Frustrated with the high number of employees that did not show up for work in the fall and winter last year, Jim Duncey, the owner of Duncey’s Caps, Inc., issues a memo to all employees that they must provide proof that they got a flu vaccine shot by January 1, 2018 or they would be fired.  Tommy Goinmyownway protests, saying that his religious beliefs prohibit him from getting vaccinations.  New Year’s Day comes and Tommy is fired after he doesn’t provide the required proof.  As he is escorted out of the plant Tommy threatens to sue Duncey’s for discrimination.  Does he have a claim? Continue Reading Sticking it to Your Employees During Flu Season

Frazzled by the incessant demands for her company Acne Brick’s financial records from her husband’s divorce lawyer Ditcher Quick, company president Annie Acne was wondering what her next maneuver might be when her Information Technology officer walked into her office. The subpoena that he was holding demanded production of all Acne email communications between Annie and (i) her divorce lawyers and (ii) her attorney brother who helped her rearrange just a few things. Annie immediately called her attorney Elle O’Quent to ask, “Can Acne Brick be ordered to produce Annie’s emails from Acne’s computer?” Continue Reading Is Your Company Email to Santa Protected?

Jim Duncey, the owner of Duncey’s Caps, Inc., decides to hold an employee/significant other holiday party this year with live music and an open cash bar managed by a third-party bartending service.  Each employee will get three drink tickets. Jim also hires private security for the party because he knows there’s bad blood between two of his employees, Jake Hammerhead and Tom Colecocken. As the party is winding down, Hammerhead grabs another drink from the bar, even though he’s clearly intoxicated. As he turns around he bumps into Colecocken and yells “Watch where you’re going!” Colecocken, who is also visibly intoxicated, turns and goes nose-to-nose with Hammerhead. At that point a crowd gathers around, and people start video recording. When Hammerhead refuses to back down, Colecoken throws a sucker punch, leaving Hammerhead knocked out on the floor.

With the entire room stunned, Colecocken manages to walk out the door and get into his truck to drive home. At the very first traffic light, he crashes into three parked vehicles. Luckily no one is hurt. The police arrest him for DWI, but Colecocken gets bailed out once he sobers up. 

The next day, Karl Bumler, another Duncey’s Caps employee, finds out that his wife posted her video of the fight on their joint UzeTube account. Bumler called his wife and told her to take it down, but it’s too late – the video had gone viral. On Monday morning Duncey calls Hammerhead, Colecocken and Bumler into his office and summarily fires all three. Can Duncey do that? Do Duncey, the bartending service, or the security service have any liability to the owners of the three parked cars?
Continue Reading Fight Night at Your Company Holiday Party

Reverend Leatl Hope, pastor of the to Boring Fourth Day Adventist Church in Gun Barrel City has been reading about the deadly shootings in churches all over the country, and he is worried. His small congregation does not have the resources to retain a full-time security officer. Yet, he believes that he should be doing something to protect his flock. Does he have any options?

Continue Reading Voluntary Church Members Packing in Church

Board of directors member Y.I. Gnough, who is also president of Algae Company, is in a pickle. Although denying any knowledge of sexual harassment and misconduct by the company founder and deal-maker Iam Algae, three co-board members resigned fearing for their reputational and financial survival. Employees are fueling the rumors of women who complained of unwanted touching, sexual harassment and other over-the-line behavior. Even Algae’s former counsel discloses that several years ago the board and the company were told of three or four confidential settlements with women. Company investors suggest that Y.I. and fellow officers and directors breached their fiduciary duty. Should Y.I. be concerned about his pocketbook and his reputation?

Continue Reading Am I My Director’s Keeper?

Vlad “Dracula” Smith was looking for some new digs big enough to accommodate his growing family. While searching the MLS listings, Dracula stumbled across a castle belonging to Victor “Frankenstein” Jones.  Little did Dracula know, but the castle was widely reported to be haunted.  “Frankenstein” had even made the front page of the local paper when he reported the haunting to the local paper and Reader’s Digest last Halloween.  However, in negotiations for the sale of his castle, Frankenstein, and his broker, failed to tell Dracula about the newspaper and magazine articles.  When Dracula later learned of the stories, he sued Frankenstein for rescission and damages. Did Frankenstein have a duty to disclose the haunting to Dracula? Continue Reading Duty to Disclose that a House for Sale is Haunted?

Co-author: Skyler Stuckey

After finishing his weekly rehearsal for an upcoming Robin Hood performance at his local theatre, Wiley Enferee walked into his local Mega-Mart at his wife’s behest to buy a gallon of milk.  Not thinking, Wiley walked into the store still carrying his sword on his hip.  Wiley quickly found the milk and paid in the self-checkout line, but not before concerned shoppers notified store employees, who quickly called the police.  One store employee, Sam Aritan followed Wiley into the parking lot.  Wiley left before the police arrived, but Sam jotted down his license plate and told officers which way Wiley went.  Officers quickly found Wiley in his car, and noticed he was swerving and looking down.  The officers pulled Wiley over and placed him under arrest.  Wiley explained that the sword was just a prop and he’d forgotten to take it off.  The officers let him go but wrote him a ticket for texting while driving.  Wiley is upset that he ended up with a ticket when he was just minding his business.  Should Wiley put up a legal fight?

Continue Reading Put Down Your Phone But Keep Your Sword in Your Hand

For over a decade On the Skware Toy Soldiers and its owners, Boo & Woo, the Skware brothers, have enjoyed the shopping traffic brought to their retail store that’s located in the same shopping center as Athletics Authoritiez, a popular sporting goods retailer. However, over the last couple of years the Skware brothers have seen their overall numbers of shoppers go down and, with slowing traffic, their gross sales revenue has dropped by over 15% – straight off the bottom line. Now, blaming E-Commerce woes, the news media (supported by local scuttlebutt) is suggesting that Authoritiez is on the ropes and may close its store. Can Boo & Woo do anything to save On the Skware? Continue Reading E-Commerce Disruption – Tenant’s Tizzy

US Customs and Border ProtectionLast week Emma Grant’s line cook and 25 other undocumented employees at her bar-b-que restaurant Emma Grant’s Bar-B-Que were working the lunch shift when it was raided by Immigration and Customs Enforcement personnel, apparently at least in partial response to a recent executive order. Can the President of the United States do that? Can this be a problem for Emma Grant and her bar-b-que restaurant?

Executive Orders

Recognized since George Washington as being authorized by Article II, Section 1 of the Constitution that provides “the executive power shall be vested in a President of the United States of America,” there have been more than 13,000 issued, in one form or another, since 1789. Notable executive orders were Abraham Lincoln’s Emancipation Proclamation and Franklin Roosevelt’s mandatory registration of aliens from World War II enemy countries. FDR also holds the record, by far, of the most Executive Orders at 3,721; next closest is Woodrow Wilson at 1,803. To date, President Donald Trump has issued twelve executive orders. Suggested as undoing many of President Barack Obama’s policies, here’s a list and short summary of each. The Federal Register details the executive orders transcripts, numbers and disposition tables from Herbert Hoover to date.

The Legal Reality

But what about Emma’s exposure? Yes, as the employer of the undocumented workers, Emma Grant could have liability. Employers must verify the identity and employment authorization of each person hired after Nov. 6, 1986 and complete and retain Form I-9. Failure to do so can result in civil fines ($539 for each at the first offense and up to $21,563 for each after multiple offenses), criminal penalties (when there is a pattern or practice of violations), and debarment from government contracts.

Tilting the Scales in Your Favor

Get a completed I-9 for each employee. Undertake reasonable and diligent investigation, if appropriate. For key employees, consider undertaking steps to secure their legal residency in the United States.

Dr. Nole Specs created a website for his successful optometry practice.  Over the holidays, Dr. Specs received a threatening letter from Mo Dougherty, a plaintiff’s lawyer.  Dougherty’s letter claims Specs’ website is not ADA compliant, and demands that Specs fix the problem immediately and pay Dougherty $2,500 or Dougherty will sue.  While Specs knows the ADA applies to the brick and mortar aspect of his business, he’s never heard of it applying to websites and thinks it’s a scam. Should Specs just ignore Dougherty’s letter?

The Federal Government Believes Websites are Governed by the ADA

Title III of the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of a disability in places of public accommodation, such as a restaurant, movie theater, school, doctor’s office, or other business.  Recently, 60 Minutes ran a story on “Drive-By Lawsuits,” where plaintiffs’ lawyers or people hired by them will drive around looking for businesses that are not ADA compliant.  Typically, the public considers this prohibition applying to wheelchair access.  But in 2010, the Department of Justice (DOJ), which enforces the ADA, issued a notice stating it would amend the language of the ADA to ensure accessibility to websites for individuals with disabilities.  As a result of this notice there has been a proliferation of demand letters from plaintiffs’ lawyers threatening to sue businesses for having non compliant websites, and offering to settle if the business will bring the website into compliance and pay the lawyer a few thousand dollars to go away.

How do you ensure ADA Compliance?

First, it’s important to know that the DOJ has not issued binding rules on regulations on ADA compliance for websites.  The DOJ is not expected to issue binding rules until sometime in 2018, unless the new administration changes course on this issue.  However, the DOJ and plaintiffs’ lawyers consistently suggest that websites will be considered ADA compliant if they follow the Web Content Accessibility Guidelines (WCAG-2.0) Level AA.  For example, if the website includes live audio content, Level AA guidelines call for the website to also provide captioning.

Tilting the Scales in Your Favor

Although the DOJ has not issued binding rules and regulations, you should take steps to bring your website within the WCAG-2.0 Level AA guidelines now.  Some plaintiffs have filed lawsuits against plaintiffs even without the binding rules in place and successfully argued that the website was a place of public accommodation that was not accessible to disabled individuals.  This is especially important for businesses that sell goods online, because courts have routinely considered those businesses’ websites to be places of public accommodation.