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Simas & Associates, Ltd. Newsletter | February 7, 2014 | Volume II, Issue 3
Firm Announcement

Simas & Associates, Ltd. Provides Employers Reasonable Accommodation and Interactive Process Guidance

San Luis Obispo, California - Simas & Associates, Ltd. offers Human Resources representation and legal services throughout California.  As part of that service, the law firm offers guidance to businesses attempting to navigate a minefield of federal, state, and local statutes and regulations when it comes to minimum protections afforded to the labor face.

"A particularly difficult area," explained Justin Hein, Managing Attorney of Simas & Associates, Ltd.'s Sacramento office, "is the law governing reasonable accommodations and the interactive process."

 

Under the ADA, employers must make reasonable accommodations to the known physical and mental limitations of otherwise qualified applicants or employees with disabilities, unless the employer can demonstrate that accommodation would cause an undue hardship. (42 USC § 12112(b)(5).) 

"Luckily, the relevant regulations actually provide several useful principles that apply to that duty," continued Hein.  "Among them are those that discuss the scope of the duty, how it extends from recruitment to termination, and is ongoing throughout the employment.  Others are more technical, delineated between defining essential job functions and whether the accommodation requested is reasonable."  

Beyond the regulations, the courts and the U.S. Equal Employment Opportunity Commission (EEOC) have developed certain rules that apply to the process, including the following:
  1. The employer has ultimate discretion to choose the reasonable accommodation.
  2. While the disabled individual's expressed choice of reasonable accommodations must be given primary consideration, if another effective--and less expensive--accommodation is available, the employer has the ultimate discretion to choose that one.
  3. The accommodation must be effective in addition to reasonable; meaning, the accommodation must give the employee an opportunity to achieve the same performance or enjoy the same benefits or privileges.
  4. The only relevant barriers are those related to the person's disability; not the employee's preference.
  5. The accommodation need not be the best - just one that is effective.
"The actual process of identifying the need for and provision of a reasonable accommodation," continued Hein, "should be arrived at through what is called an interactive process.  This is mandatory for all employers who fall under the ADA.  [Simas & Associates, Ltd.] help[s] our employer-clients meet their obligations of the interactive process. This includes engaging with the employee in a process to determine what accommodations can be implemented that will eliminate any barriers due to disability.  Luckily, the regulations and EEOC guidance specify an explicit four-step process."

The four steps of the interactive process are as follows: 
  1. Look at the job. Identify and distinguish between essential and nonessential or marginal job tasks and figure out the purpose of the job; recheck the job description.
  2. Consult with the disabled individual to determine the person's limitations regarding the essential job functions. Find out what barriers to performance exist and examine how they might be overcome. Consult with the individual to identify what potential accommodations exist and how effective they will be.  If this consultation does not yield appropriate accommodations, obtain information from other sources.
  3. Assess the reasonableness of each accommodation identified. What are the degrees of effectiveness for the disabled individual and of hardship imposed on the employer?
  4. Implement the accommodations that best serve the needs of the employee and the employer
"Beyond that," Hein explained, "we instruct our employer-clients to thoroughly document the interactive process and all resulting offers of accommodation, as well as the employee's response.  This will then avoid misunderstandings and ensure that proper record keeping has taken place in the event of any claim of discrimination.  Better yet, if [our client] preserve[s] documentation that shows that the employee refused to cooperate [in the interactive process], it can help shutdown any latter claims by that employee.

Ultimately, we are not encouraging our clients to play 'gotcha' with their employees," continued Hein.  "However, we are encouraging our clients to find a middle ground with their employee, consistent with the law.  At the same time, we must protect our client from the uncertainty of litigation, and the best way of doing that is documenting all steps of the process."

 
If interested in learning more about our Human Resources services or Employment Law practice area, please visit our Contact Us page at www. simasgovlaw.com.
Staff Announcement

Steven L. Simas elected to Serve as Chairman of the Sacramento County Bar Association, Administrative Law Section

On November 21, 2013 at the Administrative Law Section's Holiday Party, Steven L. Simas was elected, unanimously, as the Section's new Chairman and President.  Mr. Simas, a founding member of the Section, had most recently served as the Section's Secretary and Treasurer.

"Well, I was surprised," explained Simas.  "However, with Heather [Hoganson] taking on a new role with the [Sacramento County] Bar [Association], I realized that continuing to successfully head the section would be extremely difficult.  So, in order to ensure that the section does not go the way of the dodo, again, I am more than willing to step-up."

Heather Hoganson, Counsel for the California Department of Alcoholic Beverage Control, had previously served as Chairwoman and President of the section since 2010.  She was recently elected Second Vice Chair of the Board of Directors for the Sacramento County Bar Association.  

"We had our first Section Board Meeting in January," explained Simas.  "We have not completely set our schedule for CLE-events, however, we did enjoy co-hosting cross-over events with other sections and having the Sacramento County writ judges provide insight last year.  So, hopefully we can rekindle some of the magic from those past events.  Also, an SCBA Administrative Law section newsletter is expected to come out quarterly, starting in mid March.  So be on the look-out."
Client of the Month
AB Design Studio, Inc.
 

AB Design Studio, Inc.
27 East Cota Street, Suite 503
Santa Barbara, CA 93101
p: 805.963.2100
f: 805.963.2300
www.abdesignstudioinc.com/


AB Design Studio is committed to consistently redefining and expanding the perception of what is possible for people and our communities through architecture and design. We value creativity and a rigorous process of problem solving. AB strives to unleash explorative context-based designs that allows it to creatively re-assess what a built environment can provide for its users and the future.

AB believes successful solutions are communicative, tangible and visible. Effective visualization provides valuable information for the project team and client to present and realize the design with local agencies, decisions makers, consultant s and builders.

Simas & Associates, Ltd. is proud to serve as AB Design Studio's counsel since 2013. If you would like to be featured as our law firm’s “Client of the Month”, please contact us at info@simasgovlaw.com
Featured Agency Announcement

Governor Brown Declares Drought a State of Emergency

San Francisco, California - In a State of Emergency declaration, Governor Brown directed state officials to assist farmers and communities that are economically impacted by dry conditions and to ensure the state can respond if Californians face drinking water shortages. The Governor also directed state agencies to use less water and hire more firefighters and initiated a greatly expanded water conservation public awareness campaign (details at saveourh2o.org). In addition, the proclamation gives state water officials more flexibility to manage supply throughout California under drought conditions.

State water officials say that California’s river and reservoirs are below their record lows. Manual and electronic readings record the snowpack’s statewide water content at about 20 percent of normal average for this time of year.

“We can’t make it rain, but we can be much better prepared for the terrible consequences that California’s drought now threatens, including dramatically less water for our farms and communities and increased fires in both urban and rural areas,” said Governor Brown. “I’ve declared this emergency and I’m calling all Californians to conserve water in every way possible.”

The Sacramento Bee put together a slideshow of different ways residents can conserve water during the drought.  For more information, please visit here.
Featured Blog Entry

Should You Consult with an Attorney when Dealing with Licensing Agencies? 

This blog entry is a message to all types of licensees in professional practice who are responding to inquiries, investigations or otherwise communicating with their respective licensing board, bureau, or department. Specifically:

PLEASE DO NOT TRY TO DEAL WITH AN ADMINISTRATIVE LICENSING AGENCY ALL ON YOUR OWN!

Of course, you may.  However, you must understand that you do so at your own risk.  Over the years, our law firm has had numerous clients who dealt with licensing agencies on their own without legal counsel.  They may have tried to go it alone as far as they could without seeking assistance.  Or, they initially sought assistance, got partial advice, but turned tail when they were quoted legal fees, and then did their best.

Unfortunately, doing their best was not nearly enough.  In fact, in almost all of the cases we have been confronted with this year, the client has harmed his or her chances of success in the matter hand, implicated oneself in another, far more severe matter, or cause irrevocable damage to their freedom to seek reinstatement at a later date.  This issue has reached a new and serious height of concern.

To keep reading this entry, please click here: Should You Consult with an Attorney when Dealing with Licensing Agencies?  For more blog entries from our attorneys and legal staff, please visit our law firm’s official blog – Wit of Mandate.
Word of the Month

"Twinkie Defense"

A derisive label of an improbable type of legal defense coined by members of the media in the wake of the 1979 trial of Dan White for the murder of City of San Francisco Mayor, George Moscone and Supervisor, Harvey Milk.  White's defense against murder charges was that he had a diminished capacity from slipping into depression at the time of the slayings.  As evidence of that depression was the consumption of a large amount of sugary food by White, which was considered out of character.  One item eaten was a twinkie - hence the term "twinkie defense".  The diminished capacity defense was ultimately successful, resulting in White being convicted of only voluntary manslaughter, instead of murder.  Often times the defense is misunderstood to mean that, in essence, "the twinkie did it".  However, that was not what was argued or intended at its creation.  


For more terms related to our practice areas, please visit our law firm’s glossary at SimasGovLaw.com - Glossary.
S & A is Hiring!
 

Simas & Associates, Ltd. is hiring!  Specifically, we are looking for a Paralegal, Legal Secretary, Executive Assistant, or Administrative Assistant to work at our office in San Luis Obispo.  Interested parties should visit our Employment Opportunities page or contact us at careers@simasgovlaw.com. 
Upcoming Calendar

February 11 - Sacramento County Bar Association Leadership Institute.

February 12 - President Abraham Lincoln's Birthday - office is closed. Also, Schwartz-Levi American Inn of Courts.

February 13 - Pitchers and catchers report for MLB Spring Training.  Also, SacLEGAL is having a Happy Hour.

February 14 - Happy St. Valentine's Day!


February 15 - Remember the Maine Day.  Also, National Hippo Day. 

February 17 - Happy Presidents' Day!  - office is closed. 

February 18 - Kennedy American Inn of Courts.

February 20 - Love Your Pet Day.  Also, the SLO Bar Association will be having its
monthly luncheon on Water Law 101.

February 22 - President George Washington's Birthday.  Also, National Margarita Day, so now you know how to celebrate.

February 23 - Daytona 500.

February 27 - National Chili Day.  Also, Women Lawyers of Sacramento Luncheon.  And the Wiley W. Manuel Bar Association 
will be participating in the Literacy Liberates Book Drive.

February 28 - Capital City Trial Lawyers Association Luncheon.

March 2 - 86th Academy Awards.

March 4 - Shrovetide / Fat Tuesday / Mardi Gras!

March 5 - Ash Wednesday.

And a Happy Birthday to
Rachelle Allison-Lamb and Justin Hein this month.
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