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Employment Law Update

Interaction of the FMLA and the ADA — Employers May Hold Employees’ FMLA Leave Against Them in Making ADA Determinations continued from previous page

further analyzed whether a reasonable accommodation existed that would enable Payne to perform this essential function; the court ruled that the accommodation proposed by Payne

  • the employee sought to arrive at work late, leave early

and take off whenever necessary — was not reasonable. Significance of the Court’s Holding for Employers

  • The Payne court’s decision constitutes judicial recognition of the toll that excessive absences can have on employers and co-workers who would have to work harder or longer to ensure that work is adequately completed.

  • Employers should consider adopting job descriptions stating that attendance is critical to job performance and should remind employees at appropriate times that such attendance is critical.

  • The Payne court was confronted with an employee whose position required attendance at the job site and who had been frequently absent (and had allegedly been insubordinate). If attendance in the office is not essential to the individual’s job performance, the employer should consider the request of a qualified individual with a disability to work from home, regardless of whether the individual has used all of his or her FMLA leave.

  • Although claims under the ADA were held by the Payne court to be unavailable under the facts of that case, employers must be careful not to create FMLA claims by retaliating under that statute against an employee with respect to FMLA leave taken by the employee.

New York Court of Appeals Holds Form U-5 Statements Are Absolutely Privileged continued from page 1

siding with the cases applying an absolute privilege to statements made on a Form U-5. On appeal, the Second

The Rosenberg decision conclusively holds that absolute privilege applies to statements made on Form U-5. The

The court found that “significant” public interests are served by the filing of accurate and forthright Forms U-5, which enable the NASD to investigate, sanction, and deter misconduct by its registered representatives and protect the investing public.

Circuit Court of Appeals concluded that Rosenberg presented an unsettled issue of New York law and certified the question to the New York Court of Appeals.

Rosenberg court primarily relied on two arguments. First, the court noted that Form U-5 “plays a significant role in the NASD’s self-regulatory process” and its compulsory filing should be “viewed as a preliminary or first step in the NASD’s quasi-judicial process.” Second, the court found that “significant” public interests are served by the filing of accurate and forthright Forms U-5, which enable the NASD to investigate, sanction, and deter misconduct by its registered representatives and protect the investing public. The Rosenberg court concluded that its finding of absolute immunity did not leave “registered employees who are maliciously defamed on a Form U-5 . . . wholly without remedy.” Those employees “may commence an arbitration proceeding or court action to expunge any alleged defamatory language” made on a Form U-5.

Kramer Levin Naftalis & Frankel LLP

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