D+AS MAGAZINE

LEGAL — Can You Transfer an Injured Employee?

© 2007 Door & Access Systems
Publish Date: Fall 2007
Author: Naomi Angel
Page 64


LEGAL TIPS
Hot Legal News
By Naomi Angel, DASMA Legal Counsel

Can You Transfer an Injured Employee?
A Wal-Mart employee was injured on the job and unable to continue to perform the requirements of her dry grocery filler position. She sought a reasonable transfer to a different position.

Wal-Mart required her to apply for that position and ultimately selected a different employee with superior qualifications. She was then given a different position at lower pay. She then sued Wal-Mart, alleging a violation of the Americans with Disabilities Act (ADA).

A lower court agreed with the employee, but an appellate court reversed the ruling. The appeals court said the ADA is not an affirmative action statute that can prevent employers from hiring the most-qualified person for an open position.

This followed a similar ruling by the federal appellate court in Chicago in 2000, and disagreed with a 1999 federal appellate court in Denver that said the employer must give the open position to the employee regardless of another employee being better qualified.

Tip: The split between the federal appellate courts may ultimately have to be decided by the U.S. Supreme Court. Be aware—depending on where you are in the country, there are different rules for accommodating employees’ job requests.


Be Wary of Firing an Employee in Retaliation
A security guard at an oil refinery told the media about a fellow guard who bragged about having a criminal record. The guard was fired and claimed he was discharged for telling the news media about security problems at the refinery.

The refinery claimed the guard had not met the requirements of the Illinois Whistleblower Act. The guard said the Act did not apply because his lawsuit was filed a year before the Act was enacted. A jury verdict and a Chicago appellate court agreed.

The courts also said the guard had proved the three elements of the common law of retaliatory discharge: (1) that he was discharged, (2) it was in retaliation for his activities, and (3) the discharge violated a clear public policy.

Tip: Employers should be wary of retaliatory discharge claims. Many states have retaliatory discharge and whistleblower statutes, and many federal discrimination statutes also provide for such retaliation claims as well as discrimination claims. Consult your counsel in this area of employment law.


General Contractor Not Liable for Subcontractor’s Employee
An employee of a subcontractor was injured on a construction site. The employee filed a personal injury lawsuit against the general contractor, alleging the contractor controlled the subcontractor’s performance. The suit also alleged an exception to the general rule that a contractor is not responsible for an employee of the subcontractor.

However, the suit was dismissed in court, and an Illinois appellate court affirmed the dismissal.

The appellate court said the general contractor (1) did not supervise the entire job or methods of the subcontractor’s work, (2) did not prevent the subcontractor from working in its own way, (3) was not consistently present to direct the subcontractor’s work or safety program, and (4) does not retain control simply by having the overall right to stop work, inspect work, or receive progress reports.

Tip: The trial and appellate courts here focused on who controlled the work done by the injured employee, and it was the subcontractor, not the general contractor, who controlled the work. No control, no liability.

When your employees are installing doors or operators for a large construction project, you control their work. Be sure they work safely.


Avoid Employment Discrimination Claims

In 2006, the Equal Employment Opportunity Commission received 75,768 employment discrimination claims. These charges typically end up in a federal or state court, costing companies thousands of dollars.

Tip: Have your employment handbook checked by a knowledgeable lawyer. When offering a job, send a letter that specifies job-offer terms that are clear and complete.

Don’t make promises, written or oral, that you can’t or won’t keep. Do meaningful performance reviews and document them. Consider generous severance packages in return for releases.

These steps won’t prevent all lawsuits, but they will deter some lawsuits and provide defenses when lawsuits are threatened or filed.


These articles are provided solely for informational purposes and do not constitute legal advice. If you have specific questions or concerns about a legal issue, consult your company’s legal counsel for guidance.