Monthly Archives: March 2011

March 21, 2011


By John M. Husband and Bradford J. Williams

After two decades of fairly predictable defense verdicts premised upon threshold coverage issues under the Americans with Disabilities Act (“ADA”), the Americans with Disabilities Amendments Act of 2008 (“ADAAA”) has upended the playing field.  With the ADAAA, proposed regulations, and emergent case law now defining “disability” into virtual irrelevance, the battleground for disability discrimination claims has shifted to the issues of: (1) “qualified individual” with a disability; (2) “reasonable accommodation” and “undue hardship;” and (3) the motivation behind challenged employment actions.

A recent paper prepared for the American Bar Association’s 4th Annual Section of Labor & Employment Law Conference by Holland & Hart attorneys John M. Husband and Bradford J. Williams outlines the nature and scope of the ADA’s coverage and protections; surveys changes made by the ADAAA, proposed regulations, and emergent case law; and describes innovative methods employers are using to facilitate the interactive process.  The paper also highlights specific coverage and accommodation issues arising in the context of mental impairments.

To read the paper, please visit:

For more information about the authors, please visit:  John Husband or Bradford J. Williams

March 16, 2011

Hiring Mistakes

Over the years, I have heard a familiar theme from clients who face lawsuits filed by former employees.  Many have expressed to me that the biggest mistake made was hiring the employee in the first place.  While this may be a true expression of a client's feelings, usually there are a lot of mistakes that were made during the tenure of the employee.  Nevertheless, I have looked at the hiring process in a number of cases.  I believe with greater focus, a business can increase the likelihood of success in hiring by being aware of certain mistakes.  Recently, my colleague Joe Neguse and I did a webinar for  An article summarizing that presentation, authored by Patrick Mayock from, can be found by following this link:

For more information, feel free to reach out to me Steven M. Gutierrez or Joseph D. Neguse

March 16, 2011

Holland & Hart Attorneys Gutierrez and Neguse Featured on

Holland & Hart attorneys Steven Gutierrez and Joseph Neguse recently presented at a webinar sponsored by regarding mistakes made in the hiring process by the hotel industry. 

A summary of their presentation is featured in an article written by Patrick Maycock on the website  A link to the article is available by clicking on 9 hotel hiring mistakes (and how to avoid them).  Although the presentation focused on the hotel industry, we believe that the hiring mistakes featured in Mr. Maycock's article are applicable to employers in any industry. 

More information about Holland & Hart's labor and employment group is available here.

March 11, 2011

Employer Liability Expanded in Cases Involving Discrimination Against Military Personnel

by Pam S. Howland

In a recent opinion issued earlier this month, Staub v. Proctor Hospital, 2011 WL 691244 (U.S. 2011), the United States Supreme Court opened the door for an increased number of discrimination lawsuits based on USERRA (Uniformed Services Employment and Reemployment Rights Act).  Vincent Staub was a member of the U.S. Army Reserve and was required to attend drill one weekend per month and to train full time for 2-3 weeks per year.  Staub claimed that his immediate supervisor and her boss were hostile toward his military obligations and made a variety of unfounded complaints against him which made it into his personnel file.  Although Staub complained to HR that he was being discriminated against on the basis of his military status, HR did not investigate his complaint.  Instead, the Vice President of Human Resources terminated him, based at least in part on her review of the negative content within his personnel file.  Staub sued his employer under the USERRA arguing that his discharge was motivated by his supervisors who disapproved of and were hostile toward his obligations as a military reservist.  A jury agreed and awarded him damages. 

On appeal, Staub’s employer argued that it should not be held liable when those who were biased against Staub did not make the ultimate termination decision.  It argued that the technical decision-maker must be motivated by discriminatory animus before the employer can be held liable.  The Supreme Court disagreed.  It noted that the “employer’s authority to reward, punish or dismiss is often allocated among multiple agents.  The one who makes the ultimate decision does so on the basis of the performance assessments by other supervisors.”  It held that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”


This pro-employee decision reinforces the importance of sound human resource policies and practices.  For example, it shows how key it is for employers to document poor performance, violations of company rules or policies, or other conduct that leads to legitimate discharge decisions.  It also reinforces the importance of conducting an objective investigation when complaints are made of workplace discrimination.  Finally, it is more important than ever for employees involved in disciplinary or termination decisions – regardless of their placement within the chain of decision-makers – to know, to understand, and to follow the laws that prohibit work place discrimination.  These same employees must understand that discriminatory conduct on their part can lead to employer liability – even when the ultimate discharge decision is made by someone else.  

March 4, 2011

Avoiding Policy or Reimbursement Liability for Unemployment Benefits

by A. Dean Bennett

To determine whether a former employee is eligible for unemployment benefits, the State of Idaho applies the “standard of behavior test.”  Under this test, an employer can contest a former employee’s claim to unemployment benefits if it can show:  “(1) the employee’s conduct fell below the standard of behavior expected by the employer; and (2) the employer’s expectations were objectively reasonable under the circumstances.” 

But practically, how does the State apply the test, and how can employers make sure that under-performing employees do not continue to cost the employer money—even after being terminated?  The Idaho Supreme Court recently addressed the standard, and gave employers some helpful guidance.  See Adams v. Aspen Water, Inc., No. 36501, 2011 WL 322362 (Idaho Feb. 3, 2011). 

The Court hurried past the first prong of the test, labeling it “subjective.”  Whether an employee’s conduct falls below the standard of behavior expected by an employer is determined only by what the employer expected of the employee.  Were the “standard of behavior test” limited to the first prong, no employer would ever lose a case contesting a claim for unemployment benefits. 

The second prong of the test, however, is objective.  Whether the employer’s expectations were objectively reasonable under the circumstances will likely turn on whether the employer communicated its expectations to the employee.  The Court noted that it will sometimes recognize uncommunicated expectations as reasonable if they “flow naturally from the employment relationship.” But the safer route, and the route that will avoid protracted litigation and the associated costs, is for the employer to expressly communicate its expectations to the employee. 

As with most liability-limiting advice—get it in writing.  The best way to communicate employer expectations is through a written job description and/or an employment policy manual setting forth expectations for employee conduct.  If an employee fails to meet the written expectations, the employer will be in a position to quickly and effectively contest an unemployment claim.

March 2, 2011


By Pam Howland

        Chances are, you have heard the shocking statistics: over 23 million Americans (one in ten U.S. adults) suffer from some form of diabetes.  Fast forward to 2050, and as many as 1 in 3 adults are predicted to suffer from Type II diabetes alone.  In fact, the odds are high that you already employ individuals diagnosed with diabetes and that you have customers who grapple with this disease on a daily basis.  As a club manager, if you have not taken the time to familiarize yourself with this chronic disease and the impacts it may have on your customers, employees, and your business, then now is the time.

        The first step is to gain a basic understanding of diabetes, such as the differences between Type I and Type II diabetes and the basic implications that follow from each.  Although Type I and Type II vary significantly from each other, both relate to the body’s production and use of insulin, a hormone needed to convert sugar, starches and other food into energy needed for daily life. 

          Ninety to ninety-five percent of diabetes cases are Type 2.  Type 2 results from insulin resistance where the body fails to use insulin combined with a relative insulin deficiency.  Obesity is considered to be a major risk factor for Type 2, although many people who suffer from Type 2 are not overweight.  Exercise, diet and medication can help prevent the condition and, in some cases, can treat it once it develops.  Although some type 2 diabetics require insulin, many do not and are able to treat their condition with diet and oral medications.

          Type I, on the other hand, results from the body’s failure to produce any insulin at all.  This condition is an autoimmune disorder, resulting when the body attacks itself and destroys the insulin-creating cells in the pancreas.  Type I, which is sometimes referred to juvenile diabetes, is frequently present from childhood and people who suffer from it need insulin to live.  People with Type I receive insulin by injection or through an insulin pump attached to their body.  There is currently no cure or oral medication available for people who suffer from Type I diabetes.

          With both Type I and Type II diabetes, there is an increased risk for life-threatening complications such as heart disease, stroke, high blood pressure, blindness, kidney disease, nervous system disease, amputations, dental disease, complications of pregnancy, and sexual dysfunction.  On top of these long-term risks, those diabetics who are insulin-dependent must engage in a daily battle to keep their blood sugar levels balanced.  Failure to do so can, in extreme cases, result in loss of consciousness, stroke, or seizure.

         With every diabetic, their lifestyle is impacted to a certain degree.  For Type I diabetics, their blood sugar must be monitored at various points during the day by poking their finger with a lancet.  In addition, insulin must be taken with meals (and throughout other times of the day) in order to avoid high blood sugar levels.  Snacks must also be eaten at certain intervals in order to keep insulin levels balanced and to avoid low blood sugar levels.  Although low blood sugar levels are serious, they can usually be treated by food or drink which can usually correct the low blood sugar level within a matter of minutes.

         Obviously, the continual treatment and monitoring required of diabetics must be performed regardless of whether the diabetic is at home, out and about in the community, or at work, which leads us to the issue of diabetes in the work place, how it is regarded in the law, and how it can affect you, as a club manager.

        First, it is important to understand that diabetics successfully perform a wide array of jobs, ranging from high level management positions to jobs involving the public safety.  The American Diabetes Association has issued the following position statement:

        Any person with diabetes, whether insulin [treated] or non-insulin [treated] should be eligible for any employment for which he/she is otherwise qualified.

         Indeed, you may well have employees currently working for you who are diabetic.  Accordingly, it is important for employers to educate themselves on this disease in order to avoid perpetuating untruthful myths, fears, or stereotypes or to otherwise promote practices that categorically exclude people with diabetes from certain jobs.

         This is especially important  in light of the 2009 Americans with Disabilities Amendments Act (“ADAAA”), which expanded protection for those with disabilities, including diabetics.  Diabetes is now listed as a per se disability afforded protection. 

        Thus, discrimination based upon diabetes is not only a bad business practice but is also an unlawful one that could expose your business to significant liability.  

        As an employer, this means that if an employee is diabetic, they are likely entitled to certain reasonable accommodations.  Examples of reasonable accommodations for diabetics include the provision of a time and place for them to test their blood sugar levels and/or to receive insulin injections, the ability to take a meal or snack break in order to maintain blood sugar levels, and the ability to rest or recover from low blood sugar levels.  As you can see, many of these accommodations come at no cost to the employer, and are likely relatively easy to implement.  This is by no means an exclusive list — accommodations depend, of course, on the needs of the individual.  What’s key to remember is that the impact of diabetes on any individual is unique and that every diabetic’s needs and experience is likely to be different. 

        Until a cure for diabetes is found, successful business owners will make every effort to understand this disease, quash myths and stereotypes related to it, and learn how it can impact their employees and customers alike. Savvy business owners may even take this a step further to ensure that their club services meet the needs of their diabetic employees and customers.  For example, do food service options include low carbohydrate snacks needed by diabetics to maintain blood sugars between meals?  Do you provide healthy menu items often required by Type II diabetics who are sometimes able to control their disease, in part, by eating healthy meals?  To learn more about diabetes and the impacts it can have on your customers and employees, visit the American Diabetes Association at