Real Score: The Rising ADA Lawsuits

Many lawyers are beginning to notice an increase in the number of discrimination lawsuits brought up against landlords by their tenants. Most of these lawsuits are filed by disabled persons who request for reasonable accommodation.

In the article, “ADA Lawsuits Filing Appear on the Rise”, posted on September 18, 2008, this recent phenomenon was reported. The article said the rise in the lawsuits came from requests made by disabled person who mostly believed they were denied access to many public places and commercial establishments.

But requests for reasonable accommodation also applies to workplaces where discrimination is more likely prevalent.

Under the ADA, a reasonable accommodation is a means of providing assistance or making changes in the structure in the job, workplace or business place to enable a disabled worker or person to move or work. An example of this are the ramps made in building for individuals who use wheelchairs.

The law specifies how a disabled person should negotiate for an accommodation. By law, it is the employee or the disabled person’s responsibility to inform an establishment and request for an accommodation.

However, the law provides that an employer or property owner may be exempted to provide accommodation if it would cause him “undue hardship”. For instance, if the accommodation would require massive improvement that would cost a large amount or an entire business profit, then an accommodation may not be feasible.

By law, an accommodation may qualify as undue hardship depending on the following factors:

• The structure of business

• the cost of the accommodation

• the size and financial resources of your business

• the effect the accommodation would have on your business.

In the end, an accommodation may work out depending on the negotiations between the employer or property owner and the disabled person. At any rate, if one is unsure on what to do to make a request for accommodation, a legal assistance may help.

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Compensation for Missed Meal and Rest Breaks

Generally, a worker’s right to take meal and rest breaks is protected by federal and state laws. The laws make sure that an employer will provide a worker with proper rest and meal breaks; otherwise, he will be penalized for violating these provisions.

Take the case of Wal-mart as reported in the article ”Meal Breaks and Rest Breaks are Guaranteed by California Law to Employees”, posted on September 12, 2008. In this case, Wal-Mart was ordered by a California judge to pay more than $ 180 million dollars to some of its employees for off-the-clock work and missed rest breaks.

In California, most employees are allowed to take 30-minute meal breaks after a five-hour work shift, which is usually counted as time worked. In addition, an employee may also take a 10-minute rest break for every four hours worked if he works three and a half hours a day. These breaks are mandatory but may be waived in certain situations by special arrangement between an employer and the employee can be waived by the employee -- when the total workday is only 6 hours, and subject to a written agreement where the job does not permit a meal break. (California Code of Regulations, Title 8, section11040.)

In case, an employer fails to provide a worker with proper meal break, he will be compelled by law to pay one hour of the missed break at the regular rate of compensation for each workday the break was missed.

Similar to other civil litigations, a statute of limitation also applies to claims involving wages and meal and rest break violations. The state Supreme Court, in Murphy v. Kenneth Cole Productions, Inc., held that the payments made for violations of meal breaks are considered "wages" and subject to the 3-year statute of limitations for wages. The High Court also specifically held that meal premiums could go back for 3 years.

To make sure your rights are protected against violations of this nature, consulting with a credible employment and labor attorney who is knowledgeable in this area of concern would work to your advantage.

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California Combo Law for Employees’ Protection

There are at least two good employment laws, which specifically protect employees with special concerns in California. They are:

1. The Family and Medical Leave Act (FMLA)
2. The California Family Rights Act (CFRA)

The FMLA is a federal law while CFRA, needless to say, is a state law. CFRA covers employers who do business in California and employ 50 or more part-time or full time people.

Combined together, these laws protect employees by allowing eligible employees to take a paid or unpaid job-protected leave which can last up to a total of 12 weeks per calendar year.

Because of these laws, employee can take a job-protected leave provided his/her reason/s fall under any of these:
• He/she is unable to work because of a serious health condition
• To care for an immediate family member – spouse, child or parent, with a serious health condition
• There is birth in the family or adoption of a child or foster care placement of a child

Another good feature of these laws is that they provide that while an employee is on authorized leave, FMLA or CFRA, his/her dental and eye examination benefits will remain.

However, eligibility for leave under these laws must comply with the following conditions:

• he/she must have been employed for a total of 12 months
• must have physically worked 1,250 hours in the year preceding the date on which the FMLA/CFRA leave is to commence

Needless to say that any violations of these laws on the part of the employer can expose the employer to complaints from the affected employees. If denied these benefits, the employer is entitled to eventually file suit against his/her employer with the help of an employment law attorney.

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Hospitals Slapped with $25,000 Fine each

Four local hospitals in San Diego County were each slapped with a $25,000 fine by the state agency following an incident of patient falling off an operating table and anesthesia equipment problems that resulted to the patient awareness of the surgery, among others.

The news was reported online by San Diego News.

The hospitals, which have been fined with $25,000 each, include the Palomar Pomerado Hospital in Poway, Scripps Green Hospital in San Diego, La Mesa’s Sharp Grossmont Hospital and Promise Hospital which was formerly called Villa View Community Hospital.

Palomar Pomerado Health System in Poway was fined when three of its patients experienced “surgical awareness” because a staff failed to keep anesthesia in a proper condition, the California Department of Health reported.

Surgical awareness is a state wherein a patient remains partially conscious during surgery and will most probably experience a lot of pain. According to reports, a hospital staff had already questioned whether the machine was functioning properly but they continued to use it anyway. The machine was pulled out only after one of the patients complained.

At Scripps Green Hospital in San Diego, a patient, as earlier mentioned fell off an operating table during surgery after a staff failed to properly restrained the patient and placed a slippery plastic biohazard bag on the mattress, while at Promise Hospital, an unlicensed staff person acted as a licensed nurse.

The worst occurred at Grossmont Hospital in La Mesa when a patient died after a staff failed to activate a stationary ventilator during a transfer.

All were fined $25,000 as part of government measures in “ensuring all Californians receive quality patient care.” Aside from this four, fines were levied against a total of 18 hospitals statewide for multiple violations – for “incidents that caused, or were likely to cause, serious injury or death to patients,” the DPH said.

Besides these fines, victims of these negligence and recklessness may institute actions for negligent torts or medical malpractice suits. To the victims and the family of victims of these four and other 18 hospitals who have been harmed further, instead of being taken cared of, the law allows you to go after those who are responsible for the injury or even after the hospital itself.

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