The Americans with Disabilities Act of 1990 ("ADA") was passed with much fanfare, but the act's narrow interpretation by the courts has meant that very few employees with disabilities were protected by the statute. In order to receive protection, employees needed to show "an impairment which substantially limits a major life activity." 42 U.S.C. 12102(2). The impairment also had to be unrelated to the employee's ability to do the job. For the vast majority of employees, that meant that they were either too disabled or not disabled enough to receive protection from the act. Statistics showed that more than 80 percent of ADA cases that were filed in court were resolved in favor of the employer.
The ADA Amendments Act of 2008 ("ADA AA"), which was signed into law on October 3, 2008 and went into effect on January 1, 2009, was passed to expand the number of employees who are protected by the ADA. The ADA AA did not change the definition of what constitutes a disability, but the act did adopt a new rule of construction for the courts to follow. The act states: "the definition of disability shall be construed in favor of broad coverage of individuals" and "the question of whether an individual's impairment is a disability should not demand extensive analysis." The ADA AA also "abrogates" or reverses previous court decisions that had narrowly construed the ADA. The act also makes it easier for employees to assert claims under the "regarded as" portion of the ADA and includes employees who have disabilities that may be minimized by "mitigating measures." For example, if an employee has diabetes, but she controls the disease with medication, the courts are to consider whether the employee would have a qualifying impairment without the medication.
These changes in the law should increase the willingness of attorneys to file more ADA cases against employers. But it will take time to see how the lower courts interpret the changes in the law.
Tuesday, March 24, 2009
Sunday, December 21, 2008
What Damages Are Available In A Wrongful Discharge Lawsuit
When contemplating a lawsuit against your former employer, it may be helpful to know what type of damages are available if you win. The answer to that question will depend somewhat on the nature of the lawsuit and the law or laws that are involved. For example, some statutes, like the Family and Medical Leave Act and Fair Labor Standards Act (governing minimum wages and overtime) have double damages provisions.
But in general, the damages that can be claimed for most types of wrongful discharge include the following: lost wages, lost fringe benefits, attorney fees, interest and litigation costs. Employees are generally unable to collect for pain and suffering, even though these damages are available in a personal injury case.
Damages are usually calculated from the date of the employee's discharge to the date of trial. For example, an employee who was earning $40,000 per year and whose fringe benefits, such as health and life insurance, were worth an additional $10,000 per year, and who was unemployed for 14 months between the date of her discharge and the date of trial, would calculate his damages as follows:
$50,000 per year / 12 months = $4,167 per month
$4,167 x 14 months = $58,338
An employee is often also entitled to reinstatement to her old job if she wins at trial. Occasionally, a judge will order "front pay" instead of reinstatement. Front pay is lost wages from the date of trial to some point in the future. The length of front pay will depend on the employee's age and how long it may take for the employee to reach the wage level or salary that she was earning had she not been wrongfully discharged.
An employee is also obligated to try to reduce or "mitigate" damages by looking for comparable employment. If an employee is offered a comparable position, but refuses to accept the position, the employee's right to future damages may be cut off.
It is the former employer's burden to prove that an employee failed to mitigate damages. To rebut the employer's claim that the employee did not properly mitigate her damages, the employee should keep track of all positions applied for. The employee should keep a spreadsheet or chart showing the date she applied for a position, the name of the company to whom the application was submitted, a description of the position and the result (example, not hiring or no response).
If an employee does find a new job between the date of discharge and the date of trial, the earnings from the new job will be subtracted from the earnings that the employee could have been expected to earn had she not been fired.
Using the example from above, if the employee had found a job making $25,000 a year and no benefits six months after she was fired, her damages would be reduced by the income from the new job. The reduction would equal $2,083 per month x 8 = $16,664. The new wrongful discharge damage figure would be $58,338 - $16,664 = $41,674.
But in general, the damages that can be claimed for most types of wrongful discharge include the following: lost wages, lost fringe benefits, attorney fees, interest and litigation costs. Employees are generally unable to collect for pain and suffering, even though these damages are available in a personal injury case.
Damages are usually calculated from the date of the employee's discharge to the date of trial. For example, an employee who was earning $40,000 per year and whose fringe benefits, such as health and life insurance, were worth an additional $10,000 per year, and who was unemployed for 14 months between the date of her discharge and the date of trial, would calculate his damages as follows:
$50,000 per year / 12 months = $4,167 per month
$4,167 x 14 months = $58,338
An employee is often also entitled to reinstatement to her old job if she wins at trial. Occasionally, a judge will order "front pay" instead of reinstatement. Front pay is lost wages from the date of trial to some point in the future. The length of front pay will depend on the employee's age and how long it may take for the employee to reach the wage level or salary that she was earning had she not been wrongfully discharged.
An employee is also obligated to try to reduce or "mitigate" damages by looking for comparable employment. If an employee is offered a comparable position, but refuses to accept the position, the employee's right to future damages may be cut off.
It is the former employer's burden to prove that an employee failed to mitigate damages. To rebut the employer's claim that the employee did not properly mitigate her damages, the employee should keep track of all positions applied for. The employee should keep a spreadsheet or chart showing the date she applied for a position, the name of the company to whom the application was submitted, a description of the position and the result (example, not hiring or no response).
If an employee does find a new job between the date of discharge and the date of trial, the earnings from the new job will be subtracted from the earnings that the employee could have been expected to earn had she not been fired.
Using the example from above, if the employee had found a job making $25,000 a year and no benefits six months after she was fired, her damages would be reduced by the income from the new job. The reduction would equal $2,083 per month x 8 = $16,664. The new wrongful discharge damage figure would be $58,338 - $16,664 = $41,674.
Tuesday, November 4, 2008
Workplace Fairness Web Site
Clients and potential clients often have questions about the process involved with filing a wrongful discharge lawsuit. Common questions include: How long will it take? What will I have to do? What is mediation?
General answers to these questions and many others can be found at a web site affiliated with the National Employment Lawyers Association or NELA. The site is WorkplaceFairness.org.
As described by the site, Workplace Fairness is a non-profit organization helping to preserve and promote employee rights. This website provides information about job rights and employment issues around the country and in all 50 states. It is for workers, employers, advocates, policymakers, journalists, and anyone else who wants to understand, protect, and strengthen workers' rights.
The site is an excellent place to get educated about your rights and what is involved in a wrongful discharge lawsuit.
General answers to these questions and many others can be found at a web site affiliated with the National Employment Lawyers Association or NELA. The site is WorkplaceFairness.org.
As described by the site, Workplace Fairness is a non-profit organization helping to preserve and promote employee rights. This website provides information about job rights and employment issues around the country and in all 50 states. It is for workers, employers, advocates, policymakers, journalists, and anyone else who wants to understand, protect, and strengthen workers' rights.
The site is an excellent place to get educated about your rights and what is involved in a wrongful discharge lawsuit.
Tuesday, October 7, 2008
Emloyment Discrimination Claims in Federal Court
The Harvard Law & Policy Review (Winter 2009, volume 3, number 2) recently published an analysis of employment discrimination claims filed in Federal courts. The authors conclusions: (1) the number of cases filed in Federal courts have dropped dramatically, nearly 40 percent since 1999, (2) employees fare substantially better in jury trials as compared to judge trials and (3) defendant employers fare substantially better on appeal, reversing forty-one percent of their losses, compared with a nine percent reversal rate for plaintiff employees who lose at trial.
The percentage of summary judgement motions granted- requests by an employer that a case be dismissed before it ever gets to a jury - was also alarming. On average, the judges in the 6th Circuit Court of Appeals, which includes appeals from Michigan Federal Courts, granted the employer's motion for summary judgment 73% of the time.
It was not clear from the article how many of the cases dismissed following summary judgement motions were cases filed without the assistance of a lawyer.
The percentage of summary judgement motions granted- requests by an employer that a case be dismissed before it ever gets to a jury - was also alarming. On average, the judges in the 6th Circuit Court of Appeals, which includes appeals from Michigan Federal Courts, granted the employer's motion for summary judgment 73% of the time.
It was not clear from the article how many of the cases dismissed following summary judgement motions were cases filed without the assistance of a lawyer.
Tuesday, July 29, 2008
The Family and Medical Leave Act
The Family and Medical Leave Act, 29 USC 2612, was enacted to allow workers flexibility in scheduling time for medical problems and to alleviate some of the tension caused by the competing demands of work and family. Generally speaking, the act provides employees who have a "serious health condition" with an unpaid medical leave for up to 12 weeks per year. The employer must hold open a job for an employee on FMLA leave during the medical leave period.
Not all employees are eligible for an FMLA leave. Employees must have worked for the employer for 12 months before the leave begins and must have worked 1250 hours (about 24 hours per week on average) during the previous 12 months. Only employers who employ at least 50 employees at the location where the employee works (other locations within 75 miles of the employee's location may also be considered) are covered.
There are a few common misperceptions about the FMLA.
First, an employee does not have to use the words "FMLA" or "leave of absence" in order to be protected from being fired during if the employee misses work due to an injury or illness. He or see only needs to give the employer "enough information so that the employer may conclude that the employee has a serious health condition necessitating his absence."
Second, the damages in an FMLA case are not limted to income lost during the 12 week leave period permitted by the statute. Violating the FMLA may expose an employer to damages for lost wages well beyond the date the employee would have returned to work. FMLA liability includes an obligation for reinsatement, back pay, penalty or liquidated (double) damages , attorney fees, and costs of litigation.
The US Department of Labor has published the regulations governing the FMLA in a simple to read and understand question and answer format. The regulations may be found at this link: http://www.dol.gov/esa/regs/compliance/whd/whdfs28.htm
Not all employees are eligible for an FMLA leave. Employees must have worked for the employer for 12 months before the leave begins and must have worked 1250 hours (about 24 hours per week on average) during the previous 12 months. Only employers who employ at least 50 employees at the location where the employee works (other locations within 75 miles of the employee's location may also be considered) are covered.
There are a few common misperceptions about the FMLA.
First, an employee does not have to use the words "FMLA" or "leave of absence" in order to be protected from being fired during if the employee misses work due to an injury or illness. He or see only needs to give the employer "enough information so that the employer may conclude that the employee has a serious health condition necessitating his absence."
Second, the damages in an FMLA case are not limted to income lost during the 12 week leave period permitted by the statute. Violating the FMLA may expose an employer to damages for lost wages well beyond the date the employee would have returned to work. FMLA liability includes an obligation for reinsatement, back pay, penalty or liquidated (double) damages , attorney fees, and costs of litigation.
The US Department of Labor has published the regulations governing the FMLA in a simple to read and understand question and answer format. The regulations may be found at this link: http://www.dol.gov/esa/regs/compliance/whd/whdfs28.htm
Thursday, February 22, 2007
When does a firing not equal a lawsuit?
More often than not, a termination of employment is completely lawful and cannot be challenged in court. Employees who are fired for legitimate reasons, such as misconduct at work, poor attendance, downsizing, etc., have no recourse to court.
Even some employees who are fired for dumb reasons, for example, so that the boss can hire a family member, or because they have a personality conflict with their boss, have no recourse in court.
The at-will employment rule means that employees are only protected from a "wrongful discharge" if their case fits into the of the exceptions described in the posts below.
Even some employees who are fired for dumb reasons, for example, so that the boss can hire a family member, or because they have a personality conflict with their boss, have no recourse in court.
The at-will employment rule means that employees are only protected from a "wrongful discharge" if their case fits into the of the exceptions described in the posts below.
Saturday, February 3, 2007
So, What makes a good lawsuit?
Since most employees are "at-will," when can employees sue their employer when they think they have been wrongly fired?
Most employees must be able to fit their situations into one of the at will exceptions discussed in the previous post. For example, an employee who takes an FMLA leave has the right to return to his position so long as his doctor clears him to return to work within 12 weeks of taking the leave. An employee who is fired six weeks into their medical leave may have a strong claim that her employer violated the FMLA. Or, an employee is fired for refusing her boss' sexual advances. This is the classic example of sexual harassment. Sexual Harassment in Michigan is prohibited by both Federal and state law.
Employees usually must also suffer lost wages as a result of the employer's action to have a good lawsuit. A long period of unemployment or the necessity of taking a lower paying job leads to a claim for lost wages.
Most employees must be able to fit their situations into one of the at will exceptions discussed in the previous post. For example, an employee who takes an FMLA leave has the right to return to his position so long as his doctor clears him to return to work within 12 weeks of taking the leave. An employee who is fired six weeks into their medical leave may have a strong claim that her employer violated the FMLA. Or, an employee is fired for refusing her boss' sexual advances. This is the classic example of sexual harassment. Sexual Harassment in Michigan is prohibited by both Federal and state law.
Employees usually must also suffer lost wages as a result of the employer's action to have a good lawsuit. A long period of unemployment or the necessity of taking a lower paying job leads to a claim for lost wages.
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