Grandfathering Under the ADA Is Not A Thing

100 Year old BuildingFor all of you businesses in cool brick lofts, I’ve got some bad news for you. Grandfathering under the ADA is not a thing.

Everyone thinks it is, though. It’s a persistent rumor leading to poor decisions. I hear the grandfathering rumor all the time. All. The. Time.

So I feel the need to say it again. Just because the building is old doesn’t mean that your business doesn’t have to comply with the ADA. Grandfathering under the ADA does not exist.

Most California businesses find this out the hard way.

In California, a disabled plaintiff can get damages and attorneys’  fees for going to a business that is not to code under the ADA. So these suits are rampant and entire law firms exist just to bring them.

In other states, the availability of damages varies. So the attractiveness of a lawsuit to lawyers also varies. But, that doesn’t mean the businesses can’t or won’t get sued.

And if you are a commercial tenant, you probably won’t be able to blame it on the landlord. Quite the opposite: your landlord will also get sued and you’ll be required to indemnify him.

So beware. This is a trap for those who live in old towns, like our headquartered city of Saint Louis, Missouri.

Video Transcript:

Say your business is in a 100 year old brick warehouse.

Is it correct I’m grandfathered out of the Americans With Disabilities Act accessibility regulations?

Sorry. Grandfathering is a myth. It doesn’t exist under the ADA.

That means two things. First, you may not receive permits from the city to open or improve your business until you bring your building up to code.

Second, you could get sued.

The ADA is what’s called a “complaints driven” law. So someone who notices your building isn’t ADA accessible has the right to sue you.

However, in many states the plaintiff won’t be entitled to damages even if they win because the state has to make an extra law to create damages.

California is an example of a state that gives a plaintiff damages for bringing an ADA accessibility case.

But in all states, a lawsuit can result in a court order requiring you to bring your building into ADA compliance, even if it is expensive.

Confused about possible risks or liabilities in your business? Get peace of mind by having us on call for less than $5 per day. Call us and ask about our Peace of Mind Plan at 800-449-8992 or visit http://peaceplan.biz for details.

Is It Legal For Me to Find Investors For A Friend’s Business?

Investor Introduction Maybe you have a rich friend who is looking to invest in something interesting or fun or worthy. And you have another friend who has just built a better mouse trap, but is living in his mom’s basement.

Together, the two could make millions. So you consider playing business matchmaker. Nothing wrong with that, right?

Even better… maybe you can get a cut in the business or a fee for a successful transaction. That’s just being enterprising. And your inventor friend is enthusiastically willing.

Someone tells me this story casually at least a few times a year.

And every time, I have to be a wet blanket.

Because if you are going to connect an investor with a business, you may be violating the securities laws. If things go wrong, you could be held responsible. Or worse, you could be prosecuted by the SEC and fined or put in jail.

Like many things in law, something with such good and innocent intentions can surprise the people involved by being illegal.

Watch the video to see what I mean.

Video Transcription:

Say you have a friend who wants you to introduce him to potential investors in your industry in order to raise money for his new start up business.

Can you take a percentage if he successfully raises money from my contacts?

Unfortunately, no.

Federal securities law requires a broker’s license for any person who gets paid any fee for obtaining an investor.

This is meant to protect investors from being scammed.

Even if you just make the introduction, you must still comply with this law.

If you are not licensed, the investor can later sue you for a return of his or her money.

You can still make a simple introduction to help out your friend, so long as you aren’t paid for it.

And, of course, you shouldn’t make any representations or guarantees about the wisdom of investing money in your friend’s venture.

Would you like to have a lawyer at your beck and call without it costing you an arm and a leg? Learn about our Peace of Mind Plan or call us at 800-449-8992 to find out how.

Do Employers Have to Accommodate Employees Who Object to Serving Gay Customers Based on Religious Beliefs?

Graveyard

Are Christian Religious Beliefs and Practices Dead At Employment?

So I have a heavy topic for you today: Do employers have to accommodate employees who object to serving gay customers based on religious beliefs?

Pretend that you own a bakery. You have an employee who sincerely objects against gay marriage for religious reasons. Your employee refuses to bake a cake for a wedding that will be for a gay couple. Can you fire that employee for refusing to bake the cake? Or must you force the employee to bake the cake? Or must you allow the employee to abstain from baking the cake?

As a practical matter, I think the answer to this question depends in no small part on where you live. A jury in California may think about this in a remarkably different way than a jury in Kentucky.

What is a “reasonable accommodation” for a religious belief is context (and probably culturally) dependent. The recent Abercrombie & Fitch and Hobby Lobby decisions by the U.S. Supreme Court underscore how politically driven religious discrimination decisions can be.

Here’s the law. According to the Equal Employment Opportunity Commission (EEOC), “The law requires an employer or other covered entity to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.”

Protected religious beliefs are not just for people who are part of a recognized, organized religion. Discrimination protection and accommodations also apply to anyone who has “sincerely held religious, ethical or moral beliefs.”

The anti-discrimination laws are meant to broadly protect people who have sincere religious beliefs and practices without requiring them to prove that they belong to a mainstream church.

Religious discrimination claims typically focus on an employer’s requirement to accommodate days or times for worship and modes of dress. For example, employers are more or less required to allow time off for religious holidays, barring extraordinary hardship.

Employees also cannot be forced to participate in employer-sanctioned religious ceremonies. So you can have a Christmas party, but you cannot force employees to celebrate Christmas at the party, for one common example.

Dress codes must accommodate religious dress, prohibitions and hairstyles. For example, Rastafarians must be permitted to keep their dreadlocks. And you cannot prohibit a Jew from wearing a yarmulke.

This is where Abercrombie & Fitch got into trouble recently. They were sued for not allowing female employees to wear head scarfs as that violated their dress policy. In its defense, Abercrombie & Fitch claimed that the head scarf was not stylish and did not compliment their wares, which they had their employees dress in to display. But this is not a good enough reason to prevent an employee from observing a sincere religious belief.

Title VII (and state laws that follow suit) also prevent employers from forcing employees to act in ways that are against their sincere religious, ethical or moral beliefs. So, for example, if it is against a restaurant server’s religion to dance, an employer cannot make her dance as part of her serving duties — even if it is just for a quick Happy Birthday song.

Employers do not have to accommodate religious practices when it causes “undue hardship,” however. The EEOC explains, “An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”

So this is where context, culture and a jury would come in. Most accommodations decrease workplace efficiency, so what is reasonable and what is undue hardship?

Let’s returning to our reluctant cake baker. Would it be a hardship for the employer to have a different, non-objecting employee bake the cake? Perhaps it depends on staffing and who is available. Perhaps this employee is the only employee capable of making fondant. Or perhaps there are ten other bakers who could easily do it.

If it is possible for the employer to not require the employee to do something against their sincerely held moral beliefs, it may be better to put a different worker on the task.

If the employer cannot, he may be justified in forcing the employee to comply, on pain of termination.

I am certain that a typical California jury would be unsympathetic to the employee in this situation — although I can conceive of a jury make up in some places in California where this would not be certain. I would also be less certain in Missouri, where feelings about gay marriage are more varied. So this is why I would say that the answer of what is reasonable and required, versus what is “undue hardship” somewhat depends on where you are at in the country.

An even trickier question is whether accommodating the employee’s beliefs results in an actionable discrimination against the customer, creating liability for the employer. If the employee forces the business to get sued for discrimination by a customer, that is surely an undue hardship.

For example, what happens if the objecting baker tells the customer that they refuse to bake the cake? Or worse, what if the employee begins proselytizing to the customer in a way that becomes offensive (or even considered “hate speech”)? Will the customer sue the bakery for the employee’s behavior?

In most situations where an employee creates a liability for the employer, you can expect the employee to get fired legally. For instance, here’s a true story: a big retailer was told by a customer that she did not want a black delivery driver to deliver her purchase. The manager acquiesced and went to send a white delivery driver. But unfortunately, he told both the white and black drivers why he made the change. Both employees refused to go along and complained to HR about the manager’s decision. The manager was fired and the customer’s order cancelled. Because that manager’s decision put the company at risk for a lawsuit by two employees, the firing was justified.

When it comes to what is required to accommodate religious employees, there is no concrete answer for employers. And with the Supreme Court’s decision in Obergefell, there will be a rise in “conscientious objectors” within the wedding industry.

My advice to employers is to try and accommodate your religious employees as much as possible, without putting your business at risk by inviting suits from customers or making it impossible to operate.

Are you at risk for CAN-SPAM fines?

spamE-mail marketing, such as newsletters and promotions to customer lists, is highly effective. That is why most companies engage in some type of e-mail marketing.

Yet, many companies are unfamiliar with the laws that regulate e-mail marketing, such as the CAN SPAM Act. Companies jeopardize their livelihood with every e-mail sent that is not in compliance with CAN SPAM.

I recently received an e-mail from a company’s blog that I used to follow. It told me about a new, featured post, and invited me to visit the blog.

Some time ago, though, I stopped reading this blog. So I wanted to unsubscribe. But when I scrolled to the bottom of the email, there was no unsubscribe feature. Annoyed, I emailed the sender and requested removal instead. I hope they follow my request and are not offended by it.

Failing to include an unsubscribe feature in a commercial e-mail does more than frustrate your recipients, though. It can cost the sender up to $16,000 in fines per e-mail sent.

Yes, you read that right. Violations of the CAN SPAM Act can cost up to $16,000 per violation.

So what do you need to know to comply? Here are the eight most important things you need to know about CAN SPAM Act requirements:

1.  It Applies to All Commercial E-mail: Most people think of spam as “cold” emails. Cold emails (those sent without the express consent of the recipient) are not illegal. But they must comply with CAN SPAM. Perhaps more surprising, though, is that all commercial emails — even those people opt into — must comply with CAN SPAM. A Commercial E-mail is one that advertises or promotes a product or service, or content on a business website.

2.  Header Information Must Not Be Misleading: This includes the “From,” “To,” “Reply-To,” and routing information located in the e-mail. All of the information must be accurate and identify the business sending the message. Do not mask your header information to improve open rates.

3.  Subject Lines Must Not Be Misleading: Do not try to create catchy subject lines if they will misrepresent the contents of the e-mail.

4. Identify the Message as an Advertisement: Although you can choose where to put this in the message, you must identify it “clearly and conspicuously” as an advertisement.

5.  Provide a Valid Physical Post Address: E-mail marketing materials must contain a valid physical address for the sender. You can use a P.O. Box in the United States.

6.  Provide An Obvious Opt Out Option: This is perhaps the most important feature of the CAN SPAM Act and has several particular requirements:

* Opt-out must be free.

* Opt-out procedure cannot require the recipient to provide any information other than the e-mail address they want to unsubscribe.

* Opt-out procedures cannot require the recipient to do more than send a reply e-mail opting-out, or visit a single webpage on and internet site

7.  Promptly Remove the Requesting Person From Your List: You only have 10 business days to comply with an opt-out request.

8.  You Are Responsible for Your Marketing Company’s Compliance: You cannot contract out of your responsibility to comply with the CAN SPAM Act. Vet your marketing companies for compliance before hiring. Regardless of who send the e-mail on your behalf, the company requesting the marketing is ultimately responsible for the results.

Failing to comply with the CAN SPAM Act can financially cripple your business. Just ask Kobeni Inc., which had to pay $350,000 to the FTC when it sent emails prior to rolling out the Affordable Care Act (ACA) exchanges.

Even if the FTC never sues you, failing to comply with marketing laws like the CAN SPAM Act costs you real money. It makes you look unprofessional and frustrates customers and prospects. (Just because someone unsubscribes from your email list does not mean they are uninterested in doing business with you.)

Complying with CAN SPAM Act isn’t just a legal requirement, it’s good business.

Americans with Disabilities Act 25 Years Old Today

Caring hands for Americans with DisabilitiesOn July 26, 1990, President George H.W. Bush signed the Americans with Disabilities Act into law. The law’s goal is to ensure equal opportunities for people with disabilities by mandating greater accessibility and reasonable accommodations in public transportation, public institutions, commercial facilities, and federal and local programs. The ADA also regulates employment practices and mandates that employers provide reasonable accommodations for people with disabilities in the workplace.

 

When President George H.W. Bush signed the law he had to address concerns from the American public that the broad civil rights law would be “too vague or costly, or may lead endlessly to litigation.” In response, Bush used a line from President Reagan’s Berlin Wall speech to remind Americans of the main goal of the Act, saying, “Let the shameful wall of exclusion finally come tumbling down.”

 

Twenty-five years later, there is still significant debate about whether the law in practice is too vague, costly, and encouraging of frivolous lawsuits or unnecessary litigation. But advocates for the disabled state that the law has much further to go in knocking down the barriers people with disabilities may find between them and opportunities for a productive life. Indeed, President Obama’s administration has been expanding the ADA regulations throughout his terms in response to these calls and litigation has not appeared to increase. And as the workforce ages, a full 20% of Americans now qualify as disabled in a way that impacts their daily lives, mobility and employment.

 

In my experience, the ADA is easily violated by employers, because they are either ignorant of its provisions or they do not understand what it requires. That accommodations must be “reasonable” is an amorphous standard that is both hard for employers to implement and also protects employers from being overly burdened with expensive or unworkable accommodations. But employers usually do not want to spend the money required for reasonable accommodations, and that is where they get into significant trouble. I write about the ADA a lot in my blog because it is the one area that I see the most mistakes and the most resistance for compliance.

 

Still, I do not know how — if at all — I would change the ADA. Technology has made accommodations easier. Compassion for people’s health or physical wellness is the right thing morally. And I can even make a business case for accommodations because they help employers keep their valuable employees or add valuable disabled employees to their ranks.

 

Generally, I think it would be a bad idea to regulate accommodations that closely because every situation is unique. More government controls in an attempt to navigate the infinite possibilities will just be a burden on everyone. The ADA is already a heavy hammer for many employers who should be motivated to engage in best practices for their disabled employees. Employers should get advice on how to properly accommodate disabled employees and not wing it, though; and they should not be so recalcitrant when it comes to accommodations.

California Prepares Its Workforce for Zombie Apocalypse

zombie handsThe California Legislature must watch too much of The Walking Dead.

They are really worried about disease.

In the first part of July 2015, they passed two bills aimed at controlling Californians’ health.

There was a bill limiting parents’ ability to decline vaccinations for their school aged children.

And there was a bill requiring employers to give all their employees a minimum amount of sick time every year.

Sadly, due to scarcity, California is unable to mandate that all schoolchildren and employees take the vaccine to prevent Zombism. But if you get bitten, you will definitely have some paid time off to go through the change.

I’m writing to talk about the California sick time law. (It must be about Zombism because it is an answer to a problem that nobody had.)

If you are neither an employer or employee in California, you may still find it interesting. California is trying to lead the country towards more “European” employment policies.

Starting July 1, 2015, all employers were required to meet new sick time accruing laws for all employees.

  • It applies even if you have only one employee.
  • It applies even if you have only seasonal employees.
  • It applies even if you have only salaried exempt employees.

So if you are a small California employer who did not have benefits before because you couldn’t afford them — guess what? California just gave all your employees a raise.

As I’ve said before, I think it is a good business decision to give your employees time at home to be sick. But it should be your decision, not California’s.

(Aside: you should read my blog post on why sick time is a good idea. It is one of my most popular. And it features a picture of my cat.)

California did not just say that you have to provide sick time. They say how much and how you are to accrue it and account for it.

All those forward-thinking “unlimited paid time off” plans that Millennial-type companies have been implementing are now illegal.

Of course, the accrual rules developed by California Legislators were confusing and unworkable. So they passed amendments just a couple weeks later, to try to make the rules clearer.

Fail.

The rules are not clear at all. I’m an employment lawyer with more than a decade’s experience in California wage law, and I had to read the bills several times.

So what do you need to know? This is my most simplified summary:

  • Employers need a written sick time policy.
  • Employers need to provide current employees with written notice that sick time benefits have changed (in addition to the policy).
  • There’s another mandatory poster to spruce up the break room.
  • Employees get at least 8 days of accrual in a year.
  • Employees must accrue at the minimum rate of at least one hour sick time per 30 hours worked.
  • There are several options for how an employer may do the accrual for their particular workforce’s scheduling.
  • Even though they are entitled to 8 days on the books, an employer only has to let the employee take 24 hours of sick time in a year (that’s hours, not 3 days)
  • Unlike vacation time, sick time does not have to carry over or be paid out when an employee leaves.
  • This applies to virtually all employees with very few exemptions.
  • Part time employees do not have to accrue, but seasonal employees do.
  • A reinstated employee gets their old accruals back.
  • Some payroll companies may not be adequately set up to handle this.

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