HANDBOOK ON DISABILITY, EMPLOYMENT AND INJURY LAW

Transcription

1 HANDBOOK ON DISABILITY, EMPLOYMENT AND INJURY LAW Morgan & Paul, PLLC (412) (telephone) (888) (toll free) (888) (facsimile) paul.com

2 TABLE OF CONTENTS 1 Introduction Disability Laws 2 The Different Definitions of Disability: ERISA, RRB and SSD Employment Laws 3 Americans With Disabilities Act 4 Family and Medical Leave Act 5 Federal Rail Safety Act 6 Fair Labor Standards Act 7 False Claims Act Qui Tam Whistleblower Injury Laws 8 FELA and Jones Act: Injuries and Occupational Exposure to Toxic Chemicals 9 Toxic Exposure and Property Damage Due to Fracking 10 Conclusion

3 1. Introduction This handbook was created to inform employees about rights in the workplace. Unlike most statute of limitations, or period of time to file a charge of discrimination or a lawsuit, the employment laws are shorter- in some cases requiring that a filing be made within 30 or 180 days. For additional information, call us or visit our website at paul.com. Morgan & Paul, PLLC is a national law firm representing individuals and families in the areas of disability, employment and injury law. Collectively, we are admitted to practice law in California, Louisiana, Maryland, Missouri, Ohio, Pennsylvania, Texas and West Virginia. Our offices are located in California, Pennsylvania and Texas. If you are located in another state, we may associate with another attorney if necessary, at no additional cost. Reed Morgan is admitted to practice law in Louisiana and Texas and has spent his career of over thirty (30) years representing people all over the United States who have been injured by their company or the products of a company. This includes toxic tort work, including claims of cancer caused by hydrocarbons such as benzene. He has earned the endorsement of a union- approved FELA law firm due to his work representing injured railroad workers and injured persons aboard vessels such as Seaman engaged in ocean or inland work. Mr. Morgan also represents individuals involving product liability claims, oil- field and oil- storage related disasters and airplane disaster claims. Greg Paul is admitted to practice law in California, Maryland, Missouri, Ohio, Pennsylvania, Texas and West Virginia. After working as the chief law clerk for the United States Attorney s Office in Sacramento, Greg immediately began working in the area of transportation law representing individuals following the decertification of a class action railroad case under the Americans With Disabilities Act and Rehabilitation Act. Greg is a graduate of the University of Pittsburgh and the University of the Pacific, McGeorge School of Law where he was on the Dean s List and Law Review. Greg is a 2007 graduate of Gerry Spence s Trial Lawyers College. He is a member of American Association for Justice, National Employment Law Association and the Million Dollar Advocates Forum. Greg is a member of the National Legal Advocacy Committee for the American Diabetes Association, past chair of the Leadership Board in Western Pennsylvania, and recipient of the ADA 2008 National Service Award for Outstanding Advocacy. In addition to litigating cases, Greg has presented at continuing legal education seminars including PBI: Employment Law West: Game On: The New ADA, Pittsburgh, PA (2012), National Employment Lawyers Association: Breaking Down the Barriers in the Workplace, Oakland, CA (2010),NBI: Litigating ERISA Cases, Pittsburgh, PA (2008) and ADA: Fighting for Fairness, Atlanta, GA (2006) and Chicago, IL (2008).

4 2. The Different Definitions of Disability The Equal Employment Opportunity Commission is a federal agency charged with the administration of federal employment laws based upon age, disability, race, gender and retaliation. Under the Americans With Disabilities Act, an individual is only covered by the protections of this law if he or she has a disability as defined by the statute and regulations. An individual under the Americans With Disabilities Act has a disability if he or she is substantially limited in one or more major life activities. However, the definitions of disability can vary based upon the law. For instance, many short- term disability and long- term disability plans divide the definition of disability into the inability to perform ones own occupation and any occupation. While this area of employer sponsored disability benefits is governed by a federal law called the Employee Retirement Income Security Act ( ERISA ), the definitions of disability vary depending on each individual policy. This federal law known as ERISA establishes certain procedural protections such as an initial denial must be appeal within 180 days before proceeding to federal court. Similar to the any occupation definition of disability under employer s sponsored long- term disability plans, the Railroad Retirement Board and Social Security Administration define disability based upon the definition of substantial gainful activity (SGA). These regulations also determine whether you are able to perform any work based upon an individual s age, education, past work experience.

5 3. Americans With Disabilities Act The Americans With Disabilities Act prohibits discrimination based upon physical and mental impairments and also provides reasonable accommodations that can include modified work schedules and leaves of absence. Under the Americans With Disabilities Act, disability is defined as substantially limited in one or more major life activities. Major life activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentration, thinking, communicating, and working. Additionally, and significant to individuals with diabetes, major life activities now specifically include the operation of major bodily functions such as the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. Complaints under the Americans with Disabilities Act must be filed with the Equal Employment Opportunity Commission within 300 days and usually 180 days under similar state laws. Employers who received federal financial assistance are subject to the Rehabilitation Act which the time limits vary from state to state.

6 4. Family and Medical Leave Act The Family and Medical Leave Act (FMLA) is an integral tool for employed individuals providing rights and remedies for both individuals and their families. The FMLA is a broad, encompassing statute, with its complexities masked by employee and employer, seemingly self- explanatory words. If an individual meets the requirements of an employee and worked for an employer, the FMLA provides protection of up to 12 weeks (within 12 months) of intermittent or continuous unpaid leave of absence for the employee s own medical condition or the medical condition of an immediate family member of the employee. Upon return from leave, the employee is guaranteed placement in his or her old job, or an equivalent job. This leave of absence is meant for inpatient care, doctor appointments, or medical episodes required by or resultant from a serious health condition. A serious health condition is established when the employee s health care provider completes the certification form provided by the United States Department of Labor. An individual can be certified as having a serious health condition within, among others, Category 4 of the healthcare certification form. Category 4, Chronic Conditions Requiring Treatment, includes chronic conditions which: (1) Require[s] periodic visits for treatment by a health care provider, or by a nurse or physician s assistant under direct supervision of a health care provider; (2) Continue[s] over an extended period of time (including recurring episodes of a single underlying condition); and (3) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.). Complaints under the Family and Medical Leave Act must be filed within two years directly in court.

7 5. Federal Rail Safety Act The Federal Rail Safety Act was enacted to promote safety in every area of railroad operations. 49 U.S.C Congress passed amendments in 2007 expanding the protections of employees under the anti- retaliation provisions with enforcement through the Department of Labor. A railroad carrier may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due, in whole or in part to the employee s engagement in one of numerous protected activities. Examples of protected activity includes notifying a railroad carrier of a work- related personal injury or work- related illness. Complaints must be filed within 180 days to OSHA for an investigation and hearing before an Administrative Law Judge. Additionally, after 210 days have passed, a lawsuit may be filed in federal court with a jury trial.

8 6. Fair Labor Standards Act The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay and recordkeeping affecting full- time and part- time workers. Employers often misclassify employees as independent contractors. When an employee is misclassified, the company does not pay overtime, travel time, FICA, unemployment insurance or workers compensation premiums. Misclassified workers are also denied protections under the Family and Medical Leave Act. The FLSA states that employees who work over forty hours a week are entitled to overtime pay unless exempt. Overtime must be paid at a rate of at least one and one- half times the employee s regular rate of pay for each hour worked in a workweek in excess of the maximum allowable in a given type of employment. Employees working in shipping, fishing, and other maritime industries may operate under different overtime regulations. These individuals often put in long hours on the docks or aboard ships, which may require them to work beyond their contracted hours and may be eligible for overtime pay going back two or three years under federal law. Complaints under the Fair Labor Standards Act may be filed directly in court within two years.

9 7. False Claims Act- Qui Tam Whistleblower The False Claims Act (FCA), 31 U.S.C was enacted in 1863 to prevent fraud against the government. Also known as Qui Tam actions, which is an abbreviation from Latin meaning "[he] who sues in this matter for the king as [well as] for himself". Because of this statute, and amendments since its enactment, whistleblowers or relators who reveal fraud against the government in industries such as healthcare, pharmacies and others involving government contracting may act as a private attorney general. Unlike most lawsuits, complaints under the False Claims Act must be filed under seal and kept confidential. Therefore, consultation with an attorney is critical in the early stages when fraud is suspected.

10 8. FELA and Jones Act: Injuries and Occupational Exposure to Toxic Chemicals The Federal Employer s Liability Act (FELA), is a federal law that protects and compensates railroaders who are injured on the job or as a result of an occupational illness. Congress passed the Federal Employer s Liability Act in the early 1900 s to protect employees and their families by providing the right to recover compensation when injured as a result of an accident or occupational illness. Such compensation under the statute provides for a jury trial right and to seek compensation for lost wages, future wages, medical expenses, pain and suffering, and additional damages for permanent disability. Mr. Morgan is a designated FELA attorney approved by the Transportation Communication Union. Mr. Paul is a panel attorney for the Union plus sponsored by the AFL- CIO. The Jones Act is a federal law modeled after the Federal Employer s Liability Act that provides compensation to Maritime workers who work on both inland waterways and offshore vessels. Occupational exposure to carcinogens such as asbestos and benzene may lead to illnesses that may be compensated through the above laws or various products liability laws. The inhalation of asbestos fibers can cause mesothelioma, a type of cancer strongly associated with asbestos exposure. Benzene is a chemical used for many industrial purposes that is known to cause cancer. Those exposed to benzene in the workplace and subsequently diagnosed with certain types of cancers, blood disorders, or other illnesses may have a right to compensation for the medical expenses, and pain and suffering. The type of benzene exposure can vary depending on whether the individual is inhaling air around hazardous sites or working with certain chemicals that contain benzene.

11 9. Toxic Exposure and Property Damage Due to Fracking Energy companies are drilling for natural gas which is now known to cause medical and environmental damage. During the drilling process, the companies are injecting toxic fluids into cracks in the earth, a process identified as hydraulic fracturing, or "fracking." This pollution can cause serious medical conditions from contaminated water and property damage. Gas Companies have been fracking in a number of states, including Pennsylvania, West Virginia, Ohio, Texas, Louisiana, Colorado and Wyoming. Both the U.S. Environmental Protection Agency (EPA) and a number of environmental groups are concerned about the consequences of natural resource mining associated with fracking, the potential for environmental pollution and property damage and the risk that the chemicals used in the process may pose serious health risks. According to a report prepared by the EPA, the use of chemicals such as petroleum distillate and diesel (which contains a combination of chemicals known as BTEX (benzene, toluene, ethylbenzene and xylene) have all been linked to a number of serious health problems including central nervous system disorders and chronic health problems including symptoms of fatigue, nausea and memory loss. Environmental tort liability can fall under both federal and state laws including nuisance, trespass, negligence, strict liability, restitution and waste. Compensation may be available for property damage, bodily injury, emotional distress, medical expenses, loss of profits, punitive and injunctive relief.

12 10. Conclusion The statute of limitations, or period time in which to file a charge of discrimination or a lawsuit in court, varies by each law and often from state to state. For employment and retaliation cases, the statute of limitations is usually 180 or 300 days, but can be earlier. Contact us to protect your rights.

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14 Morgan & Paul, PLLC (412) (telephone) (888) (toll free) (888) (facsimile) paul.com paul.com 409 Broad Street, Suite 270 Sewickley, PA (Pittsburgh area) 413 Eighth Street Comfort, TX (San Antonio area) 131 A Stony Circle Santa Rosa, CA (San Francisco area)