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Americans with Disability Act

Americans with Disability Act




What is the Americans with Disability Act of 1990?
The Americans with Disabilities Act of 1990 extended the provisions of the Civil Rights Act of 1964 to all persons with disabilities.  It provides for the “reasonable accommodation” of individuals with disabilities and bans discrimination against these individuals by employers and business owners.
What constitutes a disability under the Americans with Disability Act?
Disabilities under the ADA must impair “major life activities” due to either physical or mental limitations.  Therefore, impairments from asthma and cancer to the loss of a limb are considered disabilities under the Americans with Disability Act guidelines.  Mental retardation and learning disabilities are considered mental impairments and are also considered disabilities.  This does not include character flaws and personality traits such as an inability to work with others, poor time management or irresponsibility.
Drug addiction is also considered impairment but most provisions of the ADA will not apply to current users that the employer or business owner has a reasonable belief that there is an addiction and that it will be a problem in the present or near future.
An impairment implies that the limitation prevents the individual from functioning like a normal individual and is subject to reasonable limitations.  The inability to stand for more than 30 minutes due to a leg injury is an impairment as most will be able to stand for much longer without trouble.  A football kicker that cannot kick a football more than 50 yards is not impaired as most individuals cannot kick a football that far.  That inability will however affect his job performance.  Not all limitations experienced by employees are impairments.
Impairments can be temporary conditions and are also covered under the Americans with Disability Act of 1990.
Summary of the Americans with Disability Act of 1990
Title 1 – Employment
One of the key provisions of the Americans with Disability Act is the restrictions placed against discrimination in the workplace.  Prior to this act, job applicants could be rejected on the sole basis of a disability and employees could be fired for developing a disability.  
Under the Americans with Disability Act of 1990, employers must provide qualified employees and applicants with “reasonable accommodation” for employees with disabilities.  They may not:
Force disabled job applicants to take medical examinations prior to a job offer and may only require an examination if all applicants undergo the same confidential examination.
Disqualify an applicant on the sole basis of disability
Disqualify a employee for a promotion on the sole basis of disability
Fail to provide an employee with adequate training that does not take his disability into account.
Almost all organizations that employ more than fifteen workers and engage in business across state lines are “covered entities” under the Americans with Disability Act of 1990.  Interstate commerce falls under the jurisdiction of the federal government where the authority to enforce the ADA is derived.
A provision in Title 1 that allowed states to be sued for damages in disability discrimination cases was stuck down by the US Supreme Court in the case of Board of Trustees of the University of Alabama v. Garrett (see below)
Title 2 – Public Entities
The next provision of the Americans with Disability Act of 1990 bans discrimination of all persons with disabilities by “public entities” including public transportation.  The Americans with Disability act defines a public entity as: 
Any State or local government
Any department, agency, special purpose district, or other instrumentality of a State or local government
Certain commuter authorities as well as AMTRAK.
More broadly, a public entity is an enterprise that is operated with public funds, receives significant assistance by the federal government or has management appointed by elected officials.  Libraries, subsidized commuter rail and businesses on public land are examples of public entities that must abide by the provisions of Title 2.
Public-private partnerships such as museums must abide by both Title 2 and Title 3 (see below)
Title 3 – Public Accommodations and Commercial Facilities
The next provision of the Americans with Disability Act of 1990 bans discrimination by private entities against all persons with disabilities when they attempt to enjoy a public good or service that is normally available to the public.  The provisions include ensuring that all establishments where compliance is “readily achievable” will rectify any issues with their facility.  Any new construction must abide by the provisions set by the Americans with Disability Act guidelines.
Title 3 covers:
Places of public accommodation
Commercial facilities
Examinations and courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade purposes.
The scope of enterprises covered by this provision is very broad and covers all establishments that lease, rent, provide services or sell goods.  Additionally if the establishment is public gathering place, educational institution, park or lodging enterprise with more than six rooms, they must also follow reasonable accommodation rules.  The provisions do not cover all establishments owned by an individual, only the ones that provide public accommodations.
Goods and services, such as swimming pools and meeting rooms in residential facilities are not places of public accommodation if they are closed to external membership or the general public.  Therefore, these facilities do not need to comply with Americans with Disabilities Act under this specific guideline.
Many religious and private organizations are exempt from these provisions due to financial burdens or the level of public accommodations they provide, if any.  Private organizations that lease or operate a space that provides public accommodations would have to abide by Title 2 and 3 provisions.
Title 4 – Telecommunications
The Americans with Disabilities Act also requires telecommunications companies to provide disability accommodations for the hearing impaired including relay services that provide for text-based phone calls.
Title 5 – Misc
The most important provision in Title 5 protects individuals from retaliation and coercion for exercising the rights granted by the Americans with Disability Act.
Opposition to the Americans with Disability Act
Private business owners and religious groups alike opposed the ADA for provisions that required the accommodation of individuals with disabilities at the expense of the establishment.  These opponents charged that their legal liabilities had jumped significantly and represented an undue burden on small businesses.  Provisions such as “readily achievable” modifications and “reasonable accommodation” ameliorated most of these concerns.  Most churches were able to retain their status as non-provider of public accommodations, thus allowing them to remain outside of the enforcement of this law.
Critics also charged that the potential liabilities that arise from the ADA could lead employers to discriminate subtly against disabled job applicants owing to an increased risk of lawsuits by disabled employees that perceive that their needs are not adequately provided.  The employer would rather search for a reason to not hire the disabled worker and face a potential lawsuit for non-compliance under the provisions of this law.
Important court cases related to the Americans with Disabilities Act


(2001) Board of Trustees of the University of Alabama v. Garrett
Two employees of the University of Alabama sued the organization for failing to provide reasonable accommodation and reassigning workers with disabilities.  By the time this case arrived in the Supreme Court, a provision in Title 1 that allowed states to be sued for violation of the ADA was challenged.  The challenge was upheld as a violation of the eleventh amendment that guarantees the sovereign immunity of states from litigation.
(2004) Barden v. Sacramento 
The City of Sacramento was sued successfully for failing to provide sidewalks that were easily accessible for the impaired.  Sidewalks were ruled public accommodations and municipalities were required to move sidewalk obstacles, ensure that there were “curb cuts” and maintained a reasonable slope and even level.
(2005) Spector v. Norwegian Cruise Lines  
A foreign company was found to be in violation of Title III of the ADA for selling tickets that were marked as handicap friendly but failing to provide reasonable accommodation.  The cruise ships were based in American waters, despite their foreign registry and were required to abide by American law in American waters.
(2006)  National Federation of the Blind v. Target Corporation
This case related to the accessibility to the Target Corporation’s website for the vision impaired persons attempting to access it.  Target argued that only their physical locations were bound by the ADA and not their website.  The court disagreed and Target was forced to comply and pay the costs of the plaintiff’s fees as well as a class action settlement.  Certain electronic retailers must now comply by standards to make their website accessible.
Source: ada.gov

What you should know about the Fair Labor Standards Act

What you should know about the Fair Labor Standards Act

What is the Fair Labor Standards Act?
The Fair Labor Standards Act is a fundamental piece of legislation passed by the United States Federal Government and enforced by the Department of Labor. The Fair Labor Standards Act is responsible for establishing minimum wage, recordkeeping regulations, overtime pay rates and youth employment standards, which affect employees in both the private sector and in Federal, State and local governments. The Fair Labor Standards Act affirmed, for covered nonexempt workers, a minimum wage of $7.25 per hour and overtime pay at a rate no less than one and one-half times the regular rate of pay for a normal 40 hour work week.
Specifics associated with the Fair Labor Standards Act:
The Fair Labor Standards Act Minimum Wage laws:


o The Fair Labor Standards Act Minimum Wage law, as of July 24, 2009, is $7.25 per hour. Although the Fair Labor Standards Act institutes federal mandates, each individual state has the ability to raise the minimum wage scale. In cases where an individual employee is subject to both state and federal minimum wage laws, the individual will be entitled to the higher minimum wage rate.
The Fair Labor Standards Act Overtime Laws:
o The Fair Labor Standards Act states that all covered nonexempt employees must receive overtime pay for hours worked over 40 per workweek at a rate no less than one and one-half times their regular pay rate. The Fair Labor Standards Act offer no limit on the number of hours employees 16 years or older may work in a given work week. Furthermore, the Fair Labor Standards Act does not require overtime pay for work on weekends or holidays, unless overtime is worked on such days.
The Fair Labor Standards Act Hours Worked Laws:
o The Fair Labor Standards Act states that all hours worked ordinarily, including all the time during which the employee is required to be on the employer’s premises or on duty must be kept and displayed in accordance with the United States Federal Government. 
Through these laws, the Fair Labor Standards Act aims to protect the educational opportunities of minors by prohibiting employers from exploiting children.

What you should know about the Labor Board:

What you should know about the Labor Board:

 

What is the Labor Board?

The National Labor Relations Board is an independent agency of the United States Federal Government, responsible for conduction elections for the majority of labor union officials and representatives. Furthermore, the labor board is charged with investigating and subsequently remedying unfair labor practices in the United States. Unfair labor practices include union-related instances of protected concerted activities; the National Labor Relations Board, through its five-person governing board, is responsible for appeasing such situations. Each member of the National Labor Relations Board is appointed by the President of the United States with the direct consent of the Senate. Members of the Labor Board are appointed to five-year terms, while the General Counsel is appointed to a four-year term. The General Counsel acts as the form prosecutor, whereas the Labor Board itself acts as an appellate judicial body to honor decisions of administrative law judges.

Labor Board Quick Facts:

• The national labor board was established on July 5th of 1935

• The national labor board possesses jurisdiction over the Federal government of the United States

• The agency’s headquarters are located in Washington, D.C.

• The national board is led by Chairman Wilma Liebman; the agency operates with nearly 1,650 employees

Labor Board’s Jurisdictional Powers:

The national labor board’s jurisdiction, in a specific sense, is only limited to private sector employers and the United States Postal Service. As a result, the labor Board possesses no authority over labor relation disputes involving government employees (including all railway and airline) who are specifically covered under the Adamson Railway Labor Act. Contact a labor lawyer to protect your rights.

The Labor Board administers charges filed by parties against unions or employers through one of their regional officers. Each regional office is responsible for investigating the complaint; if a charge is deemed to be viable, the regional office will transfer the case to an Administrative Law Judge who will then conduct a hearing. All decisions rendered by the Administrative Law Judge are susceptible for review by the five member labor board. That being said, all decisions rendered by the five-person labor board are reviewable by the United States Courts of Appeals.The labor board’s decisions are not self-enforceable; the labor board, because of this, must seek court enforcement in order to force a party to comply with the suggested orders.