By Katherine M. Flett
The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) was enacted for the purpose of broadening the scope of the American with Disabilities Act (ADA). The ADAAA expanded the definitions of “major life activities” and “substantially limits,” while also increasing protection for those who are “regarded as” having a disability. Over the years, the ADAAA has been criticized for being too broad. However, three circuits have now rejected the idea that obesity, without an underlying physiological disorder or condition, is a disability under the ADA.
In Morriss v. BNSF Ry. Co, Case No. 14-3858 (8th Cir. April 5, 2016), the Eighth Circuit Court of Appeals affirmed a Nebraska district court’s decision, ruling that for obesity to constitute an “impairment” under the ADA, one must prove that the obesity is the result of a physiological disorder or condition.
In March 2011, Melvin Morriss, applied for a machinist position with BNSF Railway Company (“BNSF”). Morriss was extended an offer of employment contingent on a satisfactory medical review. A subsequent physical examination indicated that Morriss was 5’10”, 285 pounds, with a BMI of 40.9. BNSF’s policy was to not hire obese (defined as having a BMI of 40 or higher) applicants for safety sensitive positions. Therefore, Morriss was notified that he would not qualify for the safety sensitive machinist position due to his obesity. Continue reading »
05/20/16 11:53 AM
Employment Law | Comment (0) |
Eighth Circuit Rejects Obesity as an Impairment Under the ADA: Morriss v. BNSF Railway Company
By Ruth Binger
Website owners, as technology providers, have a dilemma as they wish to facilitate business in the most efficient way. Maintaining the integrity of their software by controlling the scope of the limited software license they are offering is essential to protecting their copyrighted technology.
Given website owners are offering their services to the world, a pressing concern is a disgruntled website user who sues via a class action in the user’s home state. The issue for the courts is how many dispute resolution pre-existing legal rights a website owner can remove through its browsewrap contract, often called “Terms and Conditions,” if the website user receives little to no notice of its existence or has no knowledge that such a notice refers to a binding contract.
If you look carefully at a website you frequently use, you are likely to see various notices in capital letters in highlighted colors referencing that your use of the website is an automatic agreement to the website policies of privacy and terms and conditions. You may not know that this means you are binding yourself to a contract. If you do click on that bothersome notice link, you will most likely notice a nonnegotiable contract that contains a choice of law, agreement to arbitrate, and/or class action waiver. Given the limited attention span of a website user, most users will not click on the link. This is especially true if the website owner has buried the notice at the very end of the page, made it as inconspicuous as possible, and does not require any action to proceed with using the website. Continue reading »
04/19/16 9:16 AM
Business Law, Digital Media, Manufacturing and Distribution | Comment (0) |
Best Practices for Avoiding Misleading Browsewrap and Clickwrap Agreements in Cyberspace
By Marcia Swihart Orgill
If a married couple files a joint federal income tax return, both spouses are jointly and severally liable for the full amount of federal income tax liability for that tax year. Joint and several liability means the Internal Revenue Service can collect the full amount of income tax from either or both spouses, regardless of whether the income tax liability is attributable to the separate income of only one spouse. A divorce does not prevent the IRS from collecting the entire unpaid income tax liability from either of the spouses. Under certain circumstances, a spouse may obtain relief from joint and several tax liability by timely filing Form 8857 and proving a claim for innocent spouse relief, separate liability or equitable relief.
By contrast, a married taxpayer who files a combined Missouri income tax return is liable only for the amount of Missouri income tax liability attributable to his or her own income. A taxpayer’s separate income includes his or her earned income such as wages, income from his or her own separately owned property, and his or her portion of income from jointly owned property, such as interest from a jointly owned financial account.
Missouri law requires a married couple who files a joint federal income tax return to file a combined Missouri income return. The income of each spouse is reported separately on the combined return. The Missouri tax due on each spouse’s income is separately determined and then added together and reported on the return.
However, in assessing unpaid income tax liability, the Missouri Department of Revenue does not track which spouse’s income gave rise to the liability. Instead, in practice the Missouri Department of Revenue assesses the entire income tax liability against each spouse, even if the tax liability is only attributable to the income of one spouse. Continue reading »
04/18/16 6:53 AM
Tax | Comment (0) |
Separate Spousal Tax Liability for Missouri Income Taxes
By Joseph R. Soraghan
In the JOBS Act adopted in April 2012, Congress required the Securities and Exchange Commission (“SEC”) to adopt rules legalizing (i.e., exempting from the requirement to register with the SEC) the offer and sale of securities by small business issuers (which cannot afford registered public offerings) using mass media, to-wit: the Internet, social media, etc. Historically, both state and federal exemptions required “privateness” and forbade “general solicitation.”
On October 30, 2015, the SEC, in a 686 page release, finally adopted rules (see pages 547-686) to allow investment crowdfunding (the use of mass media to make offers and sales to non-accredited investors, i.e., persons with less than $1 million net worth and incomes under $200,000 annually). The rules will become effective in April 2016.
Supporters argue that these rules simply bring the offering and sales of securities into the modern age of mass media and allow persons of limited means to participate in the great boom of entrepreneurship. Critics, on the other hand, point out that those are the very persons who are the least investment sophisticated and the most vulnerable to financial fraud.
What Was Available Before Investment Crowdfunding?
Continue reading »
12/11/15 1:33 PM
Business Law, Emerging Business, Intellectual Property, Manufacturing and Distribution | Comments Off on Investment Crowdfunding Will Be Legal But Will It Be an Improvement? |
Investment Crowdfunding Will Be Legal But Will It Be an Improvement?
By Joseph R. Soraghan
To much ballyhoo, on October 30, 2015, the Securities and Exchange Commission (“SEC”) finally adopted rules to allow investment crowdfunding (which the SEC calls “Regulation Crowdfunding”). That is, it allows the use of mass media (Internet, etc.) (called “general solicitation”) to make offers and sales to non-accredited investors. Those are persons with less than $1 million net worth and annual incomes under $200,000. (Under present rules, general solicitation may be used only to solicit purchases from “accredited” investors.) The new rules will not become effective before April 2016.
“Regulation Crowdfunding”: A Method for True Investment Crowdfunding
Conceptually, allowance of general solicitation to solicit non-accredited investors is a sea change, in direct conflict with the basic investor protection philosophy of the SEC and state regulators since adoption of the Securities Act of 1933. The actual benefit of the new rules, however, is in some doubt. Continue reading »
12/3/15 4:05 PM
Business Law, Emerging Business, Intellectual Property, Manufacturing and Distribution | Comments Off on Regulation Crowdfunding: Is It Right for You? |
Regulation Crowdfunding: Is It Right for You?
By Jeffrey R. Schmitt
The popularity of vacationing or traveling via bed and breakfast lodging, or, as more popularly known, “BnB,” is rapidly on the rise. The concept allows an owner with a vacant house, condominium, apartment, or even a single room, to create investment property by listing the space on a website for rent to vacation and business travelers, often for very short stays and possibly as short as a single night. Property owners can make a little extra money, and travelers can often find better accommodations at lower prices. Add in the ease of use by listing your space on the internet – airbnb.com and vrbo.com are among the most popular sites – and this is a quickly expanding industry.
Frequently, the phenomenon overlooks the legal ramifications of being a short-term landlord, or essentially acting as a hotel or lodge. Some local governments are addressing the issue and requiring that property owners apply for permitting, pay taxes, or maintain compliance with other local rules relating to lodging or short-term leasing. However, the Airbnb concept also runs afoul of various considerations applicable to community associations, specifically condominiums and townhomes. Continue reading »
10/15/15 12:01 PM
Condominium and Homeowner Associations, Real Estate | Comments Off on No Vacancy – When Bed & Breakfasts Run Afoul of Condominium Communities |
No Vacancy – When Bed & Breakfasts Run Afoul of Condominium Communities
By Ruth Binger
The U.S. Supreme Court held in Obergefell v. Hodges that there is a constitutional right to marry and that the 14th Amendment’s Due Process and Equal Protection clauses require states to allow same-sex marriages and to recognize same-sex marriages lawfully performed in other states.
The Obergefell decision is not an employment decision. However, the Equal Protection language in the opinion will require companies to make some changes to their employment practices, training, manuals, forms, beneficiary designations, and other personnel policies going forward.
Obergefell followed the Supreme Court’s decision in United States v. Windsor which held that the federal government’s interpretation of “marriage” and “spouse” must apply to both opposite sex and same-sex unions. Windsor made employee benefits like the Family Medical and Leave Act (“FMLA”), COBRA, and the Employee Retirement Income Security Act (“ERISA”) available to all same-sex spouses of federal employees.
What Does Obergefell Mean To Employers? Continue reading »
07/16/15 8:50 AM
Business Law, Employment Law, Manufacturing and Distribution | Comments Off on Effect of 2015 SCOTUS Same-Sex Marriage Decision on Employment Practices |
Effect of 2015 SCOTUS Same-Sex Marriage Decision on Employment Practices
By Ruth Binger
The labor landscape has changed and it will continue to change. The average worker has become increasingly responsible for the more traditional aspects of the employment relationship including health insurance, pension, and job security. There also has been a substantial increase in the numbers of part-time workers, workers/employees classified as exempt from overtime premium pay, and workers misclassified as independent contractors. Commentary and theory abounds as to the reason for the loss of full-time jobs, much less middle class jobs, including outsourcing, computers/software, Affordable Care Act, robots, automation, high taxes, globalization, etc.
Suffice it to say, a legal backlash is building against this new terrain. Proposed restrictive legislation, administrative rule-making, and recent court cases show evidence of a concerted attempt to re-create or retrieve the job security and wages and benefits of days gone by.
Most recently, the U.S. Department of Labor (“DOL”), in a long-awaited announcement on June 30, 2015, proposed a new rule that will decrease the ability of companies to classify their employees as exempt from premium overtime wages under the Fair Labor Standards Act (“FLSA”).
Backdrop – Increase in Part-time Workers
This legal backlash is due, in part, to other recent and dramatic changes in the number of part-time workers:
- Since 2007, the number of “involuntary” part-time workers has doubled.
- Employers are increasingly using software tools such as the use of just-in-time scheduling software. Estimates are that 17 percent of the work force is now employed by companies that use just-in-time scheduling software. Employees accordingly work fluctuating work weeks with uncertain schedules.
- Another contributing factor is business practices, such as the use of “call in shifts” where the employer does not confirm need for services until two hours before start time.
In response, a host of bills are being introduced in many states and municipalities to legislate predictable scheduling.
Backdrop – Misclassification
Likewise, misclassification of workers has also increased. Companies are attempting to shift work from employees to independent contractors, especially in the construction, transportation, and cab industries using a variety of strategies. Continue reading »
07/15/15 3:43 PM
Business Law, Employment Law, Manufacturing and Distribution | Comments Off on Exempt Employees, Overtime, and the Proposed DOL Rule for 2016 |
Exempt Employees, Overtime, and the Proposed DOL Rule for 2016
By David W. Morin
The federal Occupational Safety and Health Administration (OSHA) implemented rules on January 1, 2015 which place additional requirements on employers under OSHA jurisdiction (and with greater than 10 employees) to report occupational injuries and illnesses. This new data is going to be made public, which would allow individuals, companies, or labor unions to view injury reports submitted by health care providers.
Currently, employers in Missouri are required to report work injuries to the state if an employee sustains an injury at work requiring medical treatment beyond immediate first aid. The information is not made public, but is rather provided only to the state as a reporting requirement. In fact, workers’ compensation trials or hearing are not generally open to the public. Express consent is usually required of the parties or their attorneys for a member of the general public to watch these court proceedings.
Under the current OSHA regulations, fatalities must be reported within eight hours. The regulations add additional requirements and require all employers to report work-related in-patient hospitalizations, as well as amputations or incidents where someone loses an eye, within 24 hours. Continue reading »
05/12/15 10:53 AM
Business Law, Employment Law, Workers' Compensation | Comments Off on OSHA Finalizes Rules Requiring Health Care Employers to Report Injuries |
OSHA Finalizes Rules Requiring Health Care Employers to Report Injuries