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 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.