Friday, September 26, 2008
California Bans “Texting” Behind the Wheel; California Employers Should Update Personnel Policies
California has banned text messaging while driving, and employers need to respond promptly by updating policies.
SB 28, signed by Governor Schwarzenegger on September 24, 2008, amends the California Vehicle Code to state: “A person shall not drive a motor vehicle while using an electronic wireless communications device to write, send, or read a text-based communication.”
As the governor sorted through 800 bills on his desk, he said he was “happy” to sign this one. “Banning electronic text messaging while driving will keep drivers’ hands on the wheel and their eyes on the road, making our roadways a safer place for all Californians.”
What about fumbling with your PDA’s phone directory to dial out a call? That doesn’t count as texting under the new law: “For purposes of this section, a person shall not be deemed to be writing, reading, or sending a text-based communication if the person reads, selects, or enters a telephone number or name in an electronic wireless communications device for the purpose of making or receiving a telephone call.”
The penalty for violating the law is $20 for the first violation and $50 for subsequent violations. No violation points will be given as a result of the offense.
The new law closes a loophole left by Senate Bill 1613. Effective July 1, 2008, that new law provides that it is illegal to drive a motor vehicle while using a wireless telephone, unless a hands-free device for the cell phone is used. But the law did not expressly ban texting. (Separate legislation has already banned drivers under age 18 from using cell phones or any texting device while driving.)
California joins Alaska, Minnesota, New Jersey, Louisiana, Washington and the District of Columbia, where legislators have also recently enacted laws that ban sending text messages while driving. At least a dozen other states are currently considering such a ban.
Texting while driving is a frighteningly common occurrence, especially among younger drivers. According to a survey conducted by Findlaw.com, 47 percent of drivers between the ages of 18 and 24, and more than a quarter (27 percent) of drivers 25 to 34, admit to texting while behind the wheel. Seventeen percent of adults surveyed say they have texted while driving.
Studies suggest that texting while driving is more dangerous than driving while under the influence of alcohol or drugs.
The California Highway Patrol reports that statewide last year, 1,091 crashes with 447 injuries were blamed on drivers using cell phones. In accident cases, lawyers may argue that an employer is liable where an off-duty employee makes or answers a business-related call, or sends a business text message while driving.
Have you updated your employee handbooks? In order to minimize liability issues arising from employees using cell phones, PDAs, or other electronic communication devices on the road while in the course and scope of employment or while taking work-related calls, employers should implement a policy that requires all employees to refrain from texting and to use “hands free” devices while driving on company business or when making business calls on the road. Better yet, employees could be prohibited from using cell phones or PDAs while driving.
Contact me for a complimentary sample policy.
Find the text of the new law: California Texting Ban
Submitted by:
Christopher W. Olmsted, Esq.
Barker, Olmsted & Barnier, APLC
Friday, September 19, 2008
House Passes Bill Amending ADA
The U.S. House of Representatives passed legislation on Wednesday significantly amending the federal Americans with Disabilities Act.
The House vote follows the recent approval in the Senate. The bill will now go to President Bush. He is expected to sign the legislation.
Proponents of the bill have argued that U.S. Supreme Court decisions in the last decade have eroded rights of disabled workers.
As quoted in a House of Representatives press release: “The Americans with Disabilities Act guaranteed that workers with disabilities would be judged on their merits and not on an employer’s prejudices. But, court rulings since the law’s enactment have dramatically limited the ability of people with disabilities to seek justice under the law,” said Rep. George Miller (D-CA), chairman of the House Education and Labor Committee. “Today we make it absolutely clear that the Americans with Disabilities Act protects anyone who faces discrimination on the basis of a disability.”
Some of the more significant changes:
<u>Expanded Definition of Major Life Activities</u>
A disability is a physical or mental condition that substantially limits a “major life activity.” The ADA currently does not include a definition of “major life activities.” The EEOC regulations provide examples, and these are incorporated into the ADA by the amendment: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” Most courts have followed the EEOC regulations and therefore this part of the amendment does not represent a major change.
However, the amendment adds “major bodily functions” such as “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” This could lead to a substantial expansion of workers considered disabled under federal law, as it could potentially include conditions such as high blood pressure, asthma, and other conditions not traditionally viewed as disabilities.
<u>Disregard of Mitigating Measures</u>
U.S. Supreme Court decisions have held that mitigating measures, such as prosthetic devices, should be taken into account when determining whether the workers are disabled. For example, Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), involved myopic twin sisters who were rejected for employment by an airline because of their poor vision, although their vision was correctable with prescription lenses. The airline’s policy required “uncorrected visual acuity” at a certain level, which the sisters did not have. The Supreme Court held that because the sisters’ vision was correctable, they did not satisfy the ADA definition of “disability” and therefore could not make out a claim for discrimination.
The ADA amendment rejects the Supreme Court’s interpretation of the ADA. Now, a worker may qualify as disabled under the ADA without regard to corrective measures such as medication, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; or learned behavioral or adaptive neurological modifications.
<u>Inclusion of Condition in Remission</u>
The amendment expands the definition of disability include a condition that is in remission or that is episodic, if it would substantially limit a major life activity when active.
<u>“Substantially Limits” Liberalized</u>
A disability must “substantially limit” a major life activity. The Supreme Court and the EEOC has set a high standard for “substantially limits.” An individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives. The ADA amendment rejects this standard.
But the amendment creates a definitional vacuum. The amendment does not provide an alternative definition. It merely states that the existing definition is invalid, and the ADA should be interpreted under a looser standard. Earlier versions of the legislation included a definition, but the definition was deleted as a compromise in order to pass the bill.
<u>“Regarded As” Restricted</u>
The ADA protects workers who, while not actually disabled, are regarded as disabled by the employer. The amendment excludes from “regarded as” claims minor/transitory conditions lasting six months or less.
It will be some time before the effects of the ADA amendment can be gauged. Undoubtedly, there will be a period of uncertainty while employers seek to comply with the new standards. An increase in federal disability law litigation is inevitable. The EEOC may issue new regulations or guides, which may help employers comply with the new standards.
In some states, a more liberal definition of disability is already in place. For example, the law in California, under the Fair Employment and Housing Act, already includes many of the provisions found in the ADA amendment.
Employers should continue to monitor developments in ADA law and look for compliance advice in the coming months before the law becomes effective on January 1, 2009.
Text of the ADA amendment can be found here.
Submitted by:
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC
Friday, September 12, 2008
Week In Review (September 12, 2008)
Most Popular Federal Law Article
[url=“http://www.elinfonet.com/headcount.php?ID=14814”>‘Tis the (Political) Season: NLRB Clarifies Its Rules on Politics at Work.</A>
Basic workplace etiquette dictates that religion, sex, and politics are taboo conversation topics. But in this contentious election season, the American workplace is politically charged, with many employees eager to speak out on issues that affect their employment. Of course, employee expressions of political sentiment are not limited to presidential election years. Pending legislation can stimulate arguments, and as many employers saw in May, 2006, proposed immigration reforms sparked nationwide protests, disrupting some employers’ workplaces.
Located On: Fisher & Phillips, LLP
Most Popular State Law Article
<a >Mandatory Sick Leave to be Removed from November Ballot.</A>
This morning, the Service Employees International Union announced that it will ask to remove Issue 4, the Ohio Healthy Families Act, from the November ballot.
Located On: Baker Hostetler LLP
Most Popular Headlines
<a TARGET=“_blank”]Absurd case shows mess caused by illegal hirings[/url]
HeraldNet - September 08, 2008
Tuesday, September 09, 2008
New EEOC Publication Addresses Thorny ADA Issues
What happens when an employee with a mental disability misbehaves in the workplace? If the mental disability causes the employee to misbehave and violate workplace conduct rules, can the employer discipline the employee?
The EEOC has tackled this thorny ADA question, and many others, in a new publication titled: “The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities.”
An EEOC press release acknowledges that employers struggle greatly with the ADA’s vague proscriptions and mandates. “The EEOC continues to receive numerous questions on these topics from employers and from individuals with disabilities, indicating that there is still a high level of uncertainty about how the ADA affects these fundamental personnel issues. This document will serve a critical need and enhance compliance with the ADA.”
According to the new guide, the ADA permits employers to apply the same performance standards to all employees, including those with disabilities, and emphasizes that the ADA does not affect an employer’s right to hold all employees to basic conduct standards, notes the press release. “At the same time,” cautions the EEOC, “employers must make reasonable accommodations that enable individuals with disabilities to meet performance and conduct standards.”
For example, the EEOC provides the following hypothetical example:
Steve, a new bank teller, barks, shouts, utters nonsensical phrases, and makes other noises that are so loud and frequent that they distract other tellers and cause them to make errors in their work. Customers also hear Steve’s vocal tics, and several of them speak to Donna, the bank manager. Donna discusses the issue with Steve and he explains that he has Tourette Syndrome, a neurological disorder characterized by involuntary, rapid, sudden movements or vocalizations that occur repeatedly. Steve explains that while he could control the tics sufficiently during the job interview, he cannot control them throughout the work day; nor can he modulate his voice to speak more softly when these tics occur. Donna lets Steve continue working for another two weeks, but she receives more complaints from customers and other tellers who, working in close proximity to Steve, continue to have difficulty processing transactions. Although Steve is able to perform his basic bank teller accounting duties, Donna terminates Steve because his behavior is not compatible with performing the essential function of serving customers and his vocal tics are unduly disruptive to coworkers. Steve’s termination is permissible because it is job-related and consistent with business necessity to require that bank tellers be able to (1) conduct themselves in an appropriate manner when serving customers and (2) refrain from interfering with the ability of coworkers to perform their jobs. Further, because Steve never performed the essential functions of his job satisfactorily, the bank did not have to consider reassigning him as a reasonable accommodation.
Employers addressing day-to-day personnel issues are often left guessing about the ADA’s ill-defined requirements. The EEOC’s guide does a laudable job providing specific examples and straightforward answers to questions. The explanation and examples regarding disciplining ADA employees are particularly helpful.
Other topics addressed include issues related to attendance, dress codes, and drug and alcohol use, and the circumstances in which employers can ask questions about an employee’s disability when performance or conduct problems occur.
Employers should carefully study the EEOC’s new publication. However, keep in mind that the courts have the final say on the ADA, and the judiciary is not bound to follow the EEOC’s guidance. For example, in Gambini v. Total Renal Care, Inc. dba DaVita, 486 F.3d 1087 (Wash. 2007), an employee was terminated for making violent outbursts at work. She claimed that it was caused by her bipolar disorder. The Ninth Circuit reversed a lower court decision, finding that the outbursts were protected ADA conduct. For more details on this case, click here.
Submitted by:
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC
Page 1 of 1 pages
Federal Article Feeds