ADA's "Disabled" Definition Broadens
The first substantive changes to the 19-year-old Americans With Disabilities Act went into effect on the first day of 2009, significantly increasing the number of workers who can be considered disabled. The first section of the law names a U.S. Supreme Court ruling that the bill's authors said "narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect." These Web sites discuss the effects of the new law.
Connecticut Employment Law Blog
A search for "ADA Amendments" on this site yields several results, including an article titled "What Employers Need to Know About the ADA Amendments Act of 2008." Daniel A. Schwartz of Pullman & Comley in Hartford has put together a list of questions and answers providing a look at how the amendments will affect employers and workers. The questions address the definition of "major life activity," what should be done about mitigating measures and the "regarded as" provision in the new law.
DBTAC Southwest ADA Center
This site is maintained by an organization that bills itself as "the Southwest's leading resource on the Americans With Disabilities Act and related disability rights laws." In this article, Jacquie Brennan writes that the U.S. Supreme Court had been continually narrowing the definition of disability to such a degree that most cases became more about whether a person met the definition of disability, rather than focusing on access or accommodation. The article lists new rules for the definition of disability.
Burton J. Fishman, of counsel at Fortney & Scott in Washington, D.C., provides a thorough overview of the changes to the ADA in this article. Perhaps the most significant change is that "mitigating measures" (medication, prostheses and similar benefits) are not to be considered when determining if someone is disabled, he writes. The only exceptions are eyeglasses and contact lenses. "There's no doubt that the realm of 'the disabled' will be significantly enlarged by these amendments. If employment discrimination laws are to protect wrongs against 'discrete and insular minorities,' then our understanding of the term must change," he writes.
Social Science Research Network
The biggest limitation of the ADA has been its definition of disability, says Alex B. Long, associate professor of law at the University of Tennessee College of Law, in a detailed look at the amendments. "Introducing the New and Improved Americans With Disabilities Act: Assessing the ADA Amendments Act of 2008" is a PDF document that can be downloaded. Although there still are numerous issues that remain unresolved, many of the changes that Congress made were long overdue, he says, and are likely to provide greater coverage at the initial stage of determining whether an individual has a disability than existed previously under the original legislation.
Texas Lawyer Podcasts
In his podcast, "ADA Amendments Pack Powerful Punch," employment lawyer Michael P. Maslanka calls the new law "radical." While the law has been hailed as a win-win for employers and employees, in reality it's a huge victory for employees and the lawyers who represent them, he says. The amendments tell judges that — when in doubt — they should find an ADA disability, and courts shouldn't quibble over whether an employee is or isn't ADA disabled, he says.
U.S. Access Board
This site presents the text of the ADA Amendments Act of 2008 as signed into law in September 2008. It also features a link to the Americans With Disabilities Act of 1990, as amended.
-- Joe BordersEnergy Company Directors' Pay Tops List
Corporate directors at most companies in the United States made more in 2008 than the previous year, and total compensation to directors in the energy industry was the highest when compared to top-level compensation among 22 industry sectors. Board members in the energy industry made up to $383,907 in 2008, according to the Directors' Compensation and Board Practices survey made public in December by The Conference Board, a nonprofit based in New York City. The median total compensation for energy industry board members came in at $144,700, second only to the tobacco and food industry, where the median total compensation in 2008 was $151,550. Total director compensation increased in 2008 in 15 of 22 industries surveyed, but the rate of growth slowed in 2008. In the energy industry, however, compensation for directors increased by 12.6 percent in 2008, The Conference Board reports. Total compensation includes a retainer, meeting fees, stock awards and stock option awards. The Conference Board study is based on compensation information compiled by Salary.com from 2,319 U.S. companies that filed it with the U.S. Securities and Exchange Commission. Some of the findings also are based on a survey The Conference Board did in July 2008 of 249 corporate secretaries. According to the study, most boards have nine to 12 members, and larger companies are more likely to have a diverse board. More boards are adopting retirement policies, including 90 percent of companies with annual revenue in excess of $9 billion. The median retirement age is 72. On average, boards meet between seven and 10 times a year, and most companies pay meeting attendance fees.
-- Brenda Sapino JeffreysLegal Department Budgets Fall for '09
Three-quarters of general counsel who responded to a survey conducted in late 2008 say they will work with smaller budgets in 2009. The Altman Weil Flash Survey on Law Department Cost Control, which was made public in December, reports that the general counsel said they face budget cuts averaging 11.5 percent for 2009. Another 15.6 percent of general counsel reported that their department's budget will increase by a smaller percentage than in prior years. Eighty percent of the GCs said outside counsel costs and the unpredictable nature of legal spending are their two greatest concerns about their 2009 budgets. The third ranked concern, which was named by 40 percent of the general counsel, is the prospect of financial exposure related to litigation or potential litigation. The survey, conducted in November 2008, includes data from 115 general counsel. Altman Weil, the Newtown Square, Pa., consulting company, sought information from general counsel at 1,292 companies. With smaller budgets, 65 percent of the GCs said they will bring more work in-house to reduce spending, 53 percent will move some work to "lower-priced outside counsel" and 50.5 percent will require more alternative fee arrangements. Some in-house lawyers could lose jobs because of the reduced budgets, too. According to the survey, 31 percent of the general counsel will reduce staffing of lawyers and administrative support staff in 2009, and 21 percent plan to cut paralegal staffing. Additionally, 29 percent of the GCs who responded to the survey say they will reduce in-house lawyer compensation in 2009, and 19 percent plan to reduce staff compensation. But it's more likely that training and new technology will be clipped to make up some of the budget cuts. Of the GCs who responded to the survey, 61 percent said they will reduce spending on events and training in 2009, and 35 percent will delay a technology purchase.
-- Brenda Sapino JeffreysA Big Year for Securities Class Actions
Largely due to a crisis in the financial services industry, 2008 was a big year for federal securities class-action suits. Plaintiffs filed a total of 210 federal complaints during the year, up 19 percent from the 176 complaints filed in 2007. The 210 complaints filed in 2008 surpassed the 192 complaints filed on average each year between 1997 and 2007. The dollar value of the complaints increased as well in 2008 — the maximum dollar losses attributable to complaints last year totaled $856 billion, a 27 percent increase when compared to 2007, when the total came in at $697 billion. On average, between 1997 and 2007, the maximum dollar loss for securities class actions was $698 billion. Four of the class-action suits filed in 2008 are pending in federal courts in Texas. A large jump in litigation against firms in the financial services industry fueled the increases in 2008, according to "Securities Class Action Filings: 2008 Year End Assessment,"an annual report produced by Cornerstone Research and the Stanford University Law School Securities Class Action Clearinghouse. "[L]itigation against the firms closest to the on-going subprime/liquidity crisis was the dominant force in federal class action securities litigation in 2008," the authors write in the report. For instance, nearly one-third of all large financial firms were named as defendants in securities class actions filed in 2008, and those financial services companies comprise more than half of the total market capitalization of the financial sector. The subprime/liquidity crisis was associated with 97 federal securities class actions. While more than half of the new securities suits were against financial services companies, none were filed against companies in the energy and basic materials categories in 2008, according to the report. A greater number of New York Stock Exchange and American Stock Exchange companies were named as defendants in securities class actions in 2008. According to the report, 111 class actions were filed against firms on the NYSE or the Amex, while 68 were field against firms on the NASDAQ.
-- Brenda Sapino Jeffreys