New Blog

I have started a new blog. I decided that I didn't like the blogspot templates and that I prefer wordpress. So..I have a new blog and a new blog address: http://luckofthelaw.wordpress.com/

Employees Must be Paid for Work Performed...No Matter What

I was on my friend, Matt McNeil's radio show this past Sunday. Matt hosts a talk show on Saturday and Sunday afternoon on KSTP 1500 AM. He is nice enough to invite guests like me to his show to ask us questions about our work and ourselves and to give us a forum to talk. This was the third time that I have been a guest on Matt's show.

Each time, we have been brave enough to open the lines to callers, and this past Sunday, we got many calls with very interesting questions. One caller in particular caught my attention. This man was an employee at a local company. At the beginning of the year, his employer told him that he wouldn't be able to pay him for the first two weeks of the year (even though he had worked) because the company just didn't have the money to pay his wages. So the caller's question was whether this was legal. No, it isn't!

Employees have a right to be paid for the work they perform. It doesn't matter whether the company is low on money, has no money or needs to pay off other debts. Employees must be paid and must be paid on a regular basis (weekly, bi-weekly or monthly) at least once every 31 days according to Minnesota law. These are obligations that can't be altered.

A similar Minnesota law states that terminated employees must be paid immediately at the time of discharge. If the wages aren't paid and the employee makes a demand for them, the employer then has 24 hours to pay the unpaid wages or risks a penalty equivalent of a day's wages, up to 15 days.

For more information about your rights and obligations under Minnesota employment laws, as either an employer or employee, contact Lundquist & Lange, LLC.

Canadian Woman Loses Disability Benefits Over Facebook Pictures

The intersection of law and social media fascinates me. Courts, judges and lawyers are trying to figure out how to deal with these new forms of communication. There are great concerns over privacy, as employers have fired employees for postings they have made on their private blogs.

So a story from Canada caught my eye this weekend. It was about a woman who was receiving disability benefits for the past year and a half for major depression. It is common when someone is on disability benefits for the insurance company to call and talk to the employee and ascertain if she is still disabled and whether or not the benefits should continue. In a case of depression, the representative might ask questions about the person's moods and activities, and request the person's medical records. Based on the information gathered, the company decides whether the person is still disabled.

What has gathered attention in this case is that the company made the decision that the woman was no longer disabled and thus no longer entitled to disability benefits based, in part, on pictures posted on her Facebook page. The pictures showed her on a vacation at the beach, and at a Chippendale's male stripper show. The insurance company reasoned that if you go on vacation and go out for a good time, you aren't suffering from depression and thus aren't disabled.

It shows a narrow view of depression and mental illness. People who are depressed do go to the beach, to a wedding or out to go shopping. They don't all shut themselves in their homes. The woman's doctor also said that "having fun" would be good for her health and help her recover. So much for that advice.

You also wonder how the insurance company got access to her pictures. Many people do accept friend requests from people they don't know, but you wonder if there was any deception in gaining access to her personal information. The story also make you (or at least me) think twice about what we post online, even on our personal Facebook page. It is all, potentially, in the public domain.

California or Bust, and Disability Discrimination As Well

I am heading to LA for a long weekend tomorrow. I have never been to LA before, so am looking forward to visiting a new city and seeing it through the eyes of an 'almost' native Californian, my partner Alejandro who lived there for more than 21 years after moving to the States from El Salvador. A good tour guide is key to seeing a new city!

And speaking of California, I have been looking at their anti-discrimination statute, which is called the Fair Employment and Housing Act (FEHA). As I wrote in a previous post, California has created a separate and independent claim for failure to engage in good faith in the interactive process. In the research that I did, no other states have this as a separate claim. There is a requirement that an employer and employee engage in the interactive process, but no claim if it is not done. I think there should be to ensure that all possible accommodations are explored before determining that an impasse has been reached.

Another provision that can't help but catch your attention is the state's definition of disability. In almost all other states (including Minnesota) a disability is defined as a "physical or mental impairment that substantially (or materially in Minnesota's Human Rights Act) limits a major life activity. In contrast, California defined a disability as an impairment that "limits" a major life activity, or that limits the "achievement" of a major life activity. This is a much more expansive and easy to reach standard than those imposed on employees in so many other states and under the federal law, the Americans with Disabilities Act.

Finally, the California FEHA has a list of conditions that are per se disabilities, like the EEOC has proposed in its recently released proposed regulations. These conditions include HIV/AIDS, hepatisis, epilelsy, seizure disorder, diabetes, clinical depression, bipolar disorder, multiple sclerosis, and heart disease. Including a list of per se disabilities is the best way to ensure that defendants/employers don't try to play the game of arguing that a disabled employee isn't disabled, as happened in this disability discrimination case involving Abercrombie & Fitch.

Fort Hood Tragedy Raises Legal Liability Issues

A tragedy took place at Fort Hood, Texas last week. Maj. Nidal Malik Hasan, an army psychiatrist charged with treating soldiers suffering from PTSD and other mental health illness, went on a rampage, shooting and killing 13 people -- a dozen soldiers and a civilian and wounding 30 more. Major Hasan himself was wounded but survived. The motive behind the killings remains a mystery, although there has been talk in the media and by Hasan's family and friends that he was despondent about being deployed to Iraq or Afghanistan at the end of the month. There has also been talk about mental illness, and how there were "warning signs" that perhaps the army should have paid attention to.

That leads to the legal question: should the army be responsible for the deaths of these innocent people? Should Virgina tech be held legally liable for the deaths of the 32 students in April 2007, when Seung-Hui Cho shot at and killed his classmates and professors? When do we hold a person or an entity responsible for the actions of a third party? That isn't an easy question to answer.

The general rule in law is that we aren't responsible for the actions of third parties. We aren't our brothers' keepers. If someone is mugged on my front lawn by a third party that I don't know, courts (at least in Minnesota) say that I cannot be held legally liable for any injuries that mugging victim might suffer.

Of course, as is always the case in law, there are exceptions. Courts can impose this legal liability where there is a special relationship between the parties. This special relationship exists when one person accepts responsibility to protect another, although there was no initial duty, creating a legal duty to act for the protection of another person arises when a special relationship exists between the parties. The special relationship can also exist when for certain circumstances, a person is not provided with the usual means to protect himself, thus making the property owner responsible for providing that protection.

Some examples: most likely a bank won't be held legally liable if a customer is injured by a bank robber who shoots during the course of a robbery. Nor will a store owner when a customer is robbed in the parking lot. There is no special duty of a bank to protect its customers, nor of a store owner. However, a day care owner has a special duty to protect the children who are given to her care, because she has accepted to protect them. If a worker at the day care abuses the children, the day care owner can be held liable for the injuries suffered. In addition, courts have said that parking ramp owners, because of the nature of parking ramps and the limited means to protect yourself, have a special duty to protect their customers. If they don't provide adequate security measures like lights and security cameras, they can be held liable.

So that takes us back to the Fort Hood question, or the Virgina Tech one. Was there a special duty between the army and the wounded soldiers and civilians, or between Virgina Tech and the students, to protect them? Most likely not. All the victims are adults, who were capable of protecting themselves (although of course, none were armed so I understand from a practical point of view the difficulty of that). They had not given up any of their normal means of protecting themselves. They were not physically or mentally disabled or challenged in any ways which would make them less capable of protecting themselves. With no way of establishing a special relationship, it is impossible to impose legal liability.

In addition, Minnesota courts require that the danger be reasonably foreseeable. Even given the all-too-often frequency of these mass shootings in the US, it is difficult to argue that one is 'foreseeable.' Without this element, it is also impossible to impose legal liability.

Of course, the laws in different states may vary. And a lawsuit can still be filed by the victims of a shooting, or by their family if they are killed. The impossibility of recovering under a legal theory does not mean that a settlement will not be obtained, or that the organization or entity does not feel a moral obligation to try to remedy the wrong suffered.

My point in all of this is that the imposition of legal liability upon a property owner for actions of a third person, beyond our control, needs to be carefully examined. Policy considerations need to be scrutinized and we need to determine where we want to draw that line.

MN Supreme Court Authorizes Hike in Attorney Registration Fees

On Tuesday November 4, the MN Supreme Court issued a ruling that has generated a great deal of debate and anger among the local legal community. The ruling authorizes a temporary increase in lawyer registration fees to fund the Board of Public Defenders for additional funding for legal representation of the Board's clients, who are the state's indigent persons who have the right to an attorney, under the US and Minnesota constitutions, when charged with a misdemeanor or more serious crime. The increase is $100 and will last for 2 years.

The court based its decision on its inherent authority to regulate the practice of law in the state. Just as the court has ruled that attorneys are required to pay a licensing fee to practice law, the court can increase that fee, albeit on a temporary basis. In a concurring opinion written by Justice Paul Anderson, Justice Anderson stresses the "extraordinary circumstances" in the Public Defender's Office that has forced them to take this measure. The Public Defender's Office has been underfunded by the Legislature and the Governor and have been stretched to the breaking point. On average, a MN public defender juggles 700 cases per year; the American Bar Association recommends that a public defender manage 400 a year in order to provide adequate representation. With so many cases, the public defenders aren't able to prepare defenses and represent their clients as they should. Cases are dismissed, lesser crimes aren't prosecuted and convictions overturned because the defendants did not have adequate counsel. Justice Anderson states that he agreed to the fee increase only because it is temporary and invokes the Governor and Legislature to find a solution to this problem.

The dissenting opinions, and the anger from the legal community, complain that a fee is nothing but a tax with a different name. The power to tax lies not with the judicial branch, but with the legislative branch. By imposing this fee increase, the supreme court is overstepping its constitutional boundaries. Other commentators have noted that it is wrong to put the burden of funding the Public Defender's Office on just attorneys. Road construction workers aren't asked to bear on their own shoulders the taxes or fees to repair our roads and bridges, so why should attorneys be. We all benefit from a well-funded and adequately staffed Public Defender's Office, and providing for one is the responsibility of society as a whole, in this case all the citizens of the state of Minnesota.

The state of the Public Defender's Office is a reflection of the current political beliefs that the smaller a government is, and the fewer taxes we pay, the better off we all are. Justice Anderson said it much more eloquently:

Some people, both at the national and state level, are so bold as to welcome this turn of events by clearly articulating their goal to shrink government down to a size so small that it can be drowned in a bathtub. The problem with this approach is that when you continuously put the government's head underwater, it is not the government that drowns -- real people drown. Floodwaters breach levies and people drown. Bridges collapse and people drown.

We need to get realistic about what we need to do, and how that can be accomplished, in order to prevent more drowning.

2008 Showed Dramatic Jump in EEOC Charge Filings

2008 showed a dramatic increase in the number of charges filed with the EEOC, or Equal Employment Opportunity Commission, the federal agency with jurisdiction over discrimination in employment. The EEOC investigates and prosecutes cases under Title VII, the ADEA (Age Discrimination in Employment Act) and the ADA (Americans with Disabilities Act).

2008 had the largest number of discrimination charges filed since 1997 -- 95,402. In 2007, there were 82,792 charges filed. That is about a 10% increase. The economic downturn is partly to blame. Complaints of discrimination rise as more people are laid off and are concerned that their race, disability or gender played a role. Of the charges filed in 2008, 20.4% were for disability.

You can learn more about depression in the workplace by visiting the blog that I maintain with Mark Meier, president of Equalicare. We write about depression in the workplace and its clinical, business and legal implications.

The full statistics can be accessed here.