Employment Law and Business/Civil Litigation

Family Medical Leave Act (FMLA)

In 1993, Congress enacted the Family Medical Leave Act ("FMLA" or "Act") to ease threats to and concerns over job security and family stability by providing mandatory unpaid leave. While the law provides protection to all classes of persons on an equal basis, the driving force of the law was to eliminate gender-based bias, discrimination and stereotyping associated with medical and family leaves of absence and to provide economic security and family stability.

Generally, all employers who employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year are covered by the Act. Note that while an employer may have fewer than 50 employees at a particular worksite, if the total number of employees working for an employer within 75 miles of the worksite equals or exceeds 50, then its employees are protected by the Act. Also, where separate entities have a high degree of common ownership or financial control and are commonly managed and operationally interrelated with centralized labor relations, the Act and its implementing regulations deem the businesses a single "integrated employer" in determining the number of employees of the "integrated employer." A "joint employment" relationship can also give rise to FMLA liability to the "primary employer" exercising the lion-share of control over the employment of an individual providing services that simultaneously benefit two or more employers. With certain very limited exceptions and limitations, any employee who has been employed for at least 12 months with at least 1,250 hours of service with a particular employer during the previous 12-month period is entitled to leave under the Act.

Americans with Disabilities Act (ADA)

On January 8, 2002, the United States Supreme Court entered its opinion in Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), a decision that clarifies the application and effect of the legal standard set out in the ADA for assessing whether an individual is substantially limited in performing manual tasks by the condition known as carpal tunnel syndrome. A lower court used the wrong legal standard for determining disability status in ruling that the Plaintiff, an assembly-line worker affected by carpal tunnel syndrome was disabled under the ADA. The lower court erred in its decision by focusing on occupation-specific tasks of repetitive work with hands and arms extended at or above shoulder levels for extended periods (not an important part of most peoples' daily lives) to grant Plaintiff's motion for summary judgment on the issue of disability. The lower court disregarded Plaintiff's ability to perform household chores, bathe, and brush teeth, all of which are centrally important to peoples' daily lives. The Supreme Court reversed and remanded the lower court decision, ruling that in order to prove disability status in performing manual tasks, a plaintiff must demonstrate not that the disability involves a class of manual activities and that those activities affect the ability to perform tasks at work, rather that the Plaintiff is unable to perform the variety of tasks central to most peoples' daily lives.

While some say this decision further limits the range of conditions afforded disability status protection under the ADA, others believe this decision opens the door of ADA protection to those individuals suffering from conditions not traditionally considered disabilities but that nonetheless substantially limit the individual's ability to perform major life activities as compared to the general population. Whether you are an employer or an employee, the Toyota decision seems to follow the trend of recent decisions redirecting the focus of protections under the ADA to a limited number of individuals with real disabilities as was the intent of Congress in enacting The Americans with Disabilities Act in 1990. The primary question in determining the merit of disability discrimination cases will continue to be whether the individual's condition substantially limits the individual's ability to perform those activities central to everyday life and will require analysis on a case-by-case basis.

What is the ADA and what does it do?
In 1990, Congress enacted the Americans with Disabilities Act (ADA), prohibiting discrimination against a qualified individual with a disability. The ADA requires employers to make reasonable accommodation to qualified individuals with disabilities, so long as the accommodation does not cause undue hardship on the employer. Discrimination is prohibited in employment, public accommodations, public services, transportation, and telecommunication.

Is the employer covered by the ADA?
The prohibitions of the ADA are wide reaching and apply to all private entities and state government employers with 15 or more employees.

The ADA also applies to private entities and state and local governments, that provide "public transportation" or "public goods, benefits, services, facilities, privileges, advantages, or accommodations," and to common carries involved in interstate commerce for the purpose of ensuring and establishing telecommunications relay systems for the speech and hearing impaired.

Who is a qualified individual with a disability?
The ADA defines a qualified individual with a disability as an individual with a physical or mental impairment (any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of several body systems (neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genitourinary; hemic and lymphatic; skin; and endocrine) or any mental or psychological disorder, that substantially limits one or more of the major life activities of such individual, who, with or without reasonable accommodation, can perform the essential functions of the employment position the individual holds or desires. A qualified individual with a disability is also an individual who has an established record of impairment or is otherwise regarded as having an impairment.

What are major life activities?
Major life activities are those activities that are of central importance to daily life. Examples of major life activities are sitting, walking, standing, seeing, hearing, speaking, combing hair, brushing teeth, bathing, eating, breathing and caring for oneself.

Is the employee substantially limited in one or more major life activities such as to give rise to the protections and prohibitions of the ADA?
If the employee is unable to perform a major life activity that the average person in the general population can perform; or is significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity, the employee is substantially limited. The impact of the impairment must be permanent or long-term, not temporary.
If you are an employee or an employer with questions about employment discrimination or other legal matters, please call to schedule an appointment with an attorney without delay to discuss your legal rights and the remedies available to you.

Legal Representation in Employment Issues

Is my employer violating my legal or civil rights under current employment law? What is wrongful termination? I need to terminate an underperforming employee, but, in today's litigious society, I am afraid of being sued. How do I protect my company?

These questions must be answered on a case-by-case basis depending on the surrounding facts and circumstances. Hilburn & Hilburn offers a reasonable flat fee, half-hour initial client consultation to briefly review and discuss your situation with the goal of giving you a basic overview of your rights under current employment law to assist you determining whether further action or representation is warranted. During the initial consultation, an attorney will (1) listen to your problem; using proven interview techniques to quickly develop and discuss the key facts and documents (employer-employee communications, contracts, policies and procedures, handbooks, collective bargaining agreements and other documents), (2) explain relevant statutes and regulations to give you an overview of employment law and its application to your situation, and (3) analyze and discuss potential claims, causes of action, non-litigation remedies and resolutions and other options that may be available to you for achieving the results you desire. Should your situation require more in-depth analysis, research or further representation, we will advise you of anticipated costs and potential problems and provide you an initial assessment of the best course of action and likely outcome. Some labor and employment inquiries qualify for reduced rate or free initial consultations. We welcome your call for more details or to schedule a consultation.

Our firm handles a variety of labor and employment law matters for employers and employees based on:

• Wrongful Termination
• Employment Discrimination
• Civil Rights
• Sexual Harassment
• Gender Discrimination
• Pregnancy Discrimination (Pregnancy Discrimination Act, PDA)
• Disability Discrimination (Americans with Disability Act, ADA)
• Age Discrimination (Age Discrimination in Employment Act, ADEA)
• Minimum Wage and Overtime (Fair Labor Standards Act, FLSA)
• Occupational Safety and Health (Occupational Safety and Health Act, OSHA)
• Retirement Benefits (Employee Retirement Income Security Act, ERISA)
• Labor Union, Collective Bargaining Agreement and Fair Representation
• Breach of Contract, Employment Agreements
• Non-compete, Non-solicitation, Anti-raiding, Restrictive Covenants
• Non-subscriber and Third-party Liability Injured Worker Claims
• Other illegal and unfair employment practice claims

Personal Injury Law

Do I need a lawyer for my personal injury claim?
Whether you need a lawyer depends largely on the extent of your injuries and damages and whether the liability facts are in dispute. We receive many calls where there is only minimal damage to property or where the claimant has already received a reasonable settlement offer from the party at fault. Many of these cases only warrant a brief discussion of the facts and legal issues involved to determine whether legal representation may result in a greater recovery. However, where the injuries or damages are more severe, it is unlikely the responsible party or the insurance company will offer you a settlement that fairly and adequately compensates you for your losses without a bit of pressure from an attorney on your side. In these cases, you may find that legal representation will relieve you from the burden and stress of dealing with unfriendly or unscrupulous insurance company representatives whose job it is to protect the insurance company's reserves, not pay claims. It is these more serious claims where framing the facts and legal issues in the light most favorable to you is of utmost importance and gives you the full benefit of experienced negotiation strategies and techniques and the satisfaction of knowing you obtained the results you deserve. We encourage you to call Hilburn & Hilburn to discuss your claim.

What happens when I call Hilburn & Hilburn about my personal injury matter?
Upon receiving your call we will conduct a brief, courteous interview to collect basic information concerning the basic liability facts on which your claim is based and the nature and extent of your injuries and damages. Next, an experienced attorney will carefully review the liability facts, injuries and damages to determine whether your claim warrants further investigations or analysis before representation begins. If you are comfortable with our firm and your case is selected for representation by the firm, you will be notified via telephone and in writing, and you will be provided with a written fee agreement explaining the nature and scope of our representation and how attorney fees will be calculated and charged. Plaintiff matters are typically taken on a contingent fee basis with the contingent fee agreement clearly explaining how the firm will deduct reasonable fees (generally 35% of recovery) and expenses only from funds recovered by settlement or award. If no recovery is made, you owe nothing. Defensive representation is typically on an hourly fee basis.

If your case is rejected, we give special care and attention in directing you to another qualified attorney, or otherwise in providing you with options for resolving your claim without the assistance of this firm. Just as you carefully consider and choose which firm will represent you in your most important legal affairs, this firm takes seriously its decision to represent you in your personal injury claim. Our decision to take your case and to continue to represent you will be based primarily on following five factors: (1) whether the liability facts are or can be fully developed to establish liability under the law, (2) whether the medical treatment you received and charges you incurred were necessary, reasonable and related to the incident for which you claim damages, (3) whether the damages you claim can be supported and proved with reasonable certainty, (4) whether the damages are sufficient to result in a recovery that will compensate you for your injuries and damages after payment of all related medical bills, attorney fees, costs, and expenses and (5) whether there exists an identifiable source for recovery with sufficient assets to pay a judgment such as a solvent at fault third-party tortfeasor or insurance carrier.

We are ready to discuss your claim and to answer any questions concerning our representation. There is no charge for the initial consultation. We welcome your call.