Employment Law OUTLINE •
Threshold Issues o
At Will Presumption
Definitoin •
Bammert v. Don’s Super Valu •
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People are presumed to be able to be fired at anytime for any reason except for certain prohibitions (Public Policy etc.)
Public Policy is an exception to the employers total right to hire and fire in the at will relationship (Cannot fire for refusing to break the law). Here the court found that the when an employee was fired for the acts of her spouse the act was too attenuated to invoke a public policy exception at will. (narrow exception)
Defining Employee
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Right to Control (Substance over Form) a. WHEN USED: Agency, Agency, Respondeat Respondeat Superior/ Superior/ Tort, EIRSA($), IRS Immigration and Labor. o
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Whether the manager/owner retains the right to control the manner and means of work. Who supplies the instrumentalities, tools and workplace.
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Skill required (less skill more likely employee)
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Length of employment (not a one time job)
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Degree to which workers services are integral to the companies operations. Whether or not the worker is engaged in a distinct business or occupation. Whether worker provides services to other
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The method of payment, whether by the time worked or by the job. Parties subjective understanding
Economic Realities Test o
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When Used: FLSA, Minimum wage and overtime, title 7 discrimination Workers opportunities for profit or loss
Whether the manager/owner retains the right to control the manner and means of work. Who supplies the instrumentalities, tools and workplace.
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Skill required (less skill more likely employee)
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Permanency of the work relationship
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Degree of services being integral
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The degree to which management supervises the worker.
Overall: the degree to which the worker is economically dependent on company continued work.
Cases •
Lemmerman v. A.T. Oil (Control Test) o
Child worker found to be employee
Manager had authority to hire and fire Application was not taken from employee, employee not listed listed and was informally paid cash register all not dispositive to show not an employee. Fact that child was paid for services showed employee/employer relationship.
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Dial America o
Economic Realities Test
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Home Researchers were employees because:
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Paid a consitent wage
Distibutors
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They were permanent workers
Had control over profit or loss by having the ability to charge their own rates.
Contractual Limits to at Will Employment
Express Contracts •
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General rule regarding written contracts -if the contract is for a definite term the employee may be discharged before the expiration date only for breach of contractual provisions or other good cause. Gordon v Bender o
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Benders policy was to keep employees if they maintained their sales quota (satisfactory performance). Term ‘Satisfactory Performance’ was not a definite term, promise was not clear. Only objective terms in K will limit the at will doctrine. Need more defeintive terms such as “for cause.”
Scribner b. Employee fired because company was merging, not for deficient performance. In his contract he was entitled to stock options if fired without cause. The companies stock option commission decided to redefine for cause as the merging situation and not merely deficient performance. o
Court says Stock Option Committee can only interpret the contract, not redefine the terms. Cannot stretch for cause to mean something
other than the formal definition which means for deficient performance only.
Implied Contracts •
Pugh: o
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This was an oral contract that created a for cause employment relationship given all the factors as a whole. Substance over form. A reasonable employee would have believed he could only be fired for cause. (company history, statements told him etc.).
Challenging Contract Claims
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Intent to be bound (Reasonable expectation of employee) Specific terms (for cause, lifetime employment, for a year).
Acceptance
Consideration (for a modification). •
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New consideration to modify a contract. Majority Approach- Showing up for work the next day after the new promise is consideration, the employee is at will after all Minority Approach- Showing up after to work after promise is not enough, there must be something given up.
Parol Evidence •
Rule for excluding unreliable evidence
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Evidence comes in if it occurs AFTER the writing.
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Exclude evidence if: o
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Written contract Integrated- the writing was intended to be the final and complete agreement between the
parties. (on given topic ,partial vs. full) o
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Proffered terms contradict or add to written terms.
Statute of Frauds •
Contracts that by their terms cannot be performed in a year or less. o
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Contract begins to run when the agreement is made, regardless of when the performance begins.
Thus Must be in Writing Is the writing sufficient. Intent to authenticate o
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Proffered evidence occurred prior to or contemporaneous with writing.
Must be signed by the person denying the contract (i.e. the employer)
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Consideration
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Subject Matter
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Other essential terms depending on the K.
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Overall evidence that the contract was made.
Modifcation of Contracts—Employee Handbooks
Woolley v. Hoffman-La Roche, Inc. •
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HELD: Absent a clear and prominent disclaimer an implied promise contained in an employee manual that an employee will be fired only for cause may be enforceable against an employer even when the employment is for an indefinite terms and would otherwise be terminable at will. Offer: Specific terms (manual) and reasonable employee would have assumed the employer had the intent to be bound. Court : Larger corporation is more likely to be presumed having the attempt to be bound.
Fortune (good faith requirement) •
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Salesman employed at will based on commissions. He was fired to avoid payment of major commissions. Court held it was a breach of implied duty of good faith found within in every contract, despite its at will nature. The salesman was entitled to a commission, this right was in the K, not a separate right. Must be based in the K, implied or express. Good faith rule runs in contrast with the at will rule.
TORTS o
Hiring
Defamation •
General Requirements Defamation o
Statement Communicated to someone other than the plaintiff (courts split on if act can be a statement)
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Statement must be published (repeated to a third person)
Statement must be false (although stated as fact, not opinion) Must tend to harm (actual reputational harmpresumed) the plaintiff’s reputation and to owe him or her in the estimation of the community.
Lewis v. Equitable Life o
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Plaintiffs fired for “gross insubordination.” Although underlying conduct did not meet that description in truth. Forced self publication qualifies, employees forced to reveal prior fire reason. If statement by prior employer can be proven false or ill described they will be liable.
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Affirmative Defenses o
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TRUTH IS ALWAYS AND AFFIRMATIVE DEFENSE burden on defamer.(when defamed person is a private actor) Privilege
Judicial or administrative proceeding privilege. If made in the context of an investigation no defamation. Conditional Privilege – an employer who reasonably believes the listener had an important interest in the information is privileged from defamation liability assuming he did not abuse the privilege. •
Abuse-disclosure is unreasonable in manner or motive/purpose.
Negligent Hiring •
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The employer owed the third party a duty of reasonable care The employer breached the duty The breach caused the third party’s harm AND (i.e. the failure to do a background check when there was no record would show no causal chain) The party suffered harm
Malorney v. B&L Motor Freight o
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Truck driver rapes girl in truck, had prior charges never looked into by company. No due diligence to verify criminal background check. Duty depends on the type of employer. What are the steps that reasonable employer should take. Level of inquiry is tied to the level of risk. Foreseeabilty
Intentional Misrepresentation (Need no show duty but difficult to prove) •
Misrepresentation in fact
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Knowledge of falsity or reckless disregard for truth
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Intent to induce reliance
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Causing reliance
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Reasonable reliance
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Damages exist based upon reliance
Negligent Misrepresentation (Must show duty) •
DUTY OWED: o
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What is the chance of that person being exposed to the risk foreseen. (risk of rape of a hitchhiker is high in the truck driving field.).
No duty to disclose information absent a special relationship. (Between former and employers and future employers, i.e. recommendation letters). Speaker assumes duty by giving a reference (to act reasonably in not making a misrepresentation of fact) Minority Approach Silence in situation involving foreseeable risk of physical harm. (Omissions thus are captured in this one).Minority approach (Singer)
Verification of Immigration Documents •
IRCA (Immigration Reform Control Act). o
Requires all employers to verify immigration status. Applies to even smallest employers. Violate if:
Must employ knowingly
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So long as the employer is presented with document that appear valid on their face the employer is exempted from liability. Employers tread a thin line between IRCA and Discrimination actions under title VII.
Collins Foods Int’l, Inc. v. INS o
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Or failure to verify docs
Constructive knowledge not enough so long as verification procedure meet minimum threshold. Court said minimal effort ok in light of title VII catch-22.
Honesty Personality Test •
Illegal to make an employee go through a polygraph
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Honesty and Personality tests are allowed
Medical Questionnaires
Griffin v. Steeltek, Inc •
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Any business with 15 or more employees is covered by ADA prohibition on inquiring into disabilities, regardless if the person actually has a disability. Plaintiff was forced to say he had certain inquiries which lead to him not to being hired, or the fact that he left a medical question blank. Court says that you must prove damages, how did the asking of the medical questions deprive you of the job.
ADA Statute •
Pre-employment o
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Cannot inquire into whethater someon has a diabailty, or how sever it is. Medical Exam Barred
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If you ask an employee to perform a task you must do that to all employees at initial stage.
Employee Entrance Exam (post offer, pre-placement) o
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You can learn about the employee, just cant use anything non job related against them (states can prohibit). A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination if:
All Employees tested
Results confidential from supervisor AND
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Results used only in accordance with this subchapter (i.e. can use results only if job-related).
Employee medical screening
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Procedures or tests that seeks information as to the subjects physical or psychological health.
Can only use if job related consistent with business necessity.
Regulation of Conduct During Employment Relationship (Privacy)
Monitering Employees During Work •
Ontario v. Quon o
Cop text messages
The court focuses on the explicit disclaimers in disavowing a right to privacy. Despite the fact that the superior seemed to create an impression he might not check the messages, it was still fairly clear from the circumstances
that the messages sent on the work pagers were not private. Disclaimers highly effective.
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The superior only checked work hour messages, thus properly narrowed the scope. Even if there was some expectation of privacy it was not breached.
Intrusion Upon Seclusion (Thygeson) o
Elements
Intentional intrusion (physical or otherwise) AND Upon the Plaintiffs solitude or seclusions or private affairs or concern AND Which would be highly offensive to a reasonable person. (method (invasiveness level) and motive of the employer are legitimate, i.e. to ascertain the employees work performance). NOTE •
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If employee consents or the item is in plain view not secluded, the elements cannot be met. Look to the search itself, how did it happen and why did it happen? The less intrusive the search the more likely it was reasonable and not in violation (Quon).
Regulation of Off-duty conduct •
Political activity o
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genearlly, at will employer's have a lot of discretion to fire for off-duty conduct.
Intentional infliction of emotional distress o
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That the conduct was “extreme and outrageous” That the actions of the defendant cause the plaintiff emotional distress and
That the emotional distress suffered by the plaintiff was severe. o OUTRAGEOUS psychological harm does not go to outrageousness, just used for damages. Wrongful Discharge in Violation of Public Policy An employee courts only find public policy when implicit for the public at large has to apply to a wider range of humanity Relinquish legal right/privilege balance act between E and R interests o R's interest in having a regulated, safe, efficient workplace environment E's interest to maximize access to o statutory/const rights in the work place. (guns in parking lot of work- AOL) Gardner (armored truck case) would not create a public policy to discourage good/heroic behavior. Dissent: create vigilantes/stupid acts Public policy ID the public policy vioated by R's act. always possible for employer to deny reason for firing does policy affect society at large (R will claim it was inhouse issue) Elements clear o well established o effect society at large o Employer Rights that limit At-Will Employment Duty of Loyalty (fiduciary duty) courts require high standard to find breach of DoL. Agent has duty not to compete with the principal
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concerning subject matter of agnecy while employed. An agent can plan to compete with principal prior to leaving employment, if no unfair acts or injury is done principal. Poaching clients/co-workers is a sign of violation of DoL. The greater the harm that co-worker's leaving causes, the more likely its a violation of DoL to talk to them about leaving. Non-compete clauses limitations can't be too broad limited in scope of activity, duration and area balancing: whether R's interest outweigh's hardship to E and to the public. questions what is being protected? why is it being protected? Enforceability? Better for E to quit than be fired. Court can reform overly broad clause. ORS non-compete void unless entered upon: initial employment; or o subsequent to all bona fide advancement of o the emoployee w/the employer. Trade Secrets Uniform Trade Secrets Act test o what is the secret? Secret is stolen. o What is a TS? Information that has independend economic o value from not being generally known to other persons; and o party seeking protection took reasonable steps to preserve secrecy. Does not have to be immediately valuable Other Factors (totality test) o Extent known in the business extent known outside business precautions taken •
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savings effected by value of info. being secret. expense and effort level for developing secret etc R has to prove misappropriation. When E disclose's TS w/out R's consent o Types of misappropriation E who used improper means E should have known TS was acquired under circumstances giving rise to duty of secret E gained info by accident, sould have known wasTS Statutory Limits to At-Will Employment: Wage and House Laws o FLSA Violation types (and who can sue) child labor (agency) failing to post notice of protection (agency) overtime (agency, private) minimum wage (agency, or private) 2yr sol, 3 for willful violation; atty fees, liquidated damages Who it applies to applies to employers other than private contractors Exemptions Administrator exemptions o elements paid on salary basis 455/week office or non-manual work primarily directly related to management or business operations; and primary duties involve use of discretion in matters of significance. Executive Exemptions o elements paid on salary basis 455/week primary duties are managing business or dept setting schedule, hiring/firing, etc...; usually in charge of 2+ fulltime employees; AND
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authority to hire/fire or meaninfully recommend to those decisions. Professional exemptions o elements paid on salary basis 455/week primary duty: work that is intellectual character independent judgment specialized knowledge, field of study, from prolonged study what is principal activity? o Pay and clothing is integral to primary activity. Duty can be indespensible but not integral. Compensation What activities are required to be compensated under FLSA o begins when you start engaging in principle activity embraces all activities integral and o indispensable to the principle activity. Usually don/doft is not enough, but in IDB it was (special clothing) can't do job without this clothing activity has be “integral and indispensable” to a “principal activitiy” and therefore itself be a “principal activity.” Integral v. Indespensable o integral: required to do to complete the job. Indespensable: a duty the boss requires of you. De minimus activity: too small to hear claim o (bothersome) factors: administrative difficulty in timing; size of claim; regularity of occurrence. Continuous Workday o if while on call, life activities (personal pursuits) o Do the restrictions placed on the employee preclude using the time for personal pursuits?
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On call time is not work if it can be used effectively for personal pursuits. o Engaged to wait: compensable o Waiting to be engaged: noncompensable. o TOTALITY testifying Minimum Wage SOL o rules: 2 yr sol, 3 yr for willful violation SOL does not end upon filing of suit SOL begins when pay is due Enforcement and Remedies Willful Violations o reckless disregard: reasonable employer would have known that the challenged R act would have violated the statute. Negligence o If R is unreasonable in belief of compliance, can be subject to liquidated damages.\ if reasonable, can still owe damage/atty fees but no liquidated damages. o Coverage enterprise coverage: two or more employees and at least 500k in gross volume individual coverage: anyone involved in interstate commerce o Anti-retaliation no discrimination against anyone who has filed a complaint. Must have a reasonable belief that complaint is valid. Majority: internal, inhouse complaints qualify Was E fired for the complaint or for other reason? McDonald Douglas test Statutory Limits To At-will Employment: Family Leave FMLA o basic faqs must have at least 50 employees within 75 miles of each other economic realities test to qualify: E who has worked for R for at least 12
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months and averages 24 hrs a week in that period, 1250 hours in the last yr up to 12 weeks/year of leave before can be fired E must give notice to R. o give reasonable notice, when foreseeable. R can force E to use this leave when take time o off. upon return: only entitled to same health benefits and the same or similar job. Medical leave birth/adoption: can take leave w/in 12 months of event. Serious health condition o Definition: An injury or illness that requires inpatient care or continuting treatment by a health provider. (cannot do job) Types: pregnancy; chronic conditions; inpatient care; continuing treatment. o Continuing treatment requirement more than 3 days of incapacity AND at least 2 doctor visits w/in 30 days of incapacity OR 1 doctor visit within 7 days of incapacity and course of treatment supervised by DR. can take leave to care for: immediate family o only (parents, spouse, kids) o Incapacity: unable to perform daily functions. FMLA violations 2 types of violations interference not intent based o cannot restrain, interfere or deny an o employee's ability to take leave or get reinstatement ex: can't put too much paper work in the way of leave can't put job duties on person while on leave. Parker o substantially equivilant job does not have to be exact same job duties. R can show that old job was eliminated • •
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as defense. discrimination o intent based have to prove R's intent to punish for leave use. King o P engaged in protected activity (FMLA leave) R took adverse action against E causal connection between the two acts, and E's act was a substantially motivating factor for R's act. o General/specific notice requirement general: posting rights under FMLA in workplace specific: don't have to tell E that their leave is FMLA leave.
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TITLE VII Overview o action based on race, religion, sex, natural origin have to file with EEOC, issues right to sue letter. Some states require filing with state agency EEOC defers to local jurisdiction In deferral jurisdiciotn: 300 days to file with EEOC (consider 60 day required deferral time If nondeferral: 180 days to file violations Notice to R w/in 10 days of filing violations Damages can get backpay, atty fees, compensatory/punative damages (caps depending on R's size) o no backpay cap; no frontpay cap (dupont) Disparate Treatment o must show intent Definition Intentional discrimination proven directly or circumstantially McDonald Douglas E proves prima facie case o member of protectd group o suffered adverse employment action o circumstances give rise to inference of discrimination R produces legitimate non-discriminatory reasonable
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E has burden to prove R's reason is pretext for discrimination. Price Waterhouse sexual stereotyping o discriminated against for failing to conform to sexual stereotypes R can show it would have taken same action o absent prohibited characteristic this reduces damages; does not absolve liability. E proves prohibited reason was motivating o factor in R's act. Mixed motive is not excusable on R's part. Affirmative defenses Bona Fied Occupational Qualification Defense (BFOQ) (only treatment, not impact) when it can be used when necessary for purposes of authenticity or o genuineness o must be reasonably necessary to essence of particular business and all or nearly all of excluded group are unable to perform. Exceptions refusal to hire women based on sex o stereotypes o R may have to supply separate facilities for sexes. Disparate Impact definition R uses an employment practice that causes disparate impact on basis of protected class and R fails to domonstrate that challanged practice is job related and consistent with business necessity arguments dispute over data, sample size problem 80% rule: if protected group is less than 80% of majority group, than inference of disparate impact. R would then have to show that practice is consistent w/business necessity. Must show that results are because of a business practice (intent not necessary) Griggs show R's practice •
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that has an impact R must show that practice is business related o
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minority approach: incapable of separation o if different parts of R's practices are impossible to separate into discrete parts, can waive requirement of showing a specific practice.
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E domonstrates business practice causes disparate impact on protected group burden of persuasion shifts to R to demonsrate jobrelated and consistent with business necessity;
burden of pursuasion shift to E to demonstrate the existence of an equally effective test with less discriminatory impact on protected group. Business necessity neutral job requirement that is necessary for the business does not need to go to essence of job, just necessary (lower standard than BFOQ) o ex: beards at logging themed restaurant (authenticity) Harassment two types of claims qui pro quo sexual favors in exchange for tangible o employment benefit. Hostile work environment o conditions of work so severe and pervasive as to alter terms and conditions of employment no change in employment status needed o Harris v. Forklift workplace must be objectively hostile or abusive objective v. Subjective a reasonable person would be offended or feel abused have to subjectively alter terms of employment o sliding scale of hostile work environmental severe and pervasive: the more severe, it can be less pervasive to be bad enough. •
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Tangible employment action is helpful to show an altering in terms/conditions of employment. Constructive discharge can count no choice but to quit given circumstances if can show tangible R action, prove's E's case. Supervisor as harrasser R's affirmative defense to show R exercised o reasonable care to prevent and correct harrassment... o and E unreasonably failed to use preventative or corrective inhouse measures affirmative defense of taking reasonable steps o to correct harassment. Co-worker/customer as part of prima facie case, E bears burden of o proving R knew/should have know of misdonduct AND R failed to take immediate corrective act. Uniforms, grooming standards ok, as long as not unduely burdensome on either sex. Evidenciary presumptions sex being a motivating factor; harassment is motivated by sexual desire; comparative treatment of one sex better than the other. Retaliation definition opposition: if retaliated against for opposing unlawful employment practice participation: retaliated against for participating in action against R timing more close in time of R's adverse act to E's act, more likely its retaliation being harassed for claim workplace banter not included as viable factor o o fact questions: frequency of discrimination severity offensive utterance OR actually physically threatening/humiliating unreasonbly interferes with E's work performance. o
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Burlington Northern Employer's actions were so harmful to keep reasonble worker to dissuade from making or supporting a charge of discrimination. Prima facie case for oppostion/participation E must show victim of Title VII violation E participated in Title VII proceeding or opposed unlawful practice of R. R knew of oppostion/participation E suffered adverse employment action AND causal connection between R's treatment of E and E's opposition/participation giving rise to interence of discrimination. Statutory Limits to At-Will Employment Race and National Origin o Accent BFOQ for accent Word of mouth hiring only hiring from one race, can't punish for hiring from community of people they know personally. Religion o two types of claims one particular religion is discriminated against (mcdonald douglas) failure to accomodate Reglious Accomodation test establish bonefied religious belief a conflict between R's requirement and E's religious beliefs Inform R of conflict with religious belief. Did R reasonably accomodate belief or would usch be unreasonbly burdensome o reasonable accomodation adjustment to work environment that will allow E to continue religious practice unreasonable accomodation o anything that causes undue hardship: anything beyond normal costs, less efficient workplace, or employee Failure to accomodate o Heller: requires sincere religious belief o Costco: requires bonefied religious belief
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religion must have higher calling seriously held in comparison with traditional religious beliefs act has to be central to religious tenets Selecting for Forum for Dispute Resolution o Mandatory Arbitration predispute arbitration requires minimally sufficient notice of arbitration policy if notice fails, enforcement of arbitration clause o is inappropriate Notice (intent to be bound by agreement) would a reasonable listener believe that the speaker (R) intend their communication to be binding (ex: waive right to jury trial) sufficiency of notice turns on whether R communication would have provided a reasonably prudent E of notice of waiver of rights. Objective standard of "reasonably prudent E." o facts to view o how was offer communicated o actual words used in communication o context of that workplace re: that type of communication Unconscionability procedural manner of inducement to k o ex: adhesion k (this is sufficient to prove procedural unconscionability) presentation of k; bargaining power inequality substantive o in terms of k Age Discrimination o faqs 20 or more employees 40 or more years of age SoL is 180 days in nondeferral statement same exhaustion rules as Title VII (no punatives, IIED) Can be an inference of age discrimination if there is a large separation in age between E and the firing supervisor, even if R is over 40. o Age can be BFOQ under certain circumstances
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narrowing factor otherwise prohibited action where the differentiation is based on Reasonable Factors Other than Age (RFOA provision) •
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Prima Facie Case person has disability person is a qualified individual R unlawfully discriminated against him because of the disability Claims Types Fired for disability Failure to accommodate Definition of disability shall not discriminate aginst qualified individual physical or mental impairment that substantially limits one or more major life activity of such individuals A record of such impairment Being regarded as having such impairment Substantially Limits... major life activity\ Toyota definition of SL and MLA unable to perform major life activity that o average person in the general population can perform. OR o significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity In determining major life activity, the following o factors should be considered. Nature and severity of impairment
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duration or expected duration of the impairment the permanent or long-term impact
resulting from the impairment if each individual limited task does not qualify as a major life activity, then cumulatively they may. When major life activity is WORK at a minimum E must allege that they are unable to work in a broad class of jobs. It is insufficient for ADA p's attempting to prove disability status to merely submit evidence of a medical diagnosis of impairment. They rather must offer evidence that extent of limitation in terms of their own experience is substantial.
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2008 amendment physical or mental impairments subsntailly limits o E must be viewed in unmitigated state major life activity o need not be of central importance to most people's lives broader, nonexhaustive list. o Examples •
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caring for inelsef, performing manual tasks, seeing, hearing, eating, sleeping walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.- OR Operating of a major bodily function. - US
Qualified Claimant must be qualifiied to do work without accommodation or with reasonable accomodation made by R. able to perform essential functions of employment position that person holds or seeks with or without reasoanble accomodation Essential job function fundamental job duties of employment position the indiviudal with a disability holds or desires. Not the marginal functions of the position. o A written discription of the job function shall be considered evidence of the essential functions of the
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job. Other factors for ESSENTIAL JOB FUNCTION o
employer's assessment of job duties (given greater deference)
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understanding between E and R
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amount of time performing that function
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consequnces of not requiring person to perform function
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terms of collective bargaining agreement
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work experience of past people at that job
current work experience of people in similar jobs Being regarded as having a disability def. Having been regarded as a person with a non-minor impairment for 6 months. Accomodation by R Reasonable accomodation making existing facilities used by E readily accessible to and usable by individuals with disabilities. Reasonable examples o reassignment to a vacant position, acquisition or modividaction of equipment or devices, etc. Undue Hardship for R def. o An action requiring significant difficulty or expense, when considered in light of factors nature/cost of accommodation overall financial resources of facilitites / overall financial resources of covered entity / composition, structure and function of workforce number of people employed at facility not reasonable to... o ask to be exempt from essential job function OR ask something that would cause an undue hardship on R. Offered accomodation does not have to be offered to o
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everyone.