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Archive for March, 2015

Roller Skating Accidents: How Roller Rink Operators Can Defend Against Fall Down Claims

Posted on: March 31st, 2015

 By: Barry S. Brownstein

Roller skating is a family-friendly-activity that combines fun and exercise.  Skaters can burn calories and improve their cardiovascular health while looping, turning, spinning and backward skating across the rink floor.  However, accidents at roller skating rinks can occur.  Most accidents result from trips and falls caused by collisions with other skaters. Skating experience, rink surfaces, skate type and quality, and protective equipment are all factors involved in skating accidents.  Roller skaters injured at roller skating rinks may be able to sue the owner and/or operator of the rink for personal injuries that arise from skating accidents. Therefore, rink owners and operators must exercise diligence in their operational responsibilities to help limit their liability exposure and keep patrons’ skates rolling.

            Generally, a roller rink operator owes its patrons a duty to keep its premises in a reasonably safe and suitable condition so that patrons are not unnecessarily or unreasonably exposed to danger.  Therefore, rink operators must warn and supervise their patrons and maintain and inspect the skating rink.  Rink operators must post signs listing their legal responsibilities and skaters’ legal responsibilities.   Trained floor supervisors must be on the rink floor during skating sessions to ensure safety, direct traffic and enforce the rink’s rules.  Additionally, rink operators must keep their skating surface clean and inspected daily and in a reasonably safe condition, including regular refinishing of skating surfaces.  Rink owners should also hire qualified employees to check rental skates on a regular basis to ensure skates are in good condition. Rink operators are also charged with keeping fire extinguishers, emergency exit lights and signs noting areas where skates can and cannot be worn.

            However, even rink operators that take these measures and other precautions cannot always avoid claims for every personal injury.  Roller skating accident claims are often difficult to defend because there are no eyewitnesses to a skating accident to confirm or deny the skater’s version of events. Thus, roller rink operators should install surveillance cameras and hire a sufficient number of floor supervisors so there is a greater likelihood of having a videotape or eyewitness account of the accident.  Once a case is filed, rink operators can also improve their ability to defend lawsuits by retaining an expert to analyze the skater’s version of the accident.

            By retaining an expert with mechanical engineering expertise and/or experience analyzing roller skating accidents, causation can be challenged, focusing upon whether the skater fell as a result of a skate surface defect, a defective roller skate or as a result of the skater’s own imbalance while skating.  An expert can conduct a site inspection on the rink and test the skates worn at the time of the skater’s fall.  An expert can also perform testing to demonstrate that the skating surface was not unsafe and was not a factor in the skater’s fall.  Thus, roller rink owners and operators can successfully defend fall down claims by ruling out the skater’s theory of liability and establishing that the fall occurred as a result of the skater’s own failure to maintain balance while skating.

Supreme Court Considers Whether the ADA Requires Officers to Provide Accommodations to Violent and Mentally Ill Suspects

Posted on: March 30th, 2015

By: Kevin Stone and Brian Dempsey

Earlier this week, the Supreme Court heard oral argument in Sheehan v. City and County of San Francisco and grappled with an important issue facing every law enforcement officer across the nation: Whether Title II of the Americans with Disabilities Act (ADA) requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody.

The case arose out of an incident at a group home for the mentally ill.  Teresa Sheehan, a resident of the home, threatened to kill a social worker, so the social worker called San Francisco police officers to detain Sheehan for a psychiatric evaluation.  When the two female police officers arrived, they entered Sheehan’s room.  Sheehan then attacked the officers with a knife, forcing them out of the room and slamming the door.  The officers called for back-up.  But before back-up arrived, the officers re-opened the door because they feared that Sheehan might be planning an ambush.  Sheehan again attacked them with the knife. In response, the officers pepper-sprayed Sheehan.  When this did not stop Sheehan’s advance, the officers shot Sheehan several times.  She survived and sued, contending that the officers’ entry and use of force were unreasonable under the Fourth Amendment and that they failed to accommodate her mental illness.

Currently, most federal circuit courts agree that the ADA generally applies in the arrest context.  They are split, however, on whether and how the ADA applies when exigent circumstances exist.  The Fifth and Sixth Circuits do not require police officers to provide accommodations to disabled suspects when exigent circumstances or public safety concerns are present. By contrast, the Fourth, Ninth, and Eleventh Circuits consider exigency as one aspect of the inquiry into whether proposed accommodations are reasonable.

During oral argument, Justice Scalia made clear his thoughts on the issue: “It is never reasonable to accommodate somebody who is armed and violent, period.”  While the other Justices were not so explicit, most expressed concerns with the practicality of accommodating armed and violent mentally ill suspects before they are safely in custody.  On the other end of the spectrum, Justice Sotomayor’s comments suggested that police officers must try to mitigate these situations before they “jump to violence.”  She observed that approximately 350 mentally ill people are shot by police officers every year, while also recognizing that 100 officers die at the hands of mentally ill suspects.  While Justice Sotomayor proposed that the ADA was intended to ensure that the police mitigate these tense situations without force, she did not suggest how officers are supposed to do so.

If an accommodation is required, determining what constitutes a “reasonable” accommodation presents yet another problem.  For example, some of the justices seemed inclined to accept that the officers’ initial use of pepper spray, rather than lethal force, qualified as a suitable accommodation.  Another pertinent discussion addressed how the ADA requires an officer to respond when he or she encounters someone who — unbeknownst to the officer — has a mental illness.  For example, a suspect might exhibit subjectively strange behaviors which could be attributable to many factors which are unrelated to mental illness.  For good reason, the justices questioned whether officers can practically be expected to diagnose each suspect and then decide the accommodation question, all in the heat of the moment.

A decision is expected by June.  While litigation may take years, officers must respond in only minutes or seconds.  Regardless of the outcome, this case underscores that concerns regarding public safety, officer safety, and the rights of disabled individuals often intersect in ways that yield no easy answers to either law enforcement officers or the courts which ultimately review their actions.

Legalization of Medical Marijuana Presents Unique Challenges to Employers

Posted on: March 30th, 2015

By: Joshua M. Lott

There is no comprehensive federal law that regulates drug testing of employees in the private sector, except particular employees in specific industries such as transportation.  As a result, many states have enacted legislation regulating when, why, and how private employers may conduct drug testing on their employees.  Generally speaking, drug testing in the private employment context is presumed lawful unless there is a specific restriction in a state’s law.   However, even in states with no restrictions on employee drug testing, employers may be at risk for claims of wrongful termination, invasion of privacy, and defamation, to name just a few, depending upon the manner in which the drug test is administered or how the test results are used.  Additionally, as more and more states consider legislation to legalize the medical and recreational use of marijuana, employers who drug test their employees need to be aware of how these laws can create additional litigation risks.

Since 1996, twenty-three states have passed laws legalizing the use of medical marijuana, while Alaska, Colorado, Oregon, Washington, and Washington D.C have legalized marijuana for recreational use. Legislation to legalize medical marijuana is currently pending in Georgia, Florida, Indiana, Kansas, Missouri, Nebraska, North Dakota, Pennsylvania and South Dakota.

A small number of states where medical marijuana is legal prohibit employers from taking adverse employment action against employees because of their use of medical marijuana.   For example, Rhode Island’s medical marijuana law provides that employers may not refuse to employ “or otherwise penalize, a person solely for his or her status as a cardholder.” G.L. § 21-28.6-4(c).  Other states’ medical marijuana laws are silent on the issue, while some, like Colorado, explicitly state that employers are not required to “accommodate the use, consumption, or possession of marijuana in the workplace . . . .” Colo. Rev. Stat. § 12-43.4-104.  Nevertheless, even in states where employers are free to develop zero tolerance workplace drug policies, employers who drug test employees are discovering that the issue of legalized medical marijuana use is more complicated than they originally thought.

Recently, the Colorado Supreme Court took up the case of Brandon Coats, a former Dish Network employee who was fired from his job after testing positive for the active ingredient in marijuana.  See Coats v. Dish Network, L.L.C., 303 P.3d 147 (Colo. App. 2013), cert. granted, 2014 WL 279960 (Colo. 2014).  At issue in Mr. Coats’ case is whether he may sue his former employer under Colorado’s “lawful activities” statute, which prohibits employers from dismissing an employee because of lawful off-duty activity.  Mr. Coats knew that Dish Network had a zero tolerance policy for illicit drug use, including marijuana use, and that the policy applied regardless of whether employees are impaired at work.  Mr. Coats has argued that his medical marijuana use is “lawful activity” because it is lawful under state law, while Dish Network contends that federal law should determine the lawfulness of the activity.  A decision in Coats v. Dish Network is expected in the next few months.

As illustrated by Coats v. Dish Network, even in states where employers are not required to accommodate marijuana use, the law in this area is in flux and rapidly changing. Employers need to be aware of the applicable marijuana laws of the states in which they operate, and how taking adverse employment action against employees who test positive for marijuana can be a litigation risk.

FMLA Rights for Same-Sex and Common-Law Spouses Expanded

Posted on: March 23rd, 2015

By: Amy Combs Bender

This week, on March 27, 2015, a Final Rule issued by the Department of Labor will take effect expanding the Family and Medical Leave Act’s protections provided to same-sex and common-law marriages. As background, the FMLA permits employees to take unpaid leave related to a spouse in the following circumstances: to care for a spouse with a serious health condition, to take qualifying exigency leave due to the spouse’s covered military service, and to care for a spouse who is a covered servicemember with a serious illness or injury.

Under the current FMLA regulations, the term “spouse” means a husband or wife as defined or recognized under the law of the state where the employee resides (including common-law marriage in states where it is recognized). In fact, since 2013 (when the United States Supreme Court held that section 3 of the Defense of Marriage Act, defining marriage as only a legal union between one man and one woman as husband and wife and a spouse as only a person of the opposite sex who is a husband or wife, was unconstitutional), the FMLA’s protections have been extended to spouses in same-sex marriages if the state where the employee lives recognizes that marriage. The practical impact of this definition was that, if an employee entered into a legal same-sex or common-law marriage in one state, but then moved to another state that did not recognize that marriage, the employee’s partner no longer was considered a “spouse” under the FMLA, which prevented the employee from being eligible for the relevant leave provisions for spouses.

The revised regulation, however, defines a spouse according to the place of celebration (in other words, the state where the marriage occurred). This effectively expands the FMLA’s protections to all legally married eligible employees (including those in legal same-sex or common-law marriages) regardless of where they live. This definition also encompasses marriages that were validly entered into outside of the United States if they could have been entered into in at least one state.

Although no other FMLA regulations were amended, another practical effect of the change in the definition of “spouse” is that eligible employees in legal same-sex or common-law marriages now are entitled to care for a stepchild (a child of the employee’s same-sex or common-law spouse) regardless of whether the employee has day-to-day responsibilities to care for and financially support the child (which the FMLA deems standing “in loco parentis”). Likewise, eligible employees may take FMLA leave to care for a stepparent who is a common-law or same-sex spouse of the employee’s parent, regardless of whether the stepparent ever stood in loco parentis to the employee. In addition, if the employee’s same-sex or common-law spouse works for the same employer, the FMLA’s limitation on the amount of leave available for two spouses working for the same employer applies. Also, as is the case under the current regulations, an employer may require an employee to provide documentation of the same-sex or common-law marriage under the Final Rule.

Currently, the following states recognize same-sex marriage: Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Idaho, Illinois, Indiana, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.

If you need guidance in implementing FMLA leave for your employees in light of this change or would like assistance in reviewing any aspect of your FMLA policy or practices, please contact one of FMG’s Labor and Employment attorneys.

Dot Your I’s and Cross your T’s in Person: Complying With The I-9 “Examination” Requirement

Posted on: March 23rd, 2015

By: Nina Maja Bergmar

Federal law requires every employer to complete Form I-9 for each new employee. As part of this process, the employer must request original documents from a list of acceptable documents that establish an employee’s identity and work authorization. The employer must then sign the so-called attestation clause in Section 2 of Form I-9, confirming that it has examined the documents presented by the new hire and that, to the best of its knowledge, the hire is authorized to work in the United States.

In a recent decision by the Department of Justice, a company was slapped with a hefty $227,251.75 penalty for failing to properly complete Section 2 of Form I-9. At issue in the case was the employer’s bifurcation of its I-9 responsibilities, whereby it examined the original documents onsite, but contracted with a separate entity to sign the attestation clause. The DOJ took issue with the fact that the agent who signed the attestation clause had never actually seen the original documents, only photocopies. The DOJ clarified that Section 2 of Form I-9 is properly completed only when the person who signs the attestation clause is the same person as the person who examines the employee’s original documents. By having different individuals review the original documents and sign the attestation clause, the employer subjected itself to liability for 243 violations of 8 U.S.C.  §1324a(a)(1)(B)—the total number of I-9 Forms it had completed for its employees.

In light of the DOJ’s harsh decision, employers should pay particular attention to the fine print of the attestation clause, which implicitly mandates that the signatory personally examine the original documents before signing the document. Employers should be especially cognizant of this requirement when subcontracting its I-9 verification process, as the subcontractor must be physically present to review the original documents before signing the attestation clause.

If still in doubt about how to complete Section 2 of Form I-9, visit the USCIS’s website or contact our office for further guidance.