Starbucks was recently charged by the Equal Employment Opportunity Commission with failing to provide an employee with a reasonable accommodation under the ADA. The fact that Starbucks refused to allow one of its barista's a stool to assist her with her job (she suffers from dwarfism) is in sharp contrast to the way that Starbucks portrays itself on its official website. At Starbucks.com, the company claims that, "in every place that we’ve been, and every place that we touch, we've tried to make it a little better than we found it." Apparently that does not apply to its employees.
According to the EEOC's suit, the disabled employee, Elsa Sallard, has a physical impairment, dwarfism. She was hired by Starbucks to work in a customer service position July 2009, but was only allowed to train for 3 days before she was fired. The job description for the barista position stated that no prior experience was required. Soon after being hired by Starbucks, Sallard asked to use a stool or small stepladder to perform the essential functions of preparing orders and serving customers at the counter. Starbucks disregarded Sallard’s request and refused to consider her use of a stool or stepladder. The same day that Sallard requested the accommodation, Starbucks terminated her employment, claiming that she could pose a danger to customers and employees.
Such alleged conduct violates Title I of the Americans With Disabilities Act (ADA), which prohibits employers from discriminating against qualified individuals with disabilities in hiring, firing, job application procedures, advancement, compensation, job training and other terms and conditions of employment. The ADA requires employers to make reasonable accommodations to employees’ and applicants’ disabilities as long as this does not pose an undue hardship. Moreover, the ADA requires the employer to engage in a collaborative process in order to determine whether other accommodations may be available to better suit both parties. Apparently, this did not take place.
As such, the EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process. More to follow on this one...
If you believe that you have suffered from discrimination in your employment, please consult an attorney right away. The statute of limitations on both the federal and state claims is quite short.
Tuesday, May 17, 2011
Tuesday, March 29, 2011
DRAGON DICTATION
I know that this topic is not really about the law, but what you learn from this article can certainly be helpful to attorneys and non-attorneys alike. I recently read an article in the ABA Journal which talked about the top ten apps (for those non-technologically advanced - this is an application that can be used on most smart phones) for attorneys and learned that there was an app out there called Dragon Dictation. Now, for those of you who have immediately turned your nose up at the notion of using any product that is evenly remotely similar to Dragon Speak (a difficult and time-consuming computer software that is supposed to allow you to speak into a microphone and have the software type as you speak), let me tell you I understand your hesitation... my nose also went in the air the moment I saw that Dragon Dictation was created by the same developers as Dragon Speak (Nuance). My curiosity, however, got the better of me and I went searching in the Itunes App Store on my Iphone for Dragon Dictation. Once I found it, I was surprised to see that it was a "FREE" application. Of course, I also thought it was probably FREE because it was horrible.
Well, I am here to tell you that I was wrong! The application downloaded quickly and the interface was simple. I did not need to read any directions on how to use it; use was self-explanatory. I simply pressed the "dictate" button and starting talking. I said the proper punctuation at the end of sentences and the Dragon Dictation program was smart enough to realize that it was punctuation and not a word. On the first try, my sentence was perfect. Once I was done, I pressed a button to the right of the screen and up popped my choices of what to do with the perfectly punctuated sentence... my choices were sms (text message), email, Twitter, Facebook, etc. I chose "sms" for my first try and up popped my text message screen prompting me to choose the recipient of my first ever Dragon Dictation text message. After choosing a recipient, I pressed "send" and away my message went.
This app is great. I would highly recommend it. Since installing it last week, I have used it for text messages, emails and I even dictated a short client letter and emailed it to my secretary for final review and sending.
I'd say give it a try, it's FREE and it works like a charm.
Well, I am here to tell you that I was wrong! The application downloaded quickly and the interface was simple. I did not need to read any directions on how to use it; use was self-explanatory. I simply pressed the "dictate" button and starting talking. I said the proper punctuation at the end of sentences and the Dragon Dictation program was smart enough to realize that it was punctuation and not a word. On the first try, my sentence was perfect. Once I was done, I pressed a button to the right of the screen and up popped my choices of what to do with the perfectly punctuated sentence... my choices were sms (text message), email, Twitter, Facebook, etc. I chose "sms" for my first try and up popped my text message screen prompting me to choose the recipient of my first ever Dragon Dictation text message. After choosing a recipient, I pressed "send" and away my message went.
This app is great. I would highly recommend it. Since installing it last week, I have used it for text messages, emails and I even dictated a short client letter and emailed it to my secretary for final review and sending.
I'd say give it a try, it's FREE and it works like a charm.
Friday, December 10, 2010
New York's Temporary Maintenance Laws 2010
On October 12, 2010, New York's Temporary Maintenance Law went into effect and can be found at N.Y. Domestic Relations Law § §236(B)(5-a) . The new law provides a fixed formula for awarding temporary maintenance (which for you non-New Yorkers is akin to ALIMONY). The basic premise of this new law is what I refer to as the "30%" rule. Basically, if there is an approximate 30% difference in the income (after allowable deductions) of the spouses, the less-monied spouse would be entitled to an award of temporary maintenance pursuant to the statute's formula. The New York State Unified Court System has a handy calculator that does all the work for you. Give it a try yourself ...> NY Maintenance Calculator. It's actually fun to use.
I recently attended a Matrimonial CLE where a number of matrimonial practitioners were disenchanted with the new law, citing the argument that their less-monied clients would, in fact, receive LESS by instituting the temporary maintenance guidelines statute. I have to say that I was rather perplexed by this position. It had been my experience that the judges in the counties where I practice did not routinely provide temporary maintenance unless there was clearly a spouse with little to no money. So, the enactment of this statute was supposed to help less-monied spouses get the immediate relief they need as opposed to being stranded in what could amount to an abusive or highly stressful situation with no hope of leaving because of economic depravity. I for one am happy that the statute was enacted and think that only time will tell how beneficial it will be.
I recently attended a Matrimonial CLE where a number of matrimonial practitioners were disenchanted with the new law, citing the argument that their less-monied clients would, in fact, receive LESS by instituting the temporary maintenance guidelines statute. I have to say that I was rather perplexed by this position. It had been my experience that the judges in the counties where I practice did not routinely provide temporary maintenance unless there was clearly a spouse with little to no money. So, the enactment of this statute was supposed to help less-monied spouses get the immediate relief they need as opposed to being stranded in what could amount to an abusive or highly stressful situation with no hope of leaving because of economic depravity. I for one am happy that the statute was enacted and think that only time will tell how beneficial it will be.
Friday, April 3, 2009
Charter Schools are Not Subject to Prevailing Wage Requirements
In a reversal of Judge Lynch's (Albany County Supreme Court) declaratory judgments both entered May 30, 2008, the Appellate Division, Third Department issued a decision yesterday that held New York's charter schools are not "public entities" as that term is defined and used in Article 8 of the New York Labor Law.
As such, in New York, charter schools are not required to pay prevailing wages on its improvement projects. It's no surprise that the Charter School Association sought declaratory judgment on this matter as it became confused after receiving two opposing opinion letters from the Department of Labor on this very issue. Originally, DOL issued an opinion letter in June, 2000, which set forth that charter schools were not subject to the prevailing wage statute. In August, 2007, DOL completely changed its opinion to state that charter schools are subject to Article 8 of the Labor Law and that it would begin enforcing prevailing wage requirements for bids advertised after September 20, 2007. The change opinion is assumed to have occured as a result of the amendment to the Labor Law statute that set forth prevailing wage must be paid not only when a public entity is the direct party to the contract (pre-2007 amendment), but to "any contract for public work entered into by a third party acting in place of, on account of and for the benefit of such public entity pursuant to any lease, permit or other agreement between such third party and the public entity." Labor Law §220 L. 2007, ch 678, §5.
While arguments were made that the charter schools entered into an agreement with a public entity (i.e., the charter agreement). The appellate division (after reviewing the legislative history of the 2007 amendment) threw out this argument. The Appellate Division specifically held that, "the prevailing wage provisions of Labor Law article 8 are inapplicable to the projects undertaken by the [charter schools]...."
Click the link for the complete decision at the Appellate Division's official website: In the Matter of New York Charter School Assoc. v. M. Patricia Smith, ___ A.D.3d ___ (3d. Dep't 2009).
As such, in New York, charter schools are not required to pay prevailing wages on its improvement projects. It's no surprise that the Charter School Association sought declaratory judgment on this matter as it became confused after receiving two opposing opinion letters from the Department of Labor on this very issue. Originally, DOL issued an opinion letter in June, 2000, which set forth that charter schools were not subject to the prevailing wage statute. In August, 2007, DOL completely changed its opinion to state that charter schools are subject to Article 8 of the Labor Law and that it would begin enforcing prevailing wage requirements for bids advertised after September 20, 2007. The change opinion is assumed to have occured as a result of the amendment to the Labor Law statute that set forth prevailing wage must be paid not only when a public entity is the direct party to the contract (pre-2007 amendment), but to "any contract for public work entered into by a third party acting in place of, on account of and for the benefit of such public entity pursuant to any lease, permit or other agreement between such third party and the public entity." Labor Law §220 L. 2007, ch 678, §5.
While arguments were made that the charter schools entered into an agreement with a public entity (i.e., the charter agreement). The appellate division (after reviewing the legislative history of the 2007 amendment) threw out this argument. The Appellate Division specifically held that, "the prevailing wage provisions of Labor Law article 8 are inapplicable to the projects undertaken by the [charter schools]...."
Click the link for the complete decision at the Appellate Division's official website: In the Matter of New York Charter School Assoc. v. M. Patricia Smith, ___ A.D.3d ___ (3d. Dep't 2009).
Thursday, February 12, 2009
You Can Be Terminated if You are a Republican!
Powers v. Richards, 549 F.3d 505 (C.A. 7, Dec. 2, 2008)
There was a bit of political maneuvering and jockeying going on in Illinois. Nearing the end of a Republican governorship, several politically-held jobholders came up with a plan to keep their jobs after the newly elected Democratic governor took office. The plan was simple - resign a few weeks ahead of the termination of the 4-year contract and then sign a new 4-year employment contract. The personnel forms were signed by the Deputy Director of the Illinois Department of Central Management Services.
The plot thickens! A few weeks after Mr. Powers resigns Republican employee contracts, he gets appointed Executive Secretary of the Illinois Civil Service Commission (which is responsible for hearing appeals of state employees on things like terminations, transfers and violations of the personnel code.)
Shortly thereafter, in 2003, after Democratic Governor Rob Blagojevich (Mr. "pay me for Obama's seat") took office, his administration began an investigation into the "no-cut employment scheme" and concluded that Powers played a key role. Powers was then terminated after he admitted to inappropriately signing personnel forms.
Powers then sued Blagojevich and other state officials under 42 U.S.C. 1983, claiming that he was fired for his political affiliation and that he was denied procedural due process due to the lack of a pre-termination hearing. The District Court (C.D. Ill.) granted summary judgment to all defendants and Powers appealed.
The Court of Appeals noted with some surprise that, on appeal, Richards did not deny that Roberts was fired for being a Republican. However, it held that given his particular job, his rights had not been violated. The First Amendment did not prohibit his termination due to party affiliation because, it said, some jobs can only be done correctly when the employee supports the administration’s ideas about policy and governing. The test was whether the position required the employee to exercise political (as opposed to professional) judgment by crafting policy.
Friday, February 6, 2009
New York's New Power of Attorney Language
As promised, the following link will direct you to the required language that will become effective March 1, 2009. http://www.nysba.org/Content/NavigationMenu23/PowerofAttorneyLegislation/PowerofAttorneyLegislation.pdf
Tuesday, February 3, 2009
Domestic Relations Orders - Language must work or divorced spouse still gets the goods
A new U.S. Supreme Court decision concerning Domestic Relations Orders and instilling a ton more liability on the attorney representing the pension-holder. Here's the link to a great summary of the case: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1336350
"In sum, the Supreme Court decided that if a voluntary disclaimer in a domestic relations order ("DRO") by the divorcing spouse of an ERISA pension plan participant did not comply with the terms of the governing plan documents, the plan could pay the death benefit only to the participant's designee, who was the former spouse and disclaimant." (Id.)
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