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Changes to Pay Structure in Lieu of Requested Accommodations May Violate ADA and FMLA

    Client Alerts
  • September 28, 2015
Employers that receive requests for accommodation made by a disabled employee must remain careful about making significant changes to that employee’s terms and conditions of employment prior to concluding review and disposition of the accommodation request. Changes viewed adversely by the employee may form the basis for a discrimination claim under the Americans with Disabilities Act.

In Hurtt v. Int’l Servs., Inc. the plaintiff was a commissioned outside salesperson who was diagnosed with depression and anxiety. He requested an immediate FMLA leave, and informed the company that he may need additional leave plus a reduced work schedule over the following months. In response to these requests, the plaintiff alleged that the employer ended his guaranteed draw, as well as reimbursement of certain travel expenses. He quit and sued, claiming constructive discharge under the ADA and FMLA.

Earlier this month, the Sixth Circuit Court of Appeals reversed a grant of summary judgment for the employer. The court concluded that the plaintiff had demonstrated adequate grounds to allow a jury to determine whether the changes to his pay plan constituted discriminatory constructive discharge. The Sixth Circuit also determined that the changes may have interfered with the plaintiff’s FMLA rights, even though the company never denied any leave request.

In this situation, the employer may have jumped the gun with respect to changes to the plaintiff’s work arrangements. When considering accommodation requests, employers are entitled to adjust compensation based on the impact of the changes on the employee’s performance and productivity. For example, if an employer grants a request for part-time work, it is not expected to continue paying the employee full-time wages.

Here, however, the employer apparently made changes to the pay plan well in advance of its disposition of the plaintiff’s accommodation request. Instead of granting the request and tying pay plan changes to the demonstrable impact of those accommodations, it made the pay changes as soon as it learned of the disability and the request for accommodation. This move appeared to be punishing the employee for requesting leave and other accommodations, instead of a measured reaction to the real economic impact of those changes. Employers faced with accommodation requests need to take the time to review the situation, and avoid the temptation to immediately react based on the perceived cost of the employee’s medical condition to the bottom line.