections offederal and state fair employment statutes to gays and lesbians.

From a political point of view, explicitly extending fair employment statutes to cover gays and lesbians probably won’t be feasible until at least 2015 depending on the outcome of the 2014 elections. Politicians in red states in both parties may be wary of conservative backlash if they support extending fair employment practices to gays and lesbians. That same reticence will probably be displayed by Senate Majority Leader Harry Reed who needs to Democrats to win in several conservative states in order to hold on to the majority.

But today’s decision overturning DOMA may further open the door to judicially expanding employment statutes to gays and lesbians. Justice Kennedy and the liberal bloc struck down DOMA on 5th/14th amendment equal protection grounds. If state’s can’t discriminate against gays in marriage on equal protection grounds it doesn’t make logical sense that the 5/14th amendment allows employment discrimination against gays.

It is arguable that gays, lesbian and transgendered people already have the protections of our fair employment laws under the theory of sex-plus discrimination which prohibits discrimination based on sexual stereotypes . In Smith v. City of Salem, Ohio the 6th Circuit Court of Appeals extended protections under the sex-plus theory to a male firefighter who started identifying as a woman.  In Lewis v. Heartland Inns of America, the conservative 8th Circuit Court of Appeals upheld a finding of possible finding of sex discrimination for a woman who was described by her boss as having  “an Ellen DeGeneres kind of look.” Though the 8th Circuit didn’t make any reference to sexual orientation in the decision, it is obvious that “Ellen DeGeneres” is a code word for “lesbian”. It makes sense to me that opposite sex attraction is a stereotype for each gender and that discrimination against gays, lesbians and transgendered people should be covered under the theory of sex-plus discrimination. I think courts will be increasingly be forced to rule that way in the wake of today’s decision on DOMA stating that discrimination against gays and lesbians runs afoul of the 5th/14th amendments. Another possible factor working in favor expanding fair employment protections to gays and lesbians are recent Supreme Court decisions interpreting federal fair employment law favorably for employers.  It’s easy to conceive of moderately conservative judge in the mode of Supreme Court Justice Anthony Kennedy judicially extending fair employment law to gays and lesbians with the understanding that it will likely be more difficult employees to win fair employment suits.

Until Congress and/or our state legislatures act, gays and lesbians are not guaranteed equal rights at work. But thanks to today’s decision overturning DOMA, I think courts will be more open to extending workplace rights to the LGBT community regardless of what is done in the legislative branch.

 

June 24, 2013

Nassar and Vance : Instant analysis

In two 5-4 decisions, the United States Supreme Court lessened protections for employees in the workplace today in the Vance and Nassar cases. My initial impression is the Nassar decision will have  a bigger impact on employees in Nebraska and Iowa and will probably have a bigger impact nationwide as well.

Nassar

In Nassar the Supreme Court changed the standard for causation in a Title VII retaliation case from a motivating factor to but-for causation. Motivating factor is described as one of several causes where as but for causation means because of or even a sole cause. “But for” is a harder factor for an employee to prove than a motivating factor. In the 5-4 decision, Justice Alito pointed to the burden imposed on employers from the increase in retaliation cases filed with the EEOC. Alito believes that motivating factor in retaliation cases leads to  frivolous claims. Specifically he was worried that employees who knew they were going to get fired would file discrimination complaints in order to either prevent from getting fired or to set themselves up for a wrongful termination case.

In her dissent, Justice Ginsburg stated that Alito didn’t give federal trial court judges enough credit for sniffing out bogus retaliation claims on summary judgment. I agree. I also think Justice Alito doesn’t give attorneys — both management and employee side attorneys — enough credit in screening out bogus claims. As an employee attorney I am going to commit a substantial amount of time and money to a wrongful termination claim, so I am going to screen my cases. This is especially true in the area of Title VII where I can get stung for fees and costs both through the court rules and possibly under statute if I bring a weak case.

I am going to be doubly careful if I speak with a client who claims to have been fired right after turning in a discrimination claim. I assume human resources officers either know the law and/or consult with competent counsel before before they decide to fire somebody. I assume that management knows that firing someone soon after engaging in protected activity creates an inference of wrongful motive. I also assume that management will be able to prove to a court that they had a legitimate reason to fire an employee who recently engaged in protected activity.  Unless an employee can give me a good reason to doubt that assumption, I and most other plaintiff’s lawyers will decline that case.

Part of the expense of defending retaliation claims stems from responding to administrative filings with the EEOC and state and local fair employment agencies. The decision in Nassar does nothing to stop poor employees who were fired for good reason from filing claims with fair employment agencies. However as a result of today’s decision, good employees with legitimate cases, like Dr. Naiel Nassar, will have a more difficult time vindicating their rights in court.

But employee advocates can still bring retaliation cases under state fair employment statutes where causation standards may be less exacting for employees. Under current Nebraska law, proximate cause need not be the sole cause of an act in order to hold a defendant liable. However state courts tend to follow federal courts in their interpretation of fair employment law. State courts could very well carve out a fair employment exception to state law retaliation case under the reasoning of Nasser. Also courts could apply Nasser to raise standards for proximate cause for all civil plaintiffs. Employee advocates will need to proceed with caution on state law retaliation claims post-Nasser.

Vance

Vance clears up a split among Federal Courts of Appeal as to the definition of a supervisor under Title VII. The court agreed with the 1st and 8th Circuits that a supervisor is someone with authority to make tangible employment decisions such as hiring and firing. The court rejected the majority view that a supervisor was someone with the mere power to direct an employee’s work. Vance was arose out of a hostile environment claim under Title VII and the narrow holding was that an employer can not be held vicariously liable for harassment committed by someone who merely directs the work of another employee. As a result employees are now essentially required to report harassment to upper management and human resources in order to win a hostile environment claim under Title VII. Vance doesn’t change the law in Nebraska or Iowa or anywhere else in the 8th or 1st circuit. But again state courts will likely give deference to the decision. If employee advocates are advising employees pre-termination, it would probably be wise to make sure employees are able to prove their harassment case under a Vance standard.

February 27, 2013

Lawyers for injured workers should strike the phrase “light duty” from their vocabulary

Language matters in litigation. One term that is misused by workers compensation lawyers is the term “light duty”. Often times injured workers are re-assigned to different jobs that fit within doctor-given work restrictions. One common fact pattern I run into is an injured meat packing worker who has restrictions to one arm or hand, but no restrictions with their other arm or hand.  Workers are commonly re-assigned to “light duty” jobs where they overuse their non-injured arm and then sustain an overuse injury on the other arm or wrist.

Any job that leads to an overuse injury should not be termed a light duty job.  When I hear the term “light duty” in a workers compensation trial or deposition,  I always object on the basis of form and foundation.  In other words the term “light duty” is misleading and not supported by the facts. Usually my objection is sustained or opposing counsel stops using the term “light duty.” Objecting to the term light duty reminds a trial judge or ALJ how bi-lateral hand and arm injuries can develop from single member injuries.

The problem of overuse injuries developing by overcompensating for an injured arm or hand arises from myopic reading of doctor’s restrictions by nurse case managers and company nurses.  Advocates for injured workers should seek comprehensive work restrictions for single hand or arm injuries. For example if a worker has  a five pound lifting restriction for their right arm, the employee advocate should seek to get overall lifting restrictions for both arms even if there are no current problems for the other arm.  Smart employers would have an interest in getting comprehensive lifting restrictions for single hand and arm injuries as they risk being held liable for a bi-lateral member injury stemming from overuse. In the long run, bi-lateral injuries lead to more medical, disability and litigation expense for employees and employers alike.

 

November 23, 2012

Stand Up For Yourself Without Getting Fired useful for lawyers and non-lawyers

Workplace law is misunderstood by lawyers and non-lawyers alike. Fortunately employee rights attorney  Donna Ballman has written Stand Up For Yourself Without Getting Fired to help educate employees and their potential advocates about how to protect their rights in the workplace. Lawyers and non-lawyers alike should find this book useful because it provides common-sense advice in plain language to a wide variety of issues that arise in the employee-employer relationship.

The phrase “resolve workplace conflicts before you quit, get axed or sue the bastards” is the subtitle of this book. This book gives good advice as to how to counsel client’s and potential clients. A lot of Ballman’s wisdom might be ingrained in experienced employment law practitioners but I think it is useful to young attorneys wanting to start in employment law or a more experienced attorney who wants to expand their practice into employment law. Of course it’s not always possible to resolve workplace conflict short of quitting or getting axed. That’s why Ballman’s book gives good advice to employees and their advocates about how to build a case in order to successfully sue the bastards.

Though this book isn’t written for lawyers and I think it is useful for employee-side employment lawyers of all levels of experience. For the beginning level-practitioner this book is good for issue spotting. It is also a good way for beginning lawyers to avoiding cases that seem to be good on the facts but that will be dismissed as a matter of law. Another strength of this book is that it shows many examples how a reasonable, smart person should defend their rights at work and how an ill-informed and unreasonable person acts in the same situation. The book provides plenty of ways that you as a lawyer can advise employess.  Also by showing how what actions the theoretical dumb employee would take, Ballman’s book shows you which cases to turn down and gives you an idea of when you should cut your losses on a case if you are already involved in litigation.

If you understand the basics of employment law litigation, this book is still worth your time as well. First of all it is never a bad idea to hear someone else’s take on the basics.  Also the book has lots of little nuggets that someone who practices employment law will appreciate. A hot topic in workplace law is workplace bullying. Currently there are no laws that specifically address workplace bullying that isn’t motivated by sex, race, religion or other protected factors.  In short, it’s not against the law to be a jerk at work or a bad boss. However Ballman suggests that if a worker works with other workers to stop a bullying boss that activity could be protected concerted activity under the National Labor Relations Act. Another tip I picked up was requesting the IRS determine whether someone is an employee or independent contractor through filling an out an IRS SS-8 form.

My employment law practice spun out of our firm’s large workers compensation practice so I represent mostly blue collar employees. Since I represent mostly blue collar employees, I am not hugely familiar with non-compete and non-solicitation agreements. I found Ballman’s straight forward explanations of these agreements easy to understand. Furthermore her explanation gave me a road map of how I can feel confident in advising prospective client’s on non-compete agreements.

While Ballman’s book is good, it has a few weaknesses.  I believe she is wrong in advising injured workers that they are probably okay going to a doctor recommended by their employer. Many states, including Nebraska, give employees the right to choose their family doctor to treat them for a work injury.  Ballman should have pointed out that fact. Also Ballman’s assertion that it is probably okay for the company to choose an injured worker ignores the fact that many employers steer their injured workers towards occupational health clinics like Concentra that sometimes conspire with unscrupulous employers and insurers to wrongfully limit the medical care of employees. I also found the section on asking accommodation under the Americans with Disabilities Act to be incomplete.  Management-side defense lawyers are scared of recent changes to the ADA which shifts the focus on whether an employee is disabled to whether the employer made reasonable accommodations of the employees disability.  Savvy management side lawyers are already advising HR on how to use the mandated interactive process to beat ADA claims. This book provides little or no guidance how an employee should handle the interactive process in an ADA claim.

Hopefully whatever flaws this book has are fixed for a second edition of this book. But even with the flaws I listed above, it is still worth the time of lawyers and lay people alike to read Stand Up For Yourself Without Getting Fired.

August 21, 2012

Non-English speakers may have good cause to file unemployment appeals late in Nebraska

Anybody who represents a significant number of injured in workers in Nebraska is going to represent many people who 1) do not understand English and have a very limited education in their native  language and 2) will have to file for unemployment benefits to support themselves because their workers’  compensation claim is being disputed by their employer.

If a workers compensation claim is disputed, often times an unemployment claim will be disputed as well.  If an employee is denied unemployment by an adjudicator, they have 20 days to appeal that decision to the Nebraska Appeal Tribunal.  However my experience is that the notice of right appeal comes in English and non-English speakers many times don’t understand what the document means. Sometimes this means non-English speakers may miss appeal deadlines because they don’t understand the form.

However 224 NAC 1 (003) (B) states than a person can file late if good cause is shown.  I had a recent experience where the Nebraska Department of Labor  found good cause for an appeal that was 15 days late where my client only understood Spanish and the notice of right to appeal came in English.  This decision agrees with fundamental principles of constitutional law. No person shall  be deprived of life, liberty or property without due process of law. See U.S.C.A. V and XIV .Neb. CONST. Art. I, § 3. The central meaning of due process of law is that parties who are to be effected are entitled to be heard; and in order to exercise that right they must be first notified. Baldwin v. Hale, 68 U.S. 223, 233 (1863) The right to be heard must come at a meaningful time and in a meaningful manner. Matthews v. Eldridge, 424 U.S. 319, 334 (1976)

I doubt that due process means that a non-English speaker can file a unemployment appeal years or even months after receiving notice of appeal. Weeks would probably be pushing the envelope.  No court is going to excuse a lack of due diligence. However lawyers who represent non-English speakers should be willing to file late unemployment appeals if the employee is not unreasonably late and if the notice of right to appeal came in English.

I think the administration of unemployment benefits would be more efficient if a system could be worked out to notify non-English speakers in their native languages. I think this something that could be worked out between the NDOL and the business community without  legislative involvement.

 

July 6, 2012

8th Cir. upholds breach of contract claim filed by former executives against ONEOK and awards attorneys fees under NWPCA

The 8th Circuit Court of Appeals upheld a breach of contract verdict in favor of two former executives of  ONEOK  who were  denied deferred compensation in the form of company stock when they refused to transfer to Tulsa when ONEOK shut down their Omaha office. The 8th Circuit also reversed the District Court and found that the plaintiffs in the case were entitled to a 25 percent attorney fee on the amounts awarded because the payments were wages as defined by the Nebraska Wage Payment and Collection Act. 

The two plaintiffs in the case had an agreement with the defendant that they would be paid deferred compensation in the form of company stock after three years. The shares would be pro-rated if the employees retired before the end of the three years or were involuntary terminated for certain reasons.  When ONEOK sold its Omaha office to TransCanada before the end of the three year period, the plaintiffs were given the option of transferring from Omaha to Tulsa. One plaintiff refused the plaintiff  other commuted to Tulsa for a short time but stopped commuting because of a pending divorce. Both plaintiffs were denied pro-rata shares of their ONEOK stock.

ONEOK relied on the proposition that a company’s decision on compensation is due deference absent of any evidence  of fraud or misrepresentation. However the 8th Circuit ignored this proposition because no deference was due to ONEOK’s decision because ONEOK did not follow their own procedures in awarding deferred compensation. The Executive Compensation Committee (ECC) of the Board of Directors had the sole authority to make the determination on deferred compensation. However the decision not to pay pro rata compensation to the plaintiff’s was made by an executive who was not a member of or a fiduciary of the ECC.

The court then determined whether the plaintiff’s retired from ONEOK. Noting that ONEOK allowed retirement at age 50 and the plaintiff’s were 49 and 47, the court interpreted the terms of the contract against ONEOK to find that the employees had retired from ONEOK. One helpful fact for the plaintiffs was that other high-level employees of ONEOK’s former Omaha office that had gone to work for TransCanada received pro-rata deferred compensation.

On the issue of attorneys fees under the NWPCA, the Court of Appeals cited to language from the company stating “the purposes of the deferred compensation plan was
to provide competitive incentives that will enable the Company to attract, retain, motivate, and reward eligible key employees” to find the deferred compensation was wages. Though the Court ruled under the NWPCA prior to the 2007 and 2010 Amendments, the court stated in a footnote that the results of this case would not change under the current language of the statute.

The court also rejected ONEOK’s argument that the decision on compensation should be referred back to the ECC to determine compensation. The court rejected that argument becaue the deferred compensation plan was not covered by ERISA.  In an interesting side issue, the court rejected a judicial estoppel argument made by ONEOK against one of the plaintiffs based on statements he made in a divorce proceeding. The plaintiff had denied in a divorce case that he was entitled to deferred compensation from ONEOK. However the court dismissed this argument because at the time of the divorce proceeding, the plaintiff’s property interest in the deferred compensation was speculative rather than actual.

July 2, 2012

8th Circuit gives broad interpretation to unforeseeable business circumstances defense in WARN Act

The 8th Circuit Court of Appeals gave broad protection to employers  from liability under the WARN Act who lay off employees due to general economic conditions in a case decided today.

The United Steel Workers of America sued U.S. Steel for notifying them on Decmeber 3, 2008 that layoffs would begin at some of U.S. Steel plants in the Midwest that produced steel for the automotive and building industry starting on Decmeber 7, 2008. The WARN Act normally requires that employers give 60 day notice for mass layoffs. However employers can avoid liability under the WARN Act for layoffs with less than 60 days notice if they can prove “unforeseeable business circumstances”.

The Union relied on the common sense proposition that the economic crash that caused the layoffs was apparent more than 60 days before the layoff. The Union’s case was bolstered by a press release from U.S. Steel investor relations in late October 2008 stating their was a decrease for demand steel due to the downturn. However the court relied on affidavits from U.S. Steel management that the impact of the sudden downturn wasn’t fully apparent until late November 2008. In support of this proposition the downturn was unexpected the court cited to the undisputed proposition that U.S. Steel had records profits and revenue for the first three quarters of 2008. It also relied on the fact that U.S. Steel revised its business plan for four consecutive months in late 2008  and early 2009, whereas U.S. Steel typically made plans on a quarterly basis.

This case follows the overarching proposition that the 8th Circuit will defer to the business judgment of management — even if that business judgment is flat wrong. This should somewhat reassure Nebraska employers who might have to layoff employees because of a crash in commodity prices and/or a double dip recession that looks possible. Employees looking to pursue WARN Act cases will likely need to dig up evidence in the form of e-mails and other electronic documents produced by the defendant that management knew or should have reasonably known the extent of the deterioration of business conditions for their company.

June 6, 2012

8th Cir: Giving legitimate business reason instruction in Equal Pay case non-reversible error

The Eighth Circuit Court of Appeals ruled today that a District Court erred in giving a Title VII legitimate business reason defense in an Equal Pay Act case, but that the error did not merit a reversal of the verdict for the defense by the court.

The plaintiff in Bauer v. The Curators of the University of Missouri was a female advanced practical nurse who alleged a male co-worker in the same job was being paid more.  Equal Pay Act cases are strict liability cases. Once the plaintiff can make their prima facie case that they were paid less because of sex, the defendant then has the burden to show that the difference in pay was due to a 1) seniority system; 2) a merit system; 3) a pay system based on quantity or quality of output or 4) a disparity based on any other factor rather than sex. If the defendant can’t show those one of those four factors, then the plaintiff wins.

Title VII cases require the plaintiff show a discriminatory/retaliatory intent by the employer. In a Title VII case — or Nebraska Fair Employment Practice Act case — an employee must make the prima facie case for discrimination/retaliation. Assuming the plaintiff makes the prima facie, case the employer must articulate any objective or subjective non-discriminatory/retaliatory reason for the firing. At the very least, the employee then has the burden to show that reason is false.

The 8th Circuit agreed that the legitimate business reason standard was error, but that when viewed in the context of the jury instructions as a whole the instruction was not prejudicial enough to warrant a reversal.

This is a favorable decision for employers. The best leverage employee-side attorneys have if the management-side attorney wants to give a legitimate business reason instruction in an Equal Pay Act, would be to make a judicial efficiency argument to the trial judge. In theory, the standard of review that mistaken instructions should be viewed in the context of a whole gives the employee some leverage on appeal. In practice the 8th Circuit would likely follow the Bauer case, but at the very least  an appeal of a legitimate legal issue that would create some uncertainty and expense for the defendant.

June 5, 2012

8th Circuit decision in St. Martin v. City of St. Paul will have limited effect on disability discrimination claims

The 8th Circuit’s decision in St. Martin v. City of St. Paul will likely have minimal effect because it applied law that was expressly overturned by the ADA Amendments Act of 2008.

St. Martin was a firefighter who injured his knee in a work accident. After a knee replacement he returned to a lighter duty job as a fire inspector where he continued to be employed. Plaintiff presented evidence that he would be unable to work as a firefighter, a fire captain,  a commercial vehicle inspector and doing landscaping work. The court relied on the United States Supreme Court’s decision in Sutton v. United Airlines to find that plaintiff was required to show  he could not do a “broad class of jobs.” The Court found plaintiff did not show he was disqualified from a broad class of work.

However the complained discriminatory acts took place before the effective date of the ADA Amendment Acts of 2008, so the court applied the old law.

When Congress passed the ADA Amendments Act of 2008 is that Congress explicitly intended to broaden the definition of disability that had been narrowed by Sutton, Toyota Motor Manufacturing, Kentucky, Inc. v. Williams and their progeny in the lower courts. Under the ADA Amendment Act of 2008, St. Martin likely would have at least proven disability because he could show that he could not do a class of jobs.

In any remaining claims under of  the “old” ADA arising from  a workers compensation claim in Nebraska,  plaintiff’s might be able to satisfy the requirements of St. Martin through the use of a loss of earning power report that might have already been prepared in a workers compensation case. Of course loss of earning power reports are not normally done by plaintif’s in single scheduled member cases such as St. Martin. There is nothing stopping a plaintiff from preparing a loss of earning report based off restrictions from a scheduled member case. However, preparing a loss of earning power report would add more expense to the case and create discovery and admissibility issues.  Plaintiff’s should tailor their written discovery and depositions  questions directed to towards management to obtain information about the classes of jobs the employee would be disqualified from because of their disability.

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