Connecticut's Paid Sick Leave Act (Pt. 3): Of Documentation & Discipline

This week, I've been taking a pretty close look at the new Connecticut Paid Sick Leave Act that is set to impact the hospitality industry in Connecticut starting January 1, 2012.  I've already looked at the inherent ambiguity in the new statute with respect to simply figuring out who is covered and I've taken some time to pick apart the intricacies of the 680-hour threshold for using paid time off.  I wanted to take a few last minutes on this issue to go through a couple of other points that I think could be issues for the amusement and tourism industry in trying to figure out how to comply with this statute.  Namely - how do you avoid abuse of the system?

As I view it, the new Paid Sick Leave law is ripe for abuse in the seasonal employment context.  Why?  Because the sick time accrued is on a "use-it-or-lose-it basis."  While, as I discussed previously, a seasonal employee can carry over their hours worked into the next season, that same employee cannot carry over any sick time that has been accrued.  Moreover, given that, unlike year round employees, seasonal employees know well in advance when their absolute last day of work is going to be, there is an incentive built into the system to encourage seasonal employees to burn sick time.  So what can you do about it?

Connecticut's Paid Sick Leave Act (Part 2): The Magic Number Problem or Why 2013 Will Be Worse Than 2012

As I mentioned yesterday, I’m taking a good look this week at Connecticut’s new Paid Sick Leave Law, which goes into effect January 1, 2012.  Yesterday, I commented on afundamental problem with the law (and its recently issued guidance) withrespect to figuring out if an amusement or tourism employee even qualifies forpaid sick leave in the first place.  Today, though, I want to look at an issue that will uniquely and significantly impact seasonal employers in our industry:  the Magic Number 680.

By now, most employers are probably aware of the significance of this figure.  In case you are not, however, it is one of two threshold "hours-worked" requirements that an employee has to meet before he or she is entitled to use paid sick leave.  It sounds simple and straightforward enough:  an employee is not entitled to use any paid sick leave until 1) he or she has worked a minimum of 680 hours for an employer and 2) the employee has worked an average of ten hours per week in the preceding calendar quarter.  We’ll get to that second one in a few minutes, but for now, I want to concentrate on the first - specifically a facet of the 680-hour rule that is easy to miss and is going to impact seasonal employers and their bottom line in a big way starting in the summer of 2013.  The Connecticut Department of Labor sums it up nicely:  the “680 hour requirement is a one time requirement.  Once service workers meet the 680 hours, they never have to meet it again for the same employer.”  This has potentially huge implications for seasonal operations, not in 2012, but in 2013.

Connecticut's Paid Sick Leave Law: Why Amusement & Tourism Employers Can't Figure Out Who Is Covered.

The Connecticut Department of Labor recently issued its official guidance and interpretation of the newly enacted Connecticut Paid Sick Leave Act, which officially takes effect January 1, 2012.  I've previously written about this act, and being from Connecticut, I have been eagerly awaiting this official interpretation.  On the upside, the DoL's interpretation did help to clarify certain issues that were woefully unclear in the statutory text.  On the downside, the interpretation confirms for me that this new act is going to be a nightmare for Connecticut seasonal employers in the amusement and tourism industry.  The new law imposes several new obligations on all employers, but, with respect to seasonal employers, particularly those in the amusement and tourism industry, this new law is going to pose some unique legal issues that could make compliance daunting.

Connecticut is the only state in the country to have such a law right now, and thus the legislature, the Department of Labor, and (eventually) the courts will be working from a blank slate when it comes to enforcement and interpretation.  Moreover, this legislation is being watched by sister states as a potential model for similar legislation elsewhere.  Given the absence of any history with this kind of legislation, it is virtually certain that Connecticut employers and regulators will face a number uncertainties over the next year as everyone works to "get the bugs out" of this new law.   This week, I'll be doing a few pieces on some of the more troubling and controversial aspects of this new legislation, particularly with respect to the seasonal amusement and tourism industry in our state.  

We start with a really basic question, Who Gets Paid Sick Leave Under The Act?

UPDATE: Wallace v. SeaWorld's Roadmap For Reversing Nalwa v. Cedar Fair

Last week I attended IAAPA Expo 2011 in beautiful (and much warmer than Connecticut) Orlando, Florida.  I think all who attended can agree that it was a great time and a fantastic networking opportunity.  To all of you who I met there, I hope to see you soon.  To all of you who I didn't, I hope to meet you soon.

While at IAAPA, I had the opportunity to speak with several of my colleagues, both in and out of any one of the kazillion educational sessions IAAPA offers, and specifically to speak with some of them about last summer's decision from the California federal court in Wallace v. Busch Entertainment.  I've previously written about this case to express my belief that it could contain a subtle signal that at least one federal judge in California does not believe that the Nalwa decision is long for this world.  (I've also written on the Nalwa decision previously - you can find that here).  I continue to believe that the absence of any mention of the Nalwa ruling in Wallace may speak volumes about its perceived persuasiveness.  However a colleague of mine, who practices in California, was not as convinced that there was any message or implication in the Wallace ruling.  According to my colleague, the absence of Nalwa in the Wallace decision is not attributable to the federal court's potential belief that Nalwa is a poor decision, but is simply a product of a California appellate rule that prohibits any court from citing the Nalwa decision once the California Supreme Court has agreed to review the decision.  Well - not being versed in California appellate rules (remember folks, I practice in Connecticut and the two states are PRETTY different), this stopped me in my tracks ... momentarily.  After all, if the Wallace court didn't cite to Nalwa because it wasn't allowed to - where does that leave my entire premise.  Well, I'm happy to report that my premise is safe and sound, and in fact, even assuming my colleague is correct about this rule, even stronger than it was before I knew about the rule.  Keep reading after the jump if you want to know why. 

IAAPA 2011: Five Sessions That Could (Unintentionally) Help You Avoid Legal Trouble (and why)

Well, its Day Two of my special buildup to IAAPA 2011.  Yesterday, I put together my five recommendations for legally-themed educational sessions at this year's expo.  Today, I've assembled a list of five non-legal seminars that could, as a fortunate side effect, help you avoid legal trouble down the line.  These seminars are not, to the best of my knowledge, taught by lawyers or meant to delve deeply into legal issues.  They all seem designed with an operational or business purpose in mind - to help you, the owner or operator, better manage your operation and maximize profits.  Nonetheless (and based solely on the course descriptions and my personal opinions), there is a good chance that something you learn in these classes will help keep you out of court someday.  And as much as I love going to court as an attorney, trust me when I tell you that it's a lot less fun if you are a litigant.  So, here they are ... the Five Sessions That Could (Unintentionally) Help You Avoid Legal Trouble (and why):

IAAPA 2011: Five Legally Themed Sessions You Should Attend (and why)

Like many of you, I hope, I will be making the trek to sunny Orlando soon for next week's IAAPA Attractions Expo 2011.  In anticipation of the big event, I thought it would be fun to highlight some of the best that IAAPA has to offer (or that I think IAAPA has to offer) at this year's event.  So, for the next few days, I will be offering a different "Top 5" list to help you get the most out of your visit.***  I will also be in attendance at most, if not all, of my "Top 5" selections for the week, so if you see me (I'll be the one in the suit looking exceptionally lawyerly), please don't hesitate to stop and say hello!

***Please note that, except if I note otherwise, I have no particular connection to any of these sessions and have not been asked by IAAPA or any of the speakers to promote any of them in particular.  These are just my own opinions.  That said, if anyone out there wants to buy me a drink in Orlando for recommending a particular session, I would be glad to take you up on it. ***

So, without any further ado, I give you the 5 Legally Themed Sessions You Should Attend (and why):

The Strong Arm Of The Law: How Judges Use Appeal-Proof Decisions To Push Settlements

One of the most frustrating things about litigation for a client to understand is that sometimes, especially early in a case, you can be 100% right on the law and 100% right on the facts, and still lose – and there’s really nothing you can do about it.  Why?  Because judges, generally, are quite practical and they know precisely how and when to flex some judicial muscle to pressure you into a settlement that will bring the entire case to a close quickly and finally.  No difficult legal questions to answer.  No long trials taking up the Court’s time and costing a lot of money for the client.  No appeal and (more importantly from the judge’s perspective) risk of reversal on appeal.  The whole case just goes away.  And if all it takes to make all this a reality is a decision on a preliminary issue that might not be in line with controlling law and that will never be appealed, from the judge’s perspective, its worth it every time. 

I recently saw a perfect example of this in a recent case involving Cedar Fair’s soon-to-be-former property, California’s Great America in Santa Clara, California. The case is called Griffin v. Cedar Fair L.P., and it involves allegations that the park is in violation of the Americans With Disabilities Act.  The decision mostly concerns a rather ordinary pleading issue that normally would not warrant much attention, however, the end of the case contains a prime example of a judge ignoring the facts and the law in an attempt to induce a quick settlement by, effectively, forcing Cedar Fair to air its dirty laundry in front of all its guests. 

After Zanesville: A Plea For Legislative Reason And Deliberation Instead Of Reflexive Reaction

A result of exotic animal ownership or an irresponsible owner?

Now that the threat caused by yesterday's mass release of dozens of wild exotic animals onto the streets of Zanesville, Ohio has ended, unfortunately bringing with it the tragic (but necessary) shooting deaths of most of the animals in the name of public safety, we are already hearing the reflexive cries for legislation banning exotic animal ownership outright in Ohio as well as in other states where regulation of exotic animals is lax or, in some cases, nonexistent.  Heck, even Ted Nugent has waded into the issue.  While I don't think that regulation of exotic animals is a bad thing in concept, I fear that, as is almost always the case when bad things happen, the loudest voices and most unreasonable minds will charge fearlessly toward the most restrictive regulation possible in an effort to placate the masses and achieve political favor as "the person who did something" for his constituents.  Too often, though, this kind of reactionary legislation, while looking good in the moment, reveals itself over time to be ill-suited to solving the real problem at issue.  This is a plea, therefore, to state legislators, in Ohio and elsewhere, already working on an immediate legislative remedy, to stop drafting the law now, take the time to examine this incident and others like it, understand the underlying issues, listen to the experts, and then, AND ONLY THEN, draft meaningful regulation that addresses the problem effectively. 

A Picture Ruins A Thousand Warnings: How Marketing Makes Liability More Likely

I saw a particularly troublesome example of the collision between marketing and operations yesterday when I read a newspaper article on the Internet concerning ride safety at a large amusement park.  In the interest of not drawing any negative attention, I’m going to use an alias for the park, Happy Funland, and I’m not going to link to the article, so you’ll have to trust me on what it said.  At the top of the article was a photograph of a roller coaster descending down a drop.  Sitting in the car were two people, both clearly wearing name tags of the facility, both obviously enjoying their ride screaming and smiling, and both with their hands flailing about up in the air.  Under the picture was a caption reading, to paraphrase, “Employees test riding the WonderCoaster at Happy Funland Amusement Park.”  As if this wasn’t bad enough was this paraphrased quote from a park official:

“Our staff is extremely knowledgeable in what is required to run our rides incredibly safely and safety is our top priority when it comes to operating any ride in the park.”

Really?  ‘Cause the picture of the employees violating the safety rules sure doesn’t indicate to me that at least these employees are “extremely knowledgeable in what is required to run” this ride “incredibly safely.”  Worse, if someone ever gets injured on this ride because they weren’t holding on, this is exactly the kind of thing that plaintiff’s lawyers will jump on and that makes my job defending the facility a whole lot tougher.  This one highly publicized picture or other similar shots in marketing brochures or television commercials can (and will) come back to bite you (in that place that’s supposed to remain in the seat the whole ride) in the event of a lawsuit.  “Do As I Say, Not As I Do” is simply not a ticket to guarding against legal liability or building a solid liability defense.

Contrary To Media Reports, Video Of Dawn Brancheau's Death Is Not About To Go Public (UPDATED 9/20/11)

Yesterday (9/15/11), Judge Gregory Presnell of the United States District Court for the Middle District of Florida in Orlando denied a preliminary injunction sought by the family of the deceased SeaWorld trainer, Dawn Bancheau, to prevent video showing the events of Ms. Brancheau's death from being shown publicly at an OSHA hearing looking into potential OSHA violations by SeaWorld scheduled for September 19.  Having spent some time today looking at the media reports and the ruling itself, I am disturbed (although not overly surprised) at the extent to which the media has missed the point of Judge Presnell's ruling and has characterized at something it is not.

An Associated Press report, picked up by many news outlets around the country, leads with this sentence:

"A federal judge says there is no legal reason images of a SeaWorld trainer's death should be kept from the public."

To many (maybe most) readers, this suggests that Judge Presnell ruled that the video depicting Ms. Brancheau's death should be public or that he believes that the public interest would be best served if the video were to be released.  But that's not what he said in the ruling, and, in fact, there's every reason to believe that despite Judge Presnell's ruling, the graphic video of Ms. Brancheau's death will never be made publicly available at all.

So You Think A Deaf Person Can't Be A Lifeguard? You Might Be Right...Or Wrong.

We spend a lot of time in this industry talking about the ADA when it comes to guests.   The recent death of Sgt. James Hackemer atDarien Lake has kept this issue at the forefront for most of the summer.  But one issue we spend a lot less time talking about is the ADA as applied to our employees.  Lucky for us, a federal court judge in Michigan has given us the opportunity to think about it now.  In Keith v. Oakland County, issued September 1, the Court ruled against a deaf lifeguard in an ADA employment discrimination case finding that his disability precluded him from performing the “essential” duties of a wave-pool lifeguard and that no reasonable accommodation was possible.

"Cause" for Alarm: 3 Ways To Reduce The Chance Of A Public Interest Lawsuit

Two news items that, on the surface at least, do not seem to have much in common caught my eye this week.  First, USA Today reported that Cedar Point has decided to change the names of two of its Halloween attractions, apparently due to complaints from the National Alliance on Mental Illness (“NAMI”).  According to media reports, NAMI took issue with a haunted house called “Dr. D. Menteds Asylum for the Criminally Insane” and a musical show entitled “The Edge of Madness:  Still Crazy,” claiming that they promoted false stereotypes of the mentally ill.   

Second came news yesterday about the temporary closure of Rye Playland due to a disturbance that occurred when a Muslim woman wearing a head scarf, or hijab, was not allowed to board a ride due to a rule prohibiting any kind of headwear while riding.  The park reportedly had many Muslim guests in attendance celebrating Eid-ul-Fitr -  the holiday marking the end of the Islamic holy month of Ramadan.  While some guests at the park, not to mention the president of the Council on American-Islamic Relations - New York, believe this to be an example of Islamic intolerance, the park maintains (quite reasonably I believe) that this is a safety issue of general applicability to prevent hats and other headwear from becoming projectiles that could presumably hit other guests, become entangled in machinery, or cause shutdowns. 

Was Cedar Point right to change the names of its attractions to placate the protestations from NAMI?  Should Rye Playland have altered its headwear policy after hearing claims of perceived religious intolerance?  The answers to these questions highlight the fine line an amusement facility must walk when dealing with a “cause.”  Whether they be social, religious, human rights, animal rights, or any other “cause,” the legal, financial, and public relations impact of these interactions must be handled appropriately to avoid potentially disastrous results.

Are California Courts Already Signaling Doubt About The Future Of The Nalwa Decision?

On Tuesday (8/16/11), the United States District Court for the Southern District of California issued an interesting decision in Wallace v. Busch Entertainment Corporation (now Seaworld Parks & Entertainment).  The factual background of the case is not especially remarkable - it is a rather run-of-the-mill personal injury lawsuit.  The plaintiff purchased a ticket to use the bungee trampoline in Seaworlds "Xtreme Zone," read and signed a liability waiver, followed the directions of the attendant, and was injured (a torn tendon in his left bicep).  The plaintiff sued alleging theories of negligence, negligence per se, gross negligence, breach of warranty, and products liability.  The court ultimately found that the plaintiff's breach of warranty and products liability claims were meritless and granted judgment in Seaworld's favor as to those counts.  Additionally, the court held that the plaintiff's negligence claim was foreclosed by the liability waiver he had signed, and therefore found in Seaworld's favor on that count as well. 

However, despite these victories, Seaworld did not prevail on plaintiff's negligence per se, and gross negligence claims, and it is in this respect that the case is really interesting - not because of anything the Court said, but because of what it didn't.

Curing The Crisis Of Credibility And Kicking The "Carnie" Connotation

 A few days ago, my friend and former colleague, Matt Heller, posted some interesting and spot-on thoughts on professionalism on his excellent leadership blog.  Matt makes the point that “the perception of safety is largely determined by what we see and experience,” and to support this point he attached this photo capture from a travel channel program on amusement parks, asking the question, “is this really how you want your facility portrayed on TV, or at all?”  

Matt’s point is very well taken.  Appearance and professionalism matter when it comes to the perception of safety. However, it doesn’t just stop at the perception of safety.  Rather, these same issues – appearance, cleanliness, and professionalism - also have a real impact on the perception of credibility – and this is a crucial issue to getting the best result possible in every form of legal proceeding.

Why Our Founding Fathers Would Have Been Against Federal Amusement Ride Regulation (Had They Known What Amusement Rides Were)

This morning, upon returning to my office from a few days off to visit with long-lost friends at my twenty-year high school reunion, I came across an article in USA Today with the rather misleading headline “Carnival Ride Safety Varies By State.”  I note that the headline is misleading because it erroneously implies that the article will discuss varying levels of ride safety itself in various states, i.e. that rides located in one state are inherently “more safe” than the same ride located in another state or that ride injuries or deaths are higher or lower in one state than another.  However, that is not at all what the article is about.  Really, the article focuses not on safety per se, but on the now familiar and oft discussed “patchwork” of state amusement ride regulations that consequently result in varying levels of inspections and oversight between the various states when it comes to inflatable and amusement ride regulation.  The article, as others have before, implies that this lack of regulatory uniformity somehow means that amusement rides in states with higher levels of oversight are more safe than rides with lesser inspection or reporting requirements.  Of course, no data is cited that would show that to be true.  Moreover, after reading this article, I had to wonder why the amusement industry so often is singled out for its “patchwork” regulatory oversight when, in reality, state-by-state regulation is, by design of our founding fathers, the rule rather than the exception in the United States.

Similar Cases, Dissimilar Outcomes: How Politics Shapes A State Amusement Ride Investigation

This week we learned of two state sanctions related to two high-profile amusement ride fatalities this summer:   the death of three year old Jason Dansby while riding the Python Pit roller coaster at Go Bananas family entertainment center in Illinois and the death of Sgt. James Hackemer while riding the Ride of Steel roller coaster at Darien Lake.  While the cases are quite similar in many respects, the sanctions imposed are quite different.  With respect to Go Bananas, the owner of the facility has been charged criminally with violation of the state’s amusement ride safety law and faces a potential jail term of up to a year and / or a fine of up to $2,500 while in the case of Darien Lake no criminal charges were filed and the facility was merely ordered to re-train ride operators and post better signage warning guests about ride safety requirements. 

So why the difference?  After all, Illinois and New York have similar ride safety laws (at least in this respect) and these two cases were quite similar in both the severity of the event and the conclusions reached by the state following the investigation.  It could reasonably be expected, therefore, that these states would impose similar sanctions or at least similarly serious sanctions at the end of the investigations.  After all, in a court of law similar cases tend to be treated similarly.  But these cases clearly weren't treated similarly.  Why not?  Was it that the state found one facility or ride to be “less safe” than the other?  Was it that the state found one operator better than the other?  I think the answer to both these questions, at least on the state of the current record, is no.  Rather, I think its likely that the difference in legal sanctions in these two cases can be attributed, as much as anything else, to political pressure exerted on state officials.

What The Mother Of A Two Year Old Can Teach Us About Avoiding Litigation

Yesterday, a Pennsylvania television station ran a story about Isabella Prescott, a 2-year old little girl with Downs Syndrome that was not permitted to ride the "Road Rally" ride at Dorney Park's Planet Snoopy.  According to the story, the ride attendant informed Isabella's mother that Isabella could not ride because she was "an infant" and because she couldn't walk (an assessment Isabella's mother, and the television reporter, dispute).  Isabella's mother believes that Dorney Park discriminated against her daughter and, according to the story, she plans to pursue legal action against the park.

But it wasn't the potential discrimination or the intention to pursue legal action that caught my eye.  It was this:

"Prescott said she is taking legal action against the park, but said she really just wants an apology."

I don't know if she really means it, but this request for a simple apology underscores the often discounted importance of guest service in preventing costly litigation.

A Look At Lawful Discrimination Under The ADA In Light Of The Darien Lake Tragedy

The news this week in the amusement industry was dominated by the tragic death of Iraq War Vet Sgt. James Hackemer after being ejected from the Ride of Steel at Darien Lake.  Sgt. Hackemer was a double amputee, having lost both legs at (or near) the hip as a result of an explosive during his tour in Iraq.  While he had prosthetic legs, there seems to be no dispute that he was not wearing them at the time he boarded the Ride of Steel.

Over the last week, many of us, myself included, have asked why this guest was permitted to board this ride, a 200 foot tall hypercoaster, renowned among enthusiasts for its negative g's.  Some have suggested that the ride operators felt pressure to allow a war hero to ride regardless of his physical condition.  Others have suggested that the ride operators (and perhaps the park) felt that the ADA required the park to allow Sgt. Hackemer access to the ride regardless of his disability.  Others may believe that allowing Sgt. Hackemer to board this coaster was, at the time, in the interest of guest service.  I feel compelled to address these suggestions from both a legal and operations perspective to dispel a common mistaken understanding of the ADA and to clarify the legal ramifications of refusing admission to a guest on the basis of a disability.

Why Prove Your Case When You Don't Need To? How The Court In the Disney Class Action Was The Plaintiffs' Best Lawyer

Yesterday, I looked at a potentially huge (and overlooked) win for Disney in the recent California Class Action decision in Shields v. Walt Disney Parks &Resorts US, Inc..  While a potential liability savings of $44 million or more is great, the rest of of the decision, in which the District Court certified a nationwide class consisting of, at least, 36,000 visually impaired guests of Disneyland and Disney World, is not the stuff of blue birds and sing-songs.  In fact, after spending some time looking at the decision and the judge's analysis, I have to conclude that the best lawyer that plaintiffs had working on their side in the courtroom was not the one they were paying, but the court itself.

44 Million Ways Disney Won In The Recent California Class Action Ruling

On June 29, the US District Court for the Central District of California issued an important class certification decision in the case of Shields v. Wald Disney Parks and Resorts US, Inc..  The decision can be found here.  The decision can be seen as both a big win for Disney and as a disappointing loss based on some shaky legal analysis by the judge.  I'll be looking at the decision from both angles, but I'll start by looking at the positive end of the decision.   

Connecticut's New Paid Sick Leave Act : Who Wants The Weekend Off?

Connecticut's General Assembly recently passed a new paid sick leave act, requiring most employers to give their employees paid sick days after certain requirements are met.  Unfortunately, as with a lot of legislation, the effect of this new law on Connecticut's seasonal employers is anything but clear. If you want the thrill of reading the new legislation in all its scintillating glory, you can find it here.

Carnival prize as deadly weapon? The Missouri Court of Appeals Says Yes.

An interesting case from the Missouri Court of Appeals released earlier this week found that a carnival prize qualified as a "deadly weapon," specifically a "dagger," for purposes of Missouri's First-Degree Burglary law.  The case is State of Missouri v. Harrel, the opinion can be found here.  While most of us tend to think of carnival prizes as innocuous children's toys, in this case, the Court found it to be much more.  The Defendant, Lee Harrell, apparently took from his friend's home a replica "Sword of Narnia" that his friend's sons had won while visiting a local carnival.  Mr. Harrell then broke into a local church armed with the replica sword.

Controversial California Ruling On Assumption of Risk

This week the California Court of Appeals, Sixth District, issued its ruling in Nalwa v. Cedar Fair, LP., holding that a California amusement park operator cannot rely on the doctrine of assumption of risk to defend against a negligence lawsuit because 1) doing so would undermine California's policy of strict regulation of amusement rides and 2) because, even putting aside public policy, the doctrine of assumption of risk simply does not apply to amusement rides in California.  The decision is potentially a game changer in California, and will undoubtedly be influential in other ride related cases around the country.