The Employer's Legal Resource - June 2011

Wage and Hour

THERE'S AN APP FOR THAT

The U.S. Department of Labor has been hard at work "to ensure that workers receive the wages to which they are entitled." On May 9, the DOL announced the launch of its first application for smartphones. The app provides a timesheet to help employees independently track the hours they work and determine the wages they are owed. The app is intended to provide employees with a method to independently track their hours in the event an employer fails to accurately maintain those records. The app also provides links to the Wage and Hour Division's web page giving the user access to DOL contact information and materials about wage and hours laws. The app is currently available in English or Spanish, but only for iPhone, iPad and iPod Touch devices. According to Secretary of Labor Hilda L. Solis: "This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay "

The DOL believes that this new technology is important because it allows workers to keep their own records without having to rely on their employers' records. But, employees have always been able to keep "analog" rather than digital work records. The problem with those kinds of records, however, is that typically, neither the employee nor the employer can prove that those records were or were not kept contemporaneously. Although the specifications for the app do not appear to be available, it is likely that the entries will be date stamped in some way, eliminating questions concerning when the records were created.

The introduction of the app should remind us of the importance of wage policies and practices. These should include procedures for accurate timekeeping, prohibition of unauthorized overtime, procedures for correcting errors and guidelines for what activities will be treated as paid work. We can help you with these.

By Rebecca M. Fowler, rfowler@dsda.com

ADAAA

THE IMPORTANCE OF BEING "INTERACTIVE"

Last month we provided an overview of the new regulations to the Americans with Disabilities Amendments Act of 2008 ("ADAAA"), which became effective on May 24, 2011. As anticipated, the focus of the regulations is not whether an employee is "disabled." The new regulations expressly provide that "[t]he primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability." 29 C.F.R. § 1630.1(c)(4).

In its appendix to the new regulations, the EEOC indicated that it will focus on several major themes when reviewing claims of disability discrimination: (1) whether the employer engaged in discriminatory conduct, (2) whether the employer has fulfilled its obligations with respect to providing reasonable accommodations, and (3) whether the employee has met his or her responsibilities with respect to engaging in the "interactive process" of determining whether a reasonable accommodation exists. Central to each of these concepts is the "interactive process."

The "interactive process" requirement remains relatively untouched despite recent amendments to both the Act and the regulations. The requirement has its origins in the definition of "reasonable accommodation" promulgated by the EEOC. 29 C.F.R. § 1630.2(o).

The EEOC defines the types of accommodations which may be reasonable as including "modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed." Both the old and the new regulations provide that "to determine the appropriate accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations."

Now that Congress and the EEOC have both indicated that determination of disability status is not to be the focus on the inquiry, employers must engage in an appropriate "interactive process." Here are some practical tips to help you conduct your interactive discussions

• Once you have a legitimate reason to believe an accommodation may be needed (not water-cooler talk), do not wait for or assume that an employee will approach you to request an accommodation. Failure to initiate the process could result in a claim for disability discrimination.
• During the course of the interactive process address only the conduct or symptoms that the employee has demonstrated. Do not address your understanding or assumption regarding the disability or medical condition that may be causing the conduct or symptoms.
• In its appendix, the EEOC clarifies that employers may request supporting documentation, including medical documentation, as part of the required interactive process "where the disability and need for accommodation are not obvious or already known."
• Document the substance of the interactive process, as well as details such as the date, time and place of the discussion, the duration of the discussion, as well as the identity of all witnesses to the discussion.

By Courtney Bru, cbru@dsda.com

Healthcare

MORE RECORDKEEPING REQUIRED UNDER HEALTHCARE REFORM

The Patient Protection and Affordable Care Act of 2010, more commonly known as healthcare reform, provides that certain employers must provide employees with information concerning the cost of their healthcare coverage, including both employer and employee premium payments. Insurance coverage under which benefits for medical care are secondary, however, such as workers' compensation insurance, are not subject to the reporting requirements.

The information is to be reported on Form W-2, Wage and Tax Statement. Including the information on the W-2, however, does not cause the cost of coverage to be taxable income to the employee. Only employers who file 250 or more Forms W-2 for the preceding calendar year are required to provide this information.

The purpose of providing this information is to make employees aware of the cost of their healthcare coverage. Although employers may begin providing this information with the W-2 for 2011, the report is not required until 2012.

By Rebecca M. Fowler, rfowler@dsda.com

What's New

ANNOUNCEMENTS

DSDA RECEPTION A SUCCESS

DSDA held a reception to showcase its new Tulsa offices in conjunction with the Art Exhibit for Mayfest in the lobby of the Williams Towers. It was a huge success and well attended by clients, judges and lawyers. In addition to tours through the office, guests enjoyed libations and a light buffet supper, while admiring the art exhibits for Mayfest. Our thanks to all those who attended making it a wonderful evening.

MIKE WOFFORD NAMED LEADER IN LAW

Mike Wofford of the firm's Oklahoma City office will receive a Leadership in Law award from The Journal Record for his contributions to the community. Mike created, helped to fund, and has for the past twelve years served as Chair of the Advisory Board of the Mark Coleman Environmental Fellowship at the University of Oklahoma. He is a member of the Board of Visitors of the OU College of Arts & Science (emeritus) and has endowed a scholarship at the University for Leadership Scholars.

You can reach Mike at mwofford@dsda.com.

Congratulations!

FIRM WINS TIER III PERMIT FOR OKLAHOMA CLIENT

The firm successfully represented an Oklahoma start-up company in its efforts to obtain the first Tier III solid waste disposal site permit issued in Oklahoma in a number of years. Mike Wofford led the firm's team of attorneys through the administrative hearing process at the Oklahoma Department of Environmental Quality. The hearing involved the presentation and cross-examination of multiple expert witnesses on both sides of the issues being raised. Our client received a recommendation from the Administrative Law Judge that the technical and scientific evidence justified the issuance of the permit for the site. The final permit was issued by the Executive Director of the ODEQ in late April of this year.

You can reach Mike at mwofford@dsda.com.

Congratulations!

PROFESSOR ROBERT SPOO WINS TU OUTSTANDING TEACHER AWARD

The University of Tulsa recently announced that TU College of Law Professor Robert Spoo is one of three winners of the university-wide Outstanding Teacher Award. To read the full article, click here.

Congratulations Bob!

ROSS CRUTCHFIELD AND LEAH WARD PASS ARKANSAS BAR - LEAH SCORES HIGHEST ON STATE BAR EXAM

Ross Crutchfield and Leah Ward both recently passed the Arkansas Bar and they are now licensed to practice law in both Oklahoma and Arkansas.

Special kudos to Leah who received the highest score on the February 2011 Arkansas bar examination.

Congratulations Leah and Ross!

Dates to Remember

Calendar of notable events

June 4, 2011

Professional Review is hosting The Radio Legal Forum which will broadcast live on their AM and FM affiliate radio stations in Oklahoma City. The show will feature David McCullough (Indian Law) from 7:00 to 7:30 a.m. and Rebecca M. Fowler (Employment Law) from 7:30 to 8:00 a.m. The program will be delivered to listeners in layman terms and will allow coverage of current and hot topics. Phone lines will be open to take calls from the public. Tune in to 94.1 FM, News Talk 890 AM, or http://www.kplr.com/ for live streaming of program.

Visit The Legal Forum's website by clicking here for up to the minute legal news and headlines.

June 9, 2011

In "The Good, the Bad & the Ugly" Hiring & Firing: Tips to Minimize Your Legal Risks, Kristen L. Brightmire will discuss the myriad of employment laws which affect your business and some best practices for navigating through them. This is an interactive session to be held at the 2011 Safety & Health Conference hosted by the Oklahoma Safety Council. Link directly to the conference program here.

June 11, 2011

Professional Review is hosting The Radio Legal Forum show which will broadcast live on their AM and FM affiliate radio stations in Oklahoma City. The show will feature Michael C. Wofford (Environmental Law) from 7:30 to 8:00 a.m. The program will be delivered to listeners in layman terms and will allow coverage of current and hot topics. Phone lines will be open to take calls from the public. Tune in to 94.1 FM, News Talk 890 AM, or http://www.kplr.com/ for live streaming of program.

Visit The Legal Forum's website by clicking here for up to the minute legal news and headlines.

June 14, 2011

Flag Day

June 19, 2011

Father's Day

June 21, 2011

The first day of Summer

June 28, 2011

Courtney Bru will be presenting As if the Americans with Disabilities Act weren't already complicated enough at the Learning Lab sponsored by the Tulsa Area Human Resources Association (TAHRA). For more information, click here.