Universal Inclusion for Lawyers: How Helping Your Client Maximize the Value of Inclusion Can Also Reduce Both Litigation Complexity and Liability

People say to me all the time, “oh, you work inclusion, and you are a lawyer, do you practice disability law?”  The answer is an emphatic no, and I want to start out by saying that nothing in this document is intended as legal advice, or in any way to substitute for consultation with counsel.

And yet, I did train as a lawyer, though I never practiced disability law, and I did study disability law, both in law school, and many years later as a disability policy expert.  It is perhaps only natural that I begin to wrestle with the question of how one informs the other.  At worst, this piece will serve no purpose to an experienced attorney, but I believe that an experienced attorney examining counseling on a disability question might benefit from a reframing of the issue.

In my employment related inclusion work, my basic thesis is simple.  Employers hire potential employees because they hope to benefit from certain skills, talents or labor potential that those employees bring to the table.  For the purposes of this calculus, the relevance of disability is the extent to which it precludes the fullest and best expression of those skills, talents or labor.

I posit, therefore, that the employer-employee negotiating process should be reimagined from “here is a disability, how do we accommodate it?”  to “how do we best capture the value from this employee that is the reason they were hired in the first place?”  Within this framework, all of a sudden no “accommodation” is off the table, if the cost benefit is right.

Throughout my legal career, my employers always started with an idea of what they were looking for, a talented lawyer.  I remember, just before I was to start my first law firm role as a mid-level associate (I had lateraled from an in-house role), I expressed some concern to the partner who had brought me in, because I knew that I was going to have trouble manipulating paper and documents to the extent that they were still relevant to a practice that was still transitioning into the digital age.

Unfazed, he said “I hired your mind, not your hands, if we need to get someone else to handle the paper we will.” 

I recommend that employers look at each employment challenge this way.  Let’s assume that you’ve hired someone because they have phenomenal coding skills.  Let’s further assume that it has always been the responsibility of each individual coder to maintain her work area, organizing papers, creating files, sorting incoming mail.

It’s perhaps a no-brainer that if you hired a coder with a manual dexterity problem, but who was gifted at computer code, and the challenge was that they couldn’t to do those organizational tasks, you would assign them to someone else.  Not only do you not want to lose them, but you probably don’t want to come up with a laborious solution where they now spend 60% of their time cleaning their desk, but, hey, you made it possible.

I picked this example on purpose, because you might readily realize that if each of your coders was spending 10% of their time on organizational tasks, and this coder would need to spend 60, you could hire one administrative individual, and not only enable this coder, but a 10% productivity boost on everybody else.  This is actually my basic concept of universal inclusion, the idea that, anything that we might provide an accommodation to a person with a disability, we should readily provide to another employee, provided that the demonstrated increase in productivity outweighs the cost of the business. 

Other examples: I use voice recognition software because I can’t type at all.  How many senior executives or law firm partners either type very slowly, or still use Dictaphones or even real-time scribes, and would have their productivity improved immeasurably if they could do as I do and have their words appear on screen.  My voice recognition suite, which is the most expensive type, with full support for legal vocabulary, costs less than $600, and that’s when not bought on sale or in bulk.  For industries outside of law or medicine, the cost is only $200.  Further, if this option is already universally available, then an individual who develops a repetitive strain injury can quickly transition. 

Similar arguments can be made for flexible schedules and commutes, if the business permits, and most other accommodations.  The whole point of the theory is that, if value can be shown, then it should be considered.  I can’t imagine an able-bodied person making the case for why they would benefit from my specialized restroom accommodations, but if they could, and their productivity would be increased more than the cost, why not?

That’s all well and good, but what does it mean for lawyers.  Again, I reiterate that this is not legal advice, but I will share that the basic framework for the employment accommodation mandate is that a person with a disability must be hired if they can perform the essential functions of the job, with or without a reasonable accommodation.  A reasonable accommodation is defined as an accommodation that does not pose an undue burden on an employer.  To determine both of these things, the law mandates a good faith negotiating process.

My approach will not eliminate lawsuits, as we all know that unhappy plaintiffs are never going away.  But, let’s explore the application of this standard if you’ve gone through my process.  First of all, by determining the talents that you’ve hired someone deliver, you’ve basically defined the essential functions of the job.  If you would readily give the function to somebody else in order to have a talented individual in the job, then it isn’t an essential function. 

If you wouldn’t, it’s worth asking the question of why not?  Maybe it’s because you haven’t embraced the process defined above to maximize value, or maybe it’s because that function really is essential to the job.  Your lawyer will help you determine that, but if you’ve thought seriously about why you’re hiring people for a particular job, you’re already halfway there.

Now, can they perform the job with or without an accommodation that does not pose an undue burden?  First, can they do the job?  If they can’t, there is your lawyer’s strategy.  Either your recruiter misidentified the talent, or, despite the two of you working together, you are unable to find a way to unlock it.  Again, if you’ve engaged in my process, you’ll know that already, and the process will have been your good faith negotiations.

Or maybe you’ve identified a strategy but rejected it.  If you rejected it because it’s unorthodox, then again you failed to embrace the process that I identified above.  The process envisions offering any accommodation which will allow an employee to contribute the talents that you are looking for, provided that the cost does not outweigh the benefits of those talents.  If, on the other hand, you’ve embraced the procedure, but found that the cost of the strategy outweighs the benefits of employing the individual, your lawyer has a strong start on the cost benefit analysis.

Litigation is uncertain.  Only your lawyer can help you navigate the ins and outs of the particular legal standards in your circuit, your state and your situation.  (In addition to the ADA, most states have their own disability law.)  That said, lawyer or client (or both), if you follow the procedures of universal inclusion, not only will you maximize the talents of your workforce, but you provided yourself with the beginning of a strong legal defense.

Common Ground: Can Disability Provide an Angle to Move beyond Partisanship?

I was fairly politically unformed when I worked as a policy intern for United Cerebral Palsy in Washington, but if you asked me, I’m sure I would have told you I was a Democrat. I’m pretty sure that both of my mentors were Republicans, since one of them had worked in the first Bush White House, and the other had a lobbying resume that one does not associate with the liberal agenda, but I honestly didn’t know, because we were avowedly nonpartisan. Disability, we said, was not a partisan issue. Certainly, the heroes of the ADA include liberal icons like Coelho and Harkin, but also conservative stalwarts like Dole and Hatch. The law was triumphantly signed by a supportive George HW Bush, and aggressively implemented by Bill Clinton. Many like to think that this is because it is a cause so universally good or right that it transcends ideological bounds.

While certainly human sentiment played a role, I think that this is terribly simplistic. Very few people view themselves, or their positions as wrong, or evil. Rather, in the face of conflicting values, people choose based on the ideologies that are most important to them.

For instance, notwithstanding Mitt Romney’s taste for his own foot, I really doubt that he has anything against the idea of helping people in need. he is simply viscerally opposed to that help being provided in the form of government payments. He thinks that not good for society. I disagree, but this post is not about welfare.

So, then, perhaps the unity around the ADA was really a function of the fact that there was agreement upon both the goal, establishing legal equality as a foundation for economic and social equality for people with disabilities, and the means, enacting a broad antidiscrimination law. With neither side objecting to the other’s goal or means, cooperation was not only possible but desirable.

A recent column by Dana Milbank in the Washington Post noted that Ralph Nader and Grover Norquist had found common ground over the minimum wage. Writes Milbank:

Democrats have made the argument that an increase is morally right and that the only thing standing in the way is corporate greed. That may be so, but it hasn’t won them enough Republican support to get the increase through Congress. But what if Democrats were to make a free-market argument that a higher minimum wage would shrink the federal government and reduce the welfare state?

That’s the argument Ron Unz made to Nader’s gathering.

The government spends over $250 billion a year in social welfare programs aimed at the working poor,” he said, addressing the group via Skype. “If we simply made the working poor much less poor by raising their wages to a much more reasonable level, a lot of that money would be saved, probably in the range of $40 to $50 billion a year.” The $250 billion spent on welfare for the working poor, Unz said, amounts to a “massive subsidy for businesses” that are paying less than a living wage and “forcing taxpayers to make up the difference.”

Call me a cynical centrist, but I could paraphrase this long quote by saying, “Liberals ’ argument that this made them feel good was minimally successful at winning over economic conservatives. Once they were able to demonstrate that the apparent feel-good measure was also likely to be economically successful in raising the target population out of poverty, economic conservatives began to get on board.”

Now, I’m no fan of ideologues on either side, and God knows that there are plenty of folks in Washington today who vote ideology regardless of what makes sense, as was sadly demonstrated in the knee-jerk ideological vote against the ratification of the Convention on Rights of Persons with Disabilities (CRPD) in the United States Senate, despite the fact that it was patterned after the ADA, and supported by Senator Dole and the first President Bush. Further, I am liberal, and fundamentally disagree with the conservative positions on issues ranging from gun control to a woman’s right to choose.

That said, I think policy advocates in general, and disability advocates in specific, could use to do work finding common ground among individuals who disagree based not on ideology, but on a differing conclusion as to what makes good policy. Here, political deal making is not so much holding your nose to appease your opponent as addressing your opponent’s valid concerns. This passed the ADA, and, if we are to believe Dana Milbank, Ralph Nader, and Grover Norquist, could create a coalition around the minimum wage. Surely this will not appeal to true libertarians, and will be insufficient to appease true socialists, but, being workable policy for the laudable goal of raising partners out of poverty might be a blueprint to get something done.

Disability advocates should be looking for these points of commonality. As I point out in my Chutes and Ladders post, sliding scale premium, uncapped non-asset tested Medicaid buy-ins for working personal care users with disabilities is such an area. It promotes employment in independence while ultimately lowering costs of government benefits and raising quality of life for people with disabilities. The baseline for universal support among practical minded politicians is that the end is good in the numbers make sense.

We are always going to have areas of ideology where we disagree. My challenge to any advocate reading this is to begin building coalitions by helping reasonable people focus on the items that just make sense. As we come upon 24 years of the ADA, we have living proof of just what that can accomplish.

Labor Protections for Personal Care: The Money Is Fuzzy, the Morals Are Clear

Since August 1998, when I was 16 years old, I have been dependent upon a unique class of professionals for all of my physical needs. These hard working men and women were integral to my earning two Ivy League degrees, my professional success, and really anything that I have achieved since leaving my parents’ home in 1998. On the East Coast we call them Personal Care Attendants, other regions refer to them as Personal Assistants. They, together with the slightly better trained Home Health Aides and Certified Nurse’s Aides, make up the incredible corps of giving, caring individuals that facilitate the lives of countless people with disabilities in order that they can live independently. It will surprise few who are familiar with the economic realities of this country that, demographically speaking, this population of workers tends to be only high school educated (if that) and disproportionately minority, immigrant and female. It may be more surprising that, currently, due to a companion care exemption in the regulations implementing the FLSA, these individuals are not provided with mandatory overtime in excess of 40 hours, let alone items like sick time. (Arguably, even the current exemption is over applied, but that is outside of the scope of my post.)

The Obama administration has proposed regulations to end this exception, and they take effect soon. This is causing great consternation in the disability and caregiving communities, and Jeff Rosen, the Chairman of the National Council on Disability, on which I served until recently, has written a letter asking Labor Secretary Tom Perez to delay the implementation. The purported purpose of this delay is to

“allow DOL [Department of Labor] and the Department of Health and Human Services (HHS) more time to work with States as well as the disability and aging communities to understand the policy and operational issues, develop workable solutions on key components, and determine an appropriate course of action.”

With due respect to Chairman Rosen, this is a naked delay disguised with bureaucratic obfuscation. I was one of the moderators of the January 2013 meeting referenced in the letter, and the policy and operational issues could not be clearer.

As I said in the introductory paragraph, we who use these services are deeply aware of the value of the loyal service of these dedicated individuals. None of us want to see them get anything less than the very best, and not a single voice argued that they deserved anything less than that which is promised to other American workers.

Rather, there is a reality that no one wants to talk about. The vast majority of Americans, myself included, receive these services through government programs, the most common of which being Medicaid. Practically speaking, current state Medicaid budgets could not cover time and a half for these workers, and the likelihood of these budgets being changed simply because the Department of Labor changes the regulations is nonexistent. So what would happen?

Every current care attendant, personal assistant, or home health aide would be cut safely below 40 hours per week. I know this argument is often used to attempt to invalidate the goals and protections of the FLSA, but ask the reader to recognize that the incentives are entirely different when the person making the payment decision is completely distinct from the person benefiting from the labor. If a factory owner wants to split shifts to avoid paying overtime, that owner bears the cost of the labor inefficiency of multiple workers in the same job. The choice, whether to pay more or hire more, is a simple economic calculation, made by the decision maker. In this instance, neither the worker nor the beneficiary of the labor is making the decisions. To the budget official making Medicaid decisions, quality and continuity of care is only the most abstract consideration.

Here, essentially, everyone loses. The person with a disability loses because rather than have appropriately designed shifts balancing the needs of worker and consumer for maximum efficiency for both, they must arbitrarily break at the 40 hour line. Further, as the expression goes, good help is hard to find. To remain under 40 hours per week, the consumer may need to hire more people, and face the difficulty of fielding a larger team of staff with good skills and good fit. The person who loses most of all is the worker. There is no question that the worker would be better off working 60 hours where 20 are at time and a half than working 60 hours at time, but the real distinction is 60 hours at time versus 40.

What, then, to do? Most disability advocates are pushing strongly for the status quo, and I agree that the status quo would be better than the scenario that I outlined above. But what about real courage? What about saying to the Department of Labor and to the States “we support the proposed rule, Mr. Secretary, but we demand that part of self-determination is to free up the funds to authorize overtime as we see fit.” This would be a courageous option, protecting the rights of our caregivers while ensuring the needs of our consumers are met.

To my former colleagues, I say this. The answer is not difficult. Frankly, I have outlined our choices in two paragraphs. The hard part is gathering the conviction to push for the right decision, because this letter feels like merely trying to delay it.