Legal Corner

ADA
Discrimination claims under the ADA must be proven using the stronger "but-for" standard

A former Executive Housekeeper at the Maggie Valley Club and Resort in North Carolina filed a workers' compensation claim and later received a 30-percent permanent physical impairment to her ankle. She was fired a month after her claim was settled. The General Manager told the EEOC investigator that the worker was "let go due to her disability and her liability to the club." The housekeeper prevailed on her workers' compensation retaliation claim and tortious interference with contract claim, but not on her disability discrimination claim under the ADA.

The Fourth Circuit court found that discrimination claims under the ADA must be proven using the "but-for" standard, instead of the less demanding "motivating factor" test, joining the Sixth and Seventh Circuits in adopting the tougher standard of proof. Gentry v. East West Partners Management Co., Inc., et al., No. 14-2382, 2016 U.S. App. LEXIS 4128 (4th Cir. 2016).

FMLA
HR Director individually liable under the FMLA

In Graziadio v. The Culinary Institute of America (CIA), et al., a former employee sued her employer, her supervisor, and the HR director for violating the FMLA and ADA. On appeal, using the "economic realties" test the Second Circuit Court found that the HR director met the definition of an "employer" under the FMLA and, therefore, it was a jury issue whether she could be held personally liable for interfering with the former employee's rights and retaliating against her under the FMLA. In addition, the court reinstated the FMLA suit against the CIA. The court referred to a series of emails where the HR Director kept insisting that the FMLA documentation was "not sufficient" - but then refused to explain why.

Important lessons: Courts will be sympathetic to employees who are ill or disabled (or have family who are ill), particularly when it is perceived that the employer is making leave or the return to work process difficult. Avoid arbitrary deadlines and threats and don't stop communicating with an employee, taking steps to be clear about what is expected.

Workers' Compensation
Injured worker awarded $382,000 for wrongful termination - California

A federal appeals court upheld a jury's damage award of $382,000 for a long-time FedEx worker who needed more than the 90 days allowed by the company to fully recover from a workplace injury. The court found the company had a "continuing duty" to accommodate the employee, but did not offer the worker modified duty to return to work.

Eight-month delay in reporting injury crushes chances of benefits - Kansas

In an unpublished decision, Wolters v. City of St. Francis, the Kansas Court of Appeals held that a police officer was not entitled to benefits for his left knee injury. When he slipped on ice, he sought treatment for a swollen ankle, but did not mention the knee injury until 8 months later, when he filed for workers' compensation. A doctor opined that such injuries were usually caused by wear, tear, and degeneration.

Where employer has two comp carriers, claim should be apportioned between them - Massachusetts

In Insurance Co. of St. of Pa. v. Great No. Ins. Co., an employer had two primary workers' compensation insurance policies providing coverage for the same loss arising from injury to an employee. The employer notified only one of the insurers, which paid the claim. The Supreme Judiciary Court rejected the "selective tender rule" noting that Massachusetts recognizes the doctrine of equitable contribution among co-insurers and described the doctrine as one rooted in equity, not in contract. The employer could not prevent the insurance company that paid the loss from exercising its right of equitable contribution by intentionally giving notice of the injury only to that insurer.

Implicit coercion means benefits for worker injured during an employee-recognition event - Minnesota

In Shire v. Rosemount, Inc., an employee-recognition event included dinner followed by bowling, then a game of laser tag. During the game of laser tag, an employee injured his ankle. The event took place during work hours and employees either had to attend the event or use limited vacation time to avoid a loss of pay or benefits. Since employees had to attend or lose pay or vacation time, the event was not voluntary and whether the activities within the program were voluntary was irrelevant.

Going home with intent to work lands benefits for nurse injured leaving work - Missouri

In Jensen-Price v Encompass Medical Group,a cleaning cart struck a nurse, who was carrying a laptop to take home work, as she was leaving work. When she sought workers' compensation benefits, the ALJ found the case not compensable under the "going and coming" rule, but the Commission overturned arguing that going home with an intent to work is a travel between job sites that keeps the accident a compensable workers' compensation injury.

Two cases with different outcomes in employee/independent contractor classification - Pennsylvania

While the court acknowledged that an independent contractor agreement and tax filings as an independent contractor are not dispositive on the issue of employment status, the Board found that a company did not control the day-to-day tasks of a personal caretaker and, therefore, was not liable for a workers' comp claim. Edwards v. Workers' Comp. Appeal Bd. (Epicure Home Care, Inc.), 2016 Pa. Commw. LEXIS 120

On the other hand, in Lefrayah v. Oak Lane Express Pizza, Inc, the Workers' Compensation Appeal Board affirmed the workers' compensation judge's finding that a worker for a pizza restaurant was an employee rather than an independent contractor of the restaurant. The court ruled that although the worker was an independent contractor on his tax forms, the worker's supervisor oversaw the quality of the work and the manner in which it is performed, and he had the ability to hire and fire the worker. Therefore, sufficient evidence exists for a finding of an employment relationship.

Oral agreement spells trouble for contractor and insurer - Pennsylvania

In Quincy Mutual Fire Insurance Co. v. Imperium Insurance Co., Rushland-based Sunrise Concrete Co., a concrete contractor for a housing development construction project in Pottstown, entered an oral agreement to subcontract some of the work to New Jersey-based Cruzeiro Nova Construction Inc. A construction worker injured while working on a porch roof at the site sued Sunrise Concrete and others for negligence, and Sunrise's insurer, Quincy Mutual Fire Insurance, in turn filed suit against Cruzeiro's insurer, Imperium Insurance Co. seeking more than $1 million in defense and indemnification costs. The 3rd U.S. Circuit Court of Appeals found since there was no written contract or agreement Sunrise Concrete was not an additional insured and Imperium was not obligated to defend and indemnify it.

Insurance company on the hook for $1M because employer did not sign all paperwork - Pennsylvania

In Stefan Freeth v. Zurich American Insurance Co., the 3rd U.S. Circuit Court of Appeals ruled that Zurich America Insurance Co. is liable to pay an injured worker $1 million in uninsured motorist coverage because his employer failed to sign all the necessary documents needed to reduce the company's uninsured motorist coverage to $35,000 from $1 million. While the president of the West Chester company, Road-Con Inc., signed the summary form, he did not sign the necessary state-specific forms enclosed with the summary form.

Workers' Comp Opt-Out Act ruled unconstitutional - Oklahoma

Ruling on an appeal under the provisions of the Oklahoma Employee Injury Benefit Act, or Opt-Out Act, a three judge panel found the act to be unconstitutional and "not enforceable." The ruling in Vasquez v. Dillards is being appealed to the state supreme court. Vasquez aggravated a pre-existing spine injury while working at a Shawnee Dillard's store and was denied benefits because they were for a pre-existing condition rather than an "injury" as defined by Dillards' injury benefit plan. Dillard is one of about 60 employers that have opted out of the workers' comp system. The Commission found this is a non-permissible law because it creates "unequal, special treatment of a select group of the class of injured workers."

Worker's stepson may be due benefits after widow dies - Tennessee

A widow filed suit seeking workers' compensation death benefits for herself and her son, the stepson of the deceased worker, alleging a lung disease contracted in the course of his employment caused her husband's death. The employer, steel fabricator Trinity Marine Products Inc, denied liability. While the action was pending, the widow died and her estate and her son filed an amended complaint. The trial court granted the employer's motion for summary judgment, holding that neither the estate nor the son had standing to sue for benefits, but the Supreme Court's Special Workers' Compensation Appeals Panel reversed the decision, and remanded the case to the trial court finding the employer could still be liable for payments to the estate.

Failure to accept new job was meaningful refusal of return to work - Tennessee

In an unpublished opinion, Thompson v. Kroger Limited Partnership, the Supreme Court held that an employer offered a worker a meaningful return to work, but she refused the offer. Therefore, the worker was not eligible for reconsideration of her earlier settlement. A worker in the deli section of a Kroger supermarket sustained a compensable injury to her left shoulder. Permanent medical restrictions prevented her from returning to work in the deli and she was offered a job as a cashier in the fuel center, at the same basic hourly wage, which did not include the extra 25 cents per hour that she was paid when acting as a backup assistant manager of the deli. She refused the offer.

Union employees of Hormel Foods must be paid for "donning and doffing" - Wisconsin

Union employees at a Hormel Foods canning plant in Beloit must be paid for the few minutes they spend each day "donning and doffing" their company-mandated clothing and equipment before and after their shifts, according to a state Supreme Court. In this case, the main job function of the employees is preparing canned food, which requires them to wear equipment that ensures the food is clean and safe to eat, equipment they are not allowed to wear outside the plant in case it contaminates their clothing. That means they must be at work to change, and they must be changed and ready to go by the time they start their shift so they have to get to work a little early. It also means if they are injured during that time they can seek workers' compensation benefits.