This & That Tuesday 14.11.11

by hr4u.
Nov 14 14

"This & That" Tuesday: Temporary Illness and Accommodation, Pay Discrimination, Wage Law Violations


Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.



You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.


Upcoming Events


For 2015, more details to follow:

  • HR4U 101 Workshop, January 14, 2015. This will include information regarding the new employment laws and regulations for 2015 including the new “Paid Sick Leave” law. Here is a link with more detailed information on the Workshop.
  • January 21, Webinar on Coaching for Improved Performance
  • February 11, Webinar on Discipline
  • February 21, Institute of Management Accountants, San Gabriel Valley


When is a Temporary Illness a Protected Disability?

In the past, employers have generally understood that temporary disabilities, such as a broken arm, did not qualify as protected disabilities. But this is not always the case under the state Fair Employment and Housing Act (FEHA), which generally has a broad definition of what constitutes a disability, or under the 2008 amendments to the Americans with Disabilities Act (ADA) (the amendments are known as the “ADAAA”).


Although you may assume that a short-term ailment does not need accommodation, if the temporary disability limits a major life activity, the temporary disability may need to be treated just like more permanent disabilities. An impairment does not need to last a particular length of time to be considered substantially limiting under the ADAAA.


In a recent case, Carl Summers worked as a senior analyst for a government contractor, Altarum. His job required travel to a client office. On his way to the client’s office one day, Summers fell and hit both knees against a train platform. His doctors instructed him not to put any weight on his left leg for six weeks and estimated he would not be able to walk normally for seven months.


Summers contacted an Altarum human resources representative about working from home as he recovered. He also contacted his supervisors and his client seeking advice about how to return to work. Summers suggested that he take short-term disability for a few weeks and then start working part time remotely, gradually increasing his hours until he worked full time remotely.


Altarum never followed up on Summers’ request to discuss how he could begin to return to work. Instead, a month and a half after the accident, Altarum terminated Summers “in order to place another analyst in his role” at the client.


The appeals court held that a sufficiently severe temporary disability may constitute a disability and that Summers could proceed with his lawsuit. Summers alleged that his accident left him unable to walk for seven months and that without surgery, pain medication and physical therapy, he “likely” would not have been able to walk for far longer. The court found that the text and purpose of the ADAAA “make clear that such impairment can constitute a disability.”


The court noted that the ADAAA was intended by Congress to liberalize the ADA “in favor of broad coverage,” and Congress specifically directs courts to interpret the amended statute as broadly as possible.


In California, the test for what constitutes a disability is already, in many respects, broader than the federal test. Under FEHA, an individual need only be “limited” in performing a major life activity, not “substantially limited” as required under federal law. FEHA specifically states that definitions of physical and mental disabilities are to be broadly construed.


A mental or psychological disorder or condition limits a major life activity if it makes the achievement of a major life activity “difficult.” “Major life activities” under California regulations can include physical, mental, social and employment related activities.


Whichever law provides more protection, state or federal, will apply. California’s disability regulations also define “disability” as any matter covered by ADA or the ADAAA that offers broader protection than California law.

Both state and federal law, with the recent amendments, are clear: the standard is pre-disposed toward expansive coverage. The intent of the law is more focused on what types of reasonable accommodation will allow the employee to continue to work, rather than on whether the condition is covered.


So what should employers do?


Look at the seriousness of the impairment, not the duration.


Consider whether the impairment affects the ability of the employee to perform a major life activity. Does it make an activity “difficult” due to pain, time expended, required treatments, etc.?


Don’t consider “mitigating measures,” such as pain medication or physical therapy, that limit or reduce an impairment’s symptoms. Mitigating measures are not to be considered in determining whether someone has a disability.


Err on the side of considering the impairment a disability and engaging in the interactive process to find a reasonable accommodation.


Extended Stay Hotels Will Pay $75,800 to Settle EEOC Pay Discrimination Lawsuit

Extended Stay Hotels will pay $75,800 and provide significant equitable relief to settle a pay discrimination lawsuit brought by the EEOC.


According to the EEOC's suit, Extended Stay Hotels paid Latoya Weaver less than male guest services representatives, including some newly hired male guest services representatives, at the hotel's Lexington Park, Md., location.  The EEOC further charged that Extended Stay Hotels unlawfully paid other female employees lower wages than those paid to male employees for performing equal work. Such alleged conduct violates the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964. 


In addition to the $75,800 in monetary relief to Weaver and three other class members, the two-year consent decree resolving the lawsuit enjoins Exended Stay Hotels from engaging in wage discrimination based on sex in the future.  The hotel will provide annual training on federal anti-discrimination laws, report to the EEOC about its handling of any wage discrimination claims and post a notice on this settlement.


Sports Bar Chain Agrees to Pay $6.8 Million for Violating Wage Laws

A popular chain of sports bars based in Philadelphia has agreed to pay $6.8 million in back wages and damages for improperly taking tips from waiters and bartenders and for violating minimum wage and overtime laws.


The department said that Chickie’s & Pete’s, which has nine sports bars in Pennsylvania and New Jersey, illegally underpaid and took a percentage of tips from 1,159 servers.


The department said this was one of the largest cases ever brought against an employer for violating the law on tip wages. Under federal law, restaurant owners are required to pay a minimum of $2.13 an hour toward a server’s wages as long as customers’ tips lift the waiter’s pay to the $7.25 federal minimum wage. But if the tips are too small to reach the minimum wage, the restaurant is legally required to top off the waiter’s pay.


The Labor Department accused Chickie’s & Pete’s of often not topping off waiters’ wages, sometimes not paying the initial $2.13 an hour and often not paying time and a half when employees worked more than 40 hours a week.


Even though federal law bars employers and managers from taking any portion of a waiter’s tips, department investigators found that Chickie’s & Pete’s generally required waiters to contribute 2 percent to 4 percent of their daily table sales to an improper tip pool.


“The owner illegally retained approximately 60 percent of the tip pool,” the Labor Department said. “This amount had come to be known as ‘Pete’s Tax’ and was required to be paid to the manager in cash at the end of each shift, even if the server received all tips on credit cards and therefore did not have cash on hand.”


According to the Labor Department, servers and bartenders at Chickie’s & Pete’s were paid a flat rate of only $15 a shift at almost all its locations — an amount the department said was often insufficient to cover the minimum required cash wage of $2.13 an hour.


The department also found that Chickie’s & Pete’s failed to pay employees for time spent in mandatory meetings and training and illegally required employees to pay for uniforms.


The department said the company and its owner, Peter Ciarrocchi Jr., had agreed to pay $6.8 million in back wages and a $50,000 civil money penalty.


As part of the settlement, the company agreed to external compliance monitoring for an 18-month period and training all employees about their rights under the wage laws and how tip pools are supposed to function. In addition, Mr. Ciarrocchi agreed to write an article for a restaurant trade publication about an employer’s obligations under federal wage and hour laws.



  • Federal pay related (FLSA) lawsuits at a record high in 2014 (8126 cases), in 2004 it was 3426 and 7764 last year

Sleeping on the job

  • 76% feel tired most days of the week
  • 40% doze off during the day at least once a month
  • 15% doze off at least once a week
  • 50-70 million workers suffer from sleep disorders with stress being the number one factor keeping employees awake at night



"It’s how you deal with failure that determines how you achieve success.”

~Charlotte Whitton~