The 1^st U.S. Circuit Court of Appeals (the “Court of Appeals”) recently reminded us of this somewhat counter-intuitive concept in its decision in Roman-Oliveras, et. al. v. Puerto Rico Electric Power Authority (PREPA), et. al., Docket Number 09-1503.

Even if an employee is not technically disabled under the Americans with Disabilities Act (the “ADA”), an employer may be liable if it discriminates against the employee because the employer perceives the employee as disabled.

In Roman-Oliveras, et. al. v. Puerto Rico Electric Power Authority (PREPA), et. al., the Plaintiff, Hector Luis Roman-Oliveras (“Roman”) worked for the Puerto Rico Electric Power Authority (“PREPA”) for 22 years, despite having received a diagnosis of schizophrenia some 30 years earlier, and had received excellent evaluations.

However, after he had a conflict with his supervisors, PREPA barred Roman from working on March 1, 2006.  PREPA would not allow Roman to return to work until he was evaluated by a psychiatrist.

Roman complied, had a psychiatric evaluation and, on April 24, PREPA’s social worker received the psychiatric report.  The psychiatric report indicated that Roman was fully capable of working.  Roman, however, was not allowed to return to work.

Roman repeatedly asked to return to work and PREPA’s physicians even recommended that Roman return to work on October 17.  Nonetheless, his supervisors requested additional medical evaluations and referred Roman for an involuntary medical leave on November 13.

In January, 2007, Roman submitted medical certification from his psychiatrist, yet, despite findings by all of his doctors that he was capable of working, PREPA took Roman off of its payroll in February, 2007.  PREPA has kept Roman on medical leave, without pay, since February 10, 2007.

Under the ADA, a person is considered disabled if he or she is substantially limited in any major life activities.  The trial court dismissed Roman’s claims under the ADA on the grounds that he “did not allege that schizophrenia substantially limited any aspect of his life, including his ability to work” and therefore was not disabled under the ADA definition.

However, as the Court of Appeals found, an employee may bring a case under the ADA if he is discriminated against because he is “regarded as” disabled by his employer.  42 U.S.C. § 12102 (2) (2008).  This is true regardless of whether the employee is, in fact, disabled.

In this case, the Court of Appeals noted that “Roman was removed from his position and forced to undergo multiple medical evaluations at the behest of the defendants, and also was required to submit a medical certification from his treating psychiatrist. Despite favorable test results each time, defendants persisted in refusing to allow Roman to work.”

Therefore, the Court of Appeals found that Roman was being “regarded as” disabled, even though he did not allege that he was substantially limited in any major life activities.  As such, he was entitled to bring his claims forward.

As an employer, you need to make sure you are treating your employees properly; whether they have a disability or not.  While it may seem easier to place an employee on unpaid medical leave, instead of terminating him, you must be aware of unseen pitfalls.

Under the Federal Minimum Wage and Overtime Laws

In a question of first impression in the 1^st Circuit, Justice O’Toole of the Federal District Court in the District of Massachusetts, held that “the plaintiffs’ immigration status is irrelevant to their FLSA claim.”  That means that even undocumented immigrants, often called by the less flattering name “illegal aliens”, are entitled to protection under federal minimum wage and overtime laws.

Justice O’Toole reached his holding in an “Opinion and Order” concerning cross-motions to compel discovery in the case Jin-Ming Lin and Ch-Wai Chao v. Chinatown Restaurant Corp., et. al., Docket Number 09-11519-GAO.  The defendants had moved to compel the plaintiffs’ responses to written discovery seeking information about their immigration status.  The court denied the defendants’ motion on the grounds that their discovery requests were irrelevant.

Courts from other circuits have considered the same question and reached the same conclusion, relying on a variety of reasons.  For example, some point to the fact that the U.S.  Department of Labor has taken the position that undocumented immigrants can recover under the FLSA.  See Zavala v. Wal-Mart Stores, Inc., 393 F. Supp. 2d 295, 324 (D.N.J. 2005), Flores v. Amigon, 233 F.Supp. 2d 462, 464 n.1 (E.D.N.Y. 2002).  Others have found that working undocumented immigrants are “employees” within the meaning of the FLSA and thus entitled to its remedies.  See Villareal v. El Chile, Inc., 266 F.R.D. 207, 212-14 (N.D. Ill. 2010); Motoya v. S.C.C.P. Painting Contrators, Inc., 589 F. Supp. 2d 569, 577 (D. Md. 2008).  Still others, rely on the theory that permitting recovery under the FLSA supports federal immigration policy.  See Flores v. Amigon, 233 F. Supp. 2d 462. 464 n. 1 (E.D.N.Y 2002) and Singh v. Jutla & C.D. & R’s Oil, Inc., 214 F. Supp. 2d 1056, 1061-62 (N.D. Cal. 2002).

Of course, immigration is a complicated issue, and, as Justice O’Toole noted, “the economic incentive underpinning federal labor and immigration policy are in tension.”  In short, remedies provided for undocumented workers provide an incentive for those workers to come to the U.S.  On the other hand, limiting the scope of the FLSA to those legally authorized to work in the U.S. creates an incentive for employers to hire undocumented immigrants.  See Singh, 214 F. Supp. 2d at 1062.

But whatever your opinion about immigration policy, there is an undeniable equitable appeal to enforcing the wage statutes against employers who hire undocumented immigrants, instead of those legally authorized to work in the U.S., in order to avoid paying minimum wages and overtime. 

After all, doesn’t it make sense to penalize those who exploit workers, as opposed to those who have come to this country seeking the liberties and opportunities that make up the core of our American values?

Do your employees know that they should not tell other employees that they are “getting old”? 

In a recent Massachusetts case, a supervisor called other employees things like an “old pumpkin”, an “old shoe”, or an “old hankie”? 

These are some of the things the plaintiff, Ms. Carmen Llerena Diaz, alleged her direct manager said to her while she was employed as the head housekeeper at a Holiday Inn Express in an age-discrimination suit she filed with the U.S. District Court, Diaz v. Jiten Hotel Management, Inc., (Civil Action No. 08-CV-10143). 

She also alleged that, when she was hired, her direct manager told her “You’re going to convert this hotel into a nursing home.”  Another manager allegedly told her that she was too old for the job and that “old people should remain home.”

It is important that your employees know that ageist, and other discriminatory comments, are unacceptable in the workplace.  Your managers also need to know that they cannot make any employment decisions based on an individual’s advanced age.  After all, you want the best people for the job; not appropriately aged people for the job.

Despite the plaintiff’s allegations of ageist comments from her direct supervisor, the defendant in Diaz v. Jiten Hotel Management, Inc., brought a motion for summary judgment seeking to dismiss the case. 

The motion was brought principally on two grounds: (1) the plaintiff’s claims were directed at her direct manager, not the Jiten Hotel Management, Inc.; and (2) the manager’s discriminatory statements were merely “stray remarks”, not indicative of a discriminatory animus or the employment environment as a whole.

The court was unconvinced.  Judge Gertner wrote:

“I fundamentally disagree…[D]iscrimination…is about concepts like bias and motivation… discrimination must be inferred not only from the statements of the relevant actors, but also from the context in which they were made, including the relationships between the various actors, the speaker and those around him.”

Some of the new changes for the protection of your home can be summarized as follows:

1.   New Automatic Protection.       All Massachusetts homeowners will receive an automatic homestead exemption of $125,000 for protection against certain creditor claims on their principal residence without having to file any additional paperwork. By simply buying a home as your principal residence, the $125,000 protection applies.

Exceptions to the law are as follows:          

a. sale for taxes;

      b. for a debt contracted prior to the acquisition of said estate of homestead;

      c. for a debt contracted for the purchase of said home;

d. upon an execution issued from the probate court to enforce its judgment that a spouse pay a certain amount weekly or otherwise for the support of a spouse or minor children;

e. where buildings on land not owned by the owner of a homestead estate are attached, levied upon or sold for the ground rent of the lot whereon they stand;

2.   Declaring a Homestead provides $500,000 protection.       All Mass. residents are eligible for a $500,000 “declared homestead exemption” by filing a declaration of homestead at the registry of deeds. For married couples, both spouses will now have to sign the form which will be a change from current practice.

3.   2-4 Family Homes Eligible.       Homesteads are now available on 2-4 family owner occupied homes.

4.   Trust Beneficiaries Protected.         The beneficiary of a Trust will now be able to hold a Homestead in a home, although giving up the anonymity of holding a home in Trust. The Homestead must be declared by the Trustee of the Trust.

5.   Elderly and Disabled Protected.            The existing “elderly and disabled” homestead will remain available at $500,000.

6.   New Spouse protected.            If you have a homestead as a single person, and get married, the homestead automatically protects your new spouse.

7.   Surviving Spouse Protected.     Homesteads now pass on to the surviving spouse and children who live in the home.

8.   Intra-Family Transfers Protected.               Transfers between family members will not terminate a previously declared homestead.

9.   Lenders Prohibited from Waiver of Homestead.            Under the new law, homesteads are automatically subordinate to mortgages, and lenders are specifically prohibited from having borrowers waive or release a homestead.

Protecting your home in the event of financial problems other than non-payment of your mortgage loan, is a very important family protection. 

For example, should you be subjected to a judgment against you, the creditor cannot attach a lien to your home and sell it to recover the judgment if the lien is for less than $500,000 for a “declared” homestead, and up to $125,000 for an “automatic” homestead (see above).

For answers to any question you may have about this important homestead protection, or to secure the necessary forms for a “declared” homestead exemption, please contact us at 413-499-3520.

The report must include the identity of the beneficiary of the settlement, along with detailed information relating to the settlement and judgment, or other payment that minimizes any portion of the beneficiary’s health costs.

It is important for employers to be aware of these reporting requirements, because they may be required to report judgments or settlements of employment claims to Medicare.  In fact, in those claims where the employee alleges that he or she suffered a physical or emotional injury with related medical expenses, then a judgment or settlement must be reported to Medicare. 

So, for example, the report could be required for judgments or settlements in claims of discrimination, harassment, assault, battery, and infliction of emotional distress.

If an employer pays a portion of the judgment or settlement, then the employer is responsible for making the report.  If the employer is fully-insured and the insurer pays the entire settlement or judgment, then the insurer is required to make the report.

Of course, these requirements only apply if the employee is a Medicare beneficiary.  Medicare beneficiaries include persons 65 or older and persons of any age who (a) have end stage renal disease (kidney disease/dialysis patients), and (b) apply or will potentially apply for Social Security Disability Insurance (“SSDI”).  Employees who receive, or will potentially apply for, SSDI may include worker’s compensation claimants who are permanently and totally disabled.