In late March, my column titled, “Covid 19 — What Lawyers are Saying” featured two Bakersfield Employment Law attorneys, Dan Klingenberger and Jay Rosenlieb, who answered a number of questions about employee rights and obligations in this coronavirus era.

That story promoted many readers to send in workplace safety questions, which both lawyers tackle head on:

“Do We Have a Right to Employer Provided Gloves or Masks?”

“Working at home is not an option in my line of work, as I have to deal with the public. My employer isn’t providing us with gloves or masks: We have to bring our own.

Do Employees have a right to be provided with protective equipment on the job?” 

Rosenlieb:  The federal OSHA General Duty Clause requires that an employer provide a workplace free from recognized hazards likely to cause death or serious physical harm, including injury from infectious diseases such as COVID 19.  OSHA-approved State Plans have similar, and in some instances, even more protective standards.

Employers are obligated to provide their workers with personal protective equipment (PPE) needed to keep them safe.  It should be noted that the an employee cannot demand PPE that is not deemed appropriate for the exposure.

Klingenberger: Guidance from OSHA during the past few weeks recognizes that difference in protection apply to various industries. The OSHA COVID-19 Guidance for Retail Workers provides tips for employers in the retail industry–pharmacies, supermarkets, and big box stores–“to help reduce your employees’ risk of exposure to the coronavirus.” 

These tips include:

“Allow workers to wear masks over their nose and mouth to prevent them from spreading the virus.” OSHA likely choose the word allow rather than require, as this likely reflects several considerations. 

First, very few masks or face coverings would actually filter out coronavirus.  Masks and face coverings primarily serve the purpose of avoiding spread by the person wearing the mask.  Assuming that is true, masks, and perhaps gloves, may protect the customers, but would not accomplish the objective of protecting the employee and, therefore, do not have to be PPE. 

Second, other practices–that we are constantly reminded of–may be far better served to protect employees, such as social distancing, frequent hand washing, not touching your face, and disinfecting work areas. 

Finally, because of high demand, obtaining masks and gloves for employees may be very difficult if not impossible.

“My Employer is Not Taking These Risks Seriously – May I Speak Up?”

“The company where I work, doesn’t seem to be taking this crisis seriously enough. There have been no real efforts made to ensure social distancing in the workplace, other than some signs and tape marks on the floor, which are not enforced. It doesn’t feel safe, but I fear retaliation if I speak up. What should I do?”

Rosenlieb – An employer is obligated to take such steps as are required by OSHA or an OSHA approved State Plan, not more. If the employer is fully compliant, an employee has little basis to demand further protection.  In the event that the employer has policies in place which are not followed, the employee will have a basis for a complaint.

Klingenberger – I agree. Often employees would like to see more done by an employer when the employer is actually fully compliant.  Business owners and each of us as individuals are making decisions in a world of uncertainty.  On a personal, local and national scale we are asking, “Have we done enough?” 

There is strength in numbers.  If some of your co-workers share your concerns, consider going to your employer with a colleague to express those concerns about safety in a professional manner.   Offering ideas on solutions may help the conversation.

“Can I Refuse to Work Overtime ?”

 “I’m in an industry where demand is currently skyrocketing, and workers are being pushed to the brink. Can I refuse to work overtime?

Rosenlieb  – No.  There are, however, a couple of exceptions. 

First, if a lack of sleep or fatigue creates demonstrable safety concerns, the employee may refuse to work if he or she has a good faith belief that the conditions create an imminent risk of serious injury or death. 

Second, if the employee is part of a workplace covered by a collective bargaining agreement, the employee may be excused from working “mandatory” overtime.

Klingenberger – Jay’s answer is spot on. Unfortunately, we are in situation where some employees are working far more than they would like and others who would love to be back at work in any capacity.                   

This story first appeared in Kiplinger.com on April 29, 2020.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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Even low-skilled workers are subjected to non-compete clauses, but that could change as lawmakers take them on for restricting mobility and keeping wages low.

“My family operates an upscale Italian restaurant, and our employees are paid much more hourly than comparable establishments. We hire college grads, dedicate a great deal of time to training by certified hospitality educators, who cover everything from understanding the menu, to proper grooming, how to conduct yourself as a professional server and related skills.

“All restaurant owners face the same problem: hiring, training, and then the employee jumps ship for a similar restaurant, often for as little as a dollar more an hour. I have never used an actual signed employment contract, but wonder if I can have a non-compete clause, limiting an employee from working in a similar type of a restaurant within, say, 50 miles? Thanks, ‘Luigi.’”

To find out the ins and outs of non-compete clauses, I consulted with attorney Steven Kelly, former associate commissioner with the New York City Department of Consumer and Worker Protection. He is an instructor with Ontario, Canada-based LearnFormula, which provides continuing education and professional-development podcast courses.

Q: What is a non-competition agreement?

Kelly: Preventing an ex-employee from competing with an employer has been a real issue going back — literally — hundreds of years. Typically, a non-compete is a clause in a contract, signed at the start of employment, that prohibits the employee from competing with the employer directly or indirectly for a specific duration of time and in a certain geographic area, after their employment has ended. If one party breaches the agreement, they may have to pay damages or cease certain activities.

The legal community and business owners need to be aware that a major trend over the past 10 years — both at the state and federal level — has gained momentum to limit their use or completely eliminate them. The days of such clauses automatically showing up in employment contracts is likely over.

Q: When does a non-compete make sense?

Kelly: This issue comes up instinctively where we have a highly skilled employee, and the company has invested thousands of dollars into their training. The employer does not want them to leave after benefiting from the training. A non-compete is reasonable and certainly makes sense in these situations, most business owners would say. Additionally, many employment contracts have a Training Repayment Agreement (TRA) that require repaying the cost of training if they leave the job before the end of a certain period. TRAs are often a take-it-or-leave-it proposition: No signed TRA, no job.

Q: How does this affect non- or low-skilled workers?

Kelly: Non-competes are also being used with millions of non- or low-skilled workers who do not make very much money and are often unaware of being bound by one. This includes hairstylists, security guards, fast-food workers. For the benefit of their family, they would like to be more mobile and find a better-paying employer. This obviously makes no sense to most people, and non-competes in these areas are being targeted at the state and federal level as being harmful to the individual worker, and our economy, by restricting mobility and keeping wages low.

Q: What does a non-compete clause look like?

Kelly: We all know the saying, “If it looks like a duck, quacks like a duck, it’s a duck,” and the same thing applies to non-competes. First of all, it does not need to be a separate document that is entitled “Non-Competition Agreement.” Often, it is a paragraph buried within the onboarding package and might say, “Upon leaving the company, the employee is prohibited from working for another organization in the same industry or which competes with the employer within 100 miles for one year.”

Q: What is the status of federal and state laws on non-competes?

Currently, there is no federal law, but the Federal Trade Commission is developing rules to address the issue, both going forward and retroactively, seeking to void non-competes, but nothing as of today has been adopted. A bipartisan group in Congress introduced the Workforce Mobility Act, which, if adopted, would also ban non-competes across the US.

Kelly: At the state level, some allow them, while others ban them completely, so you need to look at how your state law applies to the non-competition issue.

Business owners must be well informed

Kelly makes it clear that this is an area where employers need to be aware of these issues “that are evolving day-by-day,” adding, “There are several ways to be kept up to date, beginning with trade associations that are constantly monitoring developments at the state and federal level, online research and scheduling a consultation with an employment attorney who represents business owners.”

He concluded our interview with a word of caution: “You need to be up to date with this stuff, as a violation could lead to expensive litigation. Yes, lawyers can be a cost you would like to avoid, but this is such an important issue and absolutely requires being kept informed.”

For lawyers, accountants and other professionals needing continuing-education credits, I recommend spending time on the LearnFormula website, which also provides info on this topic.

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We can all feel it. Something’s not right with our country. But when did things start going wrong, and more importantly, where are we headed?

Spend some time with “The Decline of America” by Dr. David Schein, and like me, you’ll say, “Finally, someone who gets it!” Schein is an attorney and Associate Professor at the Cameron School of Business of the University of St. Thomas in Houston. He takes us through the past 100 years of leadership from those men who occupied the White House, or as the book’s subtitle announces, “100 years of leadership failures.”

“The Decline of America” presents an objective, non-partisan evaluation of US presidents during the past century, distills their successes, many glaring failures, and, as Schein is a university professor, a grade is assigned.

Two American Presidents stood out in my mind, the first George Bush and Clinton.

After the United States kicked Sadam Hussein out of Kuwait in Operation Desert Storm, in 1991 there was every opportunity to remove him from power, but Bush refused. Many credit that for the second Iraq invasion, and the nightmare we have faced ever since from the region. Schein’s grade for Bush? C-.

And who can forget Monica Lewinsky and scandal-prone Bill Clinton, earning a D-.

College campuses must safeguard free speech rights

As Schein is both an attorney and college professor, we asked if he has personally experienced threats or fears and interference with his own free speech rights when lecturing on college campuses, and unless remedied, what this means for our democracy.

“I am welcomed around the country to speak to Libertarian clubs and to conservative organizations, even though I do not give an especially high grade to Ronald Reagan. On the other hand, I have been warned that I may not get a warm reception on college campuses because many faculty and students do not like to see any criticism of people like Bill Clinton or Barack Obama.

“Free Speech Zones, which have cropped up on many college campuses across America, are a perversion of the term free speech. This is the kind of stuff the Nazis and the USSR did to suppress opponents. They said, ‘Sure you can say anything you like so long as we approve of it.’

“This deprives students of the opportunity to hear multiple views so that they can exercise their own judgement. By definition, college students do not know it all and unless they allow themselves to be exposed to different viewpoints, will never develop critical thinking skills,” he strongly maintains.

“It is a sad situation that threatens our democratic principles. When highly paid attorneys do the bidding of a college administration and fight to justify these clearly unconstitutional free speech zones, it is waste of money and an embarrassment to the legal profession.”

Merger mania threatens competition

Almost 20 years ago, two giant oil companies – Exxon and Mobil – were allowed by the Department of Justice (DOJ) to merge. This, as Schein documents, began what has been referred to as “merger mania.”

“By allowing that merger, other large companies began to merge, and the result is a real threat to what makes American business so great, and that is competition. As an example of mergers which the DOJ has prevented, just look at the number of cell phone companies we have, which has helped the consumer,” he underscores.

Schein asks this question: “We know that consumers benefit from competition among the cell phone companies. How much better would it have been if Exxon and Mobil were not allowed to merge? Fewer competitors make it harder to have competition for goods and services. And, we should not forget that within one year of that merger, the combined oil company shed 14,000 jobs.”

At the present time, CVS is trying to buy Aetna Health Insurance.

“I am very concerned about this merger. American health care needs more, not less, competition. We should not forget that Aetna tried to buy rival health insurer Humana not that long ago. The DOJ sued to block the deal, saying it was anti-competitive and would lead to unfair price increases.”

Department of justice and FBI have become political

Schein echoes the feelings of many people who are “thoroughly disgusted with how politics entered the DOJ in the Obama era with Attorneys General Eric Holder and Loretta Lynch. Both were extremely political. Just as the FBI is under assault now for being political, the DOJ has hurt its reputation for the same reason.”

Dr. Schein concluded our interview with food for thought:

“If we as Americans cannot count on anything coming out of Washington to be non-partisan and to be done in our singular best interest, we have some real problems.”

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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The Coronavirus has become a sneak attack in slow motion on the American workforce. Fear has become the operative word, not only of falling ill, but the impact this virus is having on our economy, on jobs.

Employment law attorneys are swamped by calls from business owner clients, wondering what they are allowed to do in an effort to keep their employees safe and their doors open.

I ran the following questions by two attorneys in Bakersfield who specialize in Employment Law: Dan Klingenberger and Jay Rosenlieb. They provide a global perspective to these issues which challenge American businesses today.

Can your employer force you to go to work?

Klingenberger: “The answer would depend on the circumstances. If there has been evidence of spread in the workplace, for example, someone has it, an employer could not force the other employees to come to work in that environment, as there is a direct threat of contamination. But with no evidence exposure, or the exposure does not impact all employees, then, the employer can insist that people come to work.”

Rosenlieb: “In the event of an immediate or imminent danger, OSHA provides that an employee can refuse to work. Further, the NLRA protects concerted activity by employees. Concerted activity includes a refusal to work because of unsafe working conditions.”

Can you be fired/disciplined if you refuse to go to work?

I asked, “What if there is no legitimate reason to not come to work, but an employee still refuses to show up, could this result in discipline?”

Klingenberger: “Yes, that is possible, but in today’s COVID-19 environment, an understanding employer could tell an employee, ‘If you do not want to come to work for the time being, you may use vacation, sick leave or other time off benefits,’ if that is a benefit the employer offers. The employer also has to balance other considerations, such as fairness to other employees and the need to get the work done.”

Rosenlieb: “While an employer could take more serious action, those who care about their employees should work with them to address their concerns and find alternatives to being present at the office, if possible. And we are seeing that with a large increase in people working from home, tele-commuting.”

What should you do if an employee comes to work sick because they need the money?

Klingenberger: ““If an employee comes to work who is obviously ill and showing symptoms of Coronavirus, the employer should send the employee home because of the risk to others. If the employee misses work because of having the virus or must be quarantined, many states, including California, have made unemployment insurance benefits available for days missed or reduced hours that might not normally be available.”

Rosenlieb: “An employee who presents at work with symptoms of a contagious illness can be sent home. The employer is not obligated to provide work to an employee who presents with symptoms of a contagious disease. On the other hand, an employer cannot send an employee home simply because the employee is a member of a high risk group—65 years old and older or has underlying health conditions. This would be discrimination on the basis of protected class status.”

What happens if the governor or president orders you to shut your business? Do you have any options other than to follow the order?

Not only has the President issued Executive Orders which have shut down many businesses in the country, but state governors are also issuing similar mandatory orders. Constitutional lawyers will tell you that government has an inherent power and duty to protect the population, especially in areas of health.

Klingenberger:“The imposition of quarantine, shelter in place and business closure orders are examples of the state’s ability to exercise its police power. Failure to comply may be a misdemeanor and subject the company to fines. Time will tell whether tax and other forms of relief will be granted to help deal with the enormous financial losses.”

Rosenlieb “There is no choice but to follow those mandatory orders or face fines.”

Can you turn away a customer who is coughing?

Both lawyers agree there is no obligation to serve everyone, unless you are avoiding someone for clearly illegal reasons, such as race, religion or national origin. They equally believe a polite way of dealing with a customer who is coughing would be for restaurant employees to say, “We are concerned, given what is going on with the Coronavirus, if you will please step outside I will bring you the food.”

Do you have a legal responsibility to inform people you have come into contact with if you later test positive?

While neither attorney was aware of a legal obligation to personally informing people that you have been tested positive, they observed that health departments ask every person infected to list all the people they have been in close contact with.

And while I do not know of a legal duty in the United States of self-reporting to others, it is not much of a stretch to compare silence with those people who have been jailed for knowingly spreading herpes and aids.

To me, by knowingly exposing those around you to the virus could be seen as an assault and battery. History proves that correct with the story of Typhoid Mary, an Irish cook believed to have infected 51 people with typhoid fever, several of whom died.

If you are not familiar with her story, it is worth looking up, as you will find a cast of characters right out of a horror movie, including Mary herself who was aware of the danger she posed to others and yet continued to work as a cook, literally killing people.

She was the first person in the United States identified as an asymptomatic carrier of the disease. Because she would not stop working as a cook–exposing others to the disease– she was twice forcibly isolated by authorities, and died after a total of nearly three decades in isolation.

What is your legal responsibility if you start to get an inkling that you are getting symptoms?

Klingenberger: “I am not aware of a requirement in OSHA or various federal safety laws where someone is required to make this disclosure. Employees are always encouraged to disclose those things, and especially on the job injuries. There are can be ramifications if they don’t.

“For example, they hurt their back and do not disclose it for six months. Their workers compensation claim could be denied for a failure to report it in a timely fashion.”

Rosenlieb: “While not a violation of a law, if the company had a policy requiring employees who become ill with the flu, even the common cold, to report this to HR, and if that were violated, it could result in discipline for violation of an order.”

Say You Are Ordered to stay home–quarantened–By the Health Department. What would happen if you disobeyed?

Both attorneys agree that the employee could face termination.

What if you know people who are doing risky things on the job, exposing coworkers to harm, do you have a responsibility to do something about it?

And, once more, there was agreement by both Klingenberger and Rosenlieb as to what employers and employees need to do when faced with a coworker who cares little for his or her job colleagues.

“We all should hope that concerned coworkers would report dangerous behavior of whatever type, physical or health-wise,” commented Klingenberger.

“Today we all have a duty to each other to act prudently and safely. Any employee who puts coworkers in harms way should face potential termination. Our country is facing one of its greatest health threats in over a century. We need to watch out for each other more so than at any other time in memory,” Rosenlieb strongly maintains.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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“I own an IT company with 20 employees on the East Coast, and we are tired of shoveling snow. California’s weather, plus the need for managed IT services and tax advantages offered by some of your cities is attractive and we are considering relocating.

“But I have read about California employers having a gun held to their heads by law firms filing suits over some of the silliest, inconsequential claimed violations of your labor laws. Many have paid hundreds of thousands of dollars in what appears to be legalized extortion by law firms established for one purpose – to rip off business owners.

“Earthquakes don’t worry us, instead, being named on a class action employee suit which could put us out of business. What is your opinion? Should we stay where we are, and all go out and buy new snow shovels or sun screen and swimsuits? Thanks, Jim.”

The Golden State Has Become Fools Gold

I am embarrassed and horrified by what can only be described as a war on business enabled by my state’s legislature, and I am not a card-carrying, conservative Republican.

Any company thinking of relocating here needs to Google, “California Legal Hell Hole,” and “California Pay Stub Violation Penalties,” then ask itself why these large corporations–among hundreds–have moved out of California:

–Carl’s Jr, relocating HQ to Nashville

–Toyota and Nissan, to Dallas

–Jamba Juice from San Francisco to Frisco, Texas

–Chevron moved 800 jobs from its Bay Area headquarters to Texas

–Nestle USA, from Glendale, California to Rossyln, Va.

I spoke with Business relocation expert Joe Vranich, president of Spectrum Location Services, which was based in Irvine, California, but relocated to Cranberry Township, a suburb of Pittsburgh.

He has been tracking the exodus of companies from California, and noted that, “A rule of thumb among business site-selection experts is that five companies leave for each one that actually gets reported in the press. So it’s probable that as many as 10,000 companies have left California in recent years.”

So, why did Vranich leave California?

“Just look at the squalor, the filth, the homelessness that is not being addressed. “I moved for three reasons – taxes, regulations and quality-of-life,” I am free of California’s notorious regulatory environment and threats of frivolous lawsuits that hurt small businesses like mine,” he said.

Meritless Lawsuits Enrich Lawyers – PAGA

In California and many states, if an employee is fired, they are entitled to be paid immediately, and that makes sense. But what if, for some reason, it isn’t possible, but the employee is paid the next day? Vranich cited the example of one of his clients in San Diego who was hit with a $5,000 penalty, “Just for being one day late and no one was harmed. This kind of thing, authorized by California law, is simply punitive.”

California’s Private Attorneys General Act (PAGA) has made the Golden State more golden for some employment attorneys who advertise heavily online, and raise litigation costs for employers.

“Under this law,” Bakersfield attorney Jay Rosenlieb notes, “Lawyers are effectively ‘deputized’ to become the equivalent of government attorneys, allowed to file frivolous class actions suits, often based on minuscule violations of state law where no one is harmed.

“Many PAGA lawsuits are over technical nitpicks, such as an employer’s failure to print its address on employees’ pay stubs, even though the address was printed on the paychecks themselves.”

How frivolous are some of these suits?

“In one instance, over a three cent shortage on an employee’s check, a PAGA attorney sued and obtained $9,000, keeping a large chunk for himself,” Rosenlieb points out, shaking his head in disbelief, and repeating, “Over a three cent shortage! This is just insane!”

Fresno labor law attorney Howard Sagaser observes that, “A huge legal industry has popped up like mushrooms in California, filing suits against employers when there is no harm to anyone.

“The scope–the unbelievable amount of penalties authorized for what are so often petty, minor violation of overly complex state laws have made a number of lawyers multi-millionaires and driven numerous business into bankruptcy. Today, anyone going into business who plans on hiring people needs to also retain the services of HR professionals to steer them clear of trouble, which drives up the cost of business.”

And finally, if anyone thinks that suits against employers for violations of state labor laws is no big deal, just ask the former employees of Southern California-based Guy Chaddock & Co., a 48-year-old maker of custom reproduction furniture which closed its doors, leaving 175 workers without jobs in 2004, the year that these suits were first allowed.

So, no, any company thinking of relocating to California, my advice is to stay far, far away.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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“I inherited a commercial rental property recently that was built in the 1940’s. I understand that the Americans with Disability Act requires accessibility, but all the doorways to these shops are too narrow to allow someone in a wheelchair to enter.

“Is it true that because it was built years before the ADA became law, I am ‘grand-fathered’ in, and do not have to meet current accessibility requirements? A contractor told me that to meet ADA requirements, I would have to tear down and rebuild as there is no other way. So, am I safe in doing nothing?”

Commonly Held Myths About the ADA

Is there such a thing as being ‘grand-fathered’ in to the ADA, allowing a property owner a free-pass for accessibility compliance? We put our reader’s question to Sacramento, California ADA attorney Chris Vaughan.

“This is a question I get asked often,” Vaughan said. “There is no provision which allows avoiding compliance since buildings are not ‘grandfathered,’ he stated, adding, “There may be some differences in how the law is applied to a building that existed before the ADA became law, but there is no way to avoid improving access.”

It is one of several myths about the ADA’s accessibility requirements,” he says, and points out the importance of the ADA to our country as a whole.

“Since its becoming law in January of 1990, the ADA established comprehensive protection for people with a variety of disabilities and has sought to remove barriers to full participation in all that society has to offer. It has been a highly successful tool in the reduction of discrimination against the disabled. From the day it went into effect, any business or property open to the public was required to meet ADA accessibility requirements.”

Vaughan outlined some of the commonly held myths about the ADA which also has versions in every state.

(1) Since the property has been in existence thirty or more years, I am excused from making alterations necessary to make it meet current disabled access requirements.

“Generally speaking, a building existing when the ADA went into effect does not have to strictly comply with its requirements if to do so would require an unusual expense or be unusually difficult. The rules must be complied with if readily achievable to do so.”

He was quick to add, “But if you cannot strictly comply, you still must improve the property as much as you can to provide disabled access, and this might include alternative compliance or facilitation when strict compliance cannot be achieved.

“An example would be a vendor who cannot provide access to the interior of its facility might comply with the law by having curbside service in some circumstances. The whole idea is to make your property accessible through other means.”

(2) My lease says the tenant is responsible for ADA so I do not have any liability.

“Under Federal ADA law, both tenant and landlord are equally responsible for compliance. However, liability between them can be assigned or allocated in the lease. They can agree who is responsible for what.

“For example, the lease could specify that while the tenants occupy the premises, they are required to make any changes necessary to bring the property into ADA compliance.”

I asked, “But what if both landlord and tenant are sued for a violation of the ADA? If the lease makes it the tenant’s obligation to comply with the ADA, will this allow the landlord to get out of the lawsuit?

“No,” he replied, “lease provisions–who is responsible for what–can’t be used as a defense against the person who filed suit for a violation of the ADA. Both tenant and landlord are still legally responsible, even though they have an agreement between themselves.”

(2) If I fix it, I don’t have to pay the person who sued me anything.

(3) “Under both Federal and State law (which will vary depending on the state) damages are still collectable regardless of fixing the access issue, and can easily run into the thousands of dollars.

“In fact, yearly, many small business owners are forced to close their doors permanently, losing their livelihood, frequently where the access violation was minor and easily remedied.”

(4) It’s not a big deal if I wait until I’m sued to do something.

“The only way to avoid being sued is to fix the property. If you wait until you are sued, you will have to pay to fix it and pay your attorney, the plaintiff’s attorney, and the plaintiff,” he observes.

So, how can you learn what’s wrong with your property?

“Obtain an evaluation from a Certified Access Specialist and do it before you are sued,” Vaughan concludes.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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No doubt you’ve heard of The Americans with Disabilities Act of 1990 (the ADA) and how it has been used by lawyers to commit what amounts to legalized extortion, ripping off business owners across the country for even the smallest technical violations.

Our story will briefly explain the ADA’s purpose, and why all business owners need to take it very seriously, which was our take-away after speaking with San Francisco-based attorney Matthew S. Kenefick, regarded as one of the nation’s foremost experts on ADA law. He both practices and lectures across the country, in addition to conducting Continuing Education Seminars for the Federal Bar Association and myLawCLE.com. regarding accessibility matters.

Open to the public? Then you are subject to the ADA

“The ADA,” Kenefick explains, “is often misunderstood, and just about every business owner – especially owners of real property –should be aware of their obligations.

“The ADA is intended to enable persons with disabilities to fully participate in society. It is a noble and important statute; however, can cost business owners thousands of dollars for non-compliance.”

As we learned, what’s important to know is that the ADA applies to any owner, operator, lessor or lessee of a public “accommodation” – which can mean any facility–including small businesses – which are open to the public. New facilities must be constructed in compliance with the ADA. Those which pre-date the ADA are required to remove barriers to access “when it is readily achievable to do so, which essentially means without great difficulty or expense,” he observes.

The most common ADA violations – Drive by lawsuits

One lawyer described his “Business Plan” which prints money with ‘Drive by Lawsuits.”

“I use Google Earth to spot hotels which lack a wheelchair lift at the pool. Our clients have never visited the property, or even been in the state, but we have them claim they intend to but without that lift, won’t be able to fully benefit from the hotel stay.

“Without warning, we file suit in federal court, serve the hotel operator, and in most cases, extract attorney fees and statutory damages, which is $4,000 under California law. The hotel promises to install the chair lift, and I am becoming very wealthy.”

That attorney is not alone.

As Kenefick points out, “Accessibility lawsuits are commonplace throughout the country. The ADA requires compliance and provides for a prevailing plaintiff to recover its attorneys’ fees, which makes non-compliance potentially very expensive. Certain states, such as California, can also provide minimum statutory damages for certain ADA violations.”

Common ADA violations include:

1. Failure to install a wheelchair ramp where necessary

2. Failure to provide accessible parking spots, including signage

3. Inadequate restroom accommodations

4. Lack of handrails in walkways

5. Walkways that are too narrow or steep

6. Improper transaction counter height and depth

Common misconceptions to avoid

Kenefick outlines common misconceptions – which he calls Urban Legends – which business owners have about the ADA:
1. My building pre-dates the ADA so I am not subject to it.

“If you can bring the building into compliance without great difficulty or expense, then you must do so. But if this cannot be accomplished, then you can provide access to persons with disabilities through equivalent means, or with alternate measures.”

2. I hired a licensed architect and general contractor to design and build my building, so I can rely on them to get it right.

“That would seem logical, but accessibility is very technical and barriers can be missed by even the most competent contractors and design professionals. An accessibility specialist should be part of your design and build teams to perform plan check, minor construction supervision and a final inspection of the finished product.”

3. The building department approved my plans, said I was code compliant and issued a Certificate of Occupancy, so it complies with the ADA, right?

“Not necessarily. It is common to find that approved construction has access errors. Additionally, barriers are often the result of operational and maintenance issues which occur after design and construction.”

Is your website ADA compliant?

What most people don’t know – and took us completely by surprise – is that the ADA also applies to websites. No, you do not need to clean your glasses or pinch yourself because you aren’t dreaming.

“In most jurisdictions, if a website is an integrated extension of a business, then it will be found to be a public accommodation and subject to the ADA. Website access is a very active area of litigation,” Kenefick underscores.

There is much more to this than space allows, and we recommend taking the time to Google: Websites ADA Compliance. So, for readers who have a business website, this is a huge heads-up.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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If you have ever had a manager–perhaps your CEO–who was not only incompetent, but dishonest, manipulative, narcissistic–a first-class jerk–and wondered how such a person could have attained their position, you are not alone.

And, you’ve likely wondered if this phenomenon–people with Jekyll and Hyde personalities promoted into positions of power–is something new, or has it always been that way? Are we simply more aware of sick people who run giant corporations–sometimes into the ground–or who represent us in government?

There is an answer, a fascinating explanation for “Why So Many Incompetent Men Become Leaders,” which is the title of a new book where almost every page provides an Ah Ha moment. Psychologist Tomas Chamorro-Premuzic reveals how we are looking at the wrong things when choosing a leader or promoting an employee to upper management.

Pizazz Leads to Disaster

“We are not good at evaluating leadership potential. Too often, the way we choose leaders and evaluate personnel for advancement is often based on pizazz: charm, exhibiting confidence, intelligence, extroversion and charisma,” the author maintains, “instead of humility, empathy and a demonstrated ability to lead successfully.”

Just look at some of the disasters chosen as CEO’s who destroyed their companies: Enron, WorldCom, WeWork and so many more. I asked, “How could such nightmares have been selected?”

Chamorro-Premuzic feels it is a combination of these factors making us not good at evaluating leadership potential:

(1) For the most of our evolutionary history, the world was very simple. We lived with the same group of 15 or 20 people all our lives and leadership potential was about things that were directly observable–curiosity, quickness, courage–so ultimately we could trust our instinct.

“But as the world has become more complex the past 200 years, in selecting a leader we rely more on our intuition as it is harder to detect those attributes which make people more effective. The things we really need to evaluate today–creativity, empathy, intelligence, learning ability – you can’t just look at someone and say ‘Yeah, this person has it or doesn’t.’

(2) Charismatic, narcissistic psychopaths with Machiavellian tendencies often have social skills that allow them to manipulate others, literally becoming predators. We have enabled these people to prosper because the way we select our business leaders is fundamentally flawed. Incentives put in place to motivate people to become executives promotes and nurtures greedy and self-centered behaviors.

(3) They might fail, or get another gig as a CEO, as they have proven themselves successful as a fake with few consequences. Add to this gross overcompensation, and it is not difficult to see that we are rewarding wrong behaviors which is doing great harm to our nation.

Can Organizations do better? What Must Employees Look For?

“Employees must look for a place to work that has the better culture, rather than on brand, salary or benefits because those things wear out quickly. You want to be where, if you work diligently and have talent, you are rewarded; a meritocracy, where the best people get promoted. You need to find out if this employer rewards talent – that is a key question.”

For an entrepreneur starting out and wanting to build a company that will be here for a century or more, the author believes there is a way:

“Two key concepts will assure success and out-performing their industry competitors,” he notes. “It is by becoming talent-centric and meritocratic. This means not promoting less competent people to leadership roles. Companies that get it right will succeed, thrive, grow and still exist in 50 or 100 years, while the others will self-implode, like Enron, We-Work and many more.”

The competence of leaders who promote good cultures–behaviors where people are not just motivated to pursuing their own selfish interests–but respect others, respect the rule of law and are punished for being crooks and not rewarded.

“Bottom line is in the last several decades the way we have structured incentives has made it much more enticing for the types of individuals who aspire to these roles reflect narcissism and psychopathy.”

Looking at the United States, is he confident as to where we are headed at present?

“There are mixed indicators. As only the top 5 or 10 percent has benefitted from enormous increases in salaries, while the rest has remained stagnant, it is hard to be confident. Every time there has been inequality to a staggering degree in history it has led to some kind of unrest or revolution.

“However, to the degree that big corporations are aware of this issue, they can change, becoming more socially responsible to their employees and the public.”

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

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