USE OF "TESTERS" PLAGUES EMPLOYERS IN LAWSUITS
This writer has experienced the "tester" issue in various ways readers will find quite interesting. First, a "tester" is generally considered someone who seeks access or employment in a way designed solely to generate a legal case. A number of years ago, and this writer represented a trucking employer at which an immigrant driver participated in a telephone interview. The driver spoke with a heavy accent and "bated" the employer representative into questions about his accent and critical comments about his inability to communicate properly. The driver applicant immediately filed a federal court lawsuit against the employer. The employer did not want to bear the expenses of the litigation, and instructed this writer to attempt to immediately settle the case.
After talking with the plaintiff driver over the telephone, who did not have counsel, it was obvious that the person was totally unreliable. The circumstances were such that a face-to-face meeting with the driver was necessary to get the settlement release signed and then provide the settlement check to the driver.
After getting the settlement agreement signed and paying the plaintiff driver applicant, the driver said that he had done this identical thing about 30 different times. Actually, he made a living out of "setting up" employers in this manner, pocketing the proceeds, without even the need of an attorney to share the profit.
Fast forward a number of years, and this firm has had recent similar experiences involving a "tester" under the Americans with Disabilities Act (ADA). In this situation, one of the firm's clients was sued by a woman who claimed that she had visited the client's shopping center and the parking, entrance, bathroom and other features of the shopping center did not comply with the public accommodation provisions of the ADA. Wimberly & Lawson quickly found out that this female plaintiff was a named plaintiff in more than 100 lawsuits over the last couple of years. In fact, published reports in the Atlanta newspapers indicated that the plaintiff's attorney filed several hundreds of lawsuits under the ADA, apparently sending around testers to seek violations. The website of the attorney suggested that he pays his clients finders' fees to root out alleged ADA violations.
Some consider such tactics a fair fight for civil rights, while others contend that the tester tactics are an unethical attempt to get quick settlements from small employers who found it cheaper to pay plaintiffs' attorneys than to fight. One such defendant who settled subsequently filed a class-action lawsuit targeting the plaintiffs' attorney, a business associate, and several of his clients as running an organized criminal campaign to squeeze largely minority-owned businesses with no real motive to make them more accessible to the disabled. In at least one recent development in Florida, a federal judge sanctioned an attorney who had filed more than 650 ADA cases across the state. The judge ordered the attorney to pay back settlements and pay other penalties.
Employers should remember that the ADA public accommodation provisions applies to employers too, and not just other commercial establishments. In fact, a number of recent lawsuits have been filed concerning inaccessible procedures for job applicants with disabilities.
For readers who consider such developments new, please remember that the use of "testers" has occurred for many years in the construction industry, where they are often referred to as "plants." Such plants are typically union organizers or their agents and they seek employment with the goal of building NLRB charges or other litigation against the construction industry employer, sometimes as an effort to run the employer out of business. This writer experienced one of those situations recently in the construction industry, whereby the union plants engaged in a work stoppage and baited the employer into firing them. The NLRB found that the firings were illegal and ordered those employees reinstated with back pay. Ultimately, a majority of the "strikers" returned to work, only to call a second strike. As part of the NLRB compliance proceedings, the Board found that none of the strikers were due any back pay, apparently because they were employees of the union.
The bottom line is that there are persons and entities that have a practice of "setting employers up" for various types of legal claims.