Dec. 8, 2021 In the sequential evaluation of disability by the Social Security Administration (SSA), a major step is whether the individual has a condition that meets the twelve-month duration requirement and that is represented on the Social Security Administration's Listing of Impairments (LOI) or equal to a listed impairment. The LOI is divided into two parts. One part applies to individuals over age eighteen and one part is applicable to individuals under eighteen. The LOI includes fifteen major body categories: growth impairment, musculoskeletal system, special senses and speech, respiratory system, cardiovascular system, digestive system, genito-urinary system, hemic and lymphatic system, skin, endocrine system, multiple body systems, neurological, mental disorders, malignant neoplastic diseases, and immune system. An explanation for what is encompassed by each category is included. Within each category, impairments are given that are considered to rise to the level of "severe" such that they would prevent an individual from engaging in substantial gainful activity. A diagnosis falling within the parameters of the LOI must be established by medical evidence obtained through objective clinical and laboratory techniques. In many instances the required medical evidence is stated in the LOI. Absent appropriate medical evidence, a diagnosis of an impairment will not be found to appear on the LOI. Included with the other information present, the LOI sometimes states the symptoms usually associated with certain listed impairments. Even though an impairment is not specifically listed on the LOI, the SSA authorizes impairments that are the medical equivalent to a listed impairment. The medical evidence received to establish a medical equivalency is given varying weights based on the source of the evidence. For example, the medical opinions of state agency doctors and psychologists are accorded the weight of nonexamining doctors and psychologists. These opinions can be accorded greater weight if based on, for example, the complete case file that includes a medical report from a specialist in the individual's area of impairment. The opinion of a doctor or psychologist who has been appointed by the SSA Commissioner is given the weight of an expert opinion.

Employees and Job Applicants are protected against employer discrimination/harassment and retaliation under the California Fair Employment and Housing Act (Calif. Government Code Sections 12900—12999, inclusive). Protected categories from employer misconduct include: Race; Religious Creed; Color; National Origin; Ancestry; Physical Disability; Mental Disability; Reproductive Health Decisionmaking; Medical Condition; Genetic Information; Marital Status; Sex; Gender; Gender Identity; Gender Expression; Age [over age 40]; Sexual Expression; or, Veteran or Military Status (Calif. Gov’t. Code Sec. 12940(a)). Aggrieved employee’s remedies include filing a civil lawsuit against the offending employer(s) with a civil employment lawyer (like me) seeking back and front pay; emotional distress; reimbursement of reasonable medical treatment bills; and recovery of reasonable employment attorney’s fees, and costs, from the liable employer(s). However, an aggrieved employee must mandatorily contact the California Civil Rights Department, the California government agency that is responsible for handling these employer discrimination complaints. Its website address is: c alcivilrights.ca.gov . The aggrieved employee must file a written Complaint against the offending employer(s) with the Civil Rights Dept. within 3 years of the employer’s offending discriminatory act(s). (Calif. Gov’t. Code Sec.12960(c)(5).) There is no fee for filing such Complaint with the Civil Rights Dept. Since the elapse of time, many potential witnesses, and documents, necessary to assist in proving your claim(s), due to the passage, fade away. Therefore, it is best to capture this potential evidence sooner rather than later. The Civil Rights Dept’s website deserves your thorough inspection about how the Civil Rights Dept. goes about its business (which can include its limited investigative personnel conducting an investigation [with no out-of-pocket costs to you] of your Complaint.) Please contact me first to strategize and organize your employee discrimination/harassment and/or employer retaliation claims.

Dec. 8, 2021 Children who are blind or disabled are eligible to receive Supplemental Security Income (SSI). The Social Security Administration (SSA) considers a "child" to be an unmarried individual who is under age 18 or, if under age 22, is a student who regularly attends school. A "child" cannot be the head of a household. There is no minimum age requirement; a child may be eligible for benefits from birth. A child is disabled if he has a medically determinable impairment that causes severe and marked limitations in his ability to function, which has lasted or is expected to last at least twelve months or result in death. When the child reaches age eighteen, his disability is reevaluated under the criteria for adults, i.e. whether the individual can engage in substantial gainful activity and whether his impairment has lasted or is expected to last at least twelve months or end in death. "Blindness" for purposes of SSI eligibility means that the individual has 20/200 vision or less in his better eye even with corrective eyewear. A person is also considered "blind" if he has a limited field of vision in his better eye such that he has a contraction of peripheral visual fields to ten degrees from the point of fixation or the widest diameter of his visual field subtends an angle no more than twenty degrees. Even though a child does not meet the statutory definition of blindness, he may still be eligible for benefits pursuant to a "disability." A child's SSI benefits are based on the fact that he has "limited" income and resources. For purposes of making this determination, the SSA will impute to the child a portion of the income/resources from the child's parents. The parents' income/resources are deemed to be available to the child as long as he lives with such parents and they are not, themselves, receiving SSI benefits.

Dec. 8, 2021 In some instances, an injured employee will return to his former position and resume making the same earnings as before the injury. When such an individual has received a workers' compensation benefit, the question arises whether the employer is entitled to a credit on the amount of benefits that were paid to the employee. If the employer paid the employee's wages, intending such wages to take the place of any benefit compensation, then the employer would be entitled to a credit. However, there is rarely direct evidence of the employer's intention in this regard. Given the usual lack of evidence on the employer's intention that wages serve in the place of benefits, such intention must be gleaned from the relevant circumstances. For instance, if wages were paid, despite the fact that the employee did not work, it would be reasonable to infer the employer's intention. Likewise, if the employee is paid his pre-injury wage, though he performs a reduced workload, the employer's intention could be reasonably inferred. If the employer denies any workers' compensation liability, the wages it pays to the employee cannot be claimed as a credit for a workers' compensation payment. Additionally, any charitable payments made by the employer to the employee cannot be later recovered by way of credit. If the employer is allowed a credit, the amount of credit is determined on a weekly basis. Basically, the amount of the credit will be determined on a week-by-week basis in relation to the amount of workers' compensation benefits allowed to the employee for such week. No running tally is kept such that the overall total amount of benefits is offset by the amount of wages paid. Consider the employee who earns $400 from the employer in a specific week. The employee's compensation payment is in the amount of $250. Therefore, the employer would be allotted a $250 credit for the week. After that, a new week begins with a separate credit calculation to be made.

Dec. 8, 2021 All states provide some measure of workers' compensation coverage for those individuals employed in the public sector. Most states provide protection generally for all public employees. Others, however, identify specifically those public occupations for which coverage is extended. There are several key occupations for which coverage is often extended. These include sheriffs and police officers, firefighters, teachers, and National Guard personnel. Workers' compensation coverage for public employment does not extend to those individuals serving the public in an "official" capacity. An "official" holds an elevated position over that of an "employee" and is generally considered to be one who exercises sovereign functions of the government for the public's direct benefit. Additionally, an "official" operates and makes decisions based largely on his own independent judgment as opposed to the employee who operates at the will of the employer with little or no ability to exercise his independent judgment. Other criteria characteristic of an "official" include that his position was formally created by the government pursuant to a law, his duties are prescribed by law, his position required him to take an oath and secure a bond, and his position is limited by a finite term in office.

Dec. 8, 2021 In 1988, Congress passed the cto prevent employers from subjecting applicants and employees to lie detector or polygraph tests. Under the Act, the term "lie detector" includes a: Polygraph, Deceptograph, Voice stress analyzer, Psychological stress evaluator, or Any other similar device (whether mechanical or electrical) that is used, or the results of which are used, for the purpose of rendering a diagnostic opinion regarding the honesty or dishonesty of an individual. The term "polygraph" is defined under the Act as: (1) a device that records continuously, visually, permanently, and simultaneously changes in cardiovascular, respiratory, and electrodermal patterns as minimum instrumentation standards; and (2) is used, or the results of which are used, for the purpose of rendering a diagnostic opinion regarding the honesty or dishonesty of an individual. Under the Act, it is usually illegal for an employer to: Require or request that an employee or applicant take any lie detector test; Use or inquire about the results of any lie detector test of an employee or applicant; or Discharge, discipline, discriminate against, deny employment or promotion, or threaten to take any such action against an employee or applicant for refusing to take a lie detector test, on the basis of the results of a test, for filing a complaint under the Act, for testifying in any proceeding under the Act, or for exercising any rights afforded by the Act. Exemptions The Act does not apply to federal, state, or local governments. Congress has, however, declared that the Act applies to legislative employees. The Act also excludes from prohibition lie detector tests administered by the federal government to employees of defense contractors who are working on national security intelligence or counterintelligence functions. The Act also provides a narrow exception allowing private employers to use lie detector tests under the following circumstances: The test is administered in connection with an ongoing theft, embezzlement, espionage, or similar type of investigation; The employee from whom the test is requested had access to the property that is the subject of the investigation; The employer has a reasonable suspicion that the employee was involved in the activity under investigation; and The employer executes a legally-binding, signed statement, provided to the examinee before the test, that: sets forth with particularity the specific activity being investigated and the basis for testing the employee, is retained by the employer for at least three years, contains an identification of the specific loss or injury to the employer, contains a statement indicating that the employee had access to the property that is the subject of the investigation,  and sets forth the basis of the employer's suspicion of the employee. Notice Provision Employers are required to post notices of the Act's requirements in a conspicuous place. Penalties under the Act Employers who violate any provision of the Act may be subject to civil fines up to $10,000. The Wage and Hour Division of the Employment Standards Administration is responsible for enforcing the Act. Employees and applicants whose rights under the Act are violated are authorized to bring actions against the offending employer to recover lost wages, benefits, or equitable relief, such as reinstatement or hiring.

Dec. 8, 2021 Military leave for employees is governed by the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), sometimes referred to as the Military Leave Act. The USERRA prohibits discrimination in employment against members of the U.S. military or military reserves who seek leaves of absence from their employment to serve in the military. USERRA requires an employer to reinstate employees to their jobs at the end of their military leaves; they may not be terminated or demoted. In addition, if the employee is otherwise qualified, the employee must receive any job promotions or pay increases he or she would have received if leave had not been taken. For purposes of benefits, time spent on leave must be counted as time on the job. Even if an employee who takes military leave is an at-will employee, he or she may not be fired without cause for a year after they return. In order to receive the protections of USERRA, an employee must fulfill certain requirements. An employee is required to give the employer notice of the intent to take military leave unless military necessity prevents it. The employee must obtain honorable release from the military and must report back to the employer at the end of the leave within a certain amount of time, which depends upon the length of the military leave taken. Employers are not required to pay employees while on leave or provide health benefits after 30 days. After 30 days, the employee must be given the option to pay for health benefits, as under COBRA. Coverage must be restored in full once the employee returns. Although an employer is not required to continue accrual of vacation and sick days for the period of the leave, an employer must pay its share of contributions to pension plans, and the employee must be treated as if his or her service with the employer had continued without hiatus. In addition, the employee has a certain amount of time to pay his or her share of contributions into the plan upon return. Although an employee taking military leave may request to use his or her vacation time while on leave in order to receive the standard pay rate for that time, an employer may not force an employee to use vacation or sick time. In addition to the federal protections of the USERRA, almost every state has a law prohibiting discrimination against employees taking military leave and providing rights for such employees, the requirements of which vary from state to state.

Dec. 8, 2021 In 1926, Congress passed the Railway Labor Act (RLA) to govern the resolution of disputes within the railroad industry. The RLA was amended in 1934, and the National Mediation Board (NMB) was created. In 1936, the jurisdiction of the RLA was expanded to include the airline industry. The NMB is an independent federal agency tasked with enforcing and interpreting the RLA. This article summarizes the major functions of the NMB. The NMB's main role is to implement the dispute resolution procedures spelled out in the RLA. An overarching objective of the RLA is to minimize work stoppages that threaten service in the railroad and airline industries. The NMB's work focuses on three major goals: Efficiently resolving disputes involving the creation of or the alteration of collective bargaining agreements (major disputes); Ensuring that employees retain their right to self-organization when representation disputes arise; and Efficiently resolving disputes involving the interpretation or application of existing collective bargaining agreements (minor disputes). NMB Role in Major Disputes The NMB employs a host of seasoned mediators who work with disputing parties, at their request or at the instigation of the NMB itself. The NMB leverages its experience and expertise in mediation to determine when a dispute is not likely to be resolved through mediation. The NMB seeks to have parties with unresolved disputes agree to submit their disputes to binding arbitration. Because of the NMB's active participation in mediations between parties to a collective bargaining agreement, most major disputes are resolved without any disruption in transportation services. When the NMB sees that major transportation disruptions threaten, it has the role of alerting the President to that fact. A Presidential Emergency Board may then be convened. NMB Role in Representation The NMB is responsible for overseeing the employee representation process. As such, the NMB must ensure that employees in the airline and railroad industries are able to exercise their rights to select a labor organization to represent them, if they so choose, for collective bargaining without "interference, influence, or coercion" by the carrier. Initial representation applications are investigated by the NMB, the NMB determines and certifies employees' collective bargaining representatives, and the NMB is tasked with handling disputes related to representation process itself. Decisions such as whether the employees in a particular class have selected a collective bargaining representative or what happens when two carriers with represented employees merge fall within the exclusive jurisdiction of the NMB. Dispute Prevention The NMB, in addition to its mediation and adjudicatory roles, provides training and support to carriers and unions within the jurisdiction of the RLA. The NMB seeks through all of its activities to prevent labor disputes within the railroad and airline industries from jeopardizing interstate commerce.

Dec. 8, 2021 To be declared "disabled" for social security disability purposes, the individual must not be able to engage in any substantial gainful activity. "Substantial gainful activity" is a term of art used by the Social Security Administration (SSA) to mean doing significant physical or mental activity for pay or profit. An individual's work can still be substantial even though it is engaged in less than full-time work. The SSA does not normally consider activities such as household chores, hobbies, school attendance, or participation in social programs or clubs to be substantial gainful activity. In its examination of whether an individual is able to engage in a substantial gainful activity, the SSA gives primary consideration to the nature of the work, how well the individual performs such work, and if the work is done under special conditions as an accommodation to the individual. With respect to self-employed individuals, activities that are useful in the operation of a business and have economic value are "significant" and such work is "gainful" if it is done for profit, whether or not a profit is actually realized. Evidence of substantial gainful activity can be taken from the individual's earnings records. If an individual's earnings exceed a given amount on the Earnings Guidelines, the individual will usually be found to have engaged in substantial gainful activities. The SSA will carefully examine the earnings of an individual who works in a sheltered workplace or environment to make sure that such earnings reflect the worth of the services provided by the individual to the employer. In some instances, employers receive charitable contributions or may operate at a loss with respect to the individual's employment. In such instances, the full amount of the individual's earnings may not be "earned" and, concomitantly, the full amount of the earnings would not contribute to the "substantial gainful activity" determination. The time spent in an unsuccessful work attempt, less than six months, will not preclude a disability determination for such time period. For work attempts less than three months, the attempt is determined to be "unsuccessful" without resort to an examination of other factors. For work attempts from three to six months, the SSA will look to a variety of factors including the time spent away from work due to the individual's impairment, special treatment that was afforded the individual, and the competency of the individual in fulfilling his job functions. In the "substantial gainful activity" realm, it is not necessary that such activities be legal. It has been held that there is no distinction between lawful and unlawful activities so that illegal activities, such as panhandling and stealing, can be substantial gainful activities.