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Employment ADA Access Law Alert

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Employment ADA Access Law Alert Powered By Docstoc
					Corfee Stone & Associates
  5441 Fair O aks Blvd. Su ite B -1, C arm ichael, CA 95608, ˜Telephone: (916) 487-5441   ˜ Facsimile: (916) 487-5440 ˜W ebsite: ww w.corfeestone.com




             Employment / ADA Access Law Alert!
                                                                                     Updates you need to know but in a millisecond...
Vol. II                                                                                                                                     June 2005


          HIGHLIGHTS                                                                    settlement.” 70% of those claims were filed on
                                                      ADA ACCESS NEWS                   behalf of Mr. Molski. The Court concluded that
ADA News                                                                                most of the complaints were boiler plate naming
                                                                                        the same claims and alleging the same physical
Disabled Plaintiff Jarek Molski                               T HE V ERDICT IS IN !
declared a vexatious litigant.                                                          injury to the sam e area of the bod y. The court
                                                                                        found that Molski and his attorney filed 16
Attorney’s Fees Denied.                                     After prevailing in federal lawsuits in 4 days, and filed 26 lawsuits from
                                                        court, in state court and just Ma y 16 to M ay 23.
ADA Required on Foreign                                 recently w inning an appeal,
Cruise Ships?
                                                        Corfee Ston e successfully          The court ridiculed Frankovich’s “astonishing
Employment News                   defended a long time client. - Case is closed.        letter” that he sends to most defendant’s along
                                                                                        with the sum m ons and com plaint. The c ourt
Do you send your employees                                                              admonished Frankovich for counseling
on errands?                          F EDERAL C OURT S LAMS D IS AB L E D P LAINTIFF
                                                                                        unrepresented defendant’s telling them that the
                                              M OLSKI AND HIS A TTORN EYS
What is your obligation to                         By Catherine Corfee, Esq.            vast majority of defense attorneys will “embark”
employees with disabilities?                                                            on a “billing expedition.” Frankovich advised on
                                      As most of you have heard by now, US              getting insurance and told businesses that they
Employment updates.
                                  District Court Judge Edward Rafeedie filed an did not have a bona fide defense. Th e court
                                  order finding disabled Plaintiff J arek Molski a      found this practice of counseling unrepresented
Office News                       vexatious litigant. Molsk i is now requ red to        defend ants he w as s uing totally unethical.
                                  seek leave of court before filing any future
Corfee Stone welcomes Conor                                                                 Th e co urt qu estion ed the ph ysical injuries to
McElroy and Ashley Patterson!
                                  ADA claims in the Central District of Federal
                                  Court. The court went one step further finding the plaintiff becau se o f the 223 c om plaints. It
5 year long case won on           his attorneys, The Frankovich Group, guilty of look ed like it was “c ontrive d to im plicate
appeal.                           engaging in predatory litigation practices            defendants insurance policies.” This is because
                                  "bordering on extortionate shysterism." That          80% of the claim s alleged u ppe r extre m ity
                                  firm is required to seek leave of the court           problems in the same area and the court noted
          IN THIS ISSUE
                                  before filing future ADA claims. Judge                that comm on sense dictates that as an individual
Federal Court Slams               Ra feedie reque sted the state bar to investiga te who has encountered as many architectural
Disabled Plaintiff Molski         the matter and consider disciplinary actions as barriers as Mr. M olski, would know w hat barriers
and his Attorney.           p1
                                  the record was "sufficiently egregious to justify should be avoided and which ones are unlike ly
                                  the suspension, or even disbarment.” In a             to result in re-injury. Because he had so many
ADA Access Law Applies to
Foreign Cruise Ships     p2       March, 30, 2005 decision, the higher Court of injuries in the same place, the court doubted that
                                  Appeals (Ninth Circuit) refused to intervene          the y were accidental but s ustain ed intentio nally
Not So Fast - Attorney’s          with the trial court’s decision by means of           to make a subsequent lawsuit. The court noted
Fees Denied to Disabled                                                                 that reasonable people once injured tend to take
Plaintiff                   p2    extraordinary remedy of mandamus, which
                                  was a petition filed by Frank ovich and Mo lski. affirmative steps to avoid similar physical injuries
8 Quick Employment                                                                      rather than repeat them 4 or 5 times on the
Updates You Need                      Jud ge Ra feedie held that the basis for his      sam e day.
To Know.                    p2
                                  dec ision w as the co urt’s inheren t pow er to
What is a Disability?       p3    protect the judicial system and the public from           The court questio ned why the plaintiff w ould
                                  abusive and predatory litigation practices. The wait one year and file his lawsuit just before the
U.S. Government Not               court found that since 1998 Molski has filed          sta tue of lim itatio n ra n and then ask for daily
Liable When Serviceman                                                                  damages for each day he was denied access for
                                  400 ADA s uits m ost of which were filed in
Acted Outside Scope of
Employment.                 p4    2001. As to Frankovich, he had filed 223 law 1 year plus. T he court found plaintiff M olski d id
                                  suits in 200 4 in the Northern Centra l District.     not mitigate his damages. The court said it had
                                  Frankovich targeted Asian and Mexican                 an obligation to protect the public from
                                  restaurants that the court found w ere                unscrup ulous practitioners who have established
                                  “perhaps”. . . “easy prey for coercive                une thical cond uct designed to extort a
                                                                                        greg arious se ttlem ent.
                        ADA A CCESS L A W A P P L IE S    TO   F O R E IG N   “prevails” and is therefore entitled to attorney’s fees unless
                                   C RUISE S HIPS                             the parties have settled the attorney’s fee issue. Parties can
                                   By Catherine Corfee, Esq.                  settle and then dispute the attorney’s fees and let the court
                                                                              decide. That is what happened in this case. Normally, the
                        Been on a cruise lately? The U.S.                     plaintiff is considered a prevailing party for achieving a
Supreme Court just held that Title III of the ADA, which                      settlement agreement requiring a business to provide ADA
prohibits public accomm odations from discriminating                          disabled access improvem ents for its property. Now, that
against th e disabled in fully a nd equally access ing their                  m ay not b e ne ces sarily so with this new fede ral case.
goods and services, applies to cruise ships doing business
in the U nited S tates but “c onveniently” flying foreign flag s.                  Only reasonable attorney’s fees are recoverable. For
In Spector, et al. v. Norwegian Cruise Line, Ltd., 545 U.S.                   instan ce, the fee s m ust have bee n rea son ably neces sary to
(2005), a group of plaintiffs with disabilities sued the                      obtain the settlement, i.e., access improvem ents to the
Bermuda based Norwegian Cruise Line, Ldt (NCL). NCL                           property. Any award of attorney’s fees must also be
operates cruise ships registered in the Bahamas, but which                    proportional to the plaintiff’s succ ess. For ex am ple, if a
depart from and return to Houston, Texas after a sunny                        plaintiff won $50,0 00, the y are unlike ly to re cover $3 00,00 0 in
Carribean cruise. The plaintiffs alleged that NCL charged                     atto rney’s fee s. A court will also review what th e plaintiff d id
disabled passengers higher fares, required them to pay                        not achieve, what public purposes were served, how
higher surcharges, maintained evacuation programs and                         ubiquitous and wrongful the defendant’s conduct was, and
equipment in locations not accessible to the disabled, and                    the discriminating motive.
m ost of their ca bins, p articu larly the m ost desirable ones in
the most desirable locations, were not accessible. NCL                            In this recent case, the court held that no public purpose
argued that the ADA does not apply to their ships as they                     is served if a disabled plaintiff fails to notify the business
flew fo reign flags and that C ong ress ne ede d to clearly state             about ac cess pro blem s to allow th em to be cured. If notic e is
that the ADA applied to those ships, which Congress did not                   given, and a defendant fails to respond, then there is strong
state whe n they drafted the AD A.                                            evidence that a public purpose is serve d in brin ging this
                                                                              lawsuit. If so then attorney’s fees will be awarded.
     The Court held acts such as charging higher fares and
additional surcharges for the disabled we re not part of a                        The court held that as a prerequisite to recovering
ship’s internal affairs. The ADA could therefore prohibit such                attorney’s fees in ADA cases and parallel state cases, the
acts on foreign flag cruise ships in American waters. The                     defendant m ust firs t be warned and given a rea sonable
Court noted that these cruise ships were flying “foreign flags                opportunity to cure the said violation. In this way, a court can
of convenience” because nearly all their business and                         dete rm ine if the lawsuit was really nec ess ary. A
advertising was in the U.S. and nea rly all their passengers                  wise business will comply once given fair warning.
we re Am erican, w hom the U.S. h as a strong interest in
prote cting. H owe ver, if the AD A requires the ships to                          The federal court denied attorney’s fees to the disabled
remove architectural barriers to the disabled, it may cause                   plaintiff even though the plaintiff sent an unsigned and
perm ane nt and sign ificant s tructu ral m odifica tions relating to         undated letter to the business about access problems. The
ship design and construction. This would likely involve a                     court held that the letter was ambiguous. It simply stated that
ship’s internal affa irs, and also m ay not be “readily                       the sender “could not find handicapped parking” and the
achievable,” (meaning without much difficulty or expense)                     plaintiff had “s erious pro blem s trying to use your restroo m ,”
which is a defense to the ADA. The Court went on to say                       and to “please take care of these problems at once.” The
that this exc eption cou ld app ly to Am erican sh ips also.                  court criticized the letter as failing to provide anything
Furthermore, if mak ing a structural access modification                      specific. All fees of $3 9,7 95 dem anded by the plaintiff’s
under the ADA conflicts with international legal obligations,                 attorney, Lynn Hubbard, were denied.
the AD A w ill not require it. An d fin ally, a rule that is
important for all public accommodations, not just cruise                          For m any of m y clients w ho h ave and are d ealing with
ships, the Court held that a structural modification per the                  Lynn Hubbard and other attorneys, you can take solace that
ADA will not be required if it poses a threat to the health and               othe r federal courts m ight follow su it.
safety of others.

                      N OT S O F AST - A TTORNEY ’S F EES D ENIED                               EMPLOYMENT NEWS
                                T O D IS AB L E D P LAINTIFF
                                  By Catherine Corfee, Esq.
                                                                              8 QUICK EMPLOYMENT UPDATES YOU NEED TO KNOW
                                                                                                     By C athe rine C orfee , Esq .
                        Th e co urts a re ca tching on to
unscrupulous attorneys who use their same disabled client
                                                                              To o Bu sy to Read ? T hen Don’t Re ad B ut...
over and ove r again to file AD A Acc ess lawsu its to extort
significant attorney’s fees. Since the Molski decision,
                                                                              Did you know that:
described above, anothe r federal court has com pletely
denied attorney’s fees even though the disabled plaintiff
                                                                              1.   If your employees wo rk 5 or m ore hours they m ust have
technically prevailed.
                                                                                   an unpaid duty free 30 minute meal period, and if you
                                                                                   require them to work during that period you must pay for
     In federal court, if the parties settle an ADA lawsuit via a
                                                                                   it. Duty free means they are able to leave the premises,
written enforceable settlemen t agreem ent, the plaintiff
      go wherever they want and not have to perform any                                    W HAT IS A D ISABILITY ?
     duties .                                                                               By C athe rine M . Co rfee, E sq.



2.   For every four hours an employee works s/he is entitled             So many times do you feel like you have to play doctor
     to a 10 minute break. This is the most difficult obligation    wh en an em ployee req uests an accom m odatio n? Ca lifornia
     to prove because m any em ployees are suing over this          and Federal law have dramatically different definitions of
     issue and they can go back and claim no breaks for             what constitutes a “disability” to trigger your obligations under
     three years. The penalties are: for each day a meal            anti-disability discrimination law.
     period or 10 minute rest break is not provided (going
     back 3 years) the employer must pay that employee 1            •   Federal vs. State Court Definition
     add itional hour of work at that em ployee ’s regular rate
     of pay.                                                             The federal ADA’s definition is one who has a physical or
                                                                    m ental disability th at “substan tially” lim its a m ajo r life activity.
3.   If you do not have a good “harassment” (not just               Ca lifornia does not require a “su bsta ntial” limitation - jus t a
     “sexua l” harassm ent) p olicy, you will not be en titled to   limitation reg arding a m ajor life a ctivity. A phys ical disa bility
     the defense of limiting an employee’s emotional distress       can include chronic or episodic conditions such as HIV/AIDS,
     claim. For those employers who have very good and              hepatitis, epilepsy, s eizu re disorders, diabetes , m ultiple
     detailed harassment policies, any employee claiming            sclerosis, and a heart condition. It also includes mental
     harassment because of sex, sexual orientation, race,           disabilities that are long term such as depression, anxiety,
     religion, etc. has a duty to avoid the consequences of         pos t traum atic stre ss d isorder, etc. Howev er, the disab ility
     their harm to report it to management and if not               m ust be one that lim its a person’s m ajo r life activity. W hat is
     m ana gem ent the ow ners . This allows them to                a major life activity? Case law provides some guidance,
     investigate, potentially remediate if such occurred, and       including but not limited to, walking, seeing, hearing, working,
     to end it so plaintiff no longer suffers emotional distress    and caring for oneself in daily life activities.
     Dep t. of He alth Services v. Su perio r Co urt (2003) 31
     Cal.4th 1026, 1044. If so, an employee is only entitled             For exa m ple, a wom an who had to be con stantly aware
     to emotional distress from when the harassment                 of her blood sugar levels with diabetes was held to be
     occurred to when the em ployee knew or s hould have            disabled. Her major life activity of eating was limited. The key
     known to report it.                                            distinction is that the limitation is not a disability in and of
                                                                    itself, rather a person claim ing ADA protection mu st prove
4.   Arbitration agreements are a great way to reduce               the disability limited a m ajor d aily life activity as co m pare d to
     litigation expenses for employee related disputes and          a norm al person. In one case, th e fa ct th at a person could
     they are enforceable with applicants, but must be              not fly becaus e of his obesity was not held to be a m ajor life
     optional with existing em ployees. Howeve r, there are         activity bec aus e no t everyone flies. In an othe r cas e, a
     several factors that are required to ensure they are           student who was held to not have a disability under the ADA
     enforceable. W hen was the last time you reviewed your         with respect to learning. Despite the students’s alleged
     arbitration policy and/or have you ever considered one?        learning disability, he achieved considerable academ ic
                                                                    success beyond the attainment of most people of the
5.    In California an employee does not have to file with the      average age . W ong v. Regions of the University of California,
     labor comm issioner anymore to file a wage and hour            (2005) 2005 DJDAR 6620.
     claim. They can file a civil suit in court. Now they can
     recover attorn ey’s fee s.                                          The Supreme Court has defined “major life activities” as
                                                                    activities that are of central importance to daily life. If an
6.   W hen an employee is injured on the job, you might             employee cannot do certain manual tests, like lifting and
     have lega l expo sure to disability or pe rceived disability   bending on a job, that will not qualify as a life activity in most
     discrimination which worker’s compensation does not            people’s daily lives . The foc us is not w hethe r a c laim ant is
     cover as an em ployee ma y sue in civil court. If you have     unable to perform tas ks associated with a specific jo b. T his
     50 or more employees you may also have to consider             is because manual tasks are unique to any particular job and
     federal and s tate fam ily leave ac t policies .               are not necessarily important parts of most people’s lives.
                                                                    The focus is whethe r there is a lim itation in doing m ajor life
7.   Did you k now, that you m ust provide a re asonable            activities such as household chores, bathing, brushing teeth,
     accomm odation for pregnant employees with the                 etc.
     assistance of their health care provider.
                                                                    •   Tips
8.   Did you k now th at dam ages and fin es have increased if
     you try an em ploym ent ca se before the Fa ir                      One helpful tip for employers is to verify the alleged
     Em ployment and Housing Comm ission, instead of                disability by sending a form to the em ployee’s healthcare
     opting for civil court -the amount has increased from          giver. It is critical that the employer require that this form be
     $50,000 to $150,000 per aggrieved person per                   returned to them within 15 days and if not, such could be
     respon den t. Govt. Co de S ection 129 70(a )(3).              insubordination. A good form to use is the Department of
                                                                    Labor form regarding Federal Medical Leave Act, which
                                                                    indicates serious health conditions. It is not necessarily a
disability. Alternatively you could draft your own form which        breath a sigh of relief when sending an employee on a task
says pleas e iden tify wheth er this individual has a disa bility    involving travel.
that limits a major life activity such as walking, seeing,
breathing, caring for one self as compared to a normal
pers on.
                                                                                          CORFEE STONE WELCOMES
    Our firm has developed these forms as well, so call us.
Ask the doctor to identify what accomm odations would be
possible to help the individual perform the essential
functions of his/her job. You should attach or describe the                  CO N O R M CELROY
major functions of the job. For example, why does the job
exist- list those critical job duties. Ask if less hours, etc. are       Conor McElroy joined Corfee
necessary. Having to modify schedule is an                           Stone & Associates as a Law
acc om m oda tion.                                                   Clerk in the summer of 2005. He
                                                                     is currently entering his final year
     Lastly, yo u do not have to play docto r, a docto r’s           as a student at the University of
certificate is very helpful and you can even get a second            Pacific - McGeorge School of Law. Conor previously interned
opinion by your com pany doctor if you have a re asonable            at th e Juvenile D ivision of the Sacram ento C ounty P ublic
suspicion and you must pay for it and the employee does              De fender’s Office w here he re pres ente d Sa cram ento County
not lose wages.                                                      juveniles accused of misdemeanors and felonies. Conor also
                                                                     has prior experience in the concrete and residential
     U.S. G OVERNM ENT N OT L IABLE W H E N S E R V IC E M AN        con struc tion industry.
          A C T E D O UTSIDE S COPE OF E M P L O YM E N T .
                          By: Conor McElroy
                                                                         Conor earned a Bachelor of Science Degree from the
     Em ployers are s trictly liable for a sup ervisors action s.    University of W isconsin - La Crosse in 2003 making the
In a recen t Ninth Circuit dec ision, the Court se em ed to          De an’s list as an out stand ing stu den t. He d id this prior to
create some breathing room for employers in defending                mak ing the trip to Sacramento to attend Law School. Conor
against laws uits by third parties resulting from their              also has an exten sive construction back gro und m ak ing him
employees acts to non employees. In Nationwide Mutual                very he lpful to our ADA access cases. He was rais ed in
Ins. Co. v. Liberatore (2005) 200 5 DJD AR 5 458, the Cou rt         Princeton, W I, a small town in central W isconsin with a
found that an active duty mem ber of the armed services of           population of roughly 1,500.
the Un ited Sta tes was not actin g within the scope of his
em ploym ent w hen he negligently caused a veh icle accident,                                             A SHLEY P A TT E R S O N
despite being on an authorized travel order. Of course the
employer was sued for this employee’s actions.
                                                                                                     Ashley Patterson joins Corfee
                                                                                                  Stone as our new clerk. She does
     The employee, a Comm and Master Chief in the U.S.
                                                                                                  very m any op erational tas ks here .
Navy, was in Los A ngeles on m ilitary travel orders
                                                                                                  Her previous law firm experience
auth orizing h im to m ake se vera l em ploym ent re lated trips.
                                                                                                  is well noted. Please w elcom e her.
The travel orders implicitly contemplated that there would be
                                                                     Sh e m ay answe r you r call!
free time. Using a prepaid rental car, the employee picked
up a friend and decided to travel with her to State Line,
Nevada to gam ble and spend the night prior to m ak ing his
scheduled trips. A n acc ident followe d shortly thereafter, in
which the passenger was seriously injured and the
employee was arrested for driving under the influence. The
passenger brought tort claims against the employer for her                     Catherine M. Corfee is a principal owner of
injuries.                                                                  Corfee Stone & Associates, a firm which exclusively
     Em ployers are not responsible when an employee                        represents employers in all facets of employment
substantially deviates from the employment duties for                      matters, businesses regarding ADA access and housing
personal purposes. The em ployee may have been                                            discrimination defense.
authorized to enjoy some liberty while fulfilling his duties
contemplated by his travel orders, but at the time of the
accident he was on a frolic of his own in which he                            For more information about any of the articles
substantially deviated from the employer’s purposes. Just                        contained in this issue, you may contact
because the Navy had no objection to the employee’s use
of his free time and the prepaid rental car for personal                          Catherine M. Corfee at (916) 487-5441
purposes did not render his conduct in this case within the
scope of his governm ent em ployment. Hop efully em ployers
who previous ly worried about wha t their em ployees were
really doing when not under the employer’s watch can now