California Air Resources Board Declines VW’s Proposal To Remedy Emissions Defeat Device

TDIIn an effort to remedy the huge emissions scandal that broke loose in late 2015, Volkswagen of America sent a proposal to the California Air Resources Board (CARB). The defeat device plea has been defeated as CARB rejected the proposal.

A spokesperson from CARB stated that the proposal, “does not adequately address overall impacts on vehicle performance, emissions and safety and would not fix the cars’ pollution problems quickly enough.” They further noted that, “Volkswagen made a decision to cheat on emissions tests and then tried to cover it up. They continued and compounded the lie and when they were caught they tried to deny it.”

Specifically, the two issues that led to the decision of rejection included the lack of specificity to how VW would allow enforcement officials to properly evaluate repairs from a technical standpoint; and the failure of the plan to fully address the emissions problems caused by the cheat devices.

The Environmental Protection Agency (EPA) has agreed with CARB’s rejection.

This announcement now increases the chances that VW will have to buy back hundreds of thousands of vehicles.

As it stands, it is unclear if VW comprehends the full impact of the challenges it is facing. They have billions of dollars mounting up in federal fines and no clear plan on how to address the ongoing emissions problems of those vehicles still on the road. The only thing that has been offered to VW owners by the automobile manufacturer thus far has been a goodwill package consisting of $1,000 in gift cards: ($500 prepaid Visa and $500 to be used only at a VW or Audi dealership).

Besides more than 40 state attorney generals launching investigations, consumers and car dealers are filing their own VW lawsuits against the global car giant.

Volkswagen had success in Europe where it was agreed that cars with defeat devices will be provided with a software update that will fix the issue in under half an hour. Also, 1.6L engine vehicles will be fitted with a “flow rectifier” that mechanics will fit in front of the air mass sensor.

A statement released by a VW spokesperson said that the “announcement addresses the initial recall plans Volkswagen submitted to CARB in December. Since then, Volkswagen has had constructive discussions with CARB. We are committed to working cooperatively with CARB and other regulators, and we plan to continue our discussions tomorrow when we meet with the EPA.”


VW Recall Will Significantly Slow Performance

The VW recall is speculated to be hard to sell: By “fixing” the cars’ emissions cheating device will also bring down their performance and their mileage. A VW diesel Passat owner who takes their car in to get “fixed” will drive off the service center lot in a gass-guzzling, slower vehicle. Some eco-loyal owners will happily do it to be environmentally “green.” According to past statistics with other auto recalls, most owners will be tempted to keep putting off making that appointment.

Toxic FumesEmissions regulations are a government mandate, not something left up to individual car owners. When a car manufacturer officially certifies a car to meet federal emissions standards; the states also test cars’ emissions, in person, one at a time. If your car doesn’t pass the test, you can’t register it.

The California Air Resources Board has pounced on this debacle. Since CA has strict emissions rules, some anticipate the state (and other strict states) may start refusing to re-certify the affected VWs already driving down the road. It wouldn’t be surprising if a rule is announced that the affected VW cars will not be allowed to take the emissions test without proving they have been fixed. Roughly 60k of the vehicles affected by the dirty emissions scandal were sold in California.


In November 2015, VW submitted its recall plan to the California Air Resources Board and federal counterparts. This occurred approximately two months after the scandal first broke loose across the world. VW providing a detailed plan to fix the 482k diesel cars listed in the September 18th Notice of Violation issued by the EPA.

VW said they will do whatever is required to work with the regulators to remedy this situation once and for all.



Puerto Rico Lures Wealthy Americans In Hopes To Help Debt Crisis

Puerto Rico Small Flag on a Map Background.While Puerto Rico has not traditionally been a popular tax haven for wealthy Americans, recent legislation has a growing number of wealthy Americans interested in moving to the island to avoid the high income taxes associated with the states.

Thanks to a bleak economic situation in Puerto Rico, the U.S. Federal Government and the Puerto Rican government have struck up a deal to lure wealthy Americans to the island of Puerto Rico to hopefully revive the economy.

Technically, there are two different deals added into one. They are known as Act 20 and Act 22. However, both Acts provide wealthy individuals or businesses large tax incentives to move to the island bringing jobs and a large amount of investment into the Puerto Rican economy.

Although the deal has been around for three years, only a few hundred people taken advantage of the deal. According to the Puerto Rican Department of Economic Development and Commerce, around 250 “high net worth individuals” took advantage of Act 22 in 2014, which is significantly more than the 151 that received the same tax-exempt status in 2013.

What is Act 20/Act 22? 

Although Act 20 and Act 22 both offer similar tax benefits, they offer benefits to different people. Business owners may be able to take advantage of both Acts, depending on their business structure. Here are the basics of both Act 20 and Act 22:

Act 20

Act 20, known as the “Export Services Act” provides tax credits to businesses that sell goods and services to markets outside of Puerto Rico. It does not however provide tax benefits if a business has a Nexus with Puerto Rico.

Under Act 20, businesses services are considered to have a Nexus with Puerto Rico if:

  • A business sells property for the use, consumption, or disposition in Puerto Rico
  • Business or income producing activities have been performed in Puerto Rico
  • A business provides consultation services to the Puerto Rican Government

The Department of Economic Development and Commerce of Puerto Rico also claims the right to add any business activity to this list if it so chooses. If a business is granted tax exemptions in Puerto Rico, then tax rates are as follows:

  • 4% fixed income tax rate
  • 3% fixed income tax rate (in the case of services considered strategic)
  • 100% tax emption from distributions from earnings and profits
  • 100% exemption from personal property taxes (during the first five years)
  • 60% tax municipal tax exemption (90% in certain areas)

The only tax rates that do not change under this act are both income taxes as well as taxes on distributions. Businesses generally receive a greater tax break during the first five years while in Puerto Rico while receiving a smaller tax break after those first five years. However, the tax breaks under Act 20 still provide a tax situation that is still advantageous compared to what a business would expect to pay in the United States.

 Act 22 

While Act 20 provides tax benefits to businesses, Act 22, also known as the Individual Investors Act, provides tax exemptions to individuals residing in Puerto Rico. To be eligible, individuals must become a “bona-fide” resident of Puerto Rico.

Generally a bona-fide resident of Puerto Rico is considered to be someone who:

  • Is present in Puerto Rico for at least 183 days during the taxable year
  • Does not have a tax home outside of Puerto Rico
  • Does not have a closer connection to the U.S. or to another foreign country

Under Section 933 of the U.S. IRS Code of 1986, bona-fide residents of Puerto Rico are not subject to U.S. federal income taxes on income from within Puerto Rico. Therefore, U.S. citizens that are bona-fide residents of Puerto Rico who benefit from the act will only be subject to pay U.S. taxes on sources from outside Puerto Rico.

Individuals who benefit from Act 22 are able to enjoy significantly lower tax rates in Puerto Rico. These are the current tax rates for income earned for individuals under Act 22:

  • 0% on interest and dividends
  • 0% on long-term gains for new residents
  • 10% on gains prior to residency, realized within 10 years
  • 5% on long-term gains, realized after 10 years

Applying for Act 20/Act 22 Exemptions 

There is a somewhat lengthy process in order to apply for tax exemptions under Act 20 and Act 22. You’ll be required to pay an application fee, undergo a thorough application process, and have to apply for Puerto Rican residency if you plan on applying for tax exemptions under Act 22.

If you apply for Act 20 or 22, then here is the process:

  • Download and compete the Application for Act 20/Act 22 Incentives
  • Notarize the application and show supporting evidence for the authority of the notary if outside Puerto Rico
  • Submit relevant filing fees (If necessary)
  • Submit application and wait for the review process
  • Receive and accept your Tax Exemption Decree and pay filing fees

As stated before, if you apply for Act 22 exemption status then you must already be a Puerto Rican citizen or intend on becoming a resident of Puerto Rico within one year.

While there are some strict requirements and stipulations you must follow in order to receive tax benefits from Puerto Rico, almost every wealthy individual who has used Act 22 to their advantage would say it is well worth it.

Wealthy Americans living off passive income or investment income would be wise to consider moving to Puerto Rico under Act 22 to save potentially tens of thousands of dollars. This loophole has been around for three years and is there is no sign that the United States government has any intention on closing it so is at least something the wealthy should consider and use to their advantage.

Pharrell Williams and Robin Thicke Pay A Heavy Price For Creativity

rtpwIt seems everyone agrees that creativity and inspiration are mysterious and elusive forces. After all, there’s no quantifiable way to determine what leads an artist to paint a masterpiece or a songwriter to record the next great radio hit. That being said, in today’s artistic climate, it’s absolutely essential that artists be certain that their recent “Ah ha!” moment hasn’t been accidentally sourced from one of their equally talented colleagues, both past and present. Take for example, the recent court battle involving Pharrell Williams and Robin Thicke, co-creators of the global phenomenon “Blurred Lines”.

After being accused by Marvin Gaye’s family of copying the legendary artist’s “Got to Give It Up”, both Williams and Thicke vehemently denied that plagiarism had occurred. Their testimony, however, did not convince the jury, who then proceeded to order Thicke and Williams to pay $7.3 million in damages to the Gaye estate. Although Gaye’s family had recently been defeated pursuing identical charges against Universal, the song’s chief distributor and owner, they were successful in their campaign against the co-writers of “Blurred Lines”. $7.3 million definitely sounds like quite a bit of money, but the true legacy of this trial will not be the sum of money paid to the Gaye estate. Instead, the precedent that has been created for similar legal challenges in the future will endure for generations to come.

When asked to comment on the trial, Pharrell was quoted as saying, “Everything that’s around you in a room was inspired by something or someone…If you kill that, there’s no creativity.” These sentiments are, in fact, shared by creative minds around the world. For well over two centuries, philosophers and cultural critics have pointed out that very few truly “new” products are ever created. Instead, the past is slowly transfigured and re-incorporated, helping to ensure that traditions and ideas live on well beyond the death of their creators.

Given the fact that the internet contains record of virtually every creative work ever made, contemporary artists must now acknowledge that the chance of being sued for “stealing” ideas has increased exponentially. If Williams and Thicke truly are an example of what is to come, then artists, product designers, and virtually everyone else who builds, conceives or imagines will have to spend an equal amount of time researching what has already been done as they do on their desired craft. This isn’t just an annoying burden – it could possibly become the only way to avoid a severely damaging lawsuit.

Does the Gaye estate have a legitimate legal complaint against Williams and Thicke? Maybe. A more important question, however, is this: would Marvin Gaye’s children be pursuing legal action against Williams and Thicke if the song had not been so financially successful?

Too many questions are currently floating around this issue for casual readers to even intelligently guess what Williams and Thicke may actually have been thinking at time. That being said, considering both men are seasoned music professionals, it seems illogical that they would actually believe they could get away with unlawfully copying elements of one of Marvin Gaye’s most iconic songs.

“The verdict handicaps any creator out there who is making something that might be inspired by something else,” Williams stated. In many ways, he is absolutely correct. It seems that artists have always been asked and have willingly shared who their primary sources of inspiration are during the creative process. Thanks to the Gaye estate family attorney , this question may no longer exist. As long as a quick YouTube search can lead to a $7.3 million lawsuit, no creative individual is truly protected from damaging allegations of this nature. Williams and Thicke will, obviously, be remembered for their enormous contributions to the pop music industry. They may also go down in american history as a symbolic “beginning” of a new era of crippling art-related legal battles. Feeling creative? You may not be able to afford it any longer.

$12 Million-Dollar Online Defamation Case Overturned

cartoon-frustrated-man-computer_copyA trial court ruling that awarded Desert Palm Plastic Surgery $12 million in a defamation suit against an unhappy patient has been reversed by the Arizona Court of Appeals.

Sherry Petta, a jazz singer from Scottsdale, AZ, was so upset with her nose and eyelids plastic surgery results that she defamed her plastic surgeons at Desert Palm Surgical Group by starting an attack online website and by leaving negative comments that got her sued.

It’s becoming more commonplace to see negative reviews and comments online that could be best described as verbal hostility. The reasoning is that most people feel anonymous online and, in turn, feel that they can say anything they want without repercussion. While we do have freedom of speech, that does not make it legal to post anything that is a lie to purposely defame someone or a company. There is a definite risk of being sued and this case, among a growing amount of others, is a prime example.

In 2008, Albert Carlotti, MD, and his wife, Michelle Cabret-Carlotti, MD, sued Ms. Petta for defamation, false light and invasion of privacy. After a 10-day trial, the jury returned a unanimous verdict in favor of the plaintiffs and awarded $11 million in actual damages and $1 million in punitive damages. The $12 million verdict in this case was the largest civil jury verdict in Arizona in 2013.

But in January 2015, a state appeals court has overturned the jury’s “extreme” verdict and stated that the verdict “cannot be supported by the damages evidence presented and shocks the conscience of this court.” The judge has also ordered a new trial.

“It’s not over till it’s over,” Ms. Petta, 52, stated, “this is a tremendous day in the last 3 years of my life. This case has already cost me hundreds of thousands of dollars in legal fees.” Both parties have each had to obtain an online defamation lawyer.

Ms. Petta claimed that the results of her plastic surgery with the husband and wife duo resulted in uneven nostrils, an “unreasonable” dent on the side of her nose, and that her nose had been shortened and “turned up” by the surgery. She further stated that her nose also developed residual thickening scar tissue. “I hate the way my nose looks,” she says. “I hate it.”

The laser resurfacing of her face has the same horrific results. Ms. Petta alleged that the procedure burned and scarred her face and caused a severe MRSA infection.

As for a new trial, Ms. Petta says she’s “not interested in additional litigation. But it’s not my choice.” Dr. Carlotti stated that, “[Settling] was my intent 8 years ago and it’s still my intent today, but only if she agrees to stop defaming me. Otherwise, I will defend myself to the ends of the earth.”

Understanding slander, libel, and defamation can be confusing for the average person, but what is clear is the emotional and financial harm that it can cause. Cases like this prove that the digital age is just another avenue to where individuals can still be sued for defamation online by another individual or company. You aren’t safe simply going by an anonymous name. It’s all too easy to be tracked even if you think you’ve done a great job hiding your identity. The best advice is to be honest in your reviews and comments and that way you won’t have to worry about a lawsuit against you.

Can You Recover for Product Recalls?

Every day, the news is filled with stories of recalled products from name-brand companies. You may have seen a postcard or two in the mail, notifying you of some vague rights related to a product you once bought, that has since been recalled. Almost every driver in the U.S. has owned a vehicle at one time or another that has had some sort of recall. Many of these recalls are for some minor part or issue, often times so minor as to not make it worth the time or hassle to get it fixed. Some of these recalls, like the recent GM ignition switch recall, have serious implications that have caused death, and should be dealt with immediately. Recently, a large number of airbags made by the Japanese firm Takata, and used across many different makes and models of cars, have been recalled. These nationwide recalls are resulting in thousands of affected vehicles. For owners of these products subject to these nationwide recalls, the risks they were exposed to and the time and expense necessary to resolve the issues has many people wondering: Am I entitled to compensation for product recalls?

When some one has been injured or killed by a defective product that was later recalled, the court system is the typical venue for recovery. General Motors has faced numerous wrongful death suits for its alleged ignition switch failures; deaths that drove the recall despite the car company’s earlier protests that a global recall wasn’t necessary. While no deaths have yet been reported, Takata airbags are now the subject of a massive alert issued by the National Highway Traffic Safety Administration that could ultimately affect nearly 8 million vehicles.

Consumer Product Recalls

Consumer and medical products, while not as widespread as vehicle issues, can also be subject to recall. Consumer products like strollers or toys that pose a potential risk to small children are common products that are subjected to later recalls when their risks become apparent. Usually, the manufacturer offers a free, upgraded replacement to the defective product rather than attempting to get consumers to take the product in to be “fixed”, which many consumers will never do. In some cases, consumers are compensated with a discount coupon or free products (in the case of consumable foods or drinks) when food products are recalled because of possible contamination. Seldom do these types of consumer product recalls ever result in more than a small monetary payment for the harm caused.

Medical Device Recalls

Medical devices that have been recalled are usually done so by the Food and Drug Administration. Unlike consumer product recalls, these are typically done on a “mandatory” basis by FDA, although some products are recalled by the companies themselves to avoid future expense and litigation risk to the manufacturers. In the cases where the device itself is determined to be “defective” (typically some type of medical product left in the body, like an implant or surgical mesh), then consumers are entitled to compensation for medical bills and impairment to their lives or health. The compensation that the victims are entitled to from injuries resulting from defective medical devices is determined largely through litigation by Plaintiff mass tort firms, and can result in very large volume jury awards or cash settlements. Some of these lawsuits, like the recent Medtronic Infuse lawsuits, allege that manufacturers were aware of their device issues prior to recall, but sought to hide or cover up the extent of the defects, resulting in further risk and harm to people who the devices were used on.

For people who have purchases or used any product subject to a recall, the effects can range from mild inconvenience, to catastrophic health problems or death. The vast majority of product recalls don’t make the news, but are handled behind the scenes by the companies responsible. Where serious injury or expense has occurred, then victims may be better suited pursuing the litigation route. If you become aware of a product you use or have been exposed to being recalled, the responsibility falls to you to act accordingly to resolve the issue if it is one with the potential for physical harm. Don’t rely on the manufacturers of products to be the ones who most look out for you and your safety.

Is it possible to receive worker’s compensation and work part-time?

heart attack

The insurance system that compensates employees for work-related injuries and illnesses is called worker’s compensation. Worker’s compensation can help you take care of medical expenses and lost wages while you’re recovering.

In cases where a worker has a permanent disability that prohibits him from working, worker’s compensation will reflect that in the amount awarded to cover not only for current medical treatment and other bills but also for future lost income that the worker could have earned had he not been injured.

But what happens when a worker can still work part-time or be put on light duty? Is it possible to receive worker’s compensation while working part-time?

Wage Loss Benefits

One of the many benefits that an injured worker has is wage loss benefits. This basically means that an employee who has been injured but has since recovered enough to be able to return to work will be compensated the difference between his salary before the injury and his salary after the injury.

If an employee can return to work in full capacity or he finds another job where his salary is equal or greater to the salary he received before the injury then he no longer can receive wage loss benefits. But in cases where an employee can return to work on a part-time basis, worker’s compensation benefits may cover up part or all of the difference. This varies from state to state however.

Depending on State Laws

Like other areas of legislation, the laws responsible for regulating worker’s compensation vary from state to state. This applies to rules for wage loss claims as well.

Take for example Louisiana, where a worker who is receiving compensation benefits cannot obtain another job while he is on the benefits. However if he is able for light duty, he may work, provided that the income earned is reported to both the employer and the workers’ compensation insurance provider.

Another example is New York where the law states that an employee who returns for full-time work is eligible for worker’s compensation for absences from work linked to the injury. The only condition is that he files a claim for “intermittent lost time.”

Worker’s compensation is a fairly complex area of the law and there are many factors that influence whether you can receive wage loss benefits or not. It is best to consult a personal injury attorney to know what your options are.

Innocent Philadelphians are losing their homes to a little known law

photo credit: Phil Roeder

Chris Sourovelis is innocent by all accounts and has never had a run-in with the law: his record is clean as a whistle. However this didn’t stop the City of Philadelphia from trying to seize his home.

The Sourovelis family is not the first one to face this bizarre turn of the law. Thousands of other people who haven’t committed a crime in their lives find that their property is considered guilty and now they have to fight to prove their innocence. The strangest part is that the prosecutors they’re fighting against are the ones who can benefit from it. In recent events, the Institute of Justice has filed a major class-action lawsuit in order to put a stop to this large scale, unprecedented abuse of the law.

What is civil forfeiture?

Civil forfeiture is a form of confiscation of assets by the state if those assets were deemed to be used as instrumentalities to a crime. Put simply, if you break the law, for example, if you sell a small amount of marijuana and you are caught, you risk having your house seized if a connection is found between the drugs and the house. Most interestingly, you do not have to be the owner of the assets, nor have to be charged with a crime to have them seized. So if you’re staying at your friends house for the weekend and you’re fined for a crime you committed, if the state finds a link between the crime and the house, they can seize your friend’s house on the basis that it was used to facilitate the crime (as an example “used in the manufacture of drugs”).

This get even weirder when you consider the fact that the state does not sue the owner but the property itself, which leads to surreal case names like One 1958 Plymouth Sedan v. Pennsylvania or Commonwealth of Pennsylvania v. The Real Property and Improvements Known as 2544 N. Colorado St.

This is exactly the case the Sourovelis found themselves in when their son was caught selling $40 worth of drugs outside his home. Without having a prior criminal record, the court ordered the young man to go to rehab. But the very day Chris was driving his son to rehab, a distressed phone call from his wife informed him that they were being evicted from their home with the property being seized by police. This was of course the process of civil forfeiture at work.

They were barred from entering their own house for over a week. The family got permission to enter only on the condition that they ban their son from visiting, as well as relinquishing some of their constitutional rights. To add insult to the injury, their son had already completed his rehab, in effect ending the punishment met out by the city. The Sourovelis case is not without precedent.

Punished for others’ crimes

In other words, civil forfeiture punishes people for crimes that other people might have committed. Doila Welch is another victim caught in the machine-like forfeiture scheme of the state, risking the loss of her 17 year old home because her husband, unbeknownst to her, was caught dealing small amounts of weed. Another case is that of Norys Hernandez and her sister who co-own a rowhouse. The sister is barred from entering or living in the house because her nephew was arrested for selling drugs in the vicinity of the house. Welch and Hernandez have joined the Sourovelis as plaintiffs in the IJ class action against the Philadelphia forfeiture process.

Little known law turned racket

The DA’s Office of Philadelphia has turned a once little known law into a full-blown extortion scheme. From 2002 to 2012, Philadelphia took in over $64 million, or $6 million per year of forfeiture funds. A report from the Institute of Justice writes that the Philadelphia District Attorney’s Office has seized and forfeited 1,172 real properties, 3,290 vehicles and over $44 million in cash. The forfeiture proceeds make up one-fifth of the DA Office’s entire budget. 40% of those funds or $25 million are used to pay salaries to law enforcement, including the salaries of the prosecutors who have used civil forfeiture against innocent families.

Although civil forfeiture is not new nor limited to Philadelphia, it is here that the problem is most acute. To make a comparison, Kings County, New York, which includes Brooklyn and has a population that is 1.5 larger than Philadelphia has generated $1.2 million from forfeiture in 2010. Los Angeles county has 6 times more people than Philadelphia and has also kept $1.2 million in forfeited assets in the same year.

The DA’s Office has issued a statement in response to the IJ lawsuit, claiming that all civil forfeiture cases are pursued “judiciously”. However it’s a little hard to take that at face value when Philadelphia is the jurisdiction in the Commonwealth of Pennsylvania with the most cases of civil forfeiture, totaling over 6500 cases being filed in 2011 alone. Allegheny County, the second-largest county in the state has filed only 200 cases from 2008 to 2011.

Between the years of 2009 – 2010, Philadelphia forfeited and seized over 90 real estate properties. As a comparison, Allegheny County did not forfeit a single property. To drive the comparison even further, 66 other counties in Pennsylvania forfeited a combined 56 real properties from 2002 to 2012. Philadelphia? 1,172 real estate properties.

Those who have their homes, cash or cars seized have to go to Courtroom 478. Except that Courtroom 478 is not your typical courtroom: there is no judge nor jury, just a scheduler and the assistant district attorneys who handle up to 80 cases in a single day.

With prosecutors tasked with running the court, it is pretty clear that the DA’s Office holds immense power here. Analyzing over 8000 forfeiture cases filed against cash in 2010, it was found that 83 percent of cases were decided on the first court listing. 96% of the decisions were made in favor of the DA.

You should probably not be surprised to know by now that property owners who find themselves in a civil forfeiture case have fewer rights than those who are actually accused of a crime. Unlike criminal forfeiture cases, the government does not have to prove “beyond a reasonable doubt” that the property is connected to a crime. Prosecutors instead must only present a link between the property and the alleged crime for the property owners to prove their innocence. In addition to this, since these cases are in civil court, owners cannot use the services of an attorney.

Prosecutors make it even harder for owners to reclaim their property by relisting civil-forfeiture cases, forcing them to make repeat trips to Courtroom 478. It is not uncommon for people to have visited ten, twenty or even more times before a decision was reached, as was the case of Rochelle Bing, another innocent homeowner who had to appear in the courtroom at least 23 times before she got to keep her home. If the owner misses just one hearing, the government has the power to immediately forfeit the property. The Sourovelis have beaten the road to Courtroom 478 four times already with no end to their troubles. They have yet to see a judge.

A class-action lawsuit filed in federal court by the Institute of Justice is seeking to end the city’s unconstitutional extortionist practices and to force the return of wrongfully forfeited property.

photo credit: Phil Roeder

Didn’t get the job because of past injuries? Can you sue?

photo credit: kenteegardin

photo credit: kenteegardin

We all try to look our best when applying for a new job but potential employers cannot reject your application just because you’ve had past injuries.

Let’s take a recent example that appeared in the news. Russell Holt received a job offer for a senior patrol officer with BNSF Railway in 2011. During the medical examination, Holt disclosed a back injury that he had sustained in 2007. He told the company that he had never missed work because of it, having worked in law enforcement for more than 10 years. Upon learning of his condition, BNS withdrew the job offer, in addition to already having made him pay for the medical testing. Holt later filed a lawsuit against the company, alleging that BNSF violated the American with Disabilities Act.

So the question remains: can you sue an employer if you’re denied a job due to past injuries?

American with Disabilities Act (ADA)

The ADA act prevents private employers from discriminating against applicants or potential hires solely on the basis of disability. While the act does not cover all medical conditions, “disability” usually means any physical or mental impairment that significantly hampers important life activities.

In Holt’s case, the “disability” he had did not, as he said, prevent him from doing his job in his 10 year-long career as a law enforcement officer. The Equal Employment Opportunity Commission (EEOC) put out a press release stating that BNSF made Holt pay for expensive medical testing while eventually withdrawing their job offer because they perceived his condition as a disability.

This type of discrimination of a perceived disability, when the applicants do not have a qualifying disability is prohibited by the ADA. If you feel that you have been denied a job in the past because of a perceived disability or injury, you may have a claim for damages.

Being qualified for work

Even though you may be able to file a claim against a potential employer for denying your application for a perceived disability, employers still have some power to gauge your health or physical abilities as qualifications for a job. An employer can use bona fide occupational qualifications as a defense against claims of discrimination. Essentially, what this means is that a certain job can require certain physical attributes that the applicant may not possess.

So if you’re applying for a new job where you must be able to lift at least 50 pounds and you have an injury that prevents you from doing so, the employer is justified in denying your application.

Still confused about what is a perceived disability vs a real disability? Contact a personal injury attorney to see if you have a claim for filing a lawsuit.