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ada     As with most social engineering legislation, the Americans with Disabilities Act (ADA) was enacted with the best of intentions. Passed in 1990, one of the primary objectives of the ADA was to assure disabled citizens access to public places and private businesses – and that’s a good thing. But to accomplish this ambitious objective, the infamous Title III public accommodation section piled up sweeping regulations regarding parking, curb height, service counters, signage and the size of restrooms. If you own a building, lease office space or operate a business that serves the public, there is some component of your life touched by ADA Title III.

In terms of interpretation and implementation, the ADA was a mixed blessing from the beginning. Although it has undoubtedly accomplished a lot of what it was intended to do, it has also caused hardship for landlords and businesses when regulations were enforced too aggressively or applied unevenly.

But as unsatisfactory as ADA enforcement can be, no one could have anticipated something worse: a juggernaut of sham ADA lawsuits plaguing businesses of all types. With increasingly regularity, these so-called drive-by lawsuits are filed against individuals or organization on behalf of questionable plaintiffs whose sole interest is collecting a settlement. Typically, this litigation is initiated by disabled individuals who visit a building specifically to identify a “violation” and bring a bogus lawsuit.

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Illinois Employers beware of new law protecting Pregnant Employees

pregnancy-amendment     If you are an Illinois employer and haven’t yet taken action on the new pregnancy protection amendment to the Illinois Human Rights Act, it’s time to get moving.  The new amendment (HB0008), which went into effect January 1, 2015, provides additional protections against discrimination for pregnant women in the workplace.

Acknowledging that existing legislation had been inadequate, the new law prevents companies from firing or forcing expectant mothers to take unpaid leave.  The new law recognizes the obvious – that many women are now primary breadwinners for their families, a situation which can cause undue hardship if a worker loses her job due to pregnancy.  In addition to advancing the objective of gender equality, the new law also states that enabling pregnant women to work through pregnancy is good for business in terms of worker productivity, retention and morale, while reducing re-training and health care costs.  While most people understand that more equality is a moral imperative, it’s easy to forget that social progress is also sound business policy.

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forced-arbitrationGeneral Mills gave itself something of a Public Relations black eye when it got caught slipping some tricky new language into its “terms of service” agreement. Unnoticed by most consumers, the company had imposed restrictive new legal conditions on anyone who unsuspectingly redeemed an online coupon for a cereal or baking product, or clicked “Like” on a General Foods Facebook page, or entered a sweepstakes or otherwise received a “benefit” from the company (other than, for example, the thrill of watching one’s children savor their Count Chocula).

The updated language took away the consumer’s right to sue General Mills in court and required them to submit to submit any grievances against the company to an arbitrator. It also banned them from participating in class action suits. Because they were engaged in routine online activities, few General Mills customers understood that they were entering into a contract at all, much less renouncing their right to sue the company.

This misdeed generated a few days of media outrage, and due to a furious – if short-lived – backlash the company was persuaded to rescind the new terms. But in reality, General Mills’ only “crime” was getting caught. Although the media chose this particular incident to spend fifteen minutes on, there was nothing illegal or even unusual about inserting restrictive clauses into an online usage agreement. In fact, compelling consumers to surrender their right to legal redress in the courts – generally known as forced arbitration – is quickly becoming standard corporate practice.

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lllinois’ Medical Marijuana Program Act goes into full effect on January 1, 2015.

jointIt may not be the top item on your “things to deal with in the New Year” list, but if you are a small business owner or corporate manager Illinois’ new Compassionate Use of Medical Cannabis Pilot Program Act may turn out to be an unwelcome part of your professional life.  Originally passed in 2013, 410 ILCS 130 was partially rolled out Jan 1, 2014 but will become fully functional when the clock strikes midnight December 31.  Interestingly, the Act is scheduled to be repealed in 2018, probably about the time the kinks have been worked out in terms of real world implementation.

Far short of legalizing marijuana, these statutes authorize a four year pilot program allowing the distribution of cannabis for medical use under rigidly proscribed circumstances. The Act provides for legal treatment of pain and suffering for specific debilitating afflictions, including cancer, multiple sclerosis, and HIV/AIDS, hepatitis C, Crohn’s disease, arthritis, lupus and residual limb pain. Medical cannabis can only be prescribed by a doctor of medicine or osteopathy licensed under Medical Practice Act of 1987 and the issuer is required to have a controlled substances license under Article III of the Illinois Controlled Substances Act. There are also numerous provisions regulating the cultivation and distribution of this new ancient pain remedy.

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caregiver3     Implementation of the new rules extending the minimum wage protections to home care employees have been delayed.  Comprised of about two million workers nationwide, this low wage labor group remains marginalized and disenfranchised even as the national debate over fair wage compensation heats up.

As is the case with undocumented labors these “companionship services” workers perform the jobs that few Americans are willing to do.  These are the people who execute invisible and often unpalatable tasks for the home bound, including bathing, transferring, toilet assistance, meal preparation and help eating, toilet assistance and sometime housecleaning.  In most cases, the job requires attention to the personal and private needs of the elderly and infirm.

According to the original rules – which are essentially unchanged since 1975 –  companionship workers were “exempted” from anything like fair labor protections under the Fair Labor Standards Act (FLSA).  As applied by the FLSA in this case, “exempted” is an ironic term that normally means one is excused from something undesirable.  Up until the rule change in the fall of 2013, companionship workers were not covered by the Federal minimum wage laws and not required to be paid overtime after 40 hours. This is understandable to a large degree, because the original exemption was intended to cover so called “elder sitters” whose primary function really was to provide companionship. A lot has changed in the health care business since then, and courts have generally interpreted the definition of companionship workers broadly. That means even more workers were exempted from wage protections over the years.

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Did the Viking Running Back Benefit From a Harsh Upbringing?

StateLibQld_1_113036_Cartoon_of_students_receiving_the_cane,_1888 The Minnesota Vikings reinstated their star running back (and then dumped him again after pressure from their sponsors), and that only stepped up the vilification of the NFL and its many crimes.  From ignoring long term cognitive disabilities to refusing to eliminate suddenly offensive team names, it’s hard to love this $10 billion sports juggernaut at the present time. Except perhaps at game time.

While it is tempting to toss the Peterson case into the same hopper as the Ray Rice domestic abuse drama, a little reflection suggests that the issues are not only fundamentally different, they may be even less clear cut and even more complex.  And yet the fact that they are being played out in what amounts to a celebrity media arena presents the opportunity to have a more meaningful discussion, if we choose to take it.  Even if it’s almost impossible to prevent our lives from being impinged by the actions of the celebrated, we can try to examine the stories honestly and thoroughly, as painful as that may be. In the Peterson case, it’s painful.

It isn’t possible to discuss Adrian Peterson’s discipline of his child without straying into areas that bring out strong emotions in most people.  Child abuse is in a different league than domestic violence, because a child has even less choice whether to remain in an abusive environment.  And while the visual evidence suggests that the level of Peterson’s punishment [of his son] exceeded what most people would consider acceptable, there are related factors that make a deeper conversation worth having.

The most vexing challenge would seem to be distinguishing between child abuse and a strict child rearing philosophy.  That  requires taking Peterson’s intent into consideration.  We can’t ultimately know what his motives were, but there is evidence available which allows for reasonable speculation.   Peterson has described a childhood that included physical punishment from the more violent end of the tough love parenting philosophy. Nevertheless, he attributes his success as an athlete to some degree to his strict upbringing.  He is not the only athlete (or other notable person) to credit tough parenting for his success. How many kids who escaped the gangs of their neighborhood believe they did so because of one or more parents who believed in corporal punishment to some degree? Continue reading

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Let’s read the entire passage: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  – First Amendment to the U.S. Constitution

Bellas&Wachowski2The First Amendment to the Constitution, especially in the digital age, is often cited inappropriately.  When a blog writer removes a comment, many a troll has squealed that his First Amendment rights are being violated.  When someone says something wildly stupid in public and reaps a storm of criticism, she, too, may scream about “freedom of speech.”  

All of us do indeed have freedom of speech, but that only means that the government cannot muzzle us.  It does not mean that a web site that accepts comments is obligated to let anyone say anything they wish. And it does not mean that there are no consequences to exercising your rights.  Donald Sterling, the putative owner of the L.A. Clippers basketball team, had every right in the world to give voice to his racist thoughts.  Everyone else had the right to call him a racist dirtbag and demand that the NBA encourage him to sell the team.  But, there are always consequences. 

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Bellas&Wachowski4After hiring a new employee, Acme Corp. spends months training Louie Duck for the position. He learns how Acme delivers a Rocket-Powered Unicycle only seconds after an order is dropped in a remote mailbox. He learns the secret of making both Earthquake Pills and Dehydrated Boulders. Mr. Duck even learns how the company thrives in the face of what must be a legion of product liability lawsuits.

And just when Acme feels that Mr. Duck is beginning to contribute to its bottom line, he quits. Not only does he quit, but he starts his own company, Ajax Corp., that sells products that are remarkably similar to Acme’s Jet-Propelled Tennis Shoes and Do-It Yourself Tornado Kits. And on his way out, Mr. Duck also convinces Acme’s best customers, one Mr. Coyote, to send all of his future business his way.

Lucky for Acme, Mr. Duck signed a noncompete agreement when he was hired. The agreement barred him from working in a similar company or from starting a similar business for a minimum of five years. Acme thinks it should have no trouble in shutting down its new competitor. But if Acme takes the case to court, it may find that the agreement is not worth the paper it was written on, depending on where the case is heard.

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Who Gets To Keep The Ring When A Betrothal Goes South?


Bellas&WachowskiproposalIn these modern times, it is not enough for a young man to get down on one knee and ask the woman of his dreams for her hand in marriage. The expectation today seems to require an over the top public spectacle, perhaps involving a giant screen at a ballpark or a Harry Potter themed set piece posted to social media. A massive waste of money or time is always considered an appropriate supplementary feature for this sort of enterprise.

While public displays of narcissism may be consistent with the modern Zeitgeist, the one thing they don’t accomplish is ensuring that the engaged parties remain engaged. Indeed, the marriage proposal experience may turn out to be the high point of the relationship. Those who keep track of such statistics claim that anywhere from 15% to 25% of twenty-first century engagements are broken before the wedding. While no one knows the statistics for sure, the numbers are high enough to keep websites such as www.idonowidont.com. The site not only provides an online aftermarket for reselling disrupted nuptial jewelry, it also includes the founder’s sad tale of his own broken engagement as inspiration for his business model.

Which segues nicely into today’s topic: what happens to the engagement ring when the big day is called off? Does the woman get to keep and possibly sell it if the man backs out of the agreement? Does she need to return it to the man if she decides to forego the walk down the aisle? And are there circumstances which would complicate the matter further, such as terminating the engagement for cause?

In simpler times, it was generally understood that the woman would return the engagement ring. In 1922, the estimable Emily Post* decreed that the prospective bride should return the ring regardless of the circumstances of the breakup. It was and to some degree still is considered the proper thing to do.

But while custom and tradition may deem returning the ring to be the correct standard of behavior, the legal landscape has changed with the changing times. In a society that seems at once both more acquisitive and more litigious, the legal standard for ring returns has become more complex. Today, the protocol for who gets the ring is determined by state law, and there is some variation in how individual state courts perceive the topic.

Courts generally treat an engagement ring as a gift from the donor (normally the male) to the donee (normally the female). To be considered a legal gift, three provisions must be fulfilled: the donor must intend to give the ring as a gift, the donor must deliver it the donee, and the donee must accept the item. If the person to whom the ring was given can demonstrate all three elements, the court will consider the ring to be a gift. The crucial question is whether or not the gift is conditional, that is, is it a form of contract contingent upon the marriage taking place. In most states around the country, the answer is yes. With one exception, state courts find that the gift of an engagement ring incorporates an implied condition of marriage. The mere acceptance of the gift is not part of the contract.

Illinois is a relatively straightforward state when it comes to this question. An engagement ring is viewed as a gift in contemplation of marriage:

“…a gift given in contemplation of marriage is deemed to be conditional on the subsequent marriage of the parties, and the party who fails to perform on the condition of the gift has no right to property acquired under such pretenses.”

Because the gift is conditional on the eventual marriage of the parties, the party who fails to perform has no right to the property in Illinois. If the bride-to-be breaks off the engagement, the ring is returned to the man. However, if the man breaks off the relationship, the woman may keep the ring because it was not her fault that the condition was not met. In cases in which the engagement is broken off by mutual agreement, the ring is to be returned to the donor…the erstwhile groom.

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DCF 1.0Since February, GM has recalled over 3,000,000 cars because of a problems with air bags, wiring, and faulty ignition switches that could shut off when the car was being driven. The National Highway Traffic Safety Administration (“NHTSA”) received more than 260 complaints about the problem, which has been linked to at least 12 deaths. In a classic understatement, GM’s CEO Mary Barra said, “Something went wrong with our process in this instance, and terrible things happened.”

Terrible? But did Barra mean this was terrible for the driving public, or terrible for GM? After all, the largest U.S. automaker has known about the problem since 2004. So for 10 years, GM has known that some of its vehicles were prone to shut off at high speeds, disabling the power steering and the air bags. And the company said nothing. The silence of GM is being investigated by NHTSA, Congress and the Justice Department because the longer GM kept its mouth closed, the more people died. Kind of like what happened with the detreading of the Firestone Tires on Ford Explorers in 2000 that resulted in over 200 deaths and countless injuries.

For a full time line of events, go to the Safety Research & Strategies website.

Even after GM issued the recall notice, it has refused to release the names of the 13 people killed in defect related accidents. Not to the public and not to the families of those who were killed. “To date they’re guarding (the list of names) extremely carefully,” said Lance Cooper, a personal injury attorney who represented the family of a woman killed in a 2010 crash. “They continue to hold it as protected information. I don’t believe there’s any legal obligation to release the names.” Maybe GM doesn’t have a legal obligation to release the names, but as Cooper said, there are moral and ethical obligations to consider.

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