Is Telecommuting a Reasonable Accommodation Under the Americans with Disabilities Act?

A recent Sixth Circuit ruling that nixed a U.S. Equal Employment Opportunity Commission suit against Ford Motor Co. shows companies can say no to workers seeking telecommuting arrangements to accommodate a disability without violating the law, but lawyers warn employers still have to consider telecommuting as a reasonable accommodation depending on the job.

The Court applied a “common sense” approach to decide that “regular on-site attendance is required for interactive jobs, and that “regular, in-person attendance is an essential function … of most jobs….”

Despite advances in technology and remote work and depending on the employee’s job duties, an employee may not be “qualified” within the meaning of the ADA if the employee can’t come to work (as was the case with the Plaintiff and her irritable bowel syndrom).  Because the employee in this case was not “qualified,” the majority did not even get to the issue of reasonable accommodation.

The dissent discussed its perception of Ford’s failings in this regard at great length, and in this writer’s opinion, completely disregards all the things Ford did do, focusing instead only on the last proposal from the plaintiff -- that she be allowed to work for “up to four days a week” from home. By the time this came to the table, Ford had worked with her for years as her attendance got worse and her job performance deteriorated.

PRACTICE TIP:  Before the issue of accommodations are addressed, the first examination is whether the employee is qualified.  Look at your job descriptions and determine whether the essential functions are really "essential."  If the functions are not really essential, then denying an employee an accommodation because he or she cannot do them may run afoul of the ADA.

Three Contract Agreements You Should Have

While it might be tempting to seal a deal with a handshake or assume that "everything will probably be ok," those assumptions can get a small business into trouble.  When you make a contract, proper documentation will give you and your business solid legal protection should the need arise.

While specific business needs vary, below are three common legal contracts you should draw up for your business.

1. Partnership Agreement

If you’re starting or running a business with someone else, you need some kind of agreement in writing. Even if your business partner is your spouse, best friend or sibling, having some kind of partnership agreement in place from the start can be a helpful to figure out the inevitable issues that come up during the course of running a business.

The partnership agreement should contain the following:

• Define who contributes what: Discuss what you and your partner will be bringing to the table in terms of labor, time, cash, property, customers, etc. Who plans on working on the business full-time, part-time or just acting as a silent partner?
• Define who gets paid what: Outline how profits will be distributed. Will each partner be paid a salary for his or her role in the business? How much? What about any extra profits for the year?
• Define how decisions get made: What type of decisions require unanimous votes, and what type of daily decisions can be made by a single partner? Discuss these matters upfront and decide what decision-making structure will let your business run the most effectively while making sure that no one feels left behind.
• Define what happens to ownership interests: Decide what happens if/when someone dies, retires, goes bankrupt or just wants out. Maybe add in a non-compete clause to protect against a partner leaving, taking your customers and setting up a competing business.
• An Internet search for “partner agreement template” will turn up numerous partnership contracts you can use.

Remember that while you may think you’re on the exact same page as your partner(s) today, situations can easily change over the course of a few years. A few conversations and a little administrative work to make a contract at the start can save you major headaches and potential legal battles down the road.

2. Non-Disclosure Agreement (NDA)/Confidentiality Agreement

Whenever you’ll be sharing your company’s proprietary information with somebody, you should ask them to sign a non-disclosure agreement (NDA). Your company’s proprietary info can be anything from the code written for a mobile app product, your business plan, marketing plan, forecasts or financial numbers, as well as your client and customer list. For example, if you partner with a vendor or freelancer for a marketing project, you should draw up an NDA to make sure your customer list is protected.

3. Independent Contractor Agreements

For many small businesses, outsourcing to independent contractors is a great way to get some added help, fill a specific need or bring in specific expertise. It’s a flexible arrangement, and you don’t have to pay workers’ compensation, payroll taxes or employee benefits for contractors and freelancers. However, be aware that the IRS is now on the lookout for employers who misclassify their workers as independent contractors to avoid paying payroll taxes, etc.

For this reason, it’s smart to make a contract.  Create an independent contractor agreement that explicitly defines the relationship between you and the worker. Make it clear that you intend the worker to be an independent contractor who is responsible for his or her own taxes. In addition, the agreement should not exert much control over how work will get done. Don’t set specific hours for when they need to work, or where.

While having this agreement isn’t going to protect you 100 percent from an IRS audit or misclassification ruling, it does provide evidence that you intended to hire an independent contractor.
For these three contracts, as with any legal formality, it’s always best to invest a little time. Make a contract and get it squared away upfront, rather than waiting until you actually need the contract. By then, it’s typically too late.

Your best business is worth it.

NLRB Continues To Have Opinions About Your Employee Handbook

The National Labor Relations Board just issued extensive guidance this week as to what types of employer polices and rules, in handbooks and otherwise, will be considered to be lawful and which are likely to be found to unlawfully interfere with employees’ rights under the National Labor Relations Act (“NLRA” or the Act”).

This NLRB's instructions are highly relevant to all employers in all industries that are under the jurisdiction of the National Labor Relations Board, regardless of whether they have union represented employees.

The NLRB's standard standard for deciding whether an employer policy unlawfully interferes with employees’ rights under the Act is generally whether “employees would reasonably construe the rules to prohibit Section 7 activity” – that is action of a joint or combined nature intended to address issues with respect to an employee's terms and conditions of employment.

Policies that can be implicated include handbook disclosure provisions, social media policies, conflict of interest policies, no distribution/no solicitation policies, and employee conduct rules, among others.

PRACTICE TIP:  When drafting language for employee handbooks, policies, or work rules, avoid language that restricts employees from discussing terms and condition of employment or treats union-related speech/conduct differently than other non-union activities.  As always, have your handbook reviewed by an attorney!

How to Avoid I-9 Penalties and Problems

An I-9 form may appear to be a simple one-page piece of hiring paperwork. However, the one page I-9 form comes with enough rules and regulations to get employers into hot water.  There are many common mistakes and human errors that can be made while completing and maintaining I-9 records. To avoid the potentially high costs of an I-9 violation, employers should keep these six common I-9 processing errors in mind:

1. Incorrect or Missing Forms:  Common I-9 documentation mistakes include incorrect dates, missing signatures, and incorrect identifying documents.  It is also possible for an employer to fail to complete an I-9 form altogether or misplace a completed form during filing.

2. Failure to Follow the Three-Day Rule:  I-9 forms must be completed within three business days of the employee’s first day of work. This means that the employee must complete section one of the form, provide identification documents and have those documents verified by the employer, all within three business days.

3. Failure to Re-verify:   For employees of certain citizenship statuses, employers will need to track and update the employee’s supporting I-9 documentation. This supporting documentation includes an expiration date and it is the employer’s responsibility to monitor that date and request new documentation prior to expiration.

4. Improper Identifying Documents:   In the flutter of activity during hiring, it can be difficult for hiring managers to check that all necessary documents are presented and valid. If an employer fails to obtain the right combination of identifying documents from lists A or lists B and C, then the I-9 documentation will be considered incomplete and the employer becomes subject to fines.

5. Improper Document Maintenance:  Federal regulations require employers to maintain I-9 forms either one year after the date of termination, or three years after the date of hire, whichever is greater. If an employer fails to destroy I-9 forms within the outlined time frame, then that employer will be subject to fines.

6. Lack of Supporting Documentation for E-verify Photo Matching:  In 2010, E-Verify introduced photo matching as a way to prevent employees from using false identifying documents. For passports, passport cards, permanent resident cards and employee authorization cards the E-verify system will require employers to compare the document photo with an onscreen photo as an additional security measure.

PRACTICE TIP:  In order to assist with your I-9 compliance responsibilities and avoid potentially hefty fines, employers should consider these six common I-9 documentation mistakes. Even with a good system of checks and balances in place, it is still possible for hiring managers to make these common errors.

I'm starting a business ... What kind of entity should I choose?

When beginning a business, you must decide what form of business entity to establish. Your form of business determines not only which income tax return form you have to file, but also how the company is managed, how personal liability may be sheltered, and the ease of operation. The most common forms of business are the sole proprietorship, partnership, corporation, and S corporation. A Limited Liability Company (LLC) is a relatively new business structure allowed by state statute. Legal and tax considerations enter into selecting a business structure.

PRACTICE TIP:  Consult an attorney and an accountant as to what structure is the best for your business with regard to tax treatment, ease of operation, and liability.

Does your application ask about an applicant's criminal background? If you're in Illinois, it shouldn't.

Illinois' “Ban The Box” Law:  The Job Opportunities for Qualified Applicants Act, which took effect January 1, 2015, prohibits private employers with 15 or more employees, as well as all employment agencies, from asking about, requiring disclosure of, or considering an applicant’s criminal history, until the employer/employment agency has decided that the applicant is qualified for the job and has notified the applicant of his or her selection for an interview or – if there is no interview – until a conditional job offer has been made.  There are some exceptions for safety sensitive positions.

PRACTICE TIP:  Make sure your employment applications no longer have ANY questions related to criminal records.  Background checks may still be done, but not at the application stage.

Pregnancy & the Workplace - Illinois Human Rights Act

Do you have 15 or more employees?  If so ...

The new amendment to the Illinois Human Rights Act requires all employers in Illinois to post in a conspicuous location on the premises of the employer, where notices to employees are customarily posted, a notice prepared by the Department and to include in any employee handbook information regarding an employee's rights under this amendment to the Illinois Human Rights Act regarding pregnancy in the workplace and an employer's obligation to accommodate pregnancy.

PRACTICE TIP:  Make sure you review ALL of your employee postings once a year to determine if there have been any changes.