Washington Times (06/01/12) Luke Rosiak

Federal records indicate that the number of employment discrimination lawsuits under the Americans With Disabilities Act has nearly doubled in the past five years, and seen a sharp increase in recent months, as the definition of “disability” has expanded. The increase follows changes to the law in 2008, when Congress said that courts had interpreted the definition of “disability” more narrowly than it desired.

In the last fiscal year, disability-related complaints lodged with the U.S. Equal Employment Opportunity Commission also increased to their highest level, at 26,000, and payouts to complainants through that process nearly doubled from 2007 to $103 million. That does not include money paid out to those who took their complaints to court. The increase also comes as federal agencies have added more stringent requirements for disability accommodation and offered expanded interpretations of what it means to be disabled. “Employers are facing a barrage of frivolous cases, and each one costs $30-, $40-, $50,000,” says Mike Eastman, executive director of labor policy at the U.S. Chamber of Commerce.

Fisher & Phillips LLP (05/28/12) John E. Thompson

In a “9/80” pay plan, the workweek and nonexempt employee schedule under the federal Fair Labor Standards Act is compressed so that employees work nine days in a two workweek period but not more than 40 hours in either workweek. Generally, nonexempt employees will work four nine-hour days; an eight-hour day divided in half, with the first four hours ending the first workweek at mid-day; and then another four nine-hour days to finish the second workweek. Employers do not have to pay overtime under the FLSA for either workweek if the employee adheres to this schedule, but overtime pay would be due to any nonexempt employee who works more than 40 hours in either workweek. Employers altering the FLSA workweek to implement 9/80 plans would be wise to use a U.S. Department of Labor protocol to determine whether employees are owed FLSA overtime for the pay period in which the changes were made.

SHRM Online (05/24/12) W. Kevin Smith

The Sixth U.S. Circuit Court of Appeals recently ruled that where an employer had a good-faith belief that an employee out on leave pursuant to the Family and Medical Leave Act was engaged in disability fraud, the trial court properly dismissed the employee’s retaliation claim. The employee, who worked for the Cincinnati Bell Telephone Co., felt pain and numbness in his leg, and took an extended FMLA leave. While on leave, the employee received disability pay under a Cincinnati Bell policy.

After the employee was seen walking separately by several co-workers at a public event, Cincinnati Bell management initiated an investigation into his medical condition. The results of the investigation suggested that the employee’s claims of pain were inconsistent with his actions. Consequently, the employee was suspended and later discharged for overstating his pain level so as to avoid light-duty work, and thus obtain full disability benefits. In response, the employee sued Cincinnati Bell, asserting that his discharge was in retaliation for taking FMLA leave. The district court granted summary judgment to Cincinnati Bell.

Pittsburgh Post-Gazette (06/01/12) Anna Orso

A survey by the National Association of Colleges and Employers indicates that internship hires will rise 8.5% from last year, when just under 50% of internships were unpaid. Although more college graduates and current students are willing to accept unpaid internships to obtain experience at a time when the unemployment rate for the 20-24 age segment is about 13%, experts note that some unpaid internships could violate federal law.

Under the Fair Labor Standards Act, unpaid internships must be similar to training and benefit interns; cannot displace regular positions, be immediately advantageous to employers, or guarantee job offers; and must involve a mutual assumption by the employer and the intern that the position is unpaid. Much of the dispute over unpaid internships centers on whether employers receive “immediate advantages,” which is interpreted differently by government officials, employers, and attorneys. To ensure compliance, some experts say employers should pay interns the minimum wage, protecting themselves in the event that the work is seen as advantageous to the employer.