June 2017 Volume XI No. 2 Taking Care of Business
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What Employers and Management Personnel Need To Know About the Americans with Disabilities Act

What is the ADA and who does it protect?
Title I of the Americans with Disabilities Act of 1990 (“ADA”) makes it unlawful to discriminate in employment against people with a disability. The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA also prohibits an employer from retaliating against a person for making claims or asserting rights under the ADA, and protects people who are discriminated against because they have a known association or relationship with an individual with a disability. Prohibited employment practices include discriminating against a disabled applicant or employee in recruitment, hiring, firing, compensation, promotion, job assignments, transfer, training, leave, layoff, benefits, and any other employment related activity.

What employers are covered and what must they do?
The ADA applies to employers with 15 or more employees. Employers are required to provide reasonable accommodations to qualified employees who can perform the essential functions of the job.

A reasonable accommodation is a change that accommodates an employee with a disability without causing an undue hardship on the employer. Undue hardship is defined as an action requiring significant difficulty or expense in relation to the size, nature, resources, and structure of the employer’s business. Reasonable accommodations may include physical changes to the workplace such as ramps, accessible restroom facilities, and adequate parking spaces to accommodate a person in a wheelchair. Flexibility of work schedules may be considered a reasonable accommodation to allow for breaks or unpaid leave to attend medical appointments. Reallocating a non-essential function to another employee may also be considered a reasonable accommodation.

To be considered a qualified employee, an individual must meet the legitimate requirements for the position. Factors to be considered are whether the applicant or employee has the education, skill, experience, training, or licensing required for the position.

In order to perform the essential functions of the job, an employee must be able to accomplish the basic job duties of the position, with or without a reasonable accommodation. Factors to consider include whether the reason the position exists is to perform that function, the number of employees available to perform the function, and the degree of skill required to perform the function.

What can employers do to protect themselves?
In making employment related decisions, employers are permitted to make non-disability related decisions. For example, an employer may chose not to hire an applicant for lack of experience. However, when disability is a factor in any employment related decision, employers must show that the person is unable to perform the job’s essential functions with a reasonable accommodation. A written job description prepared in advance of advertising or interviewing applicants for a job will be considered as evidence of the essential functions of the job. Job descriptions should be reviewed to make sure that they accurately reflect the actual functions of the job.

An employer should not ask or require a job applicant to take a medical examination before making a job offer, and, unless required by another federal law or regulation, it should not make any pre-offer inquiry about a disability or the nature or severity of a disability. When questions arise about an applicant or employee who may be disabled, it is important for employers and managers to talk to the human resources department or consult an attorney as to how to respond.

If you have questions regarding the contents of this article, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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Small Claims in Porter County

Small claims courts are intended to provide speedy and informal resolution of claims up to $6,000. In Porter County small claims cases are heard in Valparaiso and Portage. The filing fee is $96.00 and there is a $25.00 fee for service by Sheriff. If you prevail on your claims these fees are generally recoverable, in addition to damages. The amount of fees can change so you should always check with the Clerk of the Court before filing. If your claim is worth more than $6,000 you can bring it in small claims court but you waive any damages over $6,000. Most claims for money damages can be heard in small claims court. If your claim is breach of contract attach the contract to the form or explain that you don’t have the contract.

The small claims action must be filed on a Court approved form which the Clerk will provide you. The claims should be described simply. For example: “The Defendant negligently knocked over the Plaintiff’s lamp post with her car causing $2,000 in damages.” You must have a current address for the Defendant so that they can be properly served with a copy of the Complaint/Claim.

Individuals can file in small claims court without an attorney. However, if you are doing business as a corporate entity or limited liability partnership and the amount in dispute is $1,500 or more you must be represented by an attorney.

If you are sued in small claims court in Porter County you do not need to file an answer or other document responding to the claim. However, if you have a claim against the persons suing you and it is for $6,000 or less it can be filed in this action. The claim must be filed using the Court approved forms provided by the Clerk, and it must be filed with the Court and received by the plaintiff at least seven (7) days before the trial.

In Porter County the small claim is set for an “Initial Hearing”. Generally this is not a trial and you do not need to bring your evidence or witnesses. However, read the notice of Initial Hearing carefully. The Court can order the Clerk to set the trial date for the initial hearing.

If the Defendant does not appear at the initial hearing the Court will generally enter judgment for the amount sought by the Plaintiff. If the Plaintiff does not appear the matter will generally be dismissed. If both parties appear, the Court will encourage settlement and may suggest possible mediation. If the parties are unable to reach agreement, the matter will be set for trial.

At the trial, affidavits and other hearsay evidence are admissible. You can call witnesses and can subpoena witnesses to compel their appearance. You will have a relatively short time to present your case so you won’t want to bring ten witnesses. Have your evidence prepared and numbered as Exhibits. Ask to admit all of your exhibits at the start of the proceedings. Good Luck.

If you have questions regarding small claims, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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DISCLAIMER: This publication is not intended to be legal advice but is presented for informational and educational purposes only. The facts and circumstances of a specific legal issue are unique and you should seek legal advice for your specific questions or concerns. No attorney-client relationship is created.