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The Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(a), protects a qualified individual from discrimination by private employer. There are two basic parts to prove a claim for discrimination. The focus of this post, however, is on whether you can legitimately pursue an ADA claim and a Social Security disability claim at the same time. As to Social Security disability benefits you must prove your inability to work. It is possible to thread the needle, but it will involve a unique circumstance and you must be ready to explain the inconsistencies.

You may recall my post back in September about a Fifth Circuit case overruling a district court. Now for the end of the story. Mr. Hewitt was a supervisor working on an offshore oil rig. He received good pay (over $200,000 a year), but he was paid on a daily rate rather than a weekly, biweekly, monthly, or annual rate. Accordingly, he filed suit (above a putative class action) for overtime pay, but the district court ruled against him. Many employers had their eyes on this case. Some may now be scrambling to adjust their methods of payment. Others may be “asleep at the wheel,” and a class action may be looming. While employers can use many “creative” arrangements to avoid overtime, the daily rate salary is difficult to pass muster.

Salim’s case was strong. Dr. Fuller had gone to bat for him during the claim process. Many physicians struggle to find time to help a claimant like this, but Dr. Fuller found the time. Blue Cross and other insurers can be held accountable, but it takes a strong effort during the claim process to accomplish that. May you never find yourself in the unenviable position of Mr. Salim. But if you do, in this war, the battle is won during the claim process and with a pointed challenge to the precise medical standards relied on to deny the claim.

A client comes to you with a disability claim on a policy from her workplace. Her initial claim was denied by a letter dated March 31, 2022. That letter provided a 180-day deadline to challenge the decision denying the claim. That deadline passed over six months ago. Can a late challenge be submitted? Is there time to do anything to help this poor lady? You have heard it is critical to make a strong claim record, so you are not optimistic. So … as to ERISA-governed disability claims denied before May 11, 2023, there is more time than many insurers and plans have indicated in denial letters. Some get it right and at least paste the technical language above in their letter denying the claim. (Any claimant who can decipher that is well above average!) Regardless, for any claimant denied benefits after March 1, 2020, and until May 11, 2023 … there is still time.

They just might be if they implicate the National Labor Relations Act. The National Labor Relations Board (“NLRB”) recently released a decision on February 21, 2023, finding by a 3 to 1 vote that such clauses violate section 7 of the National Labor Relations Act per se. Previously, such clauses w...

The Uniformed Services Employment and Reemployment Rights Act of 1994 “ 38 U.S.C. §4301 et seq, commonly called USERRA, provides broad protection for service members and private jobs to reclaim their jobs upon return. In fact, generally speaking, the veteran must not be penalized in any way for a...

Dr. Zall was a dentist insured by a long-term disability policy through Standard Insurance Company. As we all know, dentists spend a lot of time bent over, using their arms and hands to look into people's mouths and perform various procedures and examinations. They do this all day, every working ...

Words can intimidate. A Cash Balance Pension Plan sounds both intimidating and boring all at once. But should we be content to ignore confusing or not well-known terms? Not if the matter is critical to our future. Retirement plans are important vehicles for American workers. We need money availab...

Whenever a downturn in financial investments occurs, and it continues for an extended time frame, you can rest assured that pension or retirement plans will be among those experiencing difficulties. When that occurs, pension plans look for ways to save the plan money and protect assets for those ...

Recent changes in the law relating to pregnancy were tucked away in the $1.7 trillion package recently passed and made law. The Pregnant Workers Fairness Act is in the package. It tracks the Americans with Disabilities Act (ADA) and adds protections for pregnant applicants and employees. This app...

The Federal Trade Commission thinks so. Included with this post is a fact sheet documenting the commission's reasons for the proposed rule. What will be the impact of this rule? Will employers more readily shield sensitive information from employees? On the other hand, when an employee is termina...

The Associated Press recently reported, “Two women who lost their jobs at Twitter when billionaire Elon Musk took over are suing the company in federal court, claiming that last month's abrupt mass layoffs disproportionately affected female employees. … Days after the world's richest man bought t...

It has been reported that Twitter “has begun laying off employees under its new owner, Elon Musk,” in a decision that could impact “up to 3,700 people.” Reuters noted that the “federal Worker Adjustment and Retraining Notification (WARN) Act requires businesses with 100 or more employees to provi...

Usually, we shy away from doing things to the point of exhaustion. However, in some areas of the law, you have to exhaust all procedural processes, or the merits of your case will not matter. Employment law, including ERISA, is a prime example.  Ms. Moore was a long-time employee of Verizon, goi...

“If You Fail to Plan, You Are Planning to Fail” — Benjamin Franklin.  It may also be true with ERISA cases, especially subrogation and reimbursement claims, that “If you don't have the plan, you have planned to fail.” Sure, you might get lucky, but then you might also win the lottery. Lori Freit...

Alabama Clarke-Figures Equal Pay Act at Ala. Code § 25-1-30 requires that an employer (inclusive of public employers) cannot pay persons performing the same work different rates of pay when they have the same skill, effort, education, experience, responsibility, and performance conditions, Men an...

More than a few times, I have explained the unfairness of discretionary clauses. On the other hand, the benefits of a de novo review are well entrenched in the 11th Circuit law. A recent case, Harris v. The Lincoln National Life Insurance Company, No. 21-13186 (11th Cir. July 29, 2022), affirms a...

If you are sick or have been injured is there a timeline for your improvement? Can you be terminated from your employment for not improving based on the companies expectations? Unum Insurance Company thinks so. Ms. Proctor was a telephone call center supervisor when the vehicle she was driving wa...

I am David Martin with the Martin Law group. We help people with disability policy claims and ERISA claims. This and other videos are posted to help you understand your policy. I post a new term every Thursday. Subscribe to get the Edge in understanding your policy.  Today let's talk about the c...

I am David Martin with the Martin Law Group. We help people with disability policy claims and ERISA claims. This and other videos are posted to help you understand your policy. I post a new policy term every Thursday. Subscribe to get the Edge in understanding your policy. Other Income is a commo...

I am David Martin with the Martin Law group. We help people with disability policies and ERISA claims. I post a new term every Thursday. Subscribe to get the Edge in understanding your policy.  Today let's talk about what it means when the policy says it can require “examination by a doctor of ou...

Today we are going to be discussing What are exclusions? Exclusions are circumstances, situations or certain disabilities which will not result in a payment of benefits. Many common exclusions in disability policies are disabilities that are related to war, armed aggression, service in the Armed ...

I am David Martin with the Martin Law group. We help people with disability policies and ERISA claims. I post a new term every Thursday. Subscribe to get the Edge in understanding your policy. Today we are going to be discussing What are my Pre-disability Earnings or Covered Earnings? These term...

My co-worker cussed me out and my boss did nothing about it. Is that a hostile work environment? It depends on many factors such as what was said, how often it was said, and whether your employer had notice or constructive notice of the conduct. Busby v. City of Orlando, 931 F.2d 764, 785 (11th C...

Mr. Duggan filed a lawsuit when he felt his employer was failing to pay overtime wages, and then for retaliated against him when he complained about it. He worked for Dura-Line, a company that makes pathways or conduits for connections for the telecom industry and the natural gas industry. Mr. Du...