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by Martin E. HsiaYour employees make all kinds of cre-

ations for your business while performing their jobs. Who owns those creations? The answer depends on what types of subject matter are involved and what agreements are in place, and it may be very important to you if employees are leaving for other jobs, especially with competitors.

As you will see, if you want your busi-ness to own your employees’ creations, you may need to take some proactive steps.

This is the first in a series of articles addressing the ownership of employee cre-ations. This installment addresses literary, artistic, and other creative works. Later in-stallments will address inventions, trade se-crets, and the possible use of noncompetition agreements.

Employee classificationFor literary, artistic, and other creative

works—such as articles, advertising copy, databases, photographs, software, artwork, sculptures, architectural works, music, and videos—ownership depends on copyright law, which is governed purely by federal law and is therefore the same throughout the entire United States.

If an employee is a formal, sala-ried W-2 employee and creates a work in the course of employment, then the employer automatically owns the copy-right rights as a “work made for hire.”

However, if the work was created by an employee outside the course of employment, then it wouldn’t qualify as a “work made for hire.” For example, a company bookkeeper who took a pho-tograph at a company publicity event probably wasn’t acting within the scope of employment because taking photo-graphs wasn’t in her job description, so the photograph probably does not be-long to the company.

Moreover, if a work was created by an independent contractor, then the contractor probably owns the copyright rights. That’s because the U.S. Supreme Court ruled in 1989 that independent contractors do not qualify as employ-ees for purposes of the test for “works made for hire.” Merely paying the inde-pendent contractor for the work is not sufficient to transfer ownership of the copyright rights to your business.

For purposes of a “work made for hire,” the Supreme Court said that the independent contractor must meet the common-law agency test for qualifying as an employee. Under that test, if the hiring party controls the contractor suf-ficiently closely, the contractor becomes its agent. That means the hiring party, as principal, would then be liable for the contractor’s acts or omissions. Most parties that hire independent contrac-tors don’t control them sufficiently to be held liable for their acts and omissions,

Vol. 23, No. 6 December 2018

David Banks, Paul Saito, Amanda Jones, EditorsCades Schutte LLP

INTELLECTUAL PROPERTYic, intel, copy, empclass

Who owns what employees create? Part 1: ‘work for hire’ and copyright

Agency ActionDOL collects record $304M in wages owed to workers in fiscal year 2018 ..................... 2

Employee IllnessDon’t let the flu bug wreak havoc on your workplace this holiday season ...................... 3

Employee BenefitsLegal hurdles aside, wellness programs can lead to positive outcomes ................................ 4

Personnel PoliciesWrap up 2018 by revising handbook to account for new laws, regs ............................... 5

Workplace TrendsHigh- and low-wage jobs to experience most growth in next 5 years ............................ 5

SafetyNow is the time to create a distracted driving policy bit.ly/2CELY1J

TerminationDo not use text messages when firing employees bit.ly/2Jv40Fi

SecurityTips for protecting data from departing employees http://bit.ly/2MOJ7Vk

Find AttorneysTo find the ECN attorneys for all 50 states, visit www.employerscounsel.net

Cades Schutte LLP is a member of the Employers Counsel Network

2 December 2018

Hawaii Employment Law Letter

so most contractors wouldn’t qualify as employees under the common-law agency test.

Contracting a ‘work made for hire’Many employers mistakenly think they can write into a

contract that a work will be a “work made for hire” that they own so they can then automatically claim the copyright rights. However, that is almost always wrong.

Under U.S. copyright law, there are only two ways for a work to be a “work made for hire.” It can be created by an em-ployee acting within the scope of her employment, or it can be one of nine special categories of works that are specially ordered or commissioned if there’s a signed written agreement stating it will be considered a “work made for hire.” The nine special cat-egories are very narrow:

(1) A contribution to a collective work;

(2) Part of a motion picture or other audiovisual work;

(3) A translation;

(4) A supplementary work;

(5) A compilation;

(6) An instructional text;

(7) A test;

(8) Answer materials for a test; or

(9) An atlas.

A supplementary work is prepared for publication as a second-ary adjunct to another work by another author, such as fore-words, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer materials for tests, bibliographies, appendixes, and indexes.

If a work doesn’t fall within one of these nine special catego-ries, it isn’t eligible to be converted into a “work made for hire” by a contract.

Congress was serious in its intent that only those nine cat-egories can be converted into a “work made for hire” by a con-tract. In 1999, a technical correction was made that inexplicably added “phonorecords” to the list of nine categories, and when that was pointed out, Congress passed a special law in 2000 to delete that term from the list.

CopyrightIf you want to own the copyright rights to works your em-

ployees create, you must first determine whether the worker is a formal, salaried W-2 employee or an independent contractor. Once you have established the worker’s classification, you must either (1) be sure the works are within the scope of the formal employee’s employment or (2) after the work has been created, have the independent contractor sign a written assignment (transfer) of copyright rights.

The copyright law specifies that initial ownership of copy-right rights vests in the author and can be assigned only in writ-ing. Except for one of the nine special categories of work, you

DOL announces record amount in recovered wages. The U.S. Department of Labor (DOL) an-nounced in October that its Wage and Hour Divi-sion (WHD) had recovered a record $304 million in wages owed to workers in fiscal year (FY) 2018. The WHD also announced it set a new record for compliance assistance events in FY 2018, holding 3,643 educational outreach events to help em-ployers understand their responsibilities under the law. The DOL also announced an extension of the voluntary Payroll Audit Independent Determina-tion (PAID) program, which is a compliance initia-tive aimed at helping workers receive more back wages due in an expedited manner.

DOL launches new compliance assistance tools. The DOL has launched two new web-pages—the New and Small Business Assistance page (www.dol.gov/whd/smallbusiness.htm) and the Toolkits page (www.dol.gov/whd/regs/ compliance/CAKits.htm)—intended to provide small businesses and workers information from the WHD and links to other resources. The web-pages, announced in October, were established in response to feedback from new and small busi-ness stakeholders voicing their need for a central-ized location to secure the information needed to comply with federal labor laws. The pages provide publications and answer the questions most often asked by new and small business owners.

Compliance assistance available for AHPs. Employers offering association health plans (AHPs) can find compliance assistance materials on the DOL’s employer.gov website. The materials—lo-cated at www.dol.gov/general/topic/association-health-plans—will help employers understand their Employee Retirement Income Security Act (ERISA) obligations when setting up and managing AHPs, which are intended to help small businesses pool resources and create health insurance plans for their employees.

OSHA program targets high injury, illness rates. The Occupational Safety and Health Admin-istration (OSHA) announced in October that it was initiating the Site-Specific Targeting 2016 Program using injury and illness information electronically submitted by employers for calendar year 2016. The program targets high-injury-rate establish-ments in both the manufacturing and nonmanufac-turing sectors for inspection. Under the program, OSHA inspects employers it believes should have provided 300A data for the 2016 injury and illness data collection. For 2016, OSHA required employ-ers to electronically submit Form 300A data by December 15, 2017. The 2017 deadline was July 1, 2018, but employers were allowed to provide data after the deadline. D

AGENCY ACTION

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December 2018 3

probably cannot put in the contract beforehand that you will own the copyright rights because the copyright law specifies that the copyright vests initially in the author. Contracts are governed by state law, but copyright law is governed by federal law, which overrules the state law.

Bottom lineIf your business doesn’t own the copyright rights

to works created by an employee (because the works weren’t within her scope of employment) or an indepen-dent contractor (because written assignment of copy-right wasn’t obtained), then your business cannot take legal action against someone else— such as your for-mer employee’s new employer or the independent con-tractor’s other clients—who copies, adapts, displays, or transmits those works. You should consider these issues and act accordingly to protect your business interests.

Martin E. Hsia is a registered patent attorney, one of the few patent attorneys in Hawaii. He practices patents, trade-marks, copyrights, trade secrets, right of publicity, computer, licensing, Internet, and entertainment law at Cades Schutte. Martin is chair of the firm’s Intellectual Property Practice Group and the Technology and Electronic Commerce Practice Group. You can contact him at mhsia@cades.com. D

EMPLOYEE HEALTHcommdis, emphea, abs, pp, hand, comm, ecom, sick, wah, relacc, fmla, ada, disability, hcra, fml

Happy holidays, with a helping of the flu bug

The 2017-18 flu season was unusually bad, and many employers found themselves stuck between meeting their staff-ing needs and avoiding the spread of a virulent flu strain. Al-though the 2018-19 cold and flu season is forecast to be less brutal, you should take this opportunity to revisit your pan-demic preparedness. Here are some thoughts on preventing and preparing for the next big outbreak.

Pandemic policies

The first line of defense against a widespread flu outbreak in your office is your handbook! You can com-bat a pandemic in several ways. First, consider offering free flu vaccinations. We are well into flu season already, but consider holding a flu clinic so employees can get vaccinated before they get sick. Experts recommend that vaccinations be given before an outbreak—and ideally at least two weeks before flu season begins because it takes two weeks after a vaccination for antibodies that protect against the flu to develop.

In addition, you should have a clear pandemic pol-icy in place. If your business doesn’t have one, consider one of the many policies available online, from your at-torneys, or from HR consultants. If you already have a policy, make sure your employees are properly trained to comply with it—it won’t work if they don’t follow it!

A reminder is a good way to refresh employees on your basic expectations.

What should your pandemic policy include? Here are a couple of key considerations:

• Preparedness plan. Before a pandemic hits, your company should have considered who its essential employees are and the methods by which infected employees can avoid face-to-face contact.

• Communication plan. The HR department should have a way to disseminate information about a flu outbreak, similar to the methods you use when a closure attributable to the weather or some other emergency occurs.

• Sick leave. Employees who are infected should be placed on sick leave to avoid the spread of infection. Employees who have exhausted paid leave should be provided additional leave in a nonpunitive man-ner to preserve the health of the broader workforce.

• Technological adaptation. Consider allowing tele-commuting or implementing other ways to facili-tate remote work to the extent that your business permits.

• Infection control. Implement infection control methods, and educate your employees about them! Providing free tissues and encouraging frequent hand washing are some ways to limit the spread of germs if employees cannot work remotely. Make sure employees know that normal social rules are suspended during a flu outbreak. It’s OK not to hug, shake hands, or engage in other close contact, even if those activities are normally par for the course in your line of business.

Other considerationsBeing prepared is important when you’re facing the

possibility of a widespread flu infection among your workforce. But don’t let your zeal to keep your employ-ees healthy put you on the wrong side of the law. For

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example, there are multiple groups of people who, based on religious or other sincerely held beliefs, refuse to be vaccinated. If your company requires flu or other vacci-nations, keep in mind that individuals with religious ob-jections may be entitled to reasonable accommodations under certain circumstances.

Similarly, any illness implicates concerns under the Americans with Disabilities Act (ADA) and the Fam-ily and Medical Leave Act (FMLA). Although a short-lived bout of the flu isn’t generally considered a disabil-ity within the meaning of the ADA, it can trigger leave rights under the FMLA, and complications arising from the flu—especially for vulnerable populations, includ-ing the elderly and immunocompromised—may well qualify as disabilities. Be sure that your managers are up to speed on their obligations under the ADA and the FMLA and that they know when to communicate any concerns to HR.

Bottom lineIn today’s ever-more-connected world, pandemics

are a reality of life. But they don’t have to cripple your business. Have a well-considered plan in place before an outbreak occurs, and be prepared to be flexible with your leave policies and other practices to ensure your business can function while accommodating sick em-ployees. D

EMPLOYEE BENEFITSFED, hi, empben, wp, wc, empmor, absenteeism

Wellness programs are about more than health insurance costs

When attorneys talk or write about wellness programs, it’s almost always from a highly legal perspective. We could talk all day about the convoluted and overlapping requirements of the various laws that apply to such programs. But this month, we want to take a different approach and look at wellness pro-grams from more of a business perspective.

People tend to get caught up in the idea that a wellness program’s main purpose is to reduce the cost of providing health insurance. The truth is, there’s not a lot of data to sup-port that idea. There is, however, plenty of data to support other cost reductions that can result from a properly designed and managed wellness plan.

Improving employee healthAccording to Aflac, 61% of employees say they have

made healthier lifestyle choices because of their com-pany’s wellness program. And unlike savings on health benefits, it’s fairly easy to demonstrate that wellness plans have a positive impact on specific health concerns that may be prevalent in your employee population.

Many health insurance carriers, third-party adminis-trators, and brokers can provide detailed (deidentified) data about the incidence of such conditions, and you can use that information to develop wellness initiatives to address the most common or costly ones.

For example, smokers cost roughly $6,000 more than nonsmokers in annual healthcare expenses and lost pro-ductivity. If a high percentage of your employees have smoking-related health problems, you could reduce those costs by developing policies, initiatives, and incen-tives to help them quit smoking. You could take a similar approach for obesity, diabetes, blood pressure, anxiety, and so on.

Reducing workers’ comp claims and costs

According to the University of Michigan’s Health Management Research Center, employees with high health risks have the highest workers’ compensation costs. For example, the National Council on Compensa-tion Insurance compared the claims of obese employees to nonobese ones and found that:

• Obese claimants were twice as likely to file a claim;

• The duration of their claims was about 13 times lon-ger; and

• Their medical costs were 6.8 times higher.

Depression, anxiety, and smoking can have similar impacts on your workers’ comp claims experience. By helping your employees address their serious health concerns, you have a very good chance of reducing your workers’ comp costs.

A similar impact can be seen on the incidence and ul-timate cost of both short- and long-term disability claims.

Improving engagement and retentionIn today’s tight labor market, many employers be-

lieve the first step toward maintaining staffing levels is to keep as many of their good employees as they can. Wellness plans can help with that. In a study from the International Foundation of Employee Benefit Plans, 67% of employers offering a wellness plan reported that it improved employee satisfaction. Similarly, other recent studies have found that:

• 74% of employers view well-being as a useful tool for recruiting and retaining staff;

• 66% said their wellness initiatives resulted in in-creased productivity;

• 50% reported decreased absenteeism; and

• 54% reported that their most improved metric is em-ployee morale.

Wellness programs can also help with recruit-ment. Eighty-nine percent of workers at companies that

Hawaii Employment Law Letter

December 2018 5

support well-being are more likely to recommend their com-pany as a good place to work.

Final thoughtsEmployees don’t always respond positively to wellness in-

centives. You should be very deliberate in designing and rolling out a program that best suits your workforce. You can start by:

(1) Conducting employee surveys to see what types of offer-ings they are receptive to;

(2) Promoting wellness as a part of your culture rather than just linking it to the health plan;

(3) Implementing general policies that encourage healthy hab-its (such as generous paid leave policies and flextime);

(4) Including employees in the planning and implementation process (e.g., through a wellness committee); and

(5) Implementing the program in stages (potentially over sev-eral years) rather than unveiling it all at once.

Of course, there are legal concerns associated with imple-menting a wellness program, and you should definitely contact your attorney if you have any questions about the legal impli-cations of your plan. But in the broad scheme of things, those concerns are likely a relatively small part of the process of creat-ing a wellness program that results in positive outcomes for you and your employees. D

PERSONNEL POLICIESFED, eh, pp, nlrb, nlra, unions, empben, loa, fml, gc, wages, hiring, ds, tu, du

Wrap up 2018 with new or revised handbook

This year has brought an unusual number of changes in employ-ment law. Various federal agencies got into the groove of aggressively undoing a lot of requirements their predecessors in the Obama admin-istration had put into place. In addition, there has been an increas-ing number of employment-related requirements from state and local governments.

Experienced HR professionals know that for each new or changed law or regulation, an employee handbook revision may be needed. But life tends to get in the way, and it’s not always practical to revise and reissue your handbook every time a new requirement takes effect. So take our advice and wrap up 2018 with a spanking new handbook! Let’s take a look at some of the topics you may need to address.

Guidance from NLRBDuring President Barack Obama’s eight years in office,

the National Labor Relations Board (NLRB) adopted many aggressively proemployee positions on the types of policies that violate the National Labor Relations Act (NLRA). In 2018, the agency has focused its efforts on undoing a lot of those positions.

A memorandum issued by the NLRB’s General Counsel in June discusses specific policies that are commonly included

Research shows slow growth for middle-wage jobs. A study from CareerBuilder shows that high- and low-wage job growth is overshad-owing the increase in middle-wage jobs. Accord-ing to the study, the United States is expected to add 8,310,003 jobs from 2018 to 2023, with just one-fourth of them in the middle-wage category. Factored into the total job growth is an expected loss of 369,879 jobs over the same period, with middle-wage occupations experiencing the ma-jority of the decline. The research shows that a total of 121 occupations will experience a decline in jobs between 2018 and 2023, and 75 of them are middle-wage jobs. High- and low-wage occu-pations are expected to have the highest net job growth from 2018 to 2023 at 5.71% and 5.69%, respectively. Middle-wage employment will grow at 3.83%. STEM-related occupations will continue to dominate fast-growing occupations, according to the research.

Survey shows willingness to provide tuition reimbursement. A Robert Half Finance & Account-ing survey released in October shows that 63% of finance executives are willing to provide tuition re-imbursement or professional development for new staff members who don’t have a four-year degree. The survey also shows that a college diploma may not always be a requirement for new hires in ac-counting and finance, especially in areas such as accounts payable, accounts receivable, credit and collections, and payroll. The research suggests that companies with 1,000 or more employees are al-most twice as likely as companies with 20 to 49 employees to provide tuition reimbursement or professional development to those new hires.

Report shows mental health benefit trends. The International Foundation of Employee Benefit Plans released a report in October examining the state of mental health and substance abuse in the workplace and how employers are taking action. The report found that 60% of U.S. and Canadian organizations are noticing an increase in mental ill-ness and substance abuse compared to two years ago. Forty percent of organizations report their participants are very or extremely stressed, and almost 40% say stress levels are higher now than they were two years ago. The report identifies the top 10 mental health and substance abuse condi-tions covered by employers: depression, alcohol addiction, anxiety disorders, prescription drug addiction, nonprescription drug addiction, bipo-lar disorder, eating disorders, posttraumatic stress disorder, attention deficit disorder/attention deficit hyperactivity disorder, and autism. D

WORKPLACE TRENDS

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in employee handbooks and organizes them into three catego-ries based on their degree of lawfulness.

• Category 1: Policies that are generally lawful. These in-clude reasonable expectations about employee behavior, such as (1) protection of your confidential information and intellectual property and (2) prohibitions against disrup-tive or inappropriate behavior in the workplace.

• Category 2: Policies that may or may not be lawful. Largely, the policies in this category are poorly drafted versions of Category 1 policies. Their legality is evaluated on a case-by-case basis. Some examples include behavioral policies that restrict employees from criticizing the em-ployer or its practices or attempt to regulate employees’ off-duty behavior.

• Category 3: Rules that are clearly unlawful. This cat-egory includes policies that (1) prohibit employees from revealing the details of their compensation or working conditions or (2) restrict them from joining outside orga-nizations or voting on matters concerning the employer (because they could be interpreted as applying to union activity). These policies should be removed from all hand-books immediately.

Paid leave requirementsFew issues have seen more activity at the state and local

level than this one. While most of the laws that have taken effect so far are in solidly “blue” states, employers all over the country should consider offering paid leave if they (1) have employees in any of the cities, counties, or states that have enacted a paid leave requirement or (2) are a federal contractor subject to paid leave requirements under Obama-era regulations.

In addition, consider offering paid leave to increase your ability to recruit and retain employees in this tight labor market. That’s especially true if your competitors offer paid family and medical leave, which could make it harder for you to compete for top talent.

Salary historyThis has become another hot topic at the state and local

level. State and local governments are increasingly enacting laws that prohibit employers from asking job applicants about their salary history.

The main rationale for these laws is that basing wages on an applicant’s previous wage history has a disproportionately adverse effect on women, who are more likely to have taken breaks from their careers to have children. Such breaks are thought to depress their salaries and perpetuate the gender wage gap over time.

Even if you’re not in a jurisdiction where such questions are prohibited, you should consider eliminating them from your hiring practices. Instead, consider establishing a sound compensation strategy in which a uniform salary range is established by job category and applicants’ qualifications for the job.

“Public charge” proposal prompts union criticism. Unions are reacting to the U.S. De-partment of Homeland Security’s (DHS) plan to change policy related to the “public charge” pro-visions of immigration law. “Public charge” refers to an individual who is likely to become primarily dependent on the government, according to U.S. Citizenship and Immigration Services (USCIS). On October 10, the Trump administration published a Notice of Proposed Rulemaking on the policy, potentially making more people ineligible for per-manent residence. National Education Association President Lily Eskelsen Garcia said the proposed change “will have a destructive impact on our stu-dents and their families.” Service Employees Inter-national Union Vice President Rocio Saenz said, “New Americans pay city, county, state, and fed-eral taxes that strengthen their communities and finance health care and social service programs. If they are driven into the shadows or out of this country, everyone will suffer.”

Columbia University postdocs vote for union. Columbia University postdoctoral research-ers announced in October that they have formed the Columbia Postdoctoral Workers-UAW union. In a National Labor Relations Board (NLRB) elec-tion held October 2 and 3, the vote to unionize with the United Auto Workers (UAW) passed by a margin of 68 percent. The vote sets up what the union said will be the first union contract covering postdocs at a private university. According to the UAW, the Columbia University vote means more than 17,000 graduate student workers, contingent faculty, and postdocs across the Northeast United States have chosen UAW representation in the last five years. The union advocates said they wanted to form a union to negotiate salaries, ensure stron-ger workplace sexual harassment protections, and get help with immigration and visa issues facing international postdocs.

Union launches first-responders website. The Communications Workers of America has launched FirstResponderVoice.org, a new advo-cacy initiative and website devoted to increasing the availability of information about the First Re-sponder Network Authority (FirstNet), an indepen-dent agency within the U.S. Department of Com-merce. The union said the creation of FirstNet has placed a spotlight on emergency communications. According to the union, the website “is poised to be a leading resource for first responders—profes-sional and volunteer, urban and rural—and other public-safety stakeholders, including IT directors, emergency communications coordinators, private citizens and elected officials, to learn how com-munities can take full advantage of FirstNet and stay abreast of developments related to emergency communications and public safety.” D

UNION ACTIVITY

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December 2018 7

E-cigarettes and marijuanaAs e-cigarettes and vaping become more popu-

lar, it may be necessary to revise your tobacco-related policies to reflect that they also apply to vaping. That could include policies regarding smoking at the work-place as well as qualifying as a nonsmoker for wellness incentives.

Similarly, as more and more states pass laws legal-izing marijuana for recreational or medical purposes, you may need to revisit your policies on drug use and testing. This is such a complicated topic that we strongly recommend consulting with your attorney to develop a policy that works for you.

Final wordThose are just some of the issues you should con-

sider in developing your new and improved employee handbook. It may be the best present you can give your-self and your company to start the new year off right. D

DISABILITY DISCRIMINATIONWEB, FED, ada, dh,

ADA prohibits bias against employees who are ‘regarded as’ disabled

The Americans with Disabilities Act (ADA) prohibits employers from discriminating against employees because of their disabilities. A covered disability is a physical or mental impairment that substantially limits a major life activity. That protection also extends to employees who are simply “regarded as” having a disability.

Before 2008, to prevail on a “regarded as” claim, an em-ployee had to prove his employer subjectively believed he was substantially limited in a major life activity. In 2008, how-ever, the scope of the “regarded as” protection was expanded by the ADA Amendments Act (ADAAA), which eliminated that requirement. The current state of the law was discussed in a recent decision from the U.S. 9th Circuit Court of Appeals (whose rulings apply to all Hawii employers).

FactsHerman Nunies was employed by HIE Holdings as

a full-time delivery driver. He primarily handled and

delivered five-gallon bottles of water to residential and commercial customers. At some point, he developed a shoulder injury that caused stabbing pain when he lifted his arm above his chest. He asked HIE to transfer him to a less physical part-time job in the company’s warehouse.

After his supervisor told him the transfer was ap-proved, Nunies disclosed his shoulder pain. Two days later, the supervisor told him the part-time warehouse job had been eliminated because of budget cuts and that he had to resign. A few days later, however, HIE adver-tised for a part-time warehouse employee.

Nunies sued, contending HIE violated the ADA by discriminating against him because of his disability. He advanced two claims:

(1) The company took action against him because he has a covered disability.

(2) It regarded him as having a disability.

On the question of whether Nunies has a covered disability, the judge ruled that he didn’t identify any major life activity that is affected by his impairment. On the “regarded as” claim, the judge ruled Nunies didn’t present direct evidence that HIE subjectively be-lieved he is substantially limited in a major life activity. Therefore, the judge threw out both claims. Nunies ap-pealed to the 9th Circuit.

9th Circuit disagrees with trial courtIn discussing whether Nunies presented evidence

that he has a covered disability, the 9th Circuit empha-sized that the ADA’s definition of “major life activities” includes lifting and working. In addition, according to the regulations adopted under the Act, the phrase “substantially limits” should be construed broadly, and an impairment “need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substan-tially limiting.”

HIE argued that because Nunies continued work-ing at his delivery job despite his pain, his shoulder condition didn’t substantially limit his activities. The court disagreed, concluding that having a stabbing pain when raising your arm above your chest substan-tially limits the major life activity of lifting and perhaps also working.

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Turning to Nunies’ “regarded as” claim, the court found that he wasn’t required to present evidence that HIE subjec-tively believed he was substantially limited, pointing out that Congress expressly did away with that requirement in the ADAAA. All Nunies had to do was present evidence that HIE regarded him as having a disability.

The evidence Nunies presented was sufficient. His supervi-sor told him he would get the transfer, but two days after he disclosed his shoulder pain, HIE rescinded the offer and forced him to resign. That temporal proximity would permit a reason-able inference that the company forced him to resign because of his shoulder injury. The evidence that HIE was looking to hire someone for the same job while telling Nunies the job had been eliminated also would support a reasonable inference that the company changed its mind for an illicit reason. Therefore, the 9th Circuit sent the case back to the trial court, where Nunies will be able to present his claims to a jury. Nunies v. HIE Hold-ings, Inc., Case No. 16-16494 (9th Circuit, September 17, 2018).

Takeaway for employersEmployers greatly prefer having employment claims dis-

missed by the trial court judge to avoid the costs and risks of having the claims go to a jury trial. This case demonstrates two circumstances that often will make it impossible to convince the judge to dismiss a case before trial. The first was the short amount of time—only two days—between the company learn-ing of Nunies’ shoulder pain and rescinding the transfer. In many contexts, such temporal proximity in and of itself is suf-ficient evidence that the adverse action was taken because of an illegal reason. The second circumstance—the evidence that the company falsified the reason for rescinding the offer—also was damaging to its case.

Employers should exercise great care before taking an ad-verse action against an employee soon after he has disclosed what could be a protected disability or has engaged in some sort of protected conduct, such as complaining about perceived discrimination. And the old saying “Honesty is the best policy” is as true in the employment world as it is in the rest of life: Dishonesty and misrepresentations often come back to haunt employers. D

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1-2 2019 Payroll Tax Updates: Inflation Adjustments and Other TCJA-inspired Payroll-Related Changes

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1-8 Training Supervisors to Be HR’s Friends, Not Foes: How to Ensure Legal Managerial Conduct to Avoid Claims under the FMLA, Title VII, ADA, ADEA, and Other Federal Laws

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1-10 OSHA Injury & Illness Recordkeeping: Understanding OSHA 300 Logs, Electronic Recordkeeping Requirements and Deadlines, Severe Injury Reporting, and More

1-15 Light Duty and Return-to-Work Programs: Successful Strategies to Get and Keep Injured Employees Back to Work Safely

1-15 Performance Reviews: How to Make Them More User-Friendly for Supervisors and Staff

1-16 Canadian Employment Law Updates for 2019: Best Practices and Key Rules for Operating North of the Border

1-24 Form I-9 Recordkeeping: How to Complete, Re-Verify, Store, and Destroy Paper and Electronic Files in Compliance with Federal Law

1-29 Workplace Investigations in the #MeToo Era: How to Conduct ‘Trauma-informed’ Interviews to Get to the Bottom of Things Sensitively and Legally

1-30 Market Pricing: How to Set Competitive Pay Rates and Ranges with Market Data

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