By’ Bill Pilchak – 2/26/15
We all know that animals are often trained to assist humans with disabilities. Leader Dogs for the Blind is headquartered in Rochester, Michigan and their service animals provide invaluable assistance to the blind. We have heard of animals that alert the deaf to noises, predict seizures, pull wheelchairs and retrieve items for those with mobility items. Allowing a disabled person to bring a legitimate service animal to work is clearly a required accommodation under the ADA.
However, like most of the benevolent laws we deal with, some seek to exploit the concept. The latest trend is for individuals to claim that their pets provide emotional support. So far, most of the case law has involved individuals attempting to avoid “no pet” rules in housing complexes and homeowner associations. An Iowa state court held that a plaintiff was entitled to a trial to determine if her two Dobermans were a reasonable accommodation of her post-traumatic stress disorder caused by a prior break-in. However, a federal case held that a bulldog was not an individually trained service dog so as to be an accommodation of depression and anxiety.
New Yorker Magazine, not often friendly to the business perspective, noted the problems businesses face and documented how easy it is to get a psychologist to certify the need for a support animal. http://www.newyorker.com/magazine/2014/10/20/pets-allowed . The author noted that anyone could register their animal (or actually a beanie baby) as a support animal for a fee between $70 and $250. The author registered a thirteen-pound turtle with the Emotional Support Animal Registration of America, who evaluated her over the phone and provided her with a letter certifying her need for the turtle. She also succeeded in registering a snake, a turkey, an alpaca (who she tried to take on a train) and a pig (who she did take on a plane in a stroller) as emotional support animals.
The New Yorker author found that those who push the envelope are armed by federal publications that warn that the only two questions that may be asked is: 1) Is the animal required because of a disability? 2) what work or task has the animal been trained to perform? Such publications exist, however, other publications suggest other strategies.
Readers might be interested in knowing that the government has (once again) largely avoided the mess that service animals may cause (pun intended). Title II of the ADA applies to state and local government services. Title III applies to public accommodations and commercial facilities. In those realms, a July 12, 2010 bulletin published by the Department of Justice, Disability Rights Section (http://www.ada.gov/service_animals_2010.htm ), while indicating the above two questions are the only permissible questions, also states:
- Only dogs are recognized as service animals under Titles II and III of the ADA;
- A Service animal is a dog that is individually trained to do work or perform tasks…which must be directly related to the person’s disability;
- Service animals are working animals not pets;
- Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA.
- [Despite the above provisions, a following provision states:]
- In addition to the provisions about service dogs…miniature horses that have been individually trained to do work and perform tasks [may qualify as service animals].
- Assessment factors included whether the horse is housebroken, under the owners control, etc.
Businesses faced with this issue with regard to customers and visitors are cautioned to assure themselves that the 2011 bulletin remains in effect. Otherwise the joke may be on them.
The New Yorker article ends up being humorous, but employers aren’t laughing. They have been jerked around before by employees who seek to control them. Fortunately, employers are armed a bit more with respect to employees than businesses open to and required to accommodate the public. Employers are not required to accommodate an unknown disability and may make reasonable inquiries (if consistent with business necessity) to determine if the person has a covered disability and to identify a reasonable accommodation. Such inquiries should be made with care, however, to avoid a violation of the ADA. Additionally, an employer might conduct a medical examination, if consistent with business necessity. Such an examination might smoke out that no treating medical professional has prescribed the need for the animal. Finally, employers are obligated to provide reasonable accommodations and not the accommodation of the employee’s choice. Thus, as long as there is some other form of reasonable and effective accommodation, employers are within their right to reject a request to bring an employee’s pet iguana to work as an accommodation.
By: Dan Cohen – 02/24/15
The presumption of receipt derives from the longstanding common law “mailbox rule.” Under the mailbox rule, if a letter “properly directed is proved to have been either put into the post-office or delivered to the postman, it is presumed that it reached its destination at the regular time, and was received by the person to whom it was addressed.” Rosenthal v. Walker, 111 U.S. 185, 193 (1884). However, the mailbox rule is not conclusive. Rather, it only carries a rebuttable presumption premised on the probability that the officers of the government will do their jobs in the usual course of business. Over time, however, this presumption has been weakened because the ordinary paper mail operation of the United States Postal Service (USPS) has become increasingly prone to system failures caused by internal and/or external human error, including dropped and lost letters or an incorrect mailing address.
Most recently, in Lupyan v. Corinthian Colleges, Inc., ___ F3d ___(3rd Cir 2014), the presumption was overcome where an employee was terminated when she failed to return to work at the end of her 12 week FMLA leave. During the ensuing FMLA interference lawsuit, the employee claimed she had not been given notice that her leave was FMLA-qualifying and did not know she was required to return to work within 12 weeks. The employer moved for summary judgment arguing that it mailed the notice and was, therefore, entitled to a presumption that notice was proper under the mailbox rule. In support of its motion, the employer submitted affidavits of the individual who mailed the notice and individuals familiar with the employer’s internal mailing procedures. However, It offered no corroborating evidence that Lupyan received the notice. According to the Court of Appeals, since the notice was not sent by registered or certified mail, return receipt requested or any of the now common ways of assigning a tracking number to the notice, there was no direct evidence of either receipt or non-receipt.
According to the Court of Appeals, sending something regular mail these days creates a very weak presumption of receipt. Thus, the question of receipt was one for a jury and summary judgment was reversed:
“It is certainly not expecting too much to require businesses that wish to avoid a material dispute about receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as important as a legally mandated notice.”
By contrast the Third Circuit noted that a “strong” presumption of receipt applies when notice is sent by certified mail, because it creates actual evidence of delivery in the form of a receipt.
We have been advising clients for many years that when you send a document as important as an FMLA notice, a COBRA notice, benefits information or even a termination letter, it should be sent in such a manner that it can be tracked. We used to recommend certified mail, return receipt requested, but as more and more people chose not to go pick the letter up at the post office, we have moved away from the recommendation of certified mail in favor of Federal Express, UPS, or other overnight couriers, which provide a means of tracking the delivery. This is an effective way to create a strong presumption of receipt under the traditional mailbox rule and is highly recommended when you have to prove receipt of important information. Hand delivery and electronic delivery can also accomplish a “strong” presumption of receipt.
By: Bill Pilchak – 2/17/15
I am under firm orders from the “social director” not to discuss politics at family functions any more. You can only imagine why. I actually agree with the social director. Regrettably, one of my last conversations with a cousin before she died was on politics. It wasn’t the way I would have ended our 55+ year relationship, if given the choice.
Yet, late last month, an erstwhile group of cousins of the male persuasion somehow got on the subject of CEO earnings. This is a popular subject among wage earners, especially with our President constantly decrying the 1%ers.
I gently made a point, lest the social director across the room hear our subject. I could have mentioned that if Walmart CEO’s $25.6 Million dollar compensation was divided among Walmart’s 2.2 Million associates in the world, each would get an extra $11.64 per year, or ½ of a cent per hour if they worked full time. Instead, I used a sports analogy as I often have in front of juries. I told them that I didn’t understand how we so readily exalt athletes for their astronomic salaries for playing games that anyone else considers recreation, but we are resentful of executives who similarly competed against the best in their fields and rose to the top only to assume massive responsibility and a crushing workload. I questioned the prospect that one hot-shot in a jersey is worth more than someone responsible for maintaining the investment of billions of dollars and the employment of anywhere from tens of thousands to- in the case of Walmart- millions of employees.
I didn’t carry the conversation further. I didn’t express my suspicion that the universe of mega-million dollar CEOs was likely smaller than the universe of mega-million dollar American athletes, let alone world athletes, which is the proper comparison in the case of multi-national companies.
I did, however, wonder how CEOs and athletes actually compare. As such, let me dove-tail some pro-star salaries with CEO salaries.
Lebron James, Cleveland Cavaliers- $72.3 million.
Les Moonves, CBS Corp. – $66.6 million.
Kobe Bryant, Los Angeles Lakers- $61.5 million.
Daniel Hesse, Sprint- $49 million
Matt Ryan, Quarterback, Atlanta Falcons- $43.8 Million
Philippe P. Dauman, Viacom- $37.1 million
Robert Igor, Disney – $34.3 million
Matthew Stafford, Detroit Lions- $33 million
Jeffrey Bewkes, Viacom- $32.5 million
Brian Roberts, Comcast- $31.3 million
W. Tillerson, Exxon Mobil- $28.1 million
Payton Manning, Denver Broncos- $27 million
Doug McMillon, Wal-Mart- $25.6 million
Marillyn A. Hewson, Lockheed-Martin, $25.1 million
Miguel Cabrerra, Detroit Tigers, $24.6 million
Charles W. Scharf, VISA, $24.2 million
Prince Fielder, Texas Rangers, $23.9 million
James McNerney Jr., Boeing- $23.2 million
Alan Mulally, Ford Motor Co.- $23.2 million
Aaron Rodgers, Green Bay Packers, $22 million
I. Chenault, American Express- $21.8 million
Andrew N. Liveris, Dow Chemical- $20.4 million
Carlos Dunlop, (a 25 year old Cincinnati Bengals defensive end)- $18.8 million
Hope this puts CEO pay in the right perspective. Some of the superstars on the list above are largely responsible for the world economy, millions of paychecks, and the investments that most of our 401-k accounts rely upon. The others are good entertainment. Which is more valuable? Tom Gorzelanny
By: Bill Pilchak – 2/12/15
NLRB ADVANCES WORKERS’ RIGHTS IN NON-UNION CONTEXT
ALTERS COMMON BUSINESS PRACTICES: NO-SOLICITATION CLAUSES & ANTI-BULLYING POLICIES
Business often decries how intrusive the federal government has become, but specifics are seldom provided. Perhaps individual businesses fear retribution from the government should they point fingers at specific agencies. Thankfully, law firms are not as highly regulated – and thus not as vulnerable to intimidation – as our clients. And, thankfully, we are too well-armed in the law to be daunted from pointing out the march of Big Government.
Accordingly, allow me to illustrate how one agency, the National Labor Relations Board, has asserted employee rights outside the union context to dismantle heretofore-legal employer policies and practices.
No-Solicitation (Of Employees) Clauses
Most non-compete and executive employment agreements contain a provision that employees will not solicit their colleagues after their employment ends, typically for a defined period of time. According to the NLRB, these provisions are illegal for non-managers. In Quicken Loans, 361 NLRB No. 94 (N.L.R.B. Nov. 3, 2014), “Garza” was employed as a loan officer. She signed an agreement which acknowledged that Quicken’s personnel lists, rosters, personal information of co-workers, managers, executives and officers, including home and cell phone numbers, addresses, and email addresses was confidential. The agreement also apparently contained non-compete clauses and an obligation to refrain from contacting or soliciting Quicken Loans’ employees after employment ended. After Garza left employment, she and five other former employees of Quicken were sued for alleged violations of the no contact/no raiding and non-compete provisions. Garza countered the suit by filing a Charge with the NLRB. Even though Garza was no longer an employee, the NLRB found that the designation of employee information as confidential chilled the section 7 rights of employees (to engage in protected, concerted activity –including the formation of a union) and ordered Quicken to rescind the provisions that employee information was confidential and inform all employees that it will not be enforced.
Thankfully, Quicken Loans has petitioned the D.C. Court of Appeals to overturn the Board’s ruling. Briefs are due this month. Stay tuned.
The NLRB recently applied Section 7 rights to prohibit terminations for bullying. The holding of Hispanics United of Buffalo, 359 NLRB No. 37 (December 14, 2014) will surprise many business owners/leaders. Marianna and Lydia were coworkers, who communicated by phone and text during and after work. Lydia frequently criticized other co-workers, who she felt did not provide timely and adequate assistance to clients. When Lydia told Marianna that she intended to bring her concerns to management, Marianna informed four of those employees, who then posted comments about Lydia on Facebook. The Board’s opinion does not fully quote the postings, but management considered them “bullying and harassment” in violation of the company’s zero-tolerance policy and terminated the employees who posted them. Finding the Facebook comments to be “the first step toward taking group action” and constituting concerted, protected activity, the Board ruled the discharges were an unfair labor practice.
In an era where unions are becoming less popular (per Associated Press, union members in Michigan dropped by 48,000 workers last year to 585,000) and where the NLRB has less work on its plate, it has reached out to the non-union environment for cases. Heaven forbid that a federal agency might shrink because the business model underlying its “cause” has become outmoded.
The takeaway for employers is: Be careful when terminating or disciplining employees who take “group” action, even in a non-union context. Likewise, it is time to review and revise the policies (social media, confidentiality, use of company logos, etc.) that the NLRB targets when ruling against employers.
By: Dan Cohen – 2/10/15
Many of our clients have multi-state operations. And, while most of the employment laws that govern their operations across state lines are relatively similar, there are subtle differences from state to state and some dramatic differences in some states. California is a prime example with its one-of-a-kind wage and hour laws, including meal, rest and recovery periods, paid sick days, daily overtime requirements, and vacation rules, to just name a few. If you conduct business in California, you absolutely must spend time preparing yourself and your business for what lies ahead. It is simply not enough to introduce your Michigan handbook to your California employees and think you have it covered. In fact, it is a mistake to think that your Michigan handbook, policies and practices can be used in most other states.
I am not just picking on California either. Illinois, New York, Colorado, Massachusetts, Pennsylvania, Wisconsin, Washington are states that have employment laws that are much different than those in Michigan. Many states have their own version of the Michigan Elliott-Larson Civil Rights Act, and offer protections to individuals not otherwise protected under Elliott Larson or even federal law. Illinois, for example, protects individuals unfavorably discharged from the military, for their sexual orientation and those with orders of protection under domestic violence laws. Massachusetts also protects individuals on the basis of their sexual orientation and gender identity. Pennsylvania protects individuals who possess a general education diploma (GED) and because of an individual’s willingness or refusal to participate in abortion or sterilization.
Nearly half the states have LGBT legislation and family and parental leave laws on the books. There is a wide divergence of wage hour laws across the country as well. Minimum wage laws vary from state to state as do benefit rights. In at least six states (California, Colorado, Massachusetts, Minnesota, Missouri, and Nevada) employers must pay discharged employees immediately (on the same day). Ban-the-box laws vary from state to state as well. If you operate in some states like Hawaii, Illinois, Massachusetts, Minnesota or Rhode Island, you must be familiar with the prohibitions against asking applicants about criminal convictions. In Washington, employers may only inquire about convictions in the last 10 years. California applicants cannot be required to list any misdemeanor conviction information in cases where probation has been successfully completed or otherwise discharged and the case has been judicially dismissed. Additionally, California applicants cannot be required to list certain marijuana convictions if more than two years old. Still, other states protect individuals who have convictions that have been sealed or expunged by a court. There are also over 100 municipalities across the country that ban-the-box.
Even within Michigan, there are various local ordinances that businesses must follow. For example, there are 36 municipalities in Michigan, including Detroit, Grand Rapids, Lansing, Saginaw, Ann Arbor, Traverse City, Royal Oak and Huntington Woods, that offer protection based upon an individual’s sexual orientation. Of course, when you operate in other states, there are local ordinances that must be followed there as well. Take San Francisco, for example, with its family friendly workplace ordinance, fair chance criminal background ordinance and health care security ordinance, which requires employers to spend a certain amount of money per employee on health care.
Some businesses have learned the hard way by using their Michigan handbooks, pay practices and employment applications in other states. The best advice I have is to take inventory of the differences in those states where you conduct business and where you hope to conduct business. Make sure all of your forms are compliant in those states. This really is not such a daunting task, but it is often overlooked. And, don’t just go on line and google employment applications for California. For every on-line resource that is accurate and useful, there are dozens that are not and which merely provide a false sense of security. Do not make that mistake.