The Americans with Disabilities Act (the “ADA”) was enacted into law by Congress in 1990. Title I of the ADA prevents employers from discriminating against a person with a disability, on the basis of that disability, with respect to job application procedures, hiring, advancement, discharge, compensation and other terms or conditions of employment. In 2008, after a series of U.S. Supreme Court decisions narrowed the definition of a “disability” so as to significantly limit the scope of the ADA, Congress passed the ADA Amendments Act. The purpose of the ADAAA was to broaden the definition of “disability” and thus provide coverage to a wider group of individuals.
The term “disability” means, with respect to an individual, a physical or mental impairment that substantially limits one or more of the “major life activities” of such individual. “Major life activities” include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.
The ADA requires an employer with 15 or more employees to provide “reasonable accommodation” for individuals with disabilities. A “reasonable accommodation” is any change in the work environment, or in the way things are customarily done, that enables an individual with a disability to enjoy equal employment opportunities. A reasonable accommodation need not be provided if it would impose an “undue hardship” on the operation of the business of the employer. However, an employer may not refuse to provide an accommodation just because it involves some cost. Examples of reasonable accommodations include the following:
› making existing facilities accessible;
› part-time or modified work schedules;
› reassignment to a vacant position
› acquiring or modifying equipment; and
› changing tests, training materials, or policies.
Generally, the employee has the legal duty to initiate a request for a disability accommodation, unless the employer is aware of the disability. The employer’s knowledge of the disability can be inferred if the disability is obvious. The employer is not required to provide the best accommodation available; or the specific accommodation that the employee wants. An accommodation is effective if it provides the disabled individual with the ability to participate equally in the employment application process, attain the same level of performance as co-workers, and enjoy all benefits and privileges of employment available to all employees.
An employer does not have to eliminate an “essential function” of the position in order to accommodate an individual with a disability, because a person with a disability who is unable to perform the essential function with reasonable accommodation is not a qualified individual within the meaning of the ADA. Essential functions are the fundamental job duties that an individual must be able to perform, with or without an accommodation. The employee must also satisfy the employer’s job requirements for educational background, employment experience, skills, licenses, and any other qualification standards that are job related.
Accordingly, a careful employer should assume that if an employee suffers from any sort of obvious functional limitation at work, it is covered by the ADAAA, and a reasonable accommodation should be offered. Below are recommended practices for all employers:
1. Enable all individuals to participate equally in the job application process.
An employer must provide a reasonable accommodation to a qualified applicant with a disability that will enable the individual to participate equally in the application process and to be considered for a job, unless the employer can show undue hardship. However, an employer may not ask the applicant if they will need a reasonable accommodation for the job should the applicant be hired until after a conditional offer of employment is made.
2. Be responsive to employee requests for reasonable accommodations.
The request is the first step in an informal, interactive process between the employee and the employer. Once a request is made, the employer should expeditiously determine if the employee has a disability. The employer can ask for reasonable documentation to prove the disability unless it is obvious.
3. Be aware of potential employee disabilities.
If a disability is obvious, and the employee does not ask for a reasonable accommodation, the employer should initiate a discussion with the employee regarding the need for a reasonable accommodation. If the employee declines, the employer has fulfilled its duty.
4. Carefully select reasonable accommodations.
The employer should carefully select the accommodation(s) to be provided to an employee with a disability, keeping in mind that the accommodation(s) must allow the employee to (a) obtain equal access to information communicated to employees in the workplace and (b) to participate in employer-sponsored programs and benefits in the workplace. The accommodations do not have to be the best accommodations or the accommodations that the employee wants, and do not have to be provided if they will cause the employer to suffer an undue hardship.
Monday, December 5, 2011
Wednesday, November 30, 2011
A Summary Explanation of the Doctrine of Charitable Immunity
Charitable immunity is perhaps one of the most misunderstood concepts in the law. Many charities are under the mistaken assumption that they are immune from any lawsuit simply because they operate as a non-profit and for a charitable purpose. This is a misunderstanding that can have unfortunate consequences.
In Virginia, “[a] charitable institution is immune from liability to its beneficiaries for [ordinary] negligence arising from acts of its servants and agents, but only if due care has been exercised in their selection and retention.” Ola v. YMCA of South Hampton Roads, Inc., 270 Va. 550 (2005). This statement obviously merits further analysis.
First, in order to obtain charitable immunity, the organization must be a charitable institution. To determine whether an institution is charitable, Virginia courts “apply a two-part test, examining (1) whether the organization’s articles of incorporation have a charitable or eleemosynary purpose and (2) whether the organization is in fact operated consistent with that purpose.” Davidson v. The Colonial Williamsburg Found., 817 F.Supp. 611 (E.D. Va. 1993). It is therefore imperative that non-profit organizations operating as charitable or public benefit organizations not only draft articles of incorporation that reflect their mission, but that they also operate in a manner wholly consistent with that mission.
Second, a charitable institution is immune from liability only to its beneficiaries. In Virginia, charities are not immune from liability to legal strangers. A beneficiary is someone that receives something of value, which the organization, through its charitable purposes, undertakes to provide. Egerton v. R.E. Lee Memorial Church, 395 F.2d 381 (4th Cir. 1968). As an example, the recipient of an in-home meal from a charity providing in-home meals to the sick or disabled would be considered a beneficiary of the organization’s charitable purpose. However, the victim of an automobile accident occurring on the roads while the same charity was delivering a meal would not be a beneficiary.
Membership in a class of individuals that could theoretically obtain benefits from the charity is also not enough. Thrasher v. Winand, 239 Va. 338 (1990). Merely because an individual may be eligible to receive the benefits of a particular charity does not mean that charity is immune from tort liability to that individual, unless that person actually receives the benefits of the charity.
Finally, a charitable organization is only immune from liability to its beneficiaries for ordinary negligence committed by the organization’s employees or agents. This means that the organization remains liable to its beneficiaries for acts of gross negligence, acts committed by other individuals that the organization had a duty to monitor (such as other beneficiaries) and for damages that do not result from negligence (such as a breach of contract). For example, a charitable organization may be liable to its beneficiaries for torts committed by other beneficiaries if the charity failed to properly supervise said beneficiaries. A charity can also be liable for the actions of its employees and agents if those individuals were negligently hired or negligently retained.
Going back to the in-home meal charity, the charity would likely be immune from a lawsuit by the recipient of an in-home meal for damages resulting from undercooked chicken if (1) the cook had been hired after appropriate screening; (2) the cook was not grossly negligent in cooking the chicken; and (3) the cook actually worked for or volunteered for the charity.
In conclusion, it is imperative that non-profits operating for charitable purposes take steps to ensure that they will be afforded the protections of charitable immunity. Specifically, the articles of incorporation must reflect a charitable purpose and the organization must operate consistent with that purpose. If the organization wishes to broaden or change its mission, the articles of incorporation must be amended. The organization should utilize proper hiring and training practices as well as appropriately supervise employees and agents. In addition, the organization should clearly understand and identify who actually receive the benefits of the charity.
At Gross & Romanick, we have considerable experience representing charitable organizations in matters ranging from drafting Articles of Organization to litigating tort claims. If you are forming or have formed a non-profit organization, you should retain experienced counsel to assist you in navigating the vast array of legal issues inherent in charitable organizations, including but not limited to the doctrine of charitable immunity.
In Virginia, “[a] charitable institution is immune from liability to its beneficiaries for [ordinary] negligence arising from acts of its servants and agents, but only if due care has been exercised in their selection and retention.” Ola v. YMCA of South Hampton Roads, Inc., 270 Va. 550 (2005). This statement obviously merits further analysis.
First, in order to obtain charitable immunity, the organization must be a charitable institution. To determine whether an institution is charitable, Virginia courts “apply a two-part test, examining (1) whether the organization’s articles of incorporation have a charitable or eleemosynary purpose and (2) whether the organization is in fact operated consistent with that purpose.” Davidson v. The Colonial Williamsburg Found., 817 F.Supp. 611 (E.D. Va. 1993). It is therefore imperative that non-profit organizations operating as charitable or public benefit organizations not only draft articles of incorporation that reflect their mission, but that they also operate in a manner wholly consistent with that mission.
Second, a charitable institution is immune from liability only to its beneficiaries. In Virginia, charities are not immune from liability to legal strangers. A beneficiary is someone that receives something of value, which the organization, through its charitable purposes, undertakes to provide. Egerton v. R.E. Lee Memorial Church, 395 F.2d 381 (4th Cir. 1968). As an example, the recipient of an in-home meal from a charity providing in-home meals to the sick or disabled would be considered a beneficiary of the organization’s charitable purpose. However, the victim of an automobile accident occurring on the roads while the same charity was delivering a meal would not be a beneficiary.
Membership in a class of individuals that could theoretically obtain benefits from the charity is also not enough. Thrasher v. Winand, 239 Va. 338 (1990). Merely because an individual may be eligible to receive the benefits of a particular charity does not mean that charity is immune from tort liability to that individual, unless that person actually receives the benefits of the charity.
Finally, a charitable organization is only immune from liability to its beneficiaries for ordinary negligence committed by the organization’s employees or agents. This means that the organization remains liable to its beneficiaries for acts of gross negligence, acts committed by other individuals that the organization had a duty to monitor (such as other beneficiaries) and for damages that do not result from negligence (such as a breach of contract). For example, a charitable organization may be liable to its beneficiaries for torts committed by other beneficiaries if the charity failed to properly supervise said beneficiaries. A charity can also be liable for the actions of its employees and agents if those individuals were negligently hired or negligently retained.
Going back to the in-home meal charity, the charity would likely be immune from a lawsuit by the recipient of an in-home meal for damages resulting from undercooked chicken if (1) the cook had been hired after appropriate screening; (2) the cook was not grossly negligent in cooking the chicken; and (3) the cook actually worked for or volunteered for the charity.
In conclusion, it is imperative that non-profits operating for charitable purposes take steps to ensure that they will be afforded the protections of charitable immunity. Specifically, the articles of incorporation must reflect a charitable purpose and the organization must operate consistent with that purpose. If the organization wishes to broaden or change its mission, the articles of incorporation must be amended. The organization should utilize proper hiring and training practices as well as appropriately supervise employees and agents. In addition, the organization should clearly understand and identify who actually receive the benefits of the charity.
At Gross & Romanick, we have considerable experience representing charitable organizations in matters ranging from drafting Articles of Organization to litigating tort claims. If you are forming or have formed a non-profit organization, you should retain experienced counsel to assist you in navigating the vast array of legal issues inherent in charitable organizations, including but not limited to the doctrine of charitable immunity.
Monday, November 28, 2011
Non-compete Provision - Revisited and Reversed by Virginia Supreme Court
On November 4, 2011, the Virginia Supreme Court issued an important opinion on the enforceability of non-compete agreements in Virginia. In Home Paramount Pest Control Companies, Inc. v. Shaffer, et al., the Supreme Court affirmed the Fairfax County Circuit Court's prior determination that a non-compete provision in a former employee's employment agreement was overbroad and, therefore, unenforceable.
In 1989, in a case involving the same employer, the Supreme Court ruled that an identical provision in an employment agreement was enforceable. Accordingly, the Supreme Court reversed its previous stance, demonstrating the shift in the law that has occurred over the last 22 years. The Supreme Court justified its decision on the basis of several other cases that have been decided since 1989, which cases clarified the law and created the framework from which the 2011 case was decided.
The Supreme Court explained that non-compete provisions are only enforceable if they are narrowly drawn to protect the employer's legitimate business interest, are not unreasonably burdensome on an employee's ability to earn a livelihood and are not against public policy. The employer bears the burden of proving each of these factors. Virginia Courts will consider the function, geographic scope and duration elements of the non-compete when evaluating whether the employer has met its burden. In assessing the "function" element, a Virginia Court will determine whether the prohibited activity is of the same type as that actually engaged in by the former employee while employed by the employer.
The non-compete provision being considered by the Court stated as follows:
The Supreme Court determined that the "function" element of the non-compete was too broad since it prevented the employee from working in the pest control industry in any capacity (as opposed to preventing him from performing the same services he provided for the employer). The Supreme Court explained that there are a number of "reasonably conceivable" activities that the employee would be prevented from performing for a competitor (i.e. janitorial services or bookkeeping) which the former employer has no legitimate business interest in prohibiting. The Supreme Court went on to explain that if the "function" element is clearly overbroad, the "geographic scope" and "duration" elements of the non-compete cannot save the provision, and the entire non-compete agreement will not be enforced.
This case makes it abundantly clear that in Virginia, the Courts will not enforce non-compete provisions which prohibit a former employee from performing any activities for a competitor, even unlikely or hypothetical activities. For a non-compete agreement to be enforceable, the employee can only be restricted from performing specific services that are competitive to the services he/she provided for the former employer.
If you need a non-compete agreement to be prepared, reviewed, enforced or litigated, contact the law firm of Gross & Romanick at 703-273-1400. Visit our website at: www.gross.com.
In 1989, in a case involving the same employer, the Supreme Court ruled that an identical provision in an employment agreement was enforceable. Accordingly, the Supreme Court reversed its previous stance, demonstrating the shift in the law that has occurred over the last 22 years. The Supreme Court justified its decision on the basis of several other cases that have been decided since 1989, which cases clarified the law and created the framework from which the 2011 case was decided.
The Supreme Court explained that non-compete provisions are only enforceable if they are narrowly drawn to protect the employer's legitimate business interest, are not unreasonably burdensome on an employee's ability to earn a livelihood and are not against public policy. The employer bears the burden of proving each of these factors. Virginia Courts will consider the function, geographic scope and duration elements of the non-compete when evaluating whether the employer has met its burden. In assessing the "function" element, a Virginia Court will determine whether the prohibited activity is of the same type as that actually engaged in by the former employee while employed by the employer.
The non-compete provision being considered by the Court stated as follows:
The Employee will not engage directly or indirectly or concern himself/herself in any manner whatsoever in the carrying on or conducting the business of exterminating, pest control, termite control and/or fumigation services as an owner, agent, servant, representative, or employee, and/or as a member of a partnership and/or as an officer, director or stockholder of any corporation, or in any manner whatsoever, in any city, cities, county or counties in the state(s) in which the Employee works and/or in which the Employee was assigned during the two (2) years next preceding the termination of the Employment Agreement and for a period of two (2) years from and after the date upon which he/she shall cease for any reason whatsoever to be an employee of [Home Paramount].
The Supreme Court determined that the "function" element of the non-compete was too broad since it prevented the employee from working in the pest control industry in any capacity (as opposed to preventing him from performing the same services he provided for the employer). The Supreme Court explained that there are a number of "reasonably conceivable" activities that the employee would be prevented from performing for a competitor (i.e. janitorial services or bookkeeping) which the former employer has no legitimate business interest in prohibiting. The Supreme Court went on to explain that if the "function" element is clearly overbroad, the "geographic scope" and "duration" elements of the non-compete cannot save the provision, and the entire non-compete agreement will not be enforced.
This case makes it abundantly clear that in Virginia, the Courts will not enforce non-compete provisions which prohibit a former employee from performing any activities for a competitor, even unlikely or hypothetical activities. For a non-compete agreement to be enforceable, the employee can only be restricted from performing specific services that are competitive to the services he/she provided for the former employer.
If you need a non-compete agreement to be prepared, reviewed, enforced or litigated, contact the law firm of Gross & Romanick at 703-273-1400. Visit our website at: www.gross.com.
Tuesday, November 22, 2011
Successful Defenses to Virginia DWI/DUI
A November 7, 2011 article in the Fairfax News shows that “some 32,760 drunken driving arrests were made across Virginia in 2010, which resulted in 29,063 convictions.” Based upon these statistics, the statewide conviction rate for individuals charged with DWI is approximately 88.7%. This, of course, begs the question: what happens in the other 11.3% of cases.
Presumably, some of the 3,697 remaining cases resulted in plea bargains to lesser offenses such as reckless driving. Others were certainly dismissed after trial upon a finding of not guilty. How did these individuals manage to defy the odds and avoid a conviction for DWI after being charged?
There are a number of reasons why an individual may be found not guilty of a DWI. The situation may be such that the individual charged with DWI was in an accident, the police did not witness the accident and the other driver involved in the accident fails to appear in court. In this situation, if the defendant did not make any statements, there is no evidence that the defendant was driving the vehicle.
In order to stop a vehicle on the highways, police must have reasonable suspicion that the vehicle is involved in criminal activity or has committed a traffic violation. If the police stop a vehicle because they have nothing more than a hunch that the driver may be intoxicated, the traffic stop itself is unlawful and everything that follows will be suppressed by a court, including the arrest for DWI.
In order to arrest an individual, police must have probable cause to believe that the individual has committed an offense. Typically, in the context of DWI arrests, this decision is based upon driving behavior and field sobriety tests. Some officers will also utilize field (or preliminary) breath testing (“PBT”). If an individual performs well on field sobriety tests and the officer makes a decision to arrest based upon a PBT result, that arrest may be unlawful if the PBT was not properly administered and the individual was not properly advised of their rights regarding the PBT.
Sometimes, even if the field sobriety tests do give rise to probable cause for the arrest, they are not sufficient, by themselves, to prove beyond a reasonable doubt that an individual was driving while intoxicated. If the defendant refuses a station breath test and the field tests are marginal, there may be insufficient evidence to find the defendant guilty of DWI beyond a reasonable doubt.
Other issues that could result in acquittals include unconstitutionally deployed checkpoints, problems with breath analysis machines, improper administration of implied consent laws and a host of constitutional issues regarding the search and seizure of individuals on the highways.
At Gross & Romanick, we pride ourselves on zealous defense of individuals charged with serious traffic offenses, including DWI. We are well versed in all the issues that can result in an acquittal or a reduction to a lesser offense. In 2011 (through November 22), clients of Gross & Romanick, P.C., on average, bested the statewide conviction rate by over 25%. More specifically, 40% of Gross & Romanick's DWI clients were not convicted of a DWI. In 2010, the conviction rate for clients of Gross & Romanick was closer to the statewide average, but over half of those individuals were charged with an enhanced DWI and were convicted of something less than their original charge.
An enhanced DWI charge is a DWI charge that is somehow more serious than a standard DWI charge. If a BAC is over .15, there is mandatory jail time and a requirement for an ignition interlock device. An enhanced DWI charge also includes situations where individuals are charged with a 2nd or subsequent offense within the past 10 years. In situations where individuals have been charged with enhanced DWI, Gross & Romanick has been very successful in obtaining a reduction of the charge to a 1st offense or obtaining a reduction of the BAC.
There are, obviously, a great many factors that influence the results of a particular case: the presence of reasonable suspicion for the traffic stop, the existence of probable cause to arrest, maintenance records for breath machines and the presence of any of the multitude of issues discussed in this article as well as some issues that are beyond the scope of this article. Every case is different and past results cannot predict future results but one cannot help but wonder if the statewide conviction rate would be any lower if some of those 29,063 individuals had retained experienced defense counsel such as the attorneys at Gross & Romanick, P.C.
Presumably, some of the 3,697 remaining cases resulted in plea bargains to lesser offenses such as reckless driving. Others were certainly dismissed after trial upon a finding of not guilty. How did these individuals manage to defy the odds and avoid a conviction for DWI after being charged?
There are a number of reasons why an individual may be found not guilty of a DWI. The situation may be such that the individual charged with DWI was in an accident, the police did not witness the accident and the other driver involved in the accident fails to appear in court. In this situation, if the defendant did not make any statements, there is no evidence that the defendant was driving the vehicle.
In order to stop a vehicle on the highways, police must have reasonable suspicion that the vehicle is involved in criminal activity or has committed a traffic violation. If the police stop a vehicle because they have nothing more than a hunch that the driver may be intoxicated, the traffic stop itself is unlawful and everything that follows will be suppressed by a court, including the arrest for DWI.
In order to arrest an individual, police must have probable cause to believe that the individual has committed an offense. Typically, in the context of DWI arrests, this decision is based upon driving behavior and field sobriety tests. Some officers will also utilize field (or preliminary) breath testing (“PBT”). If an individual performs well on field sobriety tests and the officer makes a decision to arrest based upon a PBT result, that arrest may be unlawful if the PBT was not properly administered and the individual was not properly advised of their rights regarding the PBT.
Sometimes, even if the field sobriety tests do give rise to probable cause for the arrest, they are not sufficient, by themselves, to prove beyond a reasonable doubt that an individual was driving while intoxicated. If the defendant refuses a station breath test and the field tests are marginal, there may be insufficient evidence to find the defendant guilty of DWI beyond a reasonable doubt.
Other issues that could result in acquittals include unconstitutionally deployed checkpoints, problems with breath analysis machines, improper administration of implied consent laws and a host of constitutional issues regarding the search and seizure of individuals on the highways.
At Gross & Romanick, we pride ourselves on zealous defense of individuals charged with serious traffic offenses, including DWI. We are well versed in all the issues that can result in an acquittal or a reduction to a lesser offense. In 2011 (through November 22), clients of Gross & Romanick, P.C., on average, bested the statewide conviction rate by over 25%. More specifically, 40% of Gross & Romanick's DWI clients were not convicted of a DWI. In 2010, the conviction rate for clients of Gross & Romanick was closer to the statewide average, but over half of those individuals were charged with an enhanced DWI and were convicted of something less than their original charge.
An enhanced DWI charge is a DWI charge that is somehow more serious than a standard DWI charge. If a BAC is over .15, there is mandatory jail time and a requirement for an ignition interlock device. An enhanced DWI charge also includes situations where individuals are charged with a 2nd or subsequent offense within the past 10 years. In situations where individuals have been charged with enhanced DWI, Gross & Romanick has been very successful in obtaining a reduction of the charge to a 1st offense or obtaining a reduction of the BAC.
There are, obviously, a great many factors that influence the results of a particular case: the presence of reasonable suspicion for the traffic stop, the existence of probable cause to arrest, maintenance records for breath machines and the presence of any of the multitude of issues discussed in this article as well as some issues that are beyond the scope of this article. Every case is different and past results cannot predict future results but one cannot help but wonder if the statewide conviction rate would be any lower if some of those 29,063 individuals had retained experienced defense counsel such as the attorneys at Gross & Romanick, P.C.
Monday, November 21, 2011
The Importance of By-Laws to Resolve Governance Battles
Non-profit organizations need to have a clear governance structure. One reason is that it is not uncommon for the members, officers and/or directors of non-profit organizations to engage in power struggles, particularly if the organization has grown from a small, cohesive group to a larger, loosely organized membership. In some cases, a single member or a small group of members who disagree with the organization’s current management or general objectives can create a significant rift in the organization by publicly denouncing the current administration (or worse, purporting to assert control over the organization). As in any organization, a certain amount of turnover and change can be very positive, but a power struggle may destroy the organization itself. In order to minimize governance battles, the organization’s governing documents need to be strong enough to prevent dissention amongst the members, officers or directors from crippling the organization’s stated purpose (and perhaps, its existence).
The best way to proactively eliminate the risk of organizational anarchy is for the organization to adopt clear, coherent and thorough by-laws. In our experience, many non-profit organizations fail to adopt by-laws with mechanisms designed to provide clear power demarcations and methods for resolution of control issues. In addition, many organizations are using outdated by-laws which were not written for the organization as it is currently structured and operated, or for the technological age, when e-mails and social media can improve communication but can also facilitate membership dissention on a very public platform.
At a minimum, the by-laws of every non-profit organization should clearly set out the following:
1. The different classes of membership;
2. The rights and limitations which attach to each class of membership;
3. The individuals eligible to be members of each class of membership;
4. The procedure for applying for membership;
5. The procedure for admitting members;
6. The date, time and place of meetings of the membership;
7. The procedure for submitting issues to a vote of the membership;
8. The minimum votes required for the organization to take action;
9. The number of directors and officers;
10. The individuals eligible to be elected as officers and directors;
11. The procedure for nominating individuals for office or directorship;
12. The procedure for electing officers and directors (time, place, manner of voting, proxies, quorum requirements, etc.);
13. The terms of office for officers/directors and eligibility for re-election;
14. The procedure for expelling and replacing officers and directors; and
15. The procedures for amending the by-laws.
The by-laws need to be more comprehensive than our brief outline above. However, if the above-stated items are clearly set out in the by-laws, such that there can be no disagreement about how natural shifts in power must occur, then the organization should be able to control the damage that can result from membership discord. Also, the bylaws should not be a static document, and should be subject to adaptation as the organization evolves.
The attorneys at Gross & Romanick have substantial experience drafting by-laws for non-profit organizations. Whether the organization has recently formed or has been in existence for many years, we can carefully construct by-laws to suit the goals of its members, taking into account the unique aspects of the organization.
The best way to proactively eliminate the risk of organizational anarchy is for the organization to adopt clear, coherent and thorough by-laws. In our experience, many non-profit organizations fail to adopt by-laws with mechanisms designed to provide clear power demarcations and methods for resolution of control issues. In addition, many organizations are using outdated by-laws which were not written for the organization as it is currently structured and operated, or for the technological age, when e-mails and social media can improve communication but can also facilitate membership dissention on a very public platform.
At a minimum, the by-laws of every non-profit organization should clearly set out the following:
1. The different classes of membership;
2. The rights and limitations which attach to each class of membership;
3. The individuals eligible to be members of each class of membership;
4. The procedure for applying for membership;
5. The procedure for admitting members;
6. The date, time and place of meetings of the membership;
7. The procedure for submitting issues to a vote of the membership;
8. The minimum votes required for the organization to take action;
9. The number of directors and officers;
10. The individuals eligible to be elected as officers and directors;
11. The procedure for nominating individuals for office or directorship;
12. The procedure for electing officers and directors (time, place, manner of voting, proxies, quorum requirements, etc.);
13. The terms of office for officers/directors and eligibility for re-election;
14. The procedure for expelling and replacing officers and directors; and
15. The procedures for amending the by-laws.
The by-laws need to be more comprehensive than our brief outline above. However, if the above-stated items are clearly set out in the by-laws, such that there can be no disagreement about how natural shifts in power must occur, then the organization should be able to control the damage that can result from membership discord. Also, the bylaws should not be a static document, and should be subject to adaptation as the organization evolves.
The attorneys at Gross & Romanick have substantial experience drafting by-laws for non-profit organizations. Whether the organization has recently formed or has been in existence for many years, we can carefully construct by-laws to suit the goals of its members, taking into account the unique aspects of the organization.
Tuesday, November 8, 2011
Beware When Giving a Reference
It is more dangerous than ever to speak with a potential employer of your former employee. The Fairfax County Circuit Court in the case of Elsami v. Global One Communications, Inc. (Fairfax County Circuit Court, Law # 174096, January 11, 1999), recently permitted a defamation action to proceed against a corporation that responded to a reference inquiry.
In the Elsami case, a former employee provided his prior employer as a reference. The employee was in a managerial position in charge of the day to day running of the business in Malaysia. When contacted by a potential new employer, the former employer is alleged to have stated that the employee "lost his temper" and "just did not fit in". The employee claims that these statements cost him the potential job, so he sued his former employer for defamation.
The Fairfax County Circuit Court is allowing the case to proceed toward trial, finding that the statements made by the former employer were statements of fact, not opinion, and could have impugned the employee's professional reputation and negatively impacted his profession by preventing him from obtaining new employment.
What is an employer to do?
Although Mr. Elsami must still prove that the statements of fact were false, the Fairfax case illustrates the danger of providing references for former employees. Any time you speak with someone about a former employee, you place yourself and your company at risk of being sued. Moreover, the distinction between permissible negative opinions and impermissible factual misstatements is too difficult to determine when giving a negative reference.
The safest route is to adopt a company policy not to provide any information beyond position held and dates of employment. Any additional information and you may find yourself in expensive litigation defending your statements.
Theoretically you could obtain a written waiver and release from your former employee before speaking with third parties. Another alternative is to only give written references directly to the employee, which they can distribute to potential employees if they so choose. The safest course is to provide no statement at all.
***
The above is not meant to replace legal counsel. If you'd like to speak to one of our attorneys, please contact us at 703-273-1400 or fill out our information request form.
In the Elsami case, a former employee provided his prior employer as a reference. The employee was in a managerial position in charge of the day to day running of the business in Malaysia. When contacted by a potential new employer, the former employer is alleged to have stated that the employee "lost his temper" and "just did not fit in". The employee claims that these statements cost him the potential job, so he sued his former employer for defamation.
The Fairfax County Circuit Court is allowing the case to proceed toward trial, finding that the statements made by the former employer were statements of fact, not opinion, and could have impugned the employee's professional reputation and negatively impacted his profession by preventing him from obtaining new employment.
What is an employer to do?
Although Mr. Elsami must still prove that the statements of fact were false, the Fairfax case illustrates the danger of providing references for former employees. Any time you speak with someone about a former employee, you place yourself and your company at risk of being sued. Moreover, the distinction between permissible negative opinions and impermissible factual misstatements is too difficult to determine when giving a negative reference.
The safest route is to adopt a company policy not to provide any information beyond position held and dates of employment. Any additional information and you may find yourself in expensive litigation defending your statements.
Theoretically you could obtain a written waiver and release from your former employee before speaking with third parties. Another alternative is to only give written references directly to the employee, which they can distribute to potential employees if they so choose. The safest course is to provide no statement at all.
***
The above is not meant to replace legal counsel. If you'd like to speak to one of our attorneys, please contact us at 703-273-1400 or fill out our information request form.
Thursday, October 20, 2011
Subscribe to:
Posts (Atom)