The U.S. District Court for the Eastern District of Pennsylvania threw attorneys a curve ball in its recent decision in Mengel v. Reading Eagle Co., by finding that the plaintiff’s partial deafness was not a protected disability under the ADA.

Christine Mengel was employed as a copy writer and page designer at Reading Eagle since 1999. Ms. Mengel became totally deaf in one ear following a surgery to remove a brain tumor in November 2007. The partial deafness caused her to have balance problems and difficulty concentrating. Reading Eagle was aware of Ms. Mengel’s hearing problems. Ms. Mengel, however, continued to perform her job functions without accommodation.

In January 2009, Reading Eagle reduced its workforce, and terminated Ms. Mengel in April 2009. She filed a complaint with the EEOC for, among other things, disability discrimination. Ms. Mengel claimed that she was included in the workforce reduction due to her alleged disability - deafness in one ear. The District Court dismissed Ms. Mengel’s complaint at summary judgment, holding that she failed to present prima facie evidence that she was disabled under the ADA.

The District Court recognized that hearing is a major life activity and bilateral hearing loss is an ADA-protected disability. The District Court found, however, that Ms. Mengel failed to demonstrate that deafness in just one ear substantially limited her hearing. The evidence indicated that the partial deafness was only a “distraction” to Ms. Mengel and she had no specific problems resulting from the impairment, with the exception that she “didn’t hear some things.” Although her employer was aware of her impairment, there was no evidence of a causal link between her condition and her termination. The District Court pointed to the 18 month time period between the surgery and her termination, noting that Ms. Mengel continued to work and obtain satisfactory reviews even after the condition arose.

In this matter, the District Court looked critically to whether a subset of an otherwise protected disability also received protected status, and found that it did not. Notably, this court did not draw a hard line with respect to partial deafness, but confirmed that it is the employee’s burden to demonstrate that their claimed impairment substantially limits a major life activity.

The ADA Amendments Act of 2008 mandated that the definition of “disability” be broadly interpreted, thus making it easier for an employee seeking protection under the ADA to establish that she has a qualifying disability. In the post-Amendments world, employers and courts spent little time analyzing whether an alleged impairment fell within the ADA definition of disability. This case is significant as it brings the definition of disability back into play.
The take away from the Mengel case is that even after the Amendments to the ADA, courts are still willing to review the merits of a disability claim. This case does not invite employers to cease assessing employees’ alleged disabilities or refuse to engage in the interactive process to determine whether a reasonable accommodation should be offered where warranted. However, the Mengel court alerts employers to continue to analyze whether the claimed impairment is protected disability under the ADA. Similarly, where litigation has arisen, employers should keep this argument in its arsenal. The message for employees is one of caution – simply claiming an impairment is protected by the ADA is not enough without evidence that it substantially limits a major life activity. Employers should always consult with experienced legal counsel before taking any adverse employment action against an employee who has alleged a disability under the ADA.

Although the case this entry addresses comes to us from the U.S. District Court of South Dakota, it holds a valuable lesson for all employers - what an employer may consider an “informal” communication with its employees may well constitute a legally binding contract.

In Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (Dec. 14, 2012), the NLRB released its first decision to examine protected, concerted activity involving Facebook. By a 3-1 vote, the Board held that the non-union employer committed an unfair labor practice by discharging five employees for responding to another employee’s criticism of their work performance on Facebook. The majority of the Board found that comments posted on Facebook are protected in the same manner and to the same extent as comments made at the "water cooler." “Although the employees’ mode of communicating their workplace concerns might be novel,” the Board concluded this activity was for “mutual aid or protection” within the meaning of Section 7 of the National Labor Relations Act (“NLRA”). The discharged employees received full reinstatement and backpay.

December may be the season of joy for those celebrating at office holiday parties, but January is the season of joy for plaintiff lawyers celebrating the influx of lawsuits resulting from those parties. The key point for employers to remember is that holiday parties – no matter where they are located - are an extension of the workplace. Here are five practical suggestions for employers to limit their liability without sacrificing a merry celebration.

In 2012, the NLRB’s General Counsel’s office has been keeping employers with non-unionized workforces on their toes by expanding the reach of Section 7 of the National Labor Relations Act (“NLRA”) to non-unionized workers to address issues ranging from at-will agreements to social media policies to employer property rights and employee access. As a result of this infringement into the non-unionized workforce, we are seeing an increase in challenges to employer handbook policies under the NLRA. The first step for employers to protect themselves is to ensure that their policies are complaint with the recent rulings under the NLRA.

The “unlawful” workplace policies addressed by the NLRB’s General Counsel’s office in 2012 include:

On October 12, 2012, nine legal and workers’ rights organizations urged the Court of Appeals for the Second Circuit to label John Catsimatidis, the owner and CEO of New York City grocery chain Gristedes Foods Inc., an “employer” under the Fair Labor Standards Act (“FLSA”) which would make him personally, jointly and severally liable for a $3.5 million overtime class action settlement.

On October 1, 2012, a decision issued by the National Labor Relations Board (NLRB), which is an agency of the United States Government charged with remedying unfair labor practices, upheld the termination of a BMW salesman for postings made to his Facebook page. In the case of Karl Knauz Motors, Inc., NLRB ALJ, No. 13-CA-46452, 9/28/11, administrative law judge Joel P. Biblowitz found that a BMW salesman engaged in unprotected activity when he posted disparaging comments and photographs regarding an accident which occurred at an employer owned neighboring Land Rover dealership on his Facebook page.

Many employers learned the hard way from the fury of Hurricane Irene in 2011 that hurricanes can present unique challenges for employers. Prudent employers should update your emergency plans to ensure not only the continuity of your operations and employee safety, but also potential legal issues that could arise as the result of a natural disaster. This blog entry is intended to acquaint you with at least some of the Federal and State employment-related laws that may be implicated. Note that the issues discussed below apply to any natural disaster situation, such as flood, fire, blizzard snowfall, earthquake etc.

In order for an employer to protect their confidential business information, including client contacts, it is often advisable for an employer to require employees to enter into an employment agreement containing a restrictive covenant. Such an agreement should be presented to the employee by the employer at the beginning of the employment relationship. However, in order for the restrictive covenant to be enforceable the employer must be certain that the terms of the restrictive covenant are reasonable. That is, the employment agreement must be specifically drafted to be reasonable in accordance with established New Jersey law.

Your most important business asset is that which sets you apart from your competitors. If that asset is protectable, confidential information and/or a "trade secret," reviewing and analyzing recently-passed NJ legislation is required reading. The State Assembly has given final legislative approval to the New Jersey Trade Secrets Act leaving only final approval by Gov. Chris Christie before enactment. If passed, there may be significant implications for employers who possess information protected under the Trade Secrets Act. This warrants review of any current employment agreements or restrictive covenants currently in place for revision. Likewise, employers should consider entering into such agreements with employees if no such agreements are in place. As a starting point, employers need to review any existing agreements which define the term “trade secret” to confirm that it is consistent with the definition under the Trade Secrets Act. In addition, employers should consider alerting employees to the consequences of misappropriation of the employer’s trade secret which under the Trade Secrets Act include the entry of injunctive relief, imposition of punitive damages and an award of costs and attorney’s fees. Furthermore, employers need to be aware that an action for misappropriation of a trade secret against an employee, under the Trade Secrets Act, must be brought within three years after the misappropriation is discovered. Passage of the New Jersey Trade Secrets Act will create a statutory right for employers where only case law has existed to date. We at Hill Wallack stand ready to assist with any questions and assistance needed in view of this new legislation.