Monday
Jan272014

Our Social Media Posts This Week – Jan. 26 - Feb. 1, 2014

Each Sunday I briefly review the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

First up, the post on Sunday 1/26/14 was about 5 things to keep in mind when formulating your BYOD policy. First, if you don’t know what BYOD is, then you definitely need to read the article! The 5 areas mentioned are scope of the policy, requiring passwords, who owns what, acceptable use, and parting ways. Each is important and together they form the bedrock of the policy (and keep the employer within legal confines as to protecting its information but not going too far relative to the employee’s privacy).

TAKEAWAY: If your company doesn’t have a policy on BYOD, it should. If it does have such a policy, it should be reviewed frequently given the constantly-changing legal front in this area.

Then, Monday 1/27/14 the post was about things for employers to remember under the “new” ADAAA rules.  Six tips headlined, with specifics under each. The tips are: Update an inflexible leave policy; the law is broadly interpreted to shift the focus away from “disability” and to “reasonable accommodation”; while more employees may be considered “disabled” under the ADAAA, they still must be qualified; the new law did not affect the employer’s right to continue to hire or retain the most qualified person to do the job and to discipline employees for performance issues; remember all the other leave laws that may impact your day-to-day operations; and voluntary wellness programs are still allowed.

TAKEAWAY: with enactment of the ADAAA, more employers move from determining if an employee is disabled to instead determining what and how to accommodate. However, the eligibility threshold still remains for the employee. Handbooks and policy manuals should also be updated to comply with the ADAAA.

Next, on Tuesday 1/28/14 the post was about defending against a discrimination charge or suit. Upon the filing of a charge of discrimination or a lawsuit alleging discrimination, the employer has the opportunity to defend. The article listed some of the bases of defense that might be available to an employer, depending on the type of discrimination that is alleged.  The defenses include: there was a legitimate and nondiscriminatory reason for the (in)action, the accommodation would impose an undue hardship on the employer, a policy is work-related and has a legitimate business purpose; and allowing an employee to work as proposed would pose a direct threat to the employee or others.

TAKEAWAY: Document document document. When changing policies, implementing policies, or (not) taking action against an employee, make sure there is a legitimate nondiscriminatory reason for the (in)action. That way, if and when a charge or suit is filed, the defense will already be in place. Further, it might even forestall the charge or suit in the first place.

Wednesday 1/29/14 brought a post about veganism being entitled to Title VII protection.  Is veganism a religion? Whether or not you believe it is, it has gained some traction as a basis for religious discrimina-tion. The article mentions several cases that were settled prior to trial so there is no court decision, but they prove instructive. One was about a vegan employee’s refusal to distribute hamburger coupons and another on an employee’s refusal to get a flu shot due to her religious beliefs. The issue in those and other cases is not about the religion itself, but if the employee holds and acts upon his/her beliefs, whether or not the religion is widespread or widely accepted.

TAKEAWAY: Employers cannot just brush off statements by employees about why they won’t take a requested action; there might be legal protection for the employee and any adverse action by the employer could land it in hot water.

Thursday 1/30/14’s post took a slightly different tack - it was about 10 household items a smartphone can replace.  Just as remote controls for TVs, stereos and cable/satellite became consolidated, so too it makes sense to know what else the smartphone you have can do for you around the house.  So what are some of the things? A scanner, personal trainer, universal remote control, and baby monitor. For the list, read the article.

TAKEAWAY: You spent a lot of money buying that smartphone and probably spend additional money each month for your data plan. Get the most from them by thinking outside the box for ways to use them other than email and music.

The post on Friday 1/31/14 was about common items missing from many Handbooks or Policy Manuals. A handful of attorneys practicing in the area were asked to list things they often notice missing from handbooks. Those items are a non-solicitation policy; a “termination when unable to work” provision; a social media policy; a focus on employer benefits; a summary of the most important policies; confidentiality provisions; and an accommodation of religion and disability.

TAKEAWAY: Your handbook or policy manual may or may not need all of these items. You and your employment law counsel should periodically review the handbook/manual to make sure it is up to date with your current operations and legally compliant.

Finally, yesterday 2/1/14 brought a post about a recent federal court decision saying the duty of an employer to accommodate extends beyond the essential functions of the job. Why is this important? As every employer should know, an employee is generally eligible for protection under the ADA if s/he can perform the essential functions of the job with or without reasonable accommodation. So it becomes important to define the essential functions. Here, the court went beyond that, saying that the ADA has no limitation of its accommodation requirement to essential job functions, but rather that the obligation extends to employers making their facilities accessible and useable to disabled persons.

TAKEAWAY: While that decision is not binding on employers in PA, you don’t want to be on the wrong side of the test case that extends the rationale to this state. Employers must not only fulfill their duty to accommodate for essential job functions, but look at accommodating other things related (but not essential) to the employee performing the job.  

 

     Austin Law Firm LLC works with clients in the types of matters discussed in this blog and others occurring in the workplace or related to it. If you have questions or need assistance, please contact us.

Wednesday
Jan222014

Our Social Media Posts This Week – Jan. 19 – 25, 2014

Each Sunday I briefly review the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

First up, the post on Sunday 1/19/14 was about what NOT to ask job applicants. A grocery store chain found out the hard way when it had to pay to settle a suit filed against it by the EEOC. What happened?  Applicants were asked disability-related questions before being offered jobs. As if that wasn’t enough, when an employee had an epileptic seizure at work, he was fired a few days after the seizure even though he had performed well and had a doctor’s note saying he could return to his normal job.

TAKEAWAY: Do not ask disability-related questions before making a job offer. You can ask if the applicant will be able to perform the essential functions of the job, with or without reasonable accommodation.

Then, Monday 1/20/14 the post was about less pay possibly being a basis for a race discrimination claim.  The article described an African-American woman who sued for race discrimination because she was paid less than a Caucasian co-worker. There were several bases for the claim and the court allowed the case to go forward on one of them. The court found that past decisions from the employer’s management (Board) did not bind the current Board, such that claims based on different decisions from the two Boards could not go forward. However, when it came to an HR director’s subjective decision-making, not based on any policy, the court let the woman’s case go forward.

TAKEAWAY: Employers must be careful to uniformly enforce their own policies or, when there are no policies, make uniform decisions relative to employees. If a decision differs in one case from another, there should be a valid, legal basis for the difference.

Next, on Tuesday 1/21/14 the post was about the ADA and its potentially far-reaching effects in commercial situations too. Who is responsible for ADA issues in a leased commercial space, the landlord or the tenant? The answer is (of course) “it depends”. On what the lease says. On what applicable state law might provide. On what the parties might have done in the past. On what a court might decide if the matter ends up in litigation. Parties often don’t think about this before it becomes an (expensive and possibly business-ending) issue but they should.  Suits are being brought around the country on ADA access and accommodation issues other than in the employment context.

TAKEAWAY: if you are the owner or tenant of a commercial space, make sure your lease specifies who is responsible for ADA compliance. Then there is less of a chance of questions if an issue later arises.

Wednesday 1/22/14 brought a post about new (and legal!) ways for employers to spy on employees. The article lists 10 legal ways an employer can “spy” on its employees: internet usage monitoring, GPS, keylogging, email monitoring, social media, audio recording, videotaping, off-duty conduct, medical records, and company devices.  Go to the post for more detail on each, but know that many employers probably already use one or more of these items now.

TAKEAWAY: Employers should know applicable laws and make sure they have in place one or more appropriate policies telling employees in which activities/actions they have no expectation of privacy, then evenly enforce the policies. If employees don’t like what the employer is telling them, then they should not take the job.

Thursday 1/23/14’s post was about the fact that an employee’s lack of cooperation in an investigation could be a basis for discharge.  An employer can reasonably expect its employees to cooperate in internal investigations so that it can gather facts and make proper determinations; employees who won’t cooperate could be found to be interfering with the investigation and subject to discipline, up to and including discharge (regardless of the outcome of the investigation).

TAKEAWAY: Make sure the policy manual or handbook specifies that employees must cooperate with investigations and are subject to discipline, up to and including termination, if they don’t cooperate.  Then follow the policy. 

The post on Friday 1/24/14 was about 10 employment laws that supervisors need to know about.  The laws that made up the list are all federal laws; they are: Title VII of the Civil Rights Act, FLSA, FMLA, ADA, ADEA, EPA, OSHA, PDA, NLRA, and GINA. The article includes a general description of what each law covers and what supervisors should know or how they should act to remain in compliance. If you think I just spouted off a bunch of alphabet soup, or even just for a refresher, you must absolutely click on the link and read the article!

TAKEAWAY:   It is not just the job of HR – even working with an employer’s attorney – to know what laws may apply to a situation. Supervisors must also have a basic working knowledge as they are the front line dealing with employees and what those super-visors initially (omit to) say or do can irreversibly affect a situation or suit. Employers should make sure HR personnel and front-line supervisors are well-versed in at least these 10 laws, and possibly others, including applicable state laws; periodic seminars for HR person-nel and supervisors are an employer’s time and money well-spent in education, prevention, and risk-management.

Finally, yesterday 1/25/14 brought a post about whether employers are paying employees more than they must.  “Huh?” you say. If you do not understand which laws require what pay, then you might be paying too much.  For example, the FLSA (if you don’t know what the FLSA is, go back to the link to Friday’s post and read it) does not require that paid time off be counted as hours worked as long as there is no work performed.  Similarly, the FLSA does not prevent an employer from sending someone home before s/he works all scheduled hours that week, even if it is solely to keep that employee from getting overtime wages.  Further, employers can pay an employee at different rates for different work (as long as they keep appropriate records).

TAKEAWAY: Make sure you are paying only what you have to unless you have a written contract or agreement to the contrary or unless you just want to pay the higher wages.

      Austin Law Firm LLC works with clients in the types of matters discussed in this blog and others occurring in the workplace or related to it. If you have questions or need assistance, please contact us.

Tuesday
Jan212014

Our social media posts this week: 1/13/2014 - 1/18/2014

Each Sunday I briefly review the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

First up, Monday we had a post about job descriptions and performance reviews being key to ADA cases.  Why? Because they can help establish whether something is or is not an essential function that must be performed by an employee seeing protection under the ADA and whether or not the person is qualified for the position. For example, if the job description does not include the function, then it will be hard for the employer to say it is an essential function of that position. Likewise, if the performance evaluation(s) have been positive, then they tend to show that the person is qualified for the job.

TAKEAWAY: If an employer believes that a position should include one or more tasks/functions, then it should have a job description stating that; further, the person or people in the position should actually perform that task/function. Also, performance evaluations should not be positive if the person is not performing. Otherwise, the employer’s ability to assert defenses in an ADA accommodation matter may be harmed.

Next, on Tuesday we posted about 6 Documents You Should Have to Protect Your Money.  Those documents are (1) beneficiary forms for what you want to happen to your money after you die for things like 401K or other retirement plans, life insurance and college savings accounts; (2) TOD/POD instructions tell a financial institution what to do with the account when you die; (3) Living Will to tell your loved ones and medical professionals your preferences if and when you are in a terminal condition and names your agent to communicate this to the professionals; (4) Power of Attorney to enable someone else to sign their name to things as your agent while you are alive. This is most common for financial matters but is not necessarily limited to that. Also, it is effective whether or not you are disabled; (5) Last Will and Testament to set forth your wishes as to distribution of assets, guardians for children, and who will carry out your wishes; and (6) Trust Documents for any trusts set up outside of your Last Will.

TAKEAWAY: No matter your age, you need to have in place one or more of these documents. If you don’t, you are leaving yourself or your loved ones unprotected and subject to laws over which you have no control.

Thursday brought a post on How NOT To Defend an ADEA Claim.  It discussed a case in which the person sued for race and disability discrimination, retaliation for requesting an accommodation for the disability, and violation of the Equal Pay Act. The race discrimination and pay disparity claims were dismissed; the disability discrimination and retaliation claims were allowed to proceed because there were enough facts (including temporal proximity of disclosure of the disability and then discharge) to let those claims continue (even though there was also evidence of performance problems).

TAKEAWAY: If an employer is going to assert a defense, it should have actual support for the defense, hopefully documented support and not just someone’s testimony. If not, the employer might find itself on the short end of the stick.

Friday the post was about checking availability before approving FMLA leave.  It seems like an obvious thing, but if an employer grants the leave and then determines the person was not eligible, the bell probably cannot be unrung. In the case that was cited, the FMLA leave was approved and then the employer determined it should not have been. The employee sued, saying she would not have taken the time off if she had been told she was not eligible. The court let the case proceed.

TAKEAWAY:   Before any leave is approved, the employer should make sure all prerequisites are met. In the case of FMLA leave, that includes making sure the employee is eligible based on time and hours worked, number of employees, and other threshold requirements.

Finally, yesterday brought a post about protection for white men too.  Employers tend to forget that it is not only those in a protected class – including those who are disabled or of a particular gender, age, race or ethnicity – who are covered by statute, but that some statutes cover ALL employees.

TAKEAWAY: Even though white men are not who an employer will think of when the matter of discrimination or violation of a law comes up, employers must take care to look at the statute, what protection it gives, and to whom. 

     Austin Law Firm LLC works with clients in the types of matters discussed in this blog and others occurring in the workplace or related to it. If you have questions, please contact us.

Tuesday
Mar052013

Which Type Is Right For Your Business?

Choosing and Forming A Business Entity

You’ve decided to start your own business, but how do you determine how to do that legally?  Which type of business entity is best suited to your purposes and how will you put it into place?  There are several different structures available under Pennsylvania law.  The entities are sole proprietorships, general partnerships, limited partnerships, limited liability companies, and corporations.  Each structure has different financial and ownership responsibilities, advantages, and disadvantages.  While it is important to have a full understanding of what each structure entails, this quick overview may help in narrowing down which type is right for your business.

Sole Proprietorship:  In a sole proprietorship, full control and liability for the business are established under one owner.  This is the most common ownership type.  While this structure gives all profit to the owner, it also holds the owner and his/her personal assets responsible for debts or other liabilities of the business.

General Partnership:  Two or more owners are completely in charge of the business.  This entity also assumes all owners are personally liable for debts of the business.  An informal agreement may be made to set up a partnership, however it is best to have a written agreement outlining how you will handle the issues your business may face.

Limited Partnership:  In a limited partnership, there are one or more general partners along with one or more limited partners.  General partners are in charge as before, while limited partners are not involved in daily operations of the business and are shielded from personal liability. The partners can be individuals or legal entities.

Limited Liability Company:  An LLC is a variation of a corporation. The value of Members' ownership interests is increased or decreased in proportion to ownership percentage; however there is no personal liability.

Corporation:  A corporation can be the most difficult entity to establish.  Owners are often restricted to specified business activitities. However, similar to an LLC, the value of a shareholder's stock interest increases or decreases in proportion to ownership percentage and there is no personal liability.

Still unsure which type of business is right for you? Avoid making this and other types of legal mistakes and contact us today.

 


 

Make sure you follow all the laws associated with the business structure you decide to use, and avoid these Top 5 Legal Mistakes Most Small Businesses Make.

  1. Not knowing the law
  2. Not understanding documents you sign
  3. Cutting corners on legal advice
  4. Doing business without adequate legal documents
  5. Neglecting intellectual property issues

 


 

Interview with an Entrepreneur
In each newsletter we interview one of our clients who has an entrepreneurial spirit to be admired.

Name:  John W. Ingold, Jr., D.V.M.
Title:  Practice Owner
Company:   Ingold Veterinary Hospital, Inc.
Website:    www.ingoldvet.com

 

  1. Tell our readers about what you do:
    I am the owner/operator of a small animal veterinary hospital offering 34 years of expertise in preventive, wellness, and dental care and soft tissue surgery to patients throughout  the York Community.
  2. What would you say are the top three skills needed to be a successful entrepreneur? 
    Vision; hard work and lots of it; and an undying passion for your chosen field or profession.

  3. What is the best way to achieve long-term success?   
    First, I think you have to define success.  For me, it involves complete dedication to animal health care and healing.  I also believe in strong business management, focusing upon offering excellence in client services and value in each and every visit.  It’s also about business integrity, always doing what is in the patient’s best interests; and always giving back to the community either at large or to individuals who just need some help now and then.  It’s about going home at the end of the day feeling satisfied.  For me, that equates success.

  4. What have been some of your failures, and what have you learned from them?
    Personally, I don’t know that I would call them failures, rather adversarial circumstances almost always offer a business or life lesson.  It’s part of the learning curve in business and life.  But perhaps to answer more specifically, I would say not acting on my instincts and not knowing or understanding my limitations.  Further, perform due diligence in all things; don’t take shortcuts. This also involves hiring the best person for the job.  I failed to recognize that a passion for animal health care cannot be taught.  If it isn’t there, move on.

  5. Do you have a favorite motivational quote?   
    Actually, I have three:   “Vision is the evidence of things not seen…, the result of being absolutely convinced of goals not yet attained, evidenced by the willingness to stake years of your life on the promise of things to come.” “Rescuing one dog or cat may not change the world, but for that animal their world is changed forever.”  And finally,  “Quality never goes out of style.”   For me, all are true and timeless.     

  6. What has been your most satisfying moment in business? 
    The acquisition of a private practice in decline in 2007 and expanding the client base during a challenging economy.  But the question is also relative to the overall journey of animal health care on a daily basis.  It feels extremely satisfying being able to relieve pain and suffering and educating clients along the way which ultimately benefits the patient.  Each day, for me it involves truly advocating for those who cannot advocate for themselves and learning to enjoy both the daily successes and manage the sorrows. 

  7. Where do you see yourself and your business in 10 years? 20 years? 
    In 10 years – well, I’m almost sixty now but hopefully, semi-retired and working with a business partner who shares my standards of patient care and ethics.  In 20 years --  fishing on the St. Lawrence as often as possible.   

  8. What three pieces of advice would you give to an aspiring entrepreneur? 
    Never stop learning, never give up, and don’t be afraid to fail.

 

Thursday
Jun142012

Attorney Sara Austin Selected as PA Super Lawyer

Sara A. Austin, founder of and attorney for Austin Law Firm LLC, was recently selected as a PA Super Lawyer 2012 under the Employment and Labor Category.

Click to read more ...

Thursday
Mar012012

Client Spotlight - Joan Brodhead, Community First Fund

Who they are: Brodhead is the Senior Vice President and Chief Operating Officer at Community First Fund, a non-governmental, community development financial institution committed to inspiring economic prosperity. Community First Fund is headquartered in Lancaster County and has additional offices in York, Dauphin, and Berks Counties. Where they are: 30 W. Orange Street, Lancaster (headquarters) Their mission: To create lasting economic growth for the community by providing equitable financial services, technical knowledge, and advocacy for its customer

Click to read more ...

Wednesday
Feb012012

Client Spotlight - Max Organization, LLC

Who they are: Design and sell innovative cabinet and storage systems Where they are: 928 Carlisle Road, York Their mission: To develop a high-end storage products at a reasonable price

Click to read more ...

Sunday
Jan012012

Client Spotlight - Dr. Steven J. Hess, Dental Health Care

Who they are: A dental practice Where they are: 928 Carlisle Road, York Their mission: To provide quality general dental care to each patient

Click to read more ...

Thursday
Dec012011

Client Spotlight - Storm and Danley, CPA’s

Who they are: A full-service professional tax and accounting firm for businesses and individuals Where they are: 700 E. Main Street, Dallastown Their mission: To provide individualized accounting services at a reasonable price Client since: 2006 How we help: We tackle any business-related legal issue.

Click to read more ...

Thursday
Nov102011

RAISING A BUSINESS: Launch. Growth. Succession.

RAISING A BUSINESS:
Launch. Growth. Succession.

Presented by

Whether you are just starting out or have been in business for years,
this seminar is a MUST for every business owner!

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Thursday, December 1, 7:30-9:30 a.m.
Registration & Breakfast 7:30-8:00 a.m.
Seminar and Q&A 8:00-9:30 a.m.
Staub & Associates/1600 Sixth Ave./York, PA 17403

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Learn about the different types of business entities and employees,
proper contracting and documentation, succession planning
and how these can HELP or HINDER your bottom line.

*Bonus* RSVP by 11/25/11 to receive the
Top Ten Tax and Legal Mistakes Made by Businesses
717-812-1040 or sarah@graffincpa.com