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Handicapped parking enforcement can fund ADA compliance.

Legal Issues is a monthly column, written by attorney Charles D. Goldman, to help members with the Americans with Disabilities Act. A recognized expert on the new law, Goldman has worked with NLC on these issues in the past. Columns will address a variety of issues regarding local governments and ADA, including court decisions. Also, readers are encouraged to submit specific questions which they would like to see answered in Legal Issues. Send your questions and comments to: Legal Issues, c/o Nation's Cities Weekly, National League of Cities, 1301 Pennsylvania Ave., N.W., Washington, D.C. 20004.

At a recent Americans with Disabilities Act seminar in Florida, one participant related that her county had begun to enforce actively its ordinance prohibiting parking by able-bodied persons in spaces designated for persons with disabilities. With one full-time employee and twenty volunteers, the program had realized more than $150,000 in only one year! The money is reprogrammed to meet compliance with the Americans with Disabilities Act.

This success story illustrates what local governments can do to help garner some additional revenue needed to meet the ADA mandates. This example also raises the very sensitive issue of just who is an "employee" and who is a "volunteer." Under the ADA, the "treatment" of employees is significantly different, then what is permitted if someone is volunteering in a state or local governmental program. The employment requirements are far more stringent.

Titles I and II of the Americans with Disabilities Act of 1990 and the implementing regulations of the EEOC and Department of Justice mandate that cities ensure equal employment opportunity in all aspects of the work relationship for qualified disabled individual applicants and employees.

In Title I of ADA, Section 101, and the EEOC regulations, 29 CFR Sec. 1630.2(e), "employee" is defined to be an individual employed by an employer. Neither Title II nor the U.S. Department of Justice regulations, 28 CFR Part 35, relating to nondiscrimination in state and local government services which include employment provisions, contain a definition of the term "employee."

The legislative history of ADA is clear that the exception in the Civil Rights Act of 1964 (from which other ADA definitions, such as person, employer, and labor organization, are drawn) for elected officials and their appointed employees has been deleted. Thus, all government employees, including "exempt" employees, are subject to the ADA.

EEOC, the lead agency on employment issues under ADA, will approach the issue of who is an employee under ADA the same way it approaches that issue under the Civil Rights Act of 1964. Explicitly, EEOC will look at the total realities of the situation, not only at what a worker is called, whether that be "volunteer" or "employee," or any other single factor.

EEOC's technical assistance manual makes it clear that if volunteer work is required prior to regular employment or if volunteering for the employer regularly leads to conventional employment with that same employer, then the first relationship between volunteer and employer is likely to be considered an employment one. If a city pays benefits, such as workers' compensation or health insurance, for its "volunteers," then EEOC will likely consider the "volunteer" as an "employee" for purposes of ADA.

EEOC also will want to know if there is a contract between the parties establishing the working relationship, whether taxes are withheld, whether there is medical insurance for the individual, whether the individual reports to an office or works at a place of their choice, how the pay rate and working hours were determined, as well as how/what basis the continuation or termination of the relationship is determined. This information allows EEOC to look beyond the label to the totality of the situation-just as the courts have done repeatedly. An excellent exposition of the judicial approach to the issue is the case of Fields v. Hallsville Independent School District, 906 F.2d 1017 (5th Cir. 1990). At issue was whether the plaintiffs were employees of the state. The Court of Appeals, in holding these individuals were not employees, applied the economic realities/common law control test to determine the existence of an employment relationship. While no one factor is dispositive, it is clear that the right to control the employee's conduct is an important factor. If an employer has the right to control and direct the work of an individual, not only as to the result to be achieved, but also as to the details by which that result is achieved, an employer-employee relationship is likely to exist.

In Fields, the Court made reference to numerous other cases addressing the issue of whether an individual was an employee or a volunteer, including Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979). In Spirides, as in Fields, the Court applied the common law/economic realities criteria, finding that a review of the totality of the individual's circumstances was needed, rather than reliance on a single item, the contract under which the individual worked as an announcer. The factors the Court articulated (in addition to control factors noted, supra,) were the same ones that EEOC will investigate.

Today, as budges grow tighter, cities are increasingly relying on more volunteers and fewer employees. Volunteer fire departments have been used for firefighting in smaller communities for years. We are now seeing the emergence of other volunteer programs, like a parking patrol. To understand their obligation to these individuals, it behooves cities to take a look at the total realities of the relationship to determine whether the work is a volunteer (subject to mandates of the Department of Justice under ADA Title II) or an employee (subject to the ADA mandates not to discriminate in employment as well as all other federal and state employment laws, such as unemployment and workers' compensation).

Federal Funding Recipients Take Note

For cities receiving federal funds, a recent supreme court decision in the case of Franklin v. Gwinnett County Public Schools, 112 S.Ct. 1028 (1992), is required reading. It upholds an award of damages to be paid by a local school system for sexual harassment, a violation of Title IX of the Education Amendments. Where there is no congressional limitation on remedies but there is a right to sue, federal courts, Franklin upholds, may use any and all remedies, including monetary damages to redress the wrong.

Section 504 of the Rehabilitation Act (unlike the various provisions of the Americans with Disabilities Act) is a general mandate not to discriminate against qualified individuals with disabilities (the laws reads "handicaps"). In nonemployment situations, such as in Franklin, there is no limit on remedies under the Section 504 of the Rehabilitation Act. It could be argued that the Franklin decision establishes the right to damages for violations under the Rehabilitation Act, except in cases of employment discrimination. (Damages for employment discrimination are available under the Civil Rights Act of 1991 as amended.) For this reason, FRANKLIN should be read and reread carefully.
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Title Annotation:Americans with Disabilities Act; Legal Issues: Complying with the ADA
Author:Goldman, Charles D.
Publication:Nation's Cities Weekly
Date:Jun 1, 1992
Previous Article:Publication explores 'A New Agenda for Cities.' (from the National League of Cities and the Ohio Municipal League)
Next Article:AFSCME pushes for single payer health plan.

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