Workplace Disability Does Not Excuse Nonperformance 

© 2008 Door & Access Systems

Publish Date: Winter 2008
Author: Tom Wadsworth
Page 58

Hot Legal News for Dealers and Manufacturers
By Naomi Angel, DASMA Legal Counsel

Workplace Disability Does Not Excuse Nonperformance

Does a supervisor have to accept a disabled employee’s procrastination on work assignments, sleeping on the job, Internet surfing unrelated to the job, forgetting to bring work-related information to job sites, and similar behavior because the employee is disabled?

The answer is no. An employer must seek suitable accommodations to enable the employee to perform the job, but the employer is not obliged by the Americans with Disabilities Act to accept inadequate performance.

TIP: Faced with a situation like this one, a careful supervisor will attempt to resolve the employee’s performance deficiencies, but should maintain a paper trail of such efforts. Such documentation will be valuable if the employee must be terminated for failure to perform.

Judge Focuses on Discussions at Trade Association Meeting

Be careful what you discuss at IDA, DASMA, and other trade association meetings.

In this case, the defendant had been accused of price fixing and market allocation. The defendant motioned to dismiss the suit, but a federal judge in Philadelphia denied the motion, saying the plaintiff’s complaint contained sufficient facts to suggest the defendant’s participation in a conspiracy to restrain trade.

One of the most critical factual allegations was that the defendant held direct discussions (with a competitor) during a trade association annual conference about the need to collaborate on price increases.

TIP: We constantly warn association members not to engage in such discussions at association meetings or elsewhere. Members should report these discussions to their bosses and lawyers so they have a record to show their refusal to participate.

Questions to Ask Before Approving Telecommuting

Employees facing higher transportation costs and desiring more flexibility in their work schedules may ask if they can work from home, i.e., telecommute. Computerworld recently compiled some essential questions for employers to consider before saying yes or no.

• How will employers and employees determine adequacy or performance?
• Will creativity, production, and collaboration (working with others) be enhanced or reduced?
• Will telecommuting by some employees impose burdens on other employees or cause resentment?
• If the employee leaves, or if the system is not working to the employer’s satisfaction, what should the strategy be to end it?

TIP: Before approving a telecommuting request, consider the ramifications. Consider security of confidential information and potential liability and worker’s compensation issues.

Do not promise that the arrangement is permanent. Some work is more readily adaptable to telecommuting than other assignments, and the same can be said for employees. If you proceed, use a trial period.

Employer’s Burden to Keep Accurate Time Records

A former employee sued an employer for failure to pay overtime. An Indiana trial court ruled against the employee, saying she was unable to identify the hours or even the days she had worked overtime.

However, a federal appellate court in Chicago reversed that ruling, saying it was the employer’s burden to keep accurate time records and had failed to do so. (The employee alleged that the employer altered employees’ time records to avoid paying overtime.) Thus, if the employer fails to keep accurate records, the employer rather than the employees should bear the consequences.

TIP: There appears to be more going on here than meets the eye. The employee claimed the employer was not only failing to pay overtime but also altering, i.e., falsifying, employees’ time records. Not smart! That can lead to sanctions a lot more severe than time-and-a-half hourly pay.

Another Use for Duct Tape

According to a recent news report, an airline crew found a new use for duct tape—restraining an out-of-control passenger in her seat after she hit a crew member and attacked a fellow passenger on a flight. Why duct tape? Ordinary restraints did not work.

Will this use end up in one of the many books suggesting both helpful and occasionally wacky ways to use duct tape? It’s one more example of innovating to address a problem when ordinary methods fail, a useful lesson in today’s business environment.

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.