Legal actions filed in September of 2023 shed light on the limits of reasonable accommodations in the workplace in the areas of workplace testing and remote work, and a national pizza chain is accused of short-changing its drivers. Read all about it in this month’s update.
Walmart Test Ruling Out Workers Discriminated Against Disabled Workers According to New EEOC Complaint
Walmart is facing legal trouble as the U.S. Equal Employment Opportunity Commission (EEOC) filed a complaint in an Arkansas federal court, alleging the retail giant of discriminating against employees with disabilities. The EEOC contends that Walmart wrongfully utilized a training test, the Pathways Graduation Assessment, to disqualify workers with disabilities who were fully capable of performing their job duties. The assessment was described as a “self-administered, computer-based knowledge assessment and was required for all entry-level store associates in 31 positions nation-wide”, and purportedly assesses an employee’s knowledge of customer service, inventory essentials, retail fundamentals, and merchandising.
The lawsuit, filed on behalf of former employees Glenda Scott and Jaclyn Walker, as well as a class of unnamed plaintiffs, claims that the assessment was biased against individuals with disabilities, denying them reasonable accommodations and resulting in terminations for those who failed. Walmart implemented this requirement in 2015, later reducing the number of questions in 2018 but maintaining a pass rate requirement of at least 70% after three attempts.
The EEOC asserts that Walmart violated the Americans with Disabilities Act by terminating employees who could perform their job’s essential functions, citing examples of individuals who were terminated for not passing the test despite otherwise having no job performance problems. The lawsuit seeks damages, back pay, reinstatement for wrongfully terminated employees, and a permanent injunction to prevent discriminatory practices. This legal battle highlights the importance of employers not losing sight of whether employees can perform essential functions of jobs when implementing testing and screening mechanisms for their workforce.
Remote Work for School Principal Deemed Not to Be A Reasonable ADA Accommodation Where Physical Presence Is Essential
In a recent case, Jordan v. School Board of the City of Norfolk, the U.S. District Court for the Eastern District of Virginia ruled against a school principal who sought remote work as a reasonable accommodation for her asthma and restrictive lung disease, which she claimed were worsened by the poor condition of the school building. The court found in favor of the school board, emphasizing that physical presence in the school was an essential function of her job as an elementary school principal.
During the COVID-19 pandemic, the principal had been allowed to work primarily from home, but as students returned to in-person learning, she requested to continue remote work under the Americans with Disabilities Act (ADA). The school district denied her request, citing the essential nature of her job requiring her presence in the school building.
This case highlights post-pandemic considerations for employers facing accommodation requests for remote work under the ADA. Employers should update policies to reflect their current practices, especially regarding in-office presence expectations. Additionally, having well-defined job descriptions can help establish the essential functions of a position, ensuring compliance with ADA requirements while meeting the needs of both employers and employees.
Domino’s Franchises Paying 35 Cents-Per-Mile Allegedly Violates Minimum Wage Laws
Domino’s Pizza franchises in Massachusetts are facing a proposed class-action lawsuit for allegedly underpaying delivery drivers, paying them only 35 cents per mile for their mileage expenses. The lawsuit, filed in federal court, claims that this reimbursement rate effectively reduced drivers’ wages to below the federal minimum wage, violating the Fair Labor Standards Act.
The plaintiff, Brian Kingham, who worked as a delivery driver for these franchises, argued that the low reimbursement rate failed to cover the actual costs of owning and operating a vehicle, including gas, maintenance, insurance, and depreciation. During the period covered by the complaint, the IRS allowed a higher reimbursement rate of 54 to 58 cents per mile. Moreover, industry estimates, including those from the American Automobile Association, suggest that the true cost of driving can be as high as 60 cents per mile, accounting for factors like wear and tear from delivery driving.
Kingham’s lawsuit asserts that the franchise’s reimbursement rate left drivers earning less than the federal minimum wage and essentially subsidizing the company. The complaint alleges that these low reimbursement rates were a frequent concern among drivers, and at times, the company refused to pay any mileage credit, suggesting willful non-compliance with labor standards.
Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment. Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.