There Is No List of Disabilities in the Disabilities Act

Question: Is there anywhere in the Americans With Disabilities Act a specific list of the disabilities that are covered?

--J.G.

Answer: No. The Americans With Disabilities Act defines the term “disability,” but does not provide a list of those disabilities. Indeed, when the Equal Employment Opportunity Commission issued its proposed regulations interpreting the law, it included a laundry list of conditions that would usually constitute disabilities.

However, that list was eliminated from the final regulations because, the commission concluded, some impairments may be disabling for some individuals and not others. Also, the commission explained that it would be impossible to provide a truly comprehensive list. The final regulations do, however, contain a list of conditions that are specifically excluded from coverage, such as gender identity disorders and sexual behavior disorders, along with current use of illegal drugs.

--Josephine Staton Tucker, Employment law attorney, Morrison & Foerster

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Q: Our company has a “use-it-or-lose-it” policy when it comes to accumulated vacation time. That is, you can accumulate only so much vacation time and after that you lose it. There’s no provision for taking it in cash. Is that legal?

--M.L., Cypress

A: It’s not clear from your question just what kind of vacation policy your employer has. A “use-it-or-lose-it” policy means that if you do not use your accrued vacation within a specified period of time--usually the calendar year or your anniversary year--you lose that accrued vacation not used and start accruing again at zero. This is unlawful in California.

On the other hand, it is legal in California for an employer to have a policy stating that once you reach your maximum accrual of vacation, you do not accrue any more vacation until you use some of the vacation you previously accrued. Thus, you don’t lose any of the vacation you earned, you just don’t get any more until you use some of the vacation you already have.

Moreover, there is no legal requirement that employers permit current employees to take their vacation accruals in cash. However, employers are required to pay the cash value of accrued vacation to employees who resign or are terminated.

--James J. McDonald Jr., Attorney, Fisher & Phillips, Law instructor, UC Irvine

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Q: Recently my division of a large company was sold to another company. This sale had a devastating impact on my retirement benefits, and because of this, I’ve been trying to get rehired by my original company in order to finish my career.

A manager in my original company had an open position that I was uniquely qualified for, and he was all set to hire me. However, a third-level manager in my new company, who was also part of the division sale, spread the false rumor to my prospective manager’s boss that I was a “terrible employee who had never contributed anything in all the years that I’ve known him.” The rumor was so damaging, according to my prospective manager, that it cannot be undone, and I will never be rehired by my original company.

I have a whole file full of rewards that I’ve received over the years, and I’ve always received the best reviews and raises. Dozens of people that I’ve worked with over the years can verify that I’m an excellent employee and a major contributor. Except for very recently, I have never worked for or with that high-level manager who spread the false rumor about me. In fact, we hardly know each other. Do I have any recourse?

--C.C., Westminster

A: You may have a defamation claim. Although a supervisor’s comments regarding an employee’s work performance are generally entitled to immunity from a lawsuit, the supervisor cannot make knowingly false statements. Further, your former employer may be liable if it relied on the rumor knowing it is false.

--William H. Hackel III, Employment law attorney, Spray, Gould & Bowers

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Q: Can an employer discipline or fire me if I have complained about discrimination against another employee?

--P.C., San Juan Capistrano

A: An employer cannot retaliate against an employee who has complained about workplace discrimination--whether the discrimination concerns that employee or even another employee. There can be no retaliation, such as a demotion, loss of benefits or being terminated.

The complaints need not be made to a government agency or outside the management of the employer. It is sufficient that a complaint is made to a supervisor. Thus, many employees not only have a claim for actual discrimination, but also a claim regarding retaliation because of the complaint, even if the discrimination cannot ultimately be proven. A condition to this is that the discrimination complaint must arise from a “reasonable belief.”

The problem is proving that the employee has reasonable belief of discrimination; a complaint actually was made to management, and that retaliation occurred because of the complaint. Documenting such complaints in writing is recommended. Witnesses might be able to substantiate retaliation against an employee.

The California Department of Fair Employment and Housing can help. Through the agency, or with the help of an attorney, benefits or a job can be restored and past wages recovered.

--Don D. Sessions, Employee rights attorney, Mission Viejo

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Q: I have been working for a newspaper company for about 20 years that has frequently changed owners. The new owner has decided I am no longer an independent contractor. I have carriers who work for me and I’ve been taking a mileage deduction on my taxes. Now I’m losing all this. Is there anything I can do?

--E.G., Mountain View

A: As a matter of law, probably not. An employer is free to decide to have services that were once performed for it by independent contractors now done by employees whenever it wishes, so long as in doing so it does not breach any express agreement with the contractor. Therefore, unless you have a written agreement with the newspaper company that guarantees you that the paper will use your services as an independent contractor for any specific length of time, you probably have no legal recourse against the paper for deciding that it will deal with you only as an employee.

However, there may be some practical steps you can take to protect your interests. Many employers these days are beginning to treat people who were once independent contractors as employees because of a crackdown that the Internal Revenue Service and Franchise Tax Board have been making on so-called independent contractors.

For years, many employers, for reasons of convenience, treated individuals who legally were employees as independent contractors, and failed to make appropriate tax withholding from their paychecks. Both the IRS and the state tax board have recently been challenging such arrangements and imposing significant penalties on employers who have violated the law.

In your case, however, you say that you have been employing other individuals to accomplish the delivery work that you do. That makes you look much more like a true independent contractor than most carriers, and you may want to consider trying to persuade the new owners that you truly are an independent contractor and that they should not change your status arbitrarily.

You should be aware too that merely losing your status as an independent contractor may not adversely affect your taxes. Employees who use their vehicles for their employer’s purposes are entitled to a mileage deduction the same as are independent contractors. IRS Form 2106 is commonly used for that purpose, and can be obtained from the IRS or from the local public library.

--Michael A. Hood, Employment law attorney, Paul, Hastings, Janofsky & Walker

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Q: I have worked in retail for several years. Employees were given a survey to rate the management of the store, but it was administered by the manager and done in groups of five. Therefore, the managers would be able to figure out who gave them specific ratings. As a result, employees did not give their true opinions. Is there a better way to administer these to get an unbiased survey?

--M.R., Fullerton

A: If the goal of the company is get honest feedback about manager’s performance, such surveys need to be conducted so that employees are anonymous. This would mean, for example, surveying employees as a large group, assessing their ratings of a manager collectively.

Another possibility is that the company is trying to obtain subordinate performance appraisal information on supervisors’ performance. If this is the case, then the company needs to make it clear to all workers that these surveys are actually subordinate performance assessments of their supervisors. It would not be expected that such subordinate appraisals be done anonymously.

In any case, the company needs to clearly spell out to all employees the purposes of any “surveys” that are conducted, so that the information contained will not be biased, and so that employees will take the task seriously.

--Ron Riggio, Professor of industrial psychology, Cal State Fullerton

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Q: I am a staff accountant who is considered an exempt employee. Consequently, I work a considerable amount of overtime for which I am not paid.

I recently took two days off to take the Certified Public Accountant exam. However, I made up for this time by working late on the other weekdays and also on Saturday--a total of 12 hours--all during the same week. Much to my surprise, when I received my next paycheck, I was docked the full two days with no consideration for the time that was made up.

It was always my understanding that I would at least receive my basic salary even if I missed some hours during the regular workday. Upon questioning, I was told that the company policy is that the working hours are weekdays from 8 a.m. to 5 p.m. and that if I work outside of those hours, it is considered “overtime” and because I am an exempt employee, I do not get paid for overtime. In addition to that, even if I am an exempt employee, if I do not work between 8 a.m. to 5 p.m., I do not get paid for the hours I missed.

Do they have the right to dock me, an exempt employee, for taking time off? Since I made up my work by working extra hours, do they have the right to dock me for the full two days? Should I have received pay for the full two days or at least the 12 hours that I worked to make up the time?

--G.F.

A: Many employers encounter difficulty with the proper classification of exempt employees. Generally when an employee is qualified to be paid on a exempt, salaried basis, the employee is paid for the general value of his or her services, rather than the precise amount of time spent on the job. Employers may not dock exempt employees’ pay for partial days missed.

An employee’s salary may be reduced for a full day or more for personal reasons, or when an employee is penalized for major safety infractions, or if absent for a day or more because of sickness or disability, if the deduction is in accordance with a policy or practice that provides compensation for loss of salary because of sickness or disability.

Because you are a staff accountant, there are some questions whether you meet the guidelines for a professional exemption under the federal wage and hour regulations or the state wage orders.

This exemption involves numerous factors, such as having advanced knowledge in a field. Certainly a certified public accountant meets the exemption guidelines. California wage orders do let salaries fluctuate for professionals and other exempt personnel, contrary to federal rules, as long as the minimum amount of salary is met. In California, certain professionals are not required to meet a salary test at all, so an individual could still be exempt under state requirements and not be exempt under the federal guidelines.

If the criteria for the exemption has not been satisfied, you are an hourly employee and your employer must therefore pay you for all hours worked. This includes overtime for all hours worked over eight hours in a day or more than 40 hours in a week. Indeed, you may even be entitled to back pay obligations as well.

I recommend you discuss this issue again with your employer. If you are not satisfied with the decision, you may contact the California Department of Labor Standards Enforcement for a final determination.

--Elizabeth Winfree-Lydon, Senior staff consultant, The Employers Group