A Photo Is Worth A Thousand Words, But Then What?

A really cool video produced by Coke has been flying around the internet recently.  It's a good-natured spin on hidden camera stories that is supposed to demonstrate that bad things are not the only thing captured on hidden cameras. Hidden cameras are just as likely to catch all of us at our best as at our worst.  Its a pretty entertaining little video that admittedly makes you feel all warm and fuzzy.  If you haven't seen it yet, here it is.

 

My reaction to this video was two-fold.  First, I was pretty darned impressed and a little moved.  Assuming its genuine (and heck, even if its not), the video did a nice job at making me feel good about humanity - and  strangely I am suddenly thirsty for a Coke too.  But then the lawyer in me kicked in and I wondered:  What happened just before and after each of those little snippets?  How do we know that all of these heartwarming moments really were heartwarming moments?  While it's true that, today more than ever, someone is always watching.  And taping.  And posting.  Are they really getting the whole story?  I don't think so.

Happy Birthday! Celebrate by "Liking" The Legal Roller Coaster on Facebook!

The cake is NOT a lie.  The Legal Roller Coaster really is one year old!

This weekend marks the first birthday of The Legal Roller Coaster!  In honor of the momentous occasion, The Legal Roller Coaster is expanding.  Yes, the blog will still be here, but I have recently opened a new Facebook page.  Check it out here!  The new Facebook page features:

• Links to all blog content from The Legal Roller Coaster;
• Copies of documents referenced on the blog so you can see it for yourself if you just don't believe what I'm telling you;
• More frequent updates with daily news content on the legal side of the industry; and
• A more convenient informal way to communicate with all of you about blog content, the news of the day, or topics of interest in the industry.

If you like what you see on Facebook and you like what you see here, then by all means click "Like" on the Facebook page so that you will stay informed through your news feed.

The SeaWorld OSHA Decision And The Dangers Of Captive Animals: A Reasoned Response To Media Distortion

Last week, Administrative Law Judge Ken S. Welch in Orlando issued the long awaited opinion in Secretary of Labor v. SeaWorld of Florida, LLC, more commonly known as the Dawn Brancheau case.  As most of you probably know, on February 24, 2010, Dawn Brancheau, a seasoned and respected trainer at SeaWorld, was killed by a killer whale that dragged her into the water, fatally injuring her.  Following Ms. Brancheau’s tragic death, OSHA investigated and assessed a $75,000 fine and issued two citations.  OSHA also ordered that SeaWorld abate the hazard by not allowing trainers to have contact with killer whales during shows unless they are protected by a physical barrier or a minimum safe distance of dry land.  SeaWorld appealed the violations to the OSHA Review Commission, which largely, but not totally, affirmed the OSHA investigator’s findings. 

Now I’m not going to try to pick apart Judge Welch’s decision – I don’t know the evidence, I wasn’t there for the testimony, and I don’t have significant experience with OSHA regulations and law.  The decision is quite long and very detailed and, absent greater familiarity with the underlying facts and arguments, I would not purport to challenge Judge Welch’s factual and legal determinations intelligently.  However, what does warrant comment is the treatment the decision has received in the days following its issuance and, in particular, a recent piece I read in the Huffington Post authored by David Kirby entitled “Labor Department Fires Warning Shot At Animal Entertainment Industry.”  Mr. Kirby’s piece omits key facts of the case, wrongly implies that Judge Welch found SeaWorld to be irresponsible and unconcerned with employee safety, and relies on inaccurate and misleading “statistics” and information sources to unfairly depict the frequency and severity of incidents involving animals held in captivity.

A Slippery Slope? Massachusetts Just It Made It Easier For New England Waterpark Operators To Lose A Lawsuit

If you’re operating a water park in New England (or, most likely, any other amusement facility for that matter), a recent decision from the Massachusetts Appeals Court just made it easier for you to lose a law suit.  Even when I try hard to set aside any "pro-industry" bias I may occasionally have and look at this from a purely objective legal viewpoint, I can only reach one conclusion:  Massachusetts got this one wrong.  The case’s potential impact on the New England amusement industry really cannot be overstated.  So what is the issue?  Read on to find out....

Don't Forget: What We Do Matters ... A Lot.

Greeting everyone!  As you can see by my last post, its been a while since I've updated The Legal Roller Coaster.  My apologies to those who have noticed.  My last piece was posted February 8, and was written while I was on a plane to Portland, Oregon to try a very large case in Oregon State Court.  I returned to my home, my job, and my life about two and a half weeks ago.  Over the last two months or so, I have worked harder than I ever have before on a long and exhausting trial, didn't see my wife or kids for almost seven  weeks, flew to Phoenix to say my final farewell to my grandmother who had been sick for years and finally just couldn't go on any longer, and, just a few weeks later, went to DC to bury one of my best friends from law school who passed away incredibly suddenly at the age of only 35, leaving behind her husband and three children.  I also took some time to attend the New England Association of Amusement Parks and Attractions Annual Meeting and present a short seminar to those fine folks.  That's a lot to take on in the span of two months - particularly in the middle of a multi-million dollar trial.  And all of that, particularly the death of my friend, got me thinking hard about what I do, what I like to do, and why I am doing it.  So, for my first post back after a couple of months, I've decided to go in a somewhat uncharacteristic non-legal direction (and don't worry - this is probably a one-shot thing since I've got a lot of other things to talk about soon), and talk a little bit about why our industry is so important and why the work that we do really does matter to people.

PETA’s Frivolous Suit Against SeaWorld Alleging Orca Slavery: It Doesn’t Get Much More Black and White Than This (UPDATED 2/9/12)

On Monday, a federal magistrate judge heard argument on whether to dismiss a relatively recent lawsuit brought against SeaWorld by People for the Ethical Treatment of Animals (“PETA”) that raises an unprecedented and patently frivolous claim – even for an organization known for taking some pretty unreasonable positions.  The lawsuit is captioned Tilikum v. SeaWorld Parks & Entertainment, Inc. and it is pending in the U.S. District Court for the Southern District of California before Magistrate Judge William McCurine, Jr..  Now, I suspect many of you who read my blog (and thus, presumably have an interest in the amusement industry) will immediately recognize the named plaintiff despite the fact that he is not, in fact, a human being.  Tilikum is an orca – the very orca that killed SeaWorld trainer Dawn Brancheau last year after a performance at SeaWorld in Orlando.  Tilikum and four other orcas, speaking (not surprisingly) through actual human beings (a procedure that I won’t get into in this article), “claim” that they are being held against their will and subjected to slavery and involuntary servitude in violation of the 13^th Amendment to the United States.  The basis of such a claim?  The 13^th Amendment never specifically says that it only applies to “people” so, naturally, it must also apply to orcas.  The breadth of the Plaintiffs’ argument is as utterly astounding as it is facially foolhardy and frivolous.  This is the very definition of a lawsuit brought for no other purpose than to bring publicity to the plaintiff and to harass SeaWorld.   

How To Give Your Lawyer A Cardiac Arrest .... Brought To You By The Reading Phillies

Hi everyone!  Miss me?  Its been crazy the last few weeks as I have been working on a very large case that is going to trial next month in Oregon state court.  Unfortunately, this has occupied so much of my time that I was unavoidably forced to neglect my duties to The Legal Roller Coaster.  Well that stops here and now because I’ve just seen something that practically screams out for some attention.  And, given that this is my first post of the New Year, I thought it would be fun to start off with something a bit on the lighter side.  Ladies and Gentleman, I give you, “The Defense Lawyer’s Nightmare” a/k/a “The Worst Idea For A Promotional Event In History”  Seriously, you have to check this out – but please, PLEASE, don’t try anything you are about to see at your facility:

 

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?