© 2008 Door & Access
Publish Date: Winter 2008
Author: Tom Wadsworth
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
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
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
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
These articles are provided solely for informational
purposes and do not constitute legal advice. If you have
questions or concerns about a legal issue, consult your
company’s legal counsel for guidance.