Military Spouse-Owned Businesses Face Their Biggest Obstacle: The Military

This article was written by a coalition of military spouse small business owners. Visit www.musterup.co to sign our petition and join a growing number of voices in support of positive, real-world change for military spouse entrepreneurs.

Since 9/11, a new generation of military spouses has emerged; women and men married to service members who want to maintain a career or business as they follow their spouse where the military demands. The military lifestyle requires out-of-the-box thinking to create a transportable career and, with creativity and grit, many spouses have turned to entrepreneurship to create their own financial and personal future while their service member spouse advances in their own career.

The one thing that continues to stand in the way of military spouses achieving their entrepreneurial goal, a goal that would benefit the military itself in retention of service members and their families is, surprisingly, the military itself.

The issue

There are no military-wide approval processes or guidelines for operating a home-based business on post. Yet, these businesses are required by the military to register with the installation. Because of this, decisions are made on an installation-to-installation basis.

Military spouses who live on post are told again and again to wait long periods of time for approval to operate a business out of their quarters and, for many, the approval never comes. In the meantime, military spouses are told to cease operation of their thriving and successful, income-earning businesses until they receive approval. No successful business model supports a cycle of 4 to 6 week closures every 2 to 3 years.

What types of businesses are we talking about? The very types of businesses military spouses are being encouraged by the Department of Defense to pursue due to their mobility. Freelance, consulting, remote/telework, food service, multi-level marketing, and start ups are just a few examples. Military spouse entrepreneurs are on the rise. Many of these spouses function as 1099 contractors, full time remote employees, legal consultants, software developers, LLC or C Corp owners, and many maintain contracts and/or a consistent, high income client base.

The lengthy wait time and subsequent denied requests destroy businesses carefully grown by military spouses who have already sacrificed many of their own career goals and income making opportunities in the wake of the challenges of military life. And, to add insult to injury, these same spouses are being told by military-affiliated organizations and government endorsed non-profits that serve military families to strive for gainful employment, yet the policies in place remain one of the biggest obstacles for military spouse business owners.

The current reality

The process for establishing a home based businesses from post to post is not standardized. Spouses must get approval each time they move. The final decision comes down to the garrison commander who the applicant may never get to meet.

It is important to note that although most military housing is privatized, it is often not the private housing companies that are denying approval of operation of home based businesses. The approvals from the private housing companies are often fast with positive results for the military spouse. It is the military’s process that is difficult and often has a negative outcome.

Having navigated for weeks through piles of paperwork and approvals and inspections, imagine hearing the news that your business has not been approved to operate? In the meantime, you have not pursued other employment options taking months off of a timeline of less than two years of being stationed at that location.

The kicker: many spouse owned businesses are being told “no” because they are said to compete with AAFES, the stores operated on post by the DoD. While the explanations are long, including the traditional “AAFES funds MWR programs and we don’t want to take away from those funds,” it boils down to the DoD denying competition for the stores they operate.

This is in direct conflict with the free market system of the United States that is such a large part of our country’s ethos. There seems to be a failure to recognize that more financially stable families spend more at AAFES. And spouses who are gainfully self-employed tend not to move to find employment elsewhere, thus spending more money on post and volunteering within the community.

A brighter future

Failing to fix this problem impacts the quality of life for military families and retention of active duty members. We realize is always easier to say “no” than “yes,” especially in a highly-regulated environment, and especially when something hasn’t been done before but:

The solutions for this problem are simple ones. Let’s start with the Army:

• Establish an Army-wide approval process for home-based businesses that has a shorter timeline, is easy to navigate, has fewer touches by government on-post agencies.
• Establish an Army-wide CONUS list of home based businesses that do not require approval through the local command structure for operation in housing.
• Establish an Army-wide CONUS list of home based businesses that require approval for operating in housing.
• Establish an Army-wide CONUS list of home based businesses that are prohibited from operating on post.

INCLUDE military spouse stakeholders in the discussion and creation of these above lists.

• Get national acceptance from AAFES with an agreement that home based businesses do not compete with AAFES to avoid “do not recommend” decisions, since these denials have consistently come from AAFES during the approval process and have ultimately hindered approval.
• Once a business has been approved on one installation, do not require approval at subsequent installations unless home inspections are required or there are state specific issues.
• Establish an Army-wide business review process that requires approval within a two-week (maximum) timeframe. Consider ways this approval process can be initiated prior to arrival on post to expedite the timeline for businesses that do not require a home inspection.
• Maintain metrics for the home-based business approval process to track the timeline for approval. This is a family quality of life issue that impacts the financial readiness of military families. If someone is not held accountable for the process, as in the past, there will fail to be any real change.

Many organizations, including the Department of Defense, have recognized through studies and reports that military spouses are underemployed. This impacts quality of life and adds to financial concerns, which in turn impacts the retention of service members. Let’s solve this problem. NO more studies. NO more reports. NO more reasons to avoid putting forward solid, actionable solutions that can only be hindered by unnecessary over-complication of this issue.

Military spouse entrepreneurs are thriving and paving a new path for successful military family life. Please stop standing in their way of making military families stronger.

This article was written by a coalition of military spouse small business owners. Visit www.musterup.co to sign our petition and join a growing number of voices in support of positive, real-world change for military spouse entrepreneurs.

GM Sells Opel To French Company For $2.3 Billion, Exits Europe

PARIS/FRANKFURT (Reuters) - PSA Group has agreed to buy Opel from General Motors in a deal valuing the business at 2.2 billion euros ($2.3 billion), the companies said on Monday, creating a new regional car giant to challenge market leader Volkswagen.

The maker of Peugeot and Citroen cars vowed to return Opel and its British Vauxhall brand to profit, targeting an operating margin of 2 percent within three years and 6 percent by 2026 underpinned by 1.7 billion euros in joint cost savings.

PSA shares jumped 4 percent after Chief Executive Carlos Tavares said GM’s European arm could be turned around using some of the lessons from the French group’s own recovery.

“We’re confident that the Opel-Vauxhall turnaround will significantly accelerate with our support,” he said.

By acquiring Opel, PSA leapfrogs French rival Renault to become Europe’s second-ranked carmaker by sales, with a 16 percent market share to VW’s 24 percent.

Last year, PSA and GM Europe recorded a combined 72 billion euros in revenue and 4.3 million vehicle deliveries.

GM will receive 1.32 billion euros for the Opel manufacturing business - 650 million euros in cash and 670 million in PSA share warrants.

An additional 900 million euros will be paid by the Paris-based carmaker and BNP Paribas for Opel’s financing arm, to be operated jointly and consolidated by the French bank.

The sale of Opel seals GM’s exit from Europe. Eight years after coming close to a sale to Canada’s Magna International, the Detroit auto giant has faced renewed investor pressure to offload the business and focus on raising profitability rather than chase the global sales crown currently held by VW.

After fending off 2015 merger overtures by Fiat Chrysler with support from her board, GM boss Mary Barra agreed to target a 20 percent minimum return on invested capital and pay out more cash to shareholders.

PSA shares were up 4 percent at 19.83 euros as of 0814 GMT. GM shares closed 1.2 percent higher on Friday after Reuters reported a deal had been struck.

The two carmakers, which already share some production in an existing European alliance, confirmed last month they were negotiating an outright acquisition of Opel by PSA, sparking concern over possible job cuts.

PSA said on Monday the targeted savings would come from purchasing and research and development - avoiding plant closures - as the Opel lineup is redeveloped with PSA technology and vehicle architectures.

An ambitious technical convergence push will begin with the Opel Corsa, Tavares indicated, as earlier reported by Reuters.

The next version of the popular subcompact will be delayed by a year to 2020 as it goes back to the drawing board, according to presentation slides shown to analysts.

“Our planning teams are already working on that,” Tavares said when asked about the model. Another five PSA-based Opel models will follow by 2023.

For PSA, the Opel deal caps a stellar two-year recovery under Tavares, which avoided bankruptcy in 2014 by selling 14 percent stakes to the French state and China’s Dongfeng <0489.HK>, to match a diluted Peugeot family holding.

Tavares has since cut about 3,000 French assembly line jobs each year through voluntary departures to reduce the wage bill to 11 percent of revenue from the 15 percent level he inherited - which is where Opel’s labor costs stand today.

PSA reiterated pledges to run Opel as a distinct German subsidiary and honor existing job guarantees to unions, which tend to cover production plans for existing models.

Beyond those horizons, however, the outlook for Opel plants may be less certain.

“Tavares wants to create healthy competition between the plants,” said one person involved in the discussions. “They will be competing for workload.”

With Europe’s auto market near a peak, some analysts predict the combined company may need to close two or three plants in the next five years. Britain’s European Union exit adds to the uncertainty over Vauxhall’s UK plants at Ellesmere Port and Luton.

But Tavares said exports could help fill Opel plants, adding that UK manufacturing brought opportunities as well as risks in the event of a “hard Brexit” in which Britain leaves the EU without a free-trade deal.

“This may look to you a little bit romantic,” he conceded.

The transaction also sees GM retain most of Opel’s pensions deficit, estimated by analysts at $10 billion. Earlier in the talks, the U.S. carmaker had sought to offload a larger share of the liabilities, sources said.

Some smaller pension funds will be transferred to PSA, along with a 3 billion euro payment to cover their full settlement, the companies said on Monday.

GM will also take an accounting charge of $4 billion to $4.5 billion in relation to the deal, which is expected to close in late 2017.

Uber Has A Secret Program Called 'Greyball' It Uses To Evade Police

For years, Uber used a secretive software tool known internally as “Greyball” to identify and steer its drivers clear of potential threats ― including law enforcement officers hoping to catch Uber operating in their cities illegally.

UPDATE: March 9 ― Uber chief security officer Joe Sullivan announced late Wednesday that the company is reviewing its use of “greyballing” technology and “expressly prohibiting its use to target action by local regulators going forward.”

Earlier:

According to The New York Times, which first reported the story, the company deployed the software in cities that deemed the ride-hailing service illegal or otherwise tried to slow the company’s rapid expansion.

The Times reports that Uber’s software clues into a number of signs from prospective riders to determine whether they might pose a threat to the company or its drivers, notably in the form of enforcement officers trying to catch Uber operating illegally.

This includes the rider’s behavior using the app itself, such as the phone type, and patterns in the frequency of its use. Another clear tell: interacting with the app in close proximity to police stations and other government buildings.

In 2014, for instance, officials in Portland, Oregon, sued Uber for operating in the city illegally, and promised to hit every driver caught working for the service with a fine of up to $3,750.

The threat accomplished little, as Uber continued operating anyway. Portland officers pushed forward with sting operations in an attempt to catch the unlicensed operators, yet were stymied as drivers repeatedly canceled their rides, as this 2014 video by The Oregonian demonstrates:

“There were two drivers that were available at one point in time, and they both canceled on me,” Portland Code Enforcement Officer Erich England comments in the video, giving a perplexed shrug. “Now there are no drivers available.”

Portland Commissioner Dan Saltzman acknowledged the city’s relationship with Uber was “pretty tumultuous” in 2014, but he told The Huffington Post that doesn’t excuse the company’s behavior.

“I’m appalled that Uber would direct its employees to work on developing software to deliberately thwart the efforts of Portland, and no doubt other cities,” Saltzman told HuffPost. He characterized the city’s regulatory efforts as dedicated to “the safety and wellbeing of our citizens and our tourists.”

Portland and Uber smoothed over their relationship in 2015, but Saltzman said the city would consider levying fines or banning the company (again), should it run afoul of regulations.

I’m appalled that Uber would direct its employees to work on developing software to deliberately thwart the efforts of Portland.Dan Saltzman, Portland Commissioner

Uber maintains its software is completely legal, adding that it is used more often to keep its drivers safe than to circumvent sting operations.

“This program denies ride requests to fraudulent users who are violating our terms of service,” an Uber spokesperson told HuffPost in a statement, “whether that’s people aiming to physically harm drivers, competitors looking to disrupt our operations, or opponents who collude with officials on secret ‘stings’ meant to entrap drivers.”​

That logic seemed pretty sound to Robert Weisberg, a Stanford Law professor and the co-director of the Stanford Criminal Justice Center, though he said he’d need to know the particulars of how it operates to be certain.

“I’m not sure there’s anything illegal about it,” Weisberg told HuffPost. He noted prosecutors might have a case for obstruction of justice, but that “usually requires direct interference with the express purpose of preventing police from doing a very specific thing at a very specific time.”

I’m not sure there’s anything illegal about it.Robert Weisberg, law professor

“If you or I were degenerates and up to no good ― or at least thinking about no good ― I could say, ‘Hey I just saw four cops on this corner, go the other direction’ or something like that,” Weisberg added. “This is just a huge technological enhancement of that capacity.”

With a chuckle, he noted, “There’s great irony here in terms of police surveillance,” given that police departments continually push for an increased ability to track and collect data on private citizens, yet apparently object when the tables are turned.

Legal or no, the bombshell revelation certainly won’t quiet criticism that Uber doesn’t take “no” for an answer and will bend any rule to get what it wants.

That ideology seems to have manifested itself internally at the company, which finds itself embroiled in allegations of rampant sexism (and numerous high-level resignations potentially linked to the allegations).

Other controversies rocking Uber at the moment include: a lawsuit over claims that Uber stole technology from a Google-founded competitor; fallout surrounding a video of CEO Travis Kalanick angrily telling off an Uber driver; and a #DeleteUber protest that wiped 200,000 users until Kalanick was pressured to resign from President Donald Trump’s economic advisory council.

NBCUniversal Invested $500 Million In Snap Inc As Part Of IPO

Comcast Corp’s (CMCSA.O) NBCUniversal said on Friday it had invested $500 million in Snap Inc (SNAP.N) as it continues to spend heavily on digital media companies.

Snap’s shares jumped 8.6 percent to $26.59 in early trading. The company finished its first day of trading with a 44 percent gain compared to its IPO price of $17.00.

The investment was made as a part of the Snapchat owner’s initial public offering, NBCUniversal Chief Executive Steve Burke said in a memo to employees.

Earlier, CNBC reported that Snap’s stock allocation to NBCUniversal seems to be the only one made to a new strategic investor, making NBCUniversal the lone U.S. media company with a stake.

Comcast has invested heavily in digital-native companies such as BuzzFeed and Vox Media, partly in an effort to better service existing advertisers.

“With the Snap investment, we have invested over $1.5 billion in promising digital businesses in the last eighteen months,” Burke said in the memo.

NBCUniversal has already launched entertainment programs such as The Voice, SNL and E! News’ The Rundown on Snapchat. The media company said it expects to launch more Snapchat shows in the coming weeks.

NBCUniversal has agreed to hold Snap’s shares for at least a year, according to the CNBC report.

Snap disclosed last month that it expected investors buying up to a quarter of its shares in the company’s $3.4 billion initial public offering to agree not to sell them for a year.

Lock-up periods help companies moderate stock volatility by preventing company insiders from selling their shares within an allotted time.

NBCUniversal courted Snap co-founder Evan Spiegel for the past year, CNBC said, and both companies have been working on deepening their relationship.

Snap declined to comment beyond details noted in its prospectus and other U.S. Securities and Exchange Commission filings.

Comcast’s shares were marginally lower.

(Reporting by Narottam Medhora in Bengaluru; Additional reporting by Anya George Tharakan; Editing by Maju Samuel)

GM Sells Opel To French Company For $2.3 Billion, Exits Europe

PARIS/FRANKFURT (Reuters) - PSA Group has agreed to buy Opel from General Motors in a deal valuing the business at 2.2 billion euros ($2.3 billion), the companies said on Monday, creating a new regional car giant to challenge market leader Volkswagen.

The maker of Peugeot and Citroen cars vowed to return Opel and its British Vauxhall brand to profit, targeting an operating margin of 2 percent within three years and 6 percent by 2026 underpinned by 1.7 billion euros in joint cost savings.

PSA shares jumped 4 percent after Chief Executive Carlos Tavares said GM’s European arm could be turned around using some of the lessons from the French group’s own recovery.

“We’re confident that the Opel-Vauxhall turnaround will significantly accelerate with our support,” he said.

By acquiring Opel, PSA leapfrogs French rival Renault to become Europe’s second-ranked carmaker by sales, with a 16 percent market share to VW’s 24 percent.

Last year, PSA and GM Europe recorded a combined 72 billion euros in revenue and 4.3 million vehicle deliveries.

GM will receive 1.32 billion euros for the Opel manufacturing business - 650 million euros in cash and 670 million in PSA share warrants.

An additional 900 million euros will be paid by the Paris-based carmaker and BNP Paribas for Opel’s financing arm, to be operated jointly and consolidated by the French bank.

The sale of Opel seals GM’s exit from Europe. Eight years after coming close to a sale to Canada’s Magna International, the Detroit auto giant has faced renewed investor pressure to offload the business and focus on raising profitability rather than chase the global sales crown currently held by VW.

After fending off 2015 merger overtures by Fiat Chrysler with support from her board, GM boss Mary Barra agreed to target a 20 percent minimum return on invested capital and pay out more cash to shareholders.

PSA shares were up 4 percent at 19.83 euros as of 0814 GMT. GM shares closed 1.2 percent higher on Friday after Reuters reported a deal had been struck.

The two carmakers, which already share some production in an existing European alliance, confirmed last month they were negotiating an outright acquisition of Opel by PSA, sparking concern over possible job cuts.

PSA said on Monday the targeted savings would come from purchasing and research and development - avoiding plant closures - as the Opel lineup is redeveloped with PSA technology and vehicle architectures.

An ambitious technical convergence push will begin with the Opel Corsa, Tavares indicated, as earlier reported by Reuters.

The next version of the popular subcompact will be delayed by a year to 2020 as it goes back to the drawing board, according to presentation slides shown to analysts.

“Our planning teams are already working on that,” Tavares said when asked about the model. Another five PSA-based Opel models will follow by 2023.

For PSA, the Opel deal caps a stellar two-year recovery under Tavares, which avoided bankruptcy in 2014 by selling 14 percent stakes to the French state and China’s Dongfeng <0489.HK>, to match a diluted Peugeot family holding.

Tavares has since cut about 3,000 French assembly line jobs each year through voluntary departures to reduce the wage bill to 11 percent of revenue from the 15 percent level he inherited - which is where Opel’s labor costs stand today.

PSA reiterated pledges to run Opel as a distinct German subsidiary and honor existing job guarantees to unions, which tend to cover production plans for existing models.

Beyond those horizons, however, the outlook for Opel plants may be less certain.

“Tavares wants to create healthy competition between the plants,” said one person involved in the discussions. “They will be competing for workload.”

With Europe’s auto market near a peak, some analysts predict the combined company may need to close two or three plants in the next five years. Britain’s European Union exit adds to the uncertainty over Vauxhall’s UK plants at Ellesmere Port and Luton.

But Tavares said exports could help fill Opel plants, adding that UK manufacturing brought opportunities as well as risks in the event of a “hard Brexit” in which Britain leaves the EU without a free-trade deal.

“This may look to you a little bit romantic,” he conceded.

The transaction also sees GM retain most of Opel’s pensions deficit, estimated by analysts at $10 billion. Earlier in the talks, the U.S. carmaker had sought to offload a larger share of the liabilities, sources said.

Some smaller pension funds will be transferred to PSA, along with a 3 billion euro payment to cover their full settlement, the companies said on Monday.

GM will also take an accounting charge of $4 billion to $4.5 billion in relation to the deal, which is expected to close in late 2017.

If You Have One Of These Toys In Your House, You May Want To Stop Using It

Sloppy data security practices at a toy company that sells a line of internet-connected stuffed animals has exposed the personal information of more than 800,000 customers, and some 2 million voice recordings ― many of them from children.

The toy animals, manufactured by CloudPets, have the ability to store and replay voice messages sent to them via the internet. Ideally, that means traveling parents ― for instance, a deployed military member ― could send a heartfelt message to their child’s teddy bear at home, to be replayed when their child interacts with the bear:

But since at least Christmas Day of last year, information on the CloudPets server ― including customers’ login and password information and voice recordings ― was stored in an exposed database easily accessible to anyone on the internet who knew where to look.

Online security expert Troy Hunt is one of the first to have noticed the issue. He and several others attempted to alert CloudPets to the security oversight numerous times, yet never heard back.

CloudPets also did not respond to a request for comment from The Huffington Post.

With a little sleuthing, and some help from CloudPets users willing to serve as guinea pigs, Hunt tracked down some surprisingly personal information on the CloudPets servers. Kids’ names, birthdays (minus the year) and their relationship with authorized users (i.e., parents, grandparents, friends, etc.) were all accessible.

So, too, were audio clips on the toys themselves. Hunt, who only accessed the information after obtaining permission from CloudPets users, describes on his website:

One little girl who sounded about the same age as my own 4-year-old daughter left a message to her parents: Hello mommy and daddy, I love you so much.

Another one has her singing a short song, others have precisely the sorts of messages you’d expect a young child to share with her parents. I didn’t download either pictures or recordings from other parties, only those I was specifically granted access to by HIBP subscribers, but the risk was clear.

It’s also entirely possible a hacker could use that information to push messages to the toys themselves.

The below video below ― which a Twitter user who goes by MisterZoomer told The Huffington Post his wife filmed as a lighthearted prank ― is a terrifying example of what’s actually possible with the technology:

Hey @CloudPets someone named S. Atan keeps sending messages to my kids' cloud pets and the app won't let me block him. Please help. pic.twitter.com/ETudxTQ0oA

— Handsome Neil (@MisterZoomer) January 29, 2017

“Parents need to work on the assumption that if they have a CloudPet, multiple unauthorized parties could have accessed their voice recordings,” Hunt told The Huffington Post in an email. “Because the service is still online today and account details were also leaked, those recordings could still potentially be accessed today.”

Those recordings don’t necessarily present a security threat in and of themselves, Hunt said, but parents should certainly be aware of what’s out there. And CloudPet users should be sure to change their passwords, especially if they’ve reused them for other internet accounts.

“Many of the same problems are present we have in other data breaches: email addresses could be used for spam or phishing, and reused passwords could be used to exploit other accounts,” added Hunt. “There’s little practical value for children’s voice recordings, but of course as parents we’d feel very uneasy knowing that other people could have them.”

The main takeaway? Think twice before you welcome any internet-connected device into your home, particularly ones that children may interact with on a regular basis.

“The bigger picture here is to think very carefully before giving a child a connected device like this,” Hunt concluded. “By all means, get them involved early with computers and responsible internet use, but in my view connected toys like this pose too great a risk.”

Hackers haven’t just accessed the data, according to Hunt. He says there’s clear evidence cybercriminals have held the database for ransom, at least twice, demanding money from the company in exchange for the data’s safe return.

The database was no longer publicly accessible as of Jan. 13, Hunt said, but anyone who obtained the data while it was live could still use it for nefarious purposes, including accessing a victim’s account.

“This service ― and the files ― really need to be taken offline ASAP until everything can be properly secured,” Hunt said.

Determining Essential Job Functions Is Critical In Employment Disability Litigation

Under the Americans with Disabilities Act (ADA) of 1990, an employer of 15 or more employees must not discriminate against an otherwise qualified individual with a disability. The ADA standard imposed on the employer is basically to provide a reasonable work accommodation to the disabled employee unless it would cause an undue hardship to the employer. However, an employer need not change an essential job function in order to provide a reasonable accommodation. Hence, determining the essential job functions is critical in disability litigation. An employer has the opportunity to state the essential functions of an employment position in advance of litigation.

In both 2015 and 2017 the federal Court of Appeals for the Sixth Circuit decided, favorably for the employer, cases in which the critical legal issue was whether “regular in-person attendance” was an essential job function under the stated facts. This comment briefly reviews these two decisions. Always consult an experienced attorney in all employment situations.

In the 2015 decision, EEOC v. Ford Motor Co., the employee in question, a steel buyer, had irritable bowel syndrome and proposed telecommuting as a reasonable accommodation under the ADA. A divided panel of justices ultimately held for Ford that “regular and predictable on-site job attendance” was an essential function of the job. The dissenting Sixth Circuit justices noted that this case required an individualized approach and that there was not a clear time allocation among the various parts of the job, some of which could be accomplished through telecommuting.

The 2017 decision, Williams v. AT&T Mobility Services LLC, involved an employee functioning as a Customer Service Representative (CSR), who reacted to random customer calls with panic attacks and depression that required her to log off of her workstation. She requested a flexible start time, additional breaks during the day, and leave to attend an eight week treatment program. This case was unanimously decided in favor of the employer by a three judge panel.

The Panel noted that “the Ford decision leaves open the possibility that regular attendance might not be an essential function of every job, but suggests that exceptions will be relatively rare.” In the present case, AT&T had strict Attendance Guidelines predating this litigation that “state that regular attendance is an essential function of the CSR position.” The US Code [42 U.S.C. Sec. 12111(8)] provides that written job descriptions “shall be considered evidence of the essential functions of the job.”

The opinion continued: “The Ford court also evaluated whether the employee had proposed a reasonable accommodation that would allow her to perform the essential functions of her job.” In the current situation, the employee provided no evidence of how breaks would address unpreventable panic attacks. Regarding additional leave the Court wrote: “An employer is not required to keep an employee’s job open indefinitely…”; especially “where an employee has already received significant amounts of leave and has demonstrated no clear prospects for recovery.”

To prove unlawful retaliation for requesting an ADA accommodation, an employee must initially prove (prima facie case) that: “1. She engaged in protected activity under the ADA, 2. Her employer was aware of that activity, 3. She suffered an adverse employment action, and 4. A causal connection existed between the protected activity and the adverse action.” However, AT&T had a nondiscriminatory reason for termination (excessive absences) and consistently followed its policies.

The opinion concluded: “In the end this case reflects the reality that there are some jobs that a person with disabilities is simply unable to perform. A blind person cannot be an airline pilot, nor can one with advanced Parkinson’s disease be a neurosurgeon. Similarly, a person like Williams who reacts to random customer calls with anxiety attacks that require her to log off of her workstation is not capable of performing the essential job functions of an AT&T CSR. We therefore AFFIRM the judgment of the District Court [granting the employer’s motion for summary judgment without a trial].”

In light of these decisions, employers should:

Prepare detailed job descriptions clearly identifying essential job functions

Be certain that customary workplace practices do not contradict the job descriptions

Consistently enforce employment rules and procedures

Maintain complete documentation concerning performance reviews, warnings, etc. for each employee

Employees requesting an ADA accommodation should:

Record the time actually spent performing various specific job tasks

Identify customary industry practices in performing this job and what ADA accommodations are typically provided

Determine how the employer has accommodated similarly situated employees.

Carefully demonstrate how a proposed accommodation will address the disability in question

It is noteworthy that courts tend to defer to the employer’s pre-litigation determination of what is an essential job function. Additionally, numerous judicial decisions have determined that regular and reliable attendance is an essential job function.

In response to this deference, it might be argued on behalf of the employee that attendance is more in the nature of a pre-performance qualification standard than an essential job function. An employee may perform by answering customer inquiries (a job function) but does not perform attendance. Rather attendance is a prerequisite to answering inquiries. Under this analysis the question becomes if the qualification (attendance) is job related and consistent with business necessity. This then leads to an inquiry concerning whether or not the qualification is being unlawfully used to discriminate against persons with disabilities.

Much litigation has engaged in a qualification analysis in the areas of discrimination based upon race and sex. For example, requiring airline flight attendants to be female was determined not to be job related and consistent with business necessity. In fact, it was found to be unlawful discrimination based upon sex.

However, seldom have courts currently followed this line of inquiry in attendance related cases. Rather, courts have overwhelmingly deferred to an employer’s statement that attendance is an essential job function without additional inquiry. There is great weight given to an employer’s business judgment. One may argue the relative public policy merits of this judicial approach. Is it simply a common sense free enterprise acknowledgment that private employers decide what work must be performed and how it should be performed, or does it improperly narrow the protections afforded by antidiscrimination laws?

Part of the counterargument is that race and gender are immutable personal characteristics that are not performance based, unlike attendance. Attendance (being present at a specific location), the argument might go, is essential to performance just as one cannot build a building without being physically present at the construction site. However, telecommuting is a developing reality in many service positions, especially where face-to-face interaction does not occur.

This comment provides an incomplete educational overview of a complex topic and is not intended to provide legal advice. Always consult an experience attorney in specific employment situations.