Monthly Archives: May 2016

NEW OVERTIME RULE ANNOUNCED BY US DEPARTMENT OF LABOR

Today, President Obama and Secretary Perez announced that the US Department of Labor’s final rule will automatically extend overtime pay eligibility to 4.2 million workers.

Here is all you need to know about the new rule:

TIMING:  The salary increases will not go into effect until December 1, 2016.

SALARY THRESHOLD:  On December 1, the threshold to claim an overtime exemption for salaried workers is $47,476, or $913 a week.

HIGHLY COMPENSATED EMPLOYEES(HCE):  On December 1, the threshold to claim an overtime exemption for highly compensated employees moves from $100,000 to $134,004 a year.

AUTOMATIC UPDATES:  The salary threshold will be updated every three years, beginning January 1, 2020.

BONUSES, INCENTIVE PAYMENTS, AND COMMISSIONS:  The final rule will allow up to 10 percent of the salary threshold for non-HCE employees to be met by non-discretionary bonuses, incentive pay, or commissions, provided these payments are made on at least a quarterly basis.

DUTIES TEST:  The final rule does not make any changes to the “duties test” that determines whether white collar salaried workers earning more than the salary threshold are ineligible for overtime pay.

Here is a more detailed summary of the final rule.

There you have it!

For further information on this or other employment law topics, contact Art Bourque at Bourque Law Firm.

 

FEAR’S DESTRUCTIVE EFFECT IN AND OUT OF THE WORKPLACE

“Always do what you are afraid to do.”

Ralph Waldo Emerson

Dealing with fear is a delicate balancing act.  Consider the following three types of people:

Those with too much fear:  Frozen in place by obsessing over every possible negative outcome, fearful types place an artificial ceiling on achievement and happiness.

Those with too little fear:  Engaging in excessive risk, reckless types often find themselves on the wrong end of a huge business loss or other beat down.

Those who achieve the Golden Mean:  These types dial in the sweet spot — the Aristotelian “golden mean” between the extremes of excess and deficiency.

This article confronts fear head-on.  Knowing its origins and effects, one can develop effective strategies to manage fear and achieve the best results possible.

FEAR:  FROM BIOLOGICAL NECESSITY TO MENTAL INFIRMITY

The 50th Law, by Robert Greene, describes fear’s origins and how modern day life has transformed it from a survival tool into a malignant disease:

“In the beginning, fear was a basic, simple emotion for the human animal.  We confronted something overwhelming – the imminent threat of death in the form of wars, plagues, and natural disasters – and we felt fear.   As for any animal, this emotion had a protective function – it allowed us to take notice of a danger and retreat in time.  For us humans, it served an additional, positive purpose – we could remember the source of the threat and protect ourselves better the next time.  Civilization depended on this ability to foresee and forestall dangers from the environment.

Over time, however, something strange began to happen.  The actual terrors that we faced began to lessen in intensity as we gained increasing control over our environment.  But instead of our fears lessening as well, they began to multiply in number.  We started to worry about our status in society — whether people liked us, or how we fit into the group.  We became anxious for our livelihoods, the future of our families and children, our personal health, and the aging process. Instead of a simple, intense fear of something powerful and real, we developed a kind of generalized anxiety.  It was as if the thousands of years of feeling fear in the face of nature could not go away — we had to find something at which to direct our anxiety, no matter how small or improbable.

In the evolution of fear, a decisive moment occurred in the nineteenth century when people in advertising and journalism discovered that if they framed their stories and appeals with fear, they could capture our attention.  It is an emotion we find hard to resist or control, and so they constantly shifted our focus to new possible sources of anxiety:  the latest health scare, the new crime wave, a social faux pas we might be committing, and endless hazards in the environment of which we were not aware.  With the increasing sophistication of the media and the visceral quality of the imagery, they have been able to give us the feeling that we are fragile creatures in an environment full of danger – even though we live in a world infinitely safer and more predictable than anything our ancestors knew.  With their help, our anxieties have only increased.

Fear is not designed for such a purpose.  Its function is to stimulate the powerful physical responses, allowing an animal to retreat in time.  After the event, it is supposed to go away. An animal that cannot not let go of its fears once the threat is gone will find it hard to eat and sleep. We are the animal that cannot get rid of its fears and when so many of them lay inside of us, these fears tend to color how we view the world. We shift from feeling fear because of some threat, to having a fearful attitude towards life itself. We come to see almost every event in terms of risk. We exaggerate the dangers and our vulnerability. ”

Greene’s book goes on the detail how to change the way we perceive difficult challenges and hard times, reframing the way we view negative events into a call to action.

BUSINESS AND PERSONAL TOOLS TO OVERCOME FEAR

Properly understood, fear itself is the enemy.  President Franklin Delano Roosevelt keenly observed this in his 1933 inaugural address by declaring “The only thing we have to fear is fear itself.”  Be inspired and watch this portion of Roosevelt’s speech.  Remind yourself that this disabled man, against all odds, would spend the remaining 12 years of his life successfully defeating the Great Depression, Germans, and Japanese — as well as fear.

Here are ten effective techniques to channel your inner FDR:

  • Detach:  so many decisions — either to move forward or stay put — are made in a swirl of emotions; step away and view every difficult situation in a detached, unemotional way
  • Self-audit:  evaluate where you are at work, home, and in personal relationships; ask, “what changes do I fear?” and  “what is the downside of staying put versus moving forward?”  If the downside of staying in place is greater than the risk of making a change, ask:  “why am I not making this necessary change? what do I fear?”
  • Lean on past successes:  how many of us look back wistfully on significant accomplishments achieved the face of overwhelming odds?  Remind yourself constantly that the greatest joy often derives from tackling the hardest problems
  • Learn from past failures:   never lose an opportunity to learn from a defeat or business loss — always debrief what happened
  • Perform a cost/benefit analysis:  list every downside of staying put versus moving forward; similarly, list every upside of each course of action
  • Do your homework:  lack of due diligence in any pursuit increases the odds that one will either fail to move forward because of a phantom risk, or move forward having underestimated what should be an obvious, major risk
  • Own everything and lead:  take responsibility for your work projects and personal life:  “There are no bad teams, only bad leaders.”
  • Surround yourself with like minded people:  fear is contagious; so too is recklessness; observe those who get it right by working with them
  • Experiment:  decide to engage in a mental or physical task which you perceive as daunting or intimidating; examine how you feel before, during, and after the challenge
  • Start right now:  fearful types plan incessantly, or don’t plan at all; either way, they are always “waiting” for  the right set of “circumstances” to coalesce before they act.  Such waiting is fear in disguise.   Move now, while you can.

This final point, move now, cannot be overemphasized.  As Robert Greene observes:

“Move before you are ready…Most people wait too long to go into action, generally out of fear. They want more money or better circumstances.  You must go the opposite direction and move before you think you are ready. It is as if you are making it a little more difficult for yourself, deliberately creating obstacles in your path. But it is a law of power that your energy will always rise to the appropriate level. When you feel that you must work harder to get to your goal because you are not quite prepared, you are more alert and inventive. This venture has to succeed and so it will.”

REVERSAL:  THE FOLLY OF THE FEARLESS 

Worriers obsess about the downside of the simplest of changes.  Their counterparts, however, those who lack fear, often dive head first into a sea of unforeseen risk.

A healthy amount of fear is good.  Big wave surfer Laird Hamilton often discusses how fear is necessary for survival, and to not feel fear would be foolish or even dangerous.  When embarking on an adrenaline inducing work task or outdoor adventure, I always lean on Hamilton’s words, which give me the license to experience fear without feeling weak.

Whether it be a work project, investment, or personal adventure, be sure to embrace the appropriate amount of fear.  This emotion should force you to recognize the potential downside of the prospective endeavor — a risk fearless actors fail to comprehend.

In the business world, fear should cause one to, at the very least:

  • Recognize the increased risk in engaging in a business with which you have little or no familiarity
  • Conduct appropriate due diligence so that you are not conned by charismatic characters or fooled into hiring a narcissist
  • Ask:  What if this venture goes bad?  How will this effect me?  What is my exit strategy?
  • No matter how much success you experience, do not grow complacent; as Laird Hamilton explains, always stay aware, alert, and respectful of your environment
  • Seek others’ input and advice.  As the great basketball coach John Wooden said, “Whatever you do in life, surround yourself with smart people who’ll argue with you.”

CONCLUSION

Go forward with the appropriate blend of confidence and fear.  And be sure to use your body while you are at it.  As Amy Cuddy explains in this enlightening TED talk,  “Our bodies change our minds, and our minds change our behaviors, and our behaviors change our outcomes”:

 

WAVE OF ADA ACCESSIBILITY LAWSUITS HITS LOCAL AND NATIONAL BUSINESSES

“How a society treats its disabled is the true measure of a civilization.”

Chen Guangcheng

Americans with Disabilities Act (ADA) lawsuits are sweeping the nation and hitting local businesses in the wallet.   In Arizona, hundreds of lawsuits have been filed this year alone alleging businesses failed to provide disabled people with access to their facilities.

This article provides businesses with a plan to avoid being on the wrong end of an unwinnable ADA lawsuit.

WHAT IS THE ADA AND HOW DID IT COME TO BE?

 On July 26, 1990, President George H.W. Bush signed into law the Americans with Disabilities Act (ADA), a comprehensive civil rights law prohibiting discrimination on the basis of disability.  The ADA broadly protects the rights of individuals with disabilities in employment, access government services, places of public accommodation, transportation, and other important areas of American life.

The ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”

Title III of the ADA prohibits discrimination on the basis of disability in places of public accommodation.  It covers businesses that are generally open to the public and fall into one of 12 categories listed in the ADA, such as restaurants, bars, movie theaters, schools, day care facilities, recreation facilities, and doctors’ offices.  The law requires newly constructed or altered places of public accommodation, as well as commercial facilities — privately owned, nonresidential facilities such as factories, warehouses, or office buildings — to comply with ADA standards.

On March 28, 2014, the Department of Justice (DOJ) issued a Final Rule regarding DOJ civil monetary penalties:  the maximum civil penalty for a first violation is $75,000; for a subsequent violation the maximum is $150,000.

THE UNWINNABLE LAWSUIT?

The DOJ has been aggressive in enforcing the ADA.  However, government enforcement pales in comparison to the number of private lawsuits brought by “serial” plaintiffs — those who file hundreds of lawsuits using the same lawyers.

Most lawsuits are defensible.  ADA lawsuits, however, are a special breed.  Because the law is so weighted in favor of people with disabilities and provides for an award of attorneys’ fees to prevailing plaintiffs, and given that many businesses have at least one or more areas of non-compliance, aggressively defending an ADA lawsuit is oftentimes foolhardy.  In very little time, the “tail can start wagging the dog”, meaning attorneys’ fees can mount rapidly, potentially consuming a business in a no-win quagmire.

Many businesses and individuals react emotionally when they receive an ADA lawsuit.  Rather than responding viscerally and defensively to the lawsuit, the better approach is to calmly evaluate how to resolve the matter well short of a  trial.

First, contact legal counsel with ADA experience.  Counsel without such a background have a steep learning curve, can underestimate how quickly a case can get out of hand, and will be hard-pressed to know the best path towards resolution.  Work with experienced counsel to develop a strategy to end the lawsuit and achieve ADA compliance with a minimum expenditure of money and time.

Next, decide whether your business needs to hire a professional, such as an architect or consultant, to evaluate ADA compliance.  ADA requirements can be confusing.  A qualified professional can quickly and efficiently identify areas of non-compliance in a business’s parking lot, sidewalk, and entrance pathway, and, once inside, access to various areas (e.g. tables, seating, bathrooms, counters, bars, etc.).

Unfortunately, there are some plaintiffs and plaintiff’s lawyers who will overreach.  In such instances, when settlement is impossible or impractical, it is critical to hire experienced counsel.   A small number of cases may need to be defended aggressively; the key is knowing when to do so, and then developing a strategy with a clearly defined objective and end-game.

GO WITH A PRO:  ACHIEVE COMPLIANCE AND SLEEP WELL AT NIGHT

Bourque Law Firm recently teamed with Life Quest Training & Consulting to help a business respond to an ADA lawsuit and achieve ADA compliance.

Life Quest’s owner, Nanette Odell, Ed.D., with over 30 years’ experience in the disability field, notes that ensuring compliance requires the following:

  1. A Commitment to get it done over a period of time and with planned financial resources.  Keep in mind that there are tax deductions and credits that can help.
  2. An Assessment of your current level of compliance. This can be a daunting task for a layperson as even one single use restroom can have 80 items to assess.
  3. An organized  Transition Plan to get from where you are to where you need to be.  An expert in the ADA can help lay out a plan to achieve compliance over a period of time by prioritizing what needs to be done and laying it out in simple terms.

CONCLUSION

With a proper attitude towards those struggling with disabilities, ADA compliance becomes a no-brainer.  For perspective, speak to anyone who simply desires to visit a store or enter a business but is shut-out by an easily removable barrier.

ADA compliance is also good for business:  As noted by Dr. Odell, “people with disabilities make up the fastest growing minority population in the world.  According to the U.S. Dept. of Justice, by the year 2030, 71.5 million Baby Boomers will be over the age of 65 and demanding products, services, and environments that address their age-related physical changes.  Accessibility attracts not only people with disabilities but also their families and friends. This expands the potential market exponentially!

This group has $175 billion in discretionary spending power (U.S. Dept. of Labor) so ensuring compliance is not only the law and the right thing to do but it also makes good business sense.”

NOTE:  This article addresses Title III of the ADA.  For information about Title I, which covers businesses with 15 or more employees, read here and here.

Bourque Law Firm, P.C. assists businesses and individuals on ADA matters and otherwise provides a wide array of services focused on helping companies, human resource professionals, and individuals succeed.  Art Bourque is an AV rated attorney who has been practicing employment law and commercial litigation in Arizona for 25 years.