• ADAAA Recap

    More than two years ago President Bush signed into law the ADA Amendments Act of 2008 (ADAAA), which took effect in 2010.  The purpose of the law was to overturn a series of decisions by the U.S. Supreme Court under the Americans With Disabilities Act (ADA) and effectively expanded the scope of what constitutes a “disability” under Federal law.  Many believed the amendments overly broadened the statute, while others argued the amendments merely clarified the original intent of the law that the courts had neglected.

    The law did not significantly change the requirements for California employers because California’s Fair Employment and Housing Act (FEHA) already defined “disability” more broadly than the ADA.

    Some of the major changes added by the ADAAA include:

    • Clarifying that the ADA should be interpreted in favor of “broad coverage of individuals . . . to the maximum extent permitted” by the statute.
    • The addition of other examples of “major life activities” such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
    • Clarifying that employees who are “regarded as” disabled, but are not actually disabled, are not entitled to reasonable accommodations.
    • Modifying the “regarded as” prong of the definition of disability to not apply to conditions that are “transitory” (actual or expected duration of less than 6 months) or “minor.”
    • Requiring the determination of whether an impairment substantially limits a major life activity to be made without regard to the use of mitigating measures (in other words, if the person did not take his/her medication would the individual’s medical condition substantially impair one or more life functions.

    Despite the concerns expressed when the bill was passed, I have not seen a significant increase in the number of ADA cases brought to court.  I don’t know if it is just too early to tell, or I just don’t see the difference because the requirements on California employees and employers have not drastically changed.  Although I have not seen a significant rise in disability discrimination cases, it is still a frequently misapplied area.  I probably receive more phone calls about appropriate accommodations than any other area of law, with the possible exception of wage and hour questions.  If you have a question about disability discrimination or reasonable accommodations, speak with a lawyer familiar with the employment laws before the issue becomes a problem.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Don’t Email Your Attorney From Your Work Computer!

    For years I have been advising people not to use their work computers to communicate with their attorneys.  Most companies reasonably expect you to use work equipment for work matters, not personal matters.  There are usually policies in the handbook that say the employer may monitor the employee’s emails and computer usage.  This means that if you email your attorney using a work computer the company may see the email.  A communication with the knowledge that others may or are likely to overhear the communication may not be privileged.

    Well, a California court of appeals agrees with me.  In Holmes v. Petrovich Development (CA3 C059133 1/13/11) the court held that an employee’s emails sent to her attorney using the company’s computers were not privileged.  The company’s policies said that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail.  The employee had been warned that the company would monitor its computers for compliance with the company policy and thus might “inspect all files and messages . . . at any time.” Also, the company had been explicitly advised employees that employees using company computers to create or maintain personal information or messages “have no right of privacy with respect to that information or message.”

    Based on this information the court likened the issue to an employee meeting with her attorney at the company’s offices with the door open and speaking in loud voices.

    This is not to say that email communications, just from the nature of how emails are sent and the fact that “persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication,” cannot be privileged.  It simply means that you should not use work emails to send confidential communications to your attorneys unless you want to run the risk that the company may read those emails.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.