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?

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.