EEOC INTENSIFIES SCRUTINY OF WORKPLACE WELLNESS PROGRAMS

As Americans become increasingly more sedentary and less fit, workplace wellness programs offer a “win-win” solution:  companies reduce their healthcare costs and increase worker productivity; employees become more healthy and less prone to injury and disease.  What’s not to like about that?

As wellness programs proliferate, however, so too does their scrutiny by the government, principally the EEOC.  This article helps companies and wellness program administrators navigate the landmines that that may be encountered by growing government regulation and oversight.

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THE EEOC IS NOT PUMPED-UP ABOUT WELLNESS PROGRAMS

This past Thursday a federal court ruled in favor of the U.S. Equal Employment Opportunity Commission (EEOC) in a disability discrimination case involving wellness programs filed against Orion Energy Systems.

In the Orion lawsuit, the EEOC argued that Orion required Wendy Schobert to submit to medical testing as part of a wellness program or pay 100 percent of the premium for the employer-provided health insurance.  The EEOC contended that this violated the Americans with Disabilities Act’s (ADA) prohibition against involuntary medical exams.  Orion, however, contended that its wellness plan was covered by the ADA’s so-called “insurance safe harbor,” and thereby was excused from ADA compliance except if it operated as a subterfuge. Orion also argued that the plan was lawful under the ADA because it was voluntary.

The district court rejected Orion’s safe harbor argument, and held that the plan was subject to ADA review. However, the court found that the wellness plan was lawful under the ADA because it concluded that the employee’s decision whether to participate was voluntary under that statute.  Nonetheless, the court decided that there were issues of fact regarding whether Schobert was fired because of her opposition to the wellness plan, and rules that the case would be set for (an expensive) trial.

John Hendrickson, the regional attorney for EEOC’s Chicago District Office, remarked that the court’s ruling “establishes that there is no easy out for employers from ADA scrutiny.”

WHERE DO WE GO FROM HERE?

Good health is a priceless commodity.  Wellness programs will continue to offer companies and employees a wealth of benefits — both to the bottom line and the bottom that sits in a chair most of the day (i.e. most of us).

As they grow, however, Companies’ wellness programs will be subject to increasing government scrutiny.  Equally so, with the Orion decision, plaintiffs’ lawyers and government agencies will be on the hunt for companies that fail to comply with the law.

For example, many employers believe that a dispute or injury involving a wellness program is “separate” from a workplace dispute or injury and not subject to HR laws.  Most of time this is not the case.  Thus, employers should treat any employee wellness issue as a workplace issue (e.g. a wellness program injury is likely to be covered by workers compensation laws).

Is this a problem?  No, not if companies and employees stay abreast of the law and work together to develop and participate in lawful wellness programs.  How can this be done?  Easily.  By consulting professionals and reading the HR Law Insider, companies and program administrators will stay current with the law.

CONCLUSION

As we near the year end, I hope you have stuck with your health and fitness goals for 2016; if so, congratulations.  But if not, consider starting now rather than waiting for another January 1 to roll around.

Start, for example, by reading motivating and informative articles and books that will provide an impetus for change.  Dr. Phil Maffetone’s  Big Book on Health and Fitness lays out a sensible and holistic road map that makes health and fitness an ingrained part of one’s lifestyle, and an easy-to-achieve goal for both men and women at any age (I have no affiliation with Dr. Maffetone other than as a huge fan).

As you are contemplating “getting after it,” be inspired by watching a movie or two from my personal top ten list of great sports movies (below).  Hold the cheese, however, as several of these movies have enough Velveeta to fill a small cheese factory.

For wellness program questions, further information on other employment law topics, or if you want to hit some weights, go for a run, or join me on a bike ride, contact Art Bourque at Bourque Law Firm.

In any event, try and start moving now — today.  Each day presents an opportunity to start anew.  As Henry David Thoreau said:  “Only that day dawns to which we are awake. There is more day to dawn. The sun is but a morning star.”

TOP 10 SPORTS MOVIES [OK, TOP 20!]

  1. Rocky
  2. Chariots of Fire
  3. The Karate Kid
  4. Field of Dreams
  5. Pumping Iron
  6. The Longest Yard
  7. Rudy
  8. Hoop Dreams
  9. Bad News Bears
  10. Slapshot
  11. When We Were Kings
  12. Touching the Void
  13. Breaking Away
  14. American Flyers
  15. The Wrestler
  16. Hoosiers
  17. The Jericho Mile
  18. Meru
  19. Remember the Titans
  20. Perfect

 

NEW ARIZONA CASE EXPLORES COMPANY LIABILITY FOR THE ACTS OF INDEPENDENT CONTRACTORS

Control
  

def: the power to influence or direct people’s behavior or the course of events.

Because employers “control” the acts of their employees, courts hold businesses liable for employees’ conduct performed in the course and scope of their employment.  Example:  when a truck driver employed by ABC Trucking crosses a double yellow line and kills an oncoming motorist, the truck driver and ABC Trucking are both liable for negligence.

But what if that same driver is an independent contractor, not an employee of your company?  Or what if the driver is an independent contractor your family hired to move its furniture across town, or shuttle your kids between ball games?  Would you still be liable even though the driver was not your employee?

Equally important, what if you think you have an independent contractor relationship with a worker, but exercise too much control over their work and the person is deemed to be your employee?

The Arizona Court of Appeals tackled these questions last week.  Read on and gain a fingertip feel for how to hire and work with independent contractors in a way that does not make you liable for their mistakes

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A FATAL ACCIDENT AND A LAWSUIT

In Santorii v. MartinezRusso, LLC, a RE/Max Professionals real estate agent was returning from a real estate sales appointment when the car he was driving crossed the center line and struck another man’s tractor-trailer.  Both men died in the collision.  The wife of the truck driver brought a wrongful death lawsuit against RE/Max Professionals alleging that it was vicariously liable for its agent’s negligence.

The specific issue in the case was whether real estate brokers should be held liable for their salespersons’ negligent driving.  The Court answered “no.”  But, in deciding this particular issue, the Court of Appeals made broad pronouncements which are applicable to all businesses.

THE COURT CONFIRMS THE APPLICABLE TEST TO DETERMINE IF A WORKER IS AN INDEPENDENT CONTRACTOR OR AN EMPLOYEE

The Santorii Court stated that the following criteria must be evaluated in determining whether an employer-employee relationship exists:

  1. The extent of control exercised by the master over details of the work and the degree of supervision;
  2. The distinct nature of the worker’s business;
  3. Specialization or skilled occupation;
  4. Materials and place of work;
  5. Duration of employment;
  6. Method of payment;
  7. Relationship of work done to the regular business of the employer;
  8. Belief of the parties.

The degree of control exercised over a worker is the main factor courts consider in deciding whether a worker is an employee.  The right to control is present when a company can control the details of how work is performed and can give specific instructions with the expectation that they will be followed.  Thus, where a  delivery truck driver struck a motorcyclist, the Arizona Supreme Court concluded that there were fact questions regarding whether the driver was an independent contractor or an employee when the delivery company:

  • designated pick-up and delivery times
  • selected the delivery route, and the manner in which the papers were to be delivered
  • could send a supervisor on the delivery route
  • could tell the driver when to add customers and follow specific customer requests

In yet another case, the Arizona Supreme Court held that an employer was not liable for the wrongful death caused by its traveling salesman because the employer had “no control or right of control” over the manner of the salesman’s travel.   The court recognized that under the contract between the employer and the traveling salesman, the employer may have had some control over sales procedures, but found that such control “would not justify an inference of any right to control the time, method or manner of the operation of [the salesman’s] automobile.” The court noted that evidence showing that the salesman could sell anywhere in the United States, sold other companies’ products, and essentially had full discretion over his own sales trips established the employer’s lack of control.

Applying the foregoing principles, the Santorii court ruled that the real estate agent was an independent contractor and, in turn, RE/Max Professionals was not liable.  Despite working exclusively for RE/Max Professionals for over a six-year period, the agent was a licensed professional who had nearly complete discretion in the time, manner, and means in which he traveled to meet clients.

In addition, the contract between RE/Max Professionals and the agent identified the agent as an independent contractor who was “free to devote” his time, energy, effort, and skill as he saw fit.  The agent was not required to keep specific hours, attend sales meetings, or meet any sales quotas, and although RE/Max Professionals provided optional office space, administrative services, sales leads, and training, the agent was charged a monthly fee for these services.  Moreover, there was no dispute that the agent chose the territory where he worked, created his own advertisements, prospected for clients, drove his own car, worked from his home office, worked purely for commission, and set up his own appointments.

TAKEAWAY:  TO AVOID LIABILITY, CAREFULLY DRAFT INDEPENDENT CONTRACTOR AGREEMENTS AND DO NOT EXERCISE TOO MUCH CONTROL

The Santorii decision does not mean that real estate companies are home free.   First, the decision was narrowly limited to assessing liability for agents’ driving a car (versus, for example, negligent business practices).  Second, had the brokerage company exercised more control over its agent, it easily could have been found liable for the agent’s negligence. 

Santorii is a strong reminder for businesses and others to thoughtfully consider their relationships with independent contractors.  This means (1) having counsel draft independent contractor agreements that, if challenged, are defensible and supportable; (2) making sure that your business does not exercise too much control over your non-employee workers; and (3) having adequate insurance if you fail to heed Nos. 1 and 2.

Getting sued is not the only problem that can befall companies who misclassify employees as independent contractors.  The U.S. Department of Labor and IRS are always on the lookout for businesses that misclassify workers.  For more on this topic, read this article.

For help on drafting independent contractor agreements or for further information on other employment law topics, contact Art Bourque at Bourque Law Firm.

DEPARTING EMPLOYEES: WHAT INFORMATION CAN THEY TAKE TO COMPETE WITH YOUR BUSINESS?

Improvements in the job market over the last several years have increased employee mobility among businesses.  As a result, I am seeing a substantial uptick in cases where employees have elected to get a “jump start” on their new jobs by absconding with confidential and proprietary information.

This article discusses:

  • The boundaries of what employees may take from their former employers when embarking on new jobs, or starting new businesses.
  • Preventive measures to avoid the theft of company information.
  • How to stop an ex-employee in their tracks when there has been a theft of confidential or proprietary information.

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THE RULES OF THE GAME

Employees who take customer lists, marketing data or strategies, website designs, manufacturing processes, or other company information are often found to have misappropriated “trade secrets.”  A trade secret is defined as information, including a formula, pattern, compilation, program, device method, technique or process that both:

(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use.

(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

In Arizona, “misappropriation” is defined as either:

(a) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means.

(b) Disclosure or use of a trade secret of another without express or implied consent by a person who either:

(i) Used improper means to acquire knowledge of the trade secret.

(ii) At the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was derived from or through a person who had utilized improper means to acquire it, was acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use or was derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use.

(iii) Before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

“Improper means” is defined as including “theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy or espionage through electronic or other means.”

To state a claim for misappropriation of trade secrets, one need not allege that the person/party itself stole the trade secrets; it is sufficient to allege that the party is using trade secrets that it knows or has reason to know were acquired through improper means.  In other words, misappropriation is not limited to the initial act of improperly acquiring trade secrets; the use and continuing use of the trade secrets is also misappropriation.

THE FINE LINE BETWEEN TRADE SECRETS AND PUBLIC INFORMATION

A customer list may be entitled to trade secret protection when it represents a selective accumulation of detailed, valuable information about customers — such as their particular needs, preferences, or characteristics — that naturally would not occur to persons in the trade or business.  On the other hand, matters of public knowledge are not trade secrets.  The subject matter of a true “trade secret” must be sufficiently novel, unique, or original that it is not readily ascertainable to competitors.

Whether information constitutes a trade secret is decided on a case-by-case basis.  For an understanding as to how the law is applied, observe the following case rulings:

  • specific policyholder information, including amount of outstanding loans and dividends accrued, was trade secret
  • general knowledge of business and customers acquired during employment was not trade secret
  • customer list containing detailed information about customers’ “personality traits, hobbies and likes, credit history, buying habits and pricing agreements” was trade secret
  • customer list containing “pricing information and knowledge about particular roofs and roofing needs of customers” was trade secret
  • customer list containing client names, “farm description, past insurance coverage, and loss histories” was trade secret
  • customer list was trade secret when employer winnowed potential customers down to the “elite” 6.5%
  • customer list was not trade secret when compilation process was “neither sophisticated nor difficult nor particularly time consuming,” market was highly competitive, and customers did not have exclusive business relationships
  • to be protected as a trade secret, customer list must be “more than a listing of firms or individuals which could be compiled from directories or other generally available sources”
As a general principle, the more difficult information is to obtain, and the more time and resources expended by an employer in gathering it, the more likely a court will find such information constitutes a trade secret.

STOPPING WOULD-BE MISAPPROPRIATION:  AN OUNCE OF PREVENTION IS WORTH A POUND OF CURE

The best means to protect your company’s trade secrets is not after the proverbial toothpaste is out of the tube, but rather through implementing vigorous and sustained measures to ensure the secrets are not taken in the first instance.

Contact counsel to develop a solid program to protect your trade secrets.  Among other things:

  • Have employees sign non-disclosure agreements
  • Consider non-compete and non-solicitation agreements
  • Embed in employee handbooks non-disclosure and other language regarding the confidentiality of company information
  • Protect and secure information stored in your company computers and devices
  • Monitor employees’ use of company information
  • Perform “self-audits” from time to time to ensure that management and employees have not been lax or loose with company information
  • Maintain password and information security
  • Establish procedures for on-boarding/off-boarding employees
  • Consider marking certain documents and materials as confidential

CLAIMS AGAINST EX-EMPLOYEES WHO HAVE ABSCONDED WITH TRADE SECRETS OR OTHER CONFIDENTIAL INFORMATION

In most cases it is wise to send the ex-employee, and possibly their new employer, a “cease and desist” letter.  If this proves ineffective and/or significant damage has already been done, employers can seek an injunction to stop the ex-employee from using the information and, separately,  seek damages arising from the misappropriation.

In counseling businesses as to whether it is “worth it” to file a lawsuit, I engage in an interactive process with management designed to focus on (1) the damage which has occurred to date; (2) the potential for future business losses; and (3) the risk that other employees or ex-employees will be emboldened into similar misconduct by inaction.  This cost-benefit analysis is a perfect way to understand the facts, law, and develop a solid plan going forward.

If you are interested in a methodology for dealing with any kind of contract dispute, read “How to Successfully Handle Any Type of Contract Dispute.”

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

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.

BREAKING BAD: FIVE SUBSTANCES THAT CAN RUIN YOUR BODY AND WORKPLACE

One pill makes you larger
And one pill makes you small
And the ones that mother gives you
Don’t do anything at all
Go ask Alice
When she’s ten feet tall

Jefferson Airplane, “White Rabbit”

What if you could instantly improve your health or that of your employees by doing nothing?  I have seen it done — over and over.

The principle is simple:   Success is equal parts engaging in positive behaviors and, just as important, avoiding negative behaviors.

This article focuses on consciously avoiding or at least limiting certain negative behaviors.  Avoiding or controlling these five things — food choices, pills, alcohol, marijuana, and tobacco — will transform your body, brain, and workplace instantly.

FIRST THINGS FIRST:  WHO ARE YOU — AN ABSTAINER OR A MODERATOR?

Before understanding your unique relationship with the five substances discussed below, it is important to understand who you are.

Gretchen Rubin, author of New York Times bestsellers Better Than Before, The Happiness Project and Happier at Homebelieves there are two types of people:  moderators and abstainers.

You’re a moderator if you…
– find that occasional indulgence heightens your pleasure–and strengthens your resolve
– get panicky at the thought of “never” getting or doing something

You’re an abstainer if you…
– have trouble stopping something once you’ve started
– aren’t tempted by things that you’ve decided are off-limits

Play to your strength.  If you are a moderator, enjoy some of the substances discussed below from time to time.  However, if you decide that you are an abstainer, consider steering clear of starting something you may not be able to stop.  For me, one donut usually equals three donuts.  Know what I mean?

BREAKING BAD:  WHAT PROCESSED FOOD AND CRACK HAVE IN COMMON

Have you ever had a friend or loved one struggle with sugar cravings?  In his article, “Sugar Addiction:  Is it Real?”, Dr. Phil Maffetone poses important questions to ask:

  • Why is it so difficult for so many people to even consider giving up sugar and sugar-containing foods, and refined carbohydrates?
  • Do you observe this in others?
  • Do you react to eating sugary foods by getting sleepy, moody, or losing concentration?
  • When you avoid sugar or don’t eat it, do you experience cravings or uneasiness with strong desires to eat more?
  • Do you tend to eat sugary foods even though you know you shouldn’t, and feel you should better control yourself?

Dr. Maffetone goes on to note that these questions about addiction are similar to indications of drug addiction, and the reason researchers and clinicians see an overlap between sweets and drugs.  The cycle is perpetuated with the feeling of withdrawal when the drug, or sugar, is not available, followed by the urge to abuse the drug (sugar) again.

He concludes with a striking observation:  “Sugar may also be a primary issue in those with other “secondary” addictions.  In this case, treating the sugar problem—getting a person off the white stuff—might be the first step in eliminating other substances such as alcohol, nicotine, caffeine or so-called harder drugs like heroin and cocaine.”

So, if personal health is your objective, or if you desire healthier employees and reduced healthcare and workers compensation costs, think twice this Friday about bringing in that baker’s dozen of donuts, bagels, or other junk food.  Or, start improving by switching to every other Friday (if you are a moderator).

Bottom line:  get off the sugar crack, educate yourself about the downside of processed food, and you will be rewarded almost immediately.

TOBACCO

I know the addictive nature of tobacco.  I started “chewing” Copenhagen back in my baseball playing days and the habit followed me for years.

It is easy to say “stop using tobacco, it’s bad for you.”  Everyone knows this obvious truth.  Instead, follow the lead of companies like Bourque Law Firm client Able Engineering and institute a policy that bans the use of this deadly substance.  When first enacted, Able gave workers six months to quit smoking and using tobacco products.  Coupled with its wellness program, Able’s policy has been a huge success:  Since 2010 it has seen a 66% reduction in healthcare spend for employees.

By implementing a non-tobacco policy, your company will instantly have healthier, more productive employees.  Even better, you will be a major catalyst in saving lives and sparing workers from the devastation of lung cancer and the parade of other horribles that accompanies smoking.  Talk about a win-win.

PILLS

Sales of prescription pain relievers in 2010 were four times those in 1999; and the substance use disorder treatment admission rate in 2009 was six times the 1999 rate.

In 2012, 259 million prescriptions were written for opioids, which is more than enough to give every American adult their own bottle of pills.  Four in five new heroin users started out misusing prescription painkillers. As a consequence, the rate of heroin overdose deaths nearly quadrupled from 2000 to 2013.

America, we have a problem.  And to believe it is not having adverse effects on your workplace is naïve.  Instead of sitting back and suffering the obvious and hidden effects of prescription drug abuse:

  • Implement an effective prescription drug use policy within your overall drug and alcohol policy  [see “Draft Policy” below for a sample policy]
  • Educate employees and encourage them to come forward and address any issues
  • Train supervisors and management  on, among other things, your workplace policy for prescription drug use and understanding potential signs of impairment
  • Have a solid employee assistance program

ALCOHOL

Hopefully you will never find yourself in a room with four lawyers.  But if you do, on average one of the four, if they are males, is an alcoholic.

Various factors drive lawyers, and Americans, to drink.  As for the latter, we are drinking ourselves to death at record rates:  In 2014, deaths from alcohol-induced causes increased 37 percent from 2002.

Check yourself before you wreck yourself.  Cultivate good habits, evaluate your bad habits, and check-in with friends and discuss how they and you are coping with life’s stresses and substances.  Do not ignore the obvious.  Equally so,  do not permit yourself to be ignorant of the less obvious markers of alcohol abuse.

MARIJUANA

Times have changed.  Marijuana is suddenly “OK” in many circles.  Near my kids’ school, there is a massive “Dr. Marijuana” sign that we pass daily on the ride in.

In Arizona, an employer can be sued for firing an employee who tests positive for marijuana if the employee has a medical marijuana card.

Let us not fool ourselves.  Like pills and alcohol, marijuana is a serious drug.  Whether it becomes fully legalized in Arizona or elsewhere, it should be treated as such.

CONCLUSION

Many people take better care of their cars than of their bodies.  None of us is perfect.  However, we can all improve each day by (1) understanding the effect of the substances we put in our mouths and (2) making better choices given this knowledge.  I wish you all success on your personal journey.

Art Bourque has guided businesses and individuals for 25 years on implementing substance abuse and wellness policies, training supervisors and employees, and on alcohol and drug issues, including prevention and testing.  Contact Mr. Bourque with any questions concerning this article.

Here is Mr. Bourque’s favorite ever skit on drugs, by the great George Carlin — enjoy:

DRAFT DRUG PRESCRIPTION POLICY

It is a violation of our Drug-Free Workplace Policy to use, possess, sell, trade, and/or offer for sale alcohol, illegal drugs, or intoxicants. Prescription and over-the-counter drugs are not prohibited when taken in standard dosage and/or according to a physician’s prescription. Any employee taking prescribed or over-the-counter medications will be responsible for consulting the prescribing physician and/or pharmacist to ascertain whether the medication may interfere with the safe performance of his/her job. If the use of a medication could compromise the safety of the employee, fellow employees, or the public, it is the employee’s responsibility to use appropriate personnel procedures (e.g., call in sick, use leave, request change of duty, notify supervisor, notify company doctor) to avoid unsafe workplace practices. The illegal or unauthorized use of prescription drugs is prohibited. It is a violation of our drug-free workplace policy to intentionally misuse and/or abuse prescription medications. Appropriate disciplinary action will be taken if job performance deteriorates and/or incidents occur.

 

BREAKING NEWS: TOM BRADY SACKED AGAIN — FOUR GAME SUSPENSION REINSTATED

This morning the United States Second Circuit Court of Appeals reinstated New England Patriots quarterback Tom Brady’s four game suspension for his involvement in “deflate gate” — deflating footballs for an NFL game.  Here is the Court’s decision.

The Court’s decision reflects the general enforceability of arbitration agreements and the enormous power of arbitrators to decide parties’ disputes.

HOW IT ALL GOT STARTED

For a brief refresher, here is how the drama began:

On January 18, 2015, the New England Patriots and the Indianapolis Colts played in the American Football Conference Championship Game at the Patriots’ home stadium in Foxborough, Massachusetts to determine which team would advance to Super Bowl XLIX.  During the second quarter, Colts linebacker D’Qwell Jackson intercepted a pass thrown by Brady and took the ball to the sideline, suspecting it might be inflated below the allowed minimum pressure of 12.5 pounds per square inch.  After confirming that the ball was underinflated, Colts personnel informed League officials, who decided to test all of the game balls at halftime.  Eleven other Patriots balls and four Colts balls were tested using two air gauges, one of which had been used before the game to ensure that the balls were inflated within the permissible range of 12.5 to 13.5 psi.  While each of the four Colts balls tested within the permissible range on at least one of the gauges, all eleven of the Patriots balls measured below 12.5 psi on both.

HR Law Insider has written here, here, and here, about what happened next in the deflate gate scandal.  In short, NFL Commissioner Roger Goodell suspended Brady for four games, but that suspension was overturned after Brady sued the NFL in federal court.  That decision has now been reversed.

THE APPEALS COURT DECISION

In deciding against Brady, the Court of Appeals shot-down each of his arguments.  Detailing each argument in this article is impractical, but here is an example of how Brady’s conduct worked against him:

“At oral argument, the NFL Players’ Association further contended that the Commissioner was improperly punishing Brady for destroying his cell phone because he was required to institute a new disciplinary action (so that Brady could then appeal any determination that he had destroyed his cell phone). This argument fails because, as set forth in the original disciplinary letter, Brady was punished for failing to cooperate, and it is clear from the Commissioner’s decision that Brady’s cell phone destruction was part and parcel of the broader claim that he had failed to cooperate.”

The Court of Appeals decision was not without strongly worded dissents within the multi-member appellate panel.  The dissenters’ theme — sure to be adopted by Patriot’s fans — is that the NFL was unfair to Brady.  As noted by one dissenter:

“[T]he Commissioner’s murky explanation of Brady’s discipline undercuts the protections for which the NFLPA bargained on Brady’s, and others’, behalf.  It is ironic that a process designed to ensure fairness to all players has been used unfairly against one player.”

WHERE WE GO FROM HERE

The next stop for the deflate gate saga is the United States Supreme Court.  Should the highest court in the land decide to take the case, we may well learn which justices understand the game that has virtually become a national obsession; and we may also learn if there are any Patriots fans on the bench.

For all you trivia buffs, Byron Raymond “Whizzer” White (1917 – 2002) won fame both as a football halfback and as a Supreme Court Judge.  Born and raised in Colorado, White played in the NFL for three seasons.

CONCLUSION

If you are a business or organization that does not want a judge or jury to decide your dispute, embed an arbitration provision in your contract(s).  Understand, however, arbitration agreements must be carefully drafted to be enforceable.  Contact counsel to understand the pros and cons of arbitration agreements.

Art Bourque has guided businesses and individuals for 25 years on arbitration agreements, employment law, and commercial arbitration.  Contact Mr. Bourque with any questions concerning this article.

BREAKING NEWS: NEW OVERTIME RULES TO BE ENFORCED SOONER THAN EXPECTED

Yesterday, the US Department of Labor sent its overtime rule to the White House Office of Management and Budget (OMB). This occurred much sooner than anticipated.

The result:  because OMB review typically takes four to six weeks, the final rule will be the law of the land as early as next month.

The effect:  the new regulations will abolish the overtime exemption for all currently salaried employees that make less than $50,000 per year.  When enacted, the regulations will greatly reduce businesses’ ability to claim executive, administrative, professional, outside sales, and computer exemptions under the Fair Labor Standards Act (FLSA). The regulations will affect millions of workers  and their employers.

Here is a more in-depth article on the topic.

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

MERU: ON OVERCOMING ADVERSITY AND SLAYING DRAGONS

People wish to be settled; only as far as they are unsettled is there any hope for them.  Bad times have a scientific value. These are occasions a good learner would not miss. Ralph Waldo Emerson

Defeat and death will visit each of us on our life journey.  My mother lost her husband, and I my father, at a young age.  Neither my mother nor I am unique.  We have all suffered the pain of loss.  It is the human condition.

Through the lens of the award-winning movie, Meru, this article provides ideas and tools to overcome adversity — whether the adversity is the loss of a loved one, a business defeat, or anything in between.

MERU: THERE IS NO PLACE BETTER TO TEST ONESELF THAN AT THE CENTER OF THE UNIVERSE

Mount Meru is a sacred mountain in India considered by Hindus to be the center of all the physical, metaphysical and spiritual universes.

Meru is the story of three close friends who, after suffering dramatic set backs in their lives, battle their complicated pasts, inner demons and nature’s harshest elements in an attempt to climb the Shark’s Fin on Mount Meru, the most technically complicated and dangerous peak in the Himalayas, one that has never been scaled to completion.

One need not be a mountain climber to embrace Meru.  Meru is compelling for anyone who seeks to contemplate and understand loss, and how we all have the ability to recover and overcome obstacles and demons.

Equally so, Meru teaches us the importance and value of the team — why having a social fabric is so important to pulling oneself up and facing life’s challenges.

PERSPECTIVE:  WE ARE NOT ALONE IN OUR PAIN   

In The Art of Happiness, the Dalai Lama writes:

In the time of the Buddha, a woman named Kisagotami suffered the death of her only child. Unable to accept it, she ran from person to person, seeking a medicine to restore her child to life. The Buddha was said to have such a medicine. Kisagotami went to the Buddha, paid homage, and asked, “Can you make a medicine that will restore my child?”

“I know of such a medicine,” the Buddha replied. “But in order to make it, I must have certain ingredients.”

Relieved, the woman asked, “What ingredients do you require?”

“Bring me a handful of mustard seed,” said the Buddha.

The woman promised to procure it for him, but as she was leaving, he added, “I require the mustard seed be taken from a household where no child, spouse, parent, or servant has died.”

The woman agreed and began going from house to house in search of the mustard seed, but when she asked them if anyone had died in that household, she could find no home where death had not visited; in one house a daughter, in another a servant, and in others a husband or parent had died. Kisagotami was not able to find a home free from the suffering of death. Seeing she was not alone in her grief, the mother let go of her child’s lifeless body and returned to the Buddha, who said with great compassion, “You thought that you alone had lost a son; the law of death is that among all living creatures there is no permanence.”

Kisagotami’s story reminds us that we are not unique in undergoing challenges and experiencing grief.  Everyone experiences searing pain — at times too deep to imagine.  We can deal with this by understanding that we are not alone.

PAIN IS INEVITABLE, SUFFERING IS OPTIONAL

We have all heard it because it is true:  “Pain is inevitable, suffering is optional.”   A well-documented case revealing this truth is found in the following Psychology Today article:

In Man’s Search for Meaning, Dr. Viktor Frankl wrote about the psychological impacts of life as a prisoner in the Nazi concentration camps of World War II. His mother, father, brother, and pregnant wife were all killed in the camps. Dr. Frankl describes in chilling detail how his captors took from him virtually everything of personal value and basic human dignity. The only thing that the Nazis were unable to take away was his choice as to how to respond to the deprivation, degradation, and trauma to which he was subjected. He made a conscious decision to focus his energies on “owning” that small but all-important space between the stimulus (whatever was said or done to him) and his response to it. His ability to retain that degree of psycho-spiritual autonomy in the most horrific circumstances imaginable provides a remarkable example of intrapersonal strength, grace under extreme duress, the power of personal choice, and the Serenity Prayer in action.

By adjusting our thinking, and how we think about our thinking, we can change our emotional responses, the extent to which we suffer (or not), our level of tension and stress, and in turn, our experience of pain.

CONCLUSION

Did you have a tough day yesterday or last week?  Was it “just” a business defeat, or did you lose a friend, loved one, or relationship?

Dust yourself off, put things in perspective, and share your loss with a family member, close friend, or colleague.  Plan and envision the way forward.  Do not give up — ever.

Like the three men in Meru, work hard, give yourself a chance, and you can accomplish amazing things.  No, you may not be able to ascend Meru’s iconic “Shark’s Fin”, but yes, you will climb your own mountain.  And in dong so you will surely put fear and doubt where they belong:  beneath and behind you.

In the words of Jack Kerouac, “In the end, you won’t remember the time you spent working in the office or mowing your lawn. Climb that goddamn mountain.”

Before confronting your next challenge, enjoy this clip from Meru and then watch the entire movie (it is now on Amazon Prime and Netflix) :

EPILOGUE

This Saturday I will head into the Grand Canyon and run a wilderness route that almost took my life on my 33rd birthday, some 20 years ago.  I return annually to give thanks I am alive, remember life is fleeting and precious, and remind myself that mistakes can be costly and, at the same time, contain invaluable lessons (e.g. bring a map; speak with a veteran before tackling a new route).

Here is a picture I took on one of my annual pilgrimages — including the Anasazi ruin (on the left, overlooking the Colorado River) where I say a prayer for those no longer with us and give thanks for family, friends, and life: