How the Americans with Disabilities Act (ADA) Affects Workers' Comp.
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If a worker is eligible for workers' comp, does this mean he automatically has a "disability" for purposes of the Americans with Disabilities Act (ADA)?
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No. Many injuries that qualify for worker's comp are not serious enough to make someone "disabled" for purposes of filing an ADA claim. Injured workers are "disabled" under the ADA only if their injury makes them "substantially limited in a major life activity" such as working, walking or breathing.
However, the ADA also covers workers whose company perceives them as disabled. Therefore, even if a worker isn't injured seriously enough to be "disabled", he might still be covered if his employer discriminates against him because of his impairment, such as by refusing to let him come back to work.
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Can a job applicant be asked if he has filed workers' comp claims in the past?
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No. However, after a company has made a job offer, it can ask for limited information about past on-the-job injuries, so long as it has a legitimate need for the information and asks the same questions of all new employees in similar jobs.
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Can a worker sue under the ADA if he is fired from taking leave after filing a comp claim?
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Maybe. The worker would have to show that he is "disabled" and that being given short-term leave would be a "reasonable accommodation".
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Can a company give a medical exam to a worker who files a comp claim?
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Yes. A company can require a medical exam or ask questions about an on-the-job injury to find out what benefits the worker should get or determine if he is healthy enough to return to work.
However, if a company asks for more information than it needs to process a comp claim, or forces a worker to undergo many exams or repeatedly answer the same questions, this may be "disability-based harassment" under the ADA.
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Can a company refuse to hire because the applicant has filed comp claims in the past, or because hiring this applicant will result in higher comp costs?
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No. However, a company can refuse to hire people who are so likely to injure themselves that they pose a "direct threat" to the workplace.
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Preventive Legal Audits
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What is a preventive legal audit?
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Annual preventive legal audits can help you:
- Avoid Court
- Avoid Jail and Fines
- Reduce Your Legal Costs
- Improve Your Reputation and Public Relations
- Take Advantage of Future Trends
- Educate Your Employees
- Improve Your Work Environment
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"About half of the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop."
-- Elihu Root
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The future of medicine is to examine and define problems before they occur. The future of the legal profession is the same. Protect your company's legal health before a disaster such as a lawsuit, criminal prosecution or disrupted work environment occurs.
Businesses need help spotting potential legal problems before they occur. They often neglect legal matters such as partnership agreements or fail to comply with employment regulations such as documenting reasons for firing an employee. They do not realize they have a problem until they end up in court.
Preventive legal audits pre-empt trouble before it occurs. For a flat fee, attorneys with extensive backgrounds in business visit a company, analyze legal vulnerability and draft a remedial plan for the client explaining potential legal exposure; recommending compliance guidelines, legal forms and employee training; and providing written reminders regarding leases, loans and other agreements. Satisfaction with the plan is guaranteed by the law firm.
The legal issues reviewed include:
- OSHA compliance
- ADA compliance
- accounts receivable
- credit and collections
- human resources (benefits, employee manual)
- pension/retirement plans
- anti-trust violations
- insurance (malpractice, worker's compensation, general liability, disability)
- buy/sell shareholder agreements
- fraud
- corporate structure (by-laws/minutes)
- workplace violence prevention
- real estate (leases, entity, income, expenses and zoning)
- record retention/storage
- loans
- payroll
- accounts payable (phony invoices, kickbacks)
- environmental compliance (lead paint, asbestos, hazardous materials, sick buildings)
- consumer laws
- product liability
- employee theft
"Limited Liability Companies are 'In' and Corporations and Partnerships are 'Out'"
The LLC is a hybrid business entity which combines the best features of partnerships and corporations. LLC's will be commonly used for real estate ventures and family partnerships because of their tax advantages.
The LLC is formed by the filing of Articles of Organization with the Secretary of State and publishing a notice. The operating agreement, which is similar to the by-laws of a corporation, sets forth the members' rights and obligations and the required procedures for the LLC's operation.
A properly formed LLC will be taxed as partnership but its members will enjoy limited liability like corporate shareholders. Members are not personally liable for the debts, obligations and liabilities of the LLC.
TAXES
- LLCs, like partnerships, are not subject to income taxation. Gains and losses flow through the company and are taxed to or deducted by the members.
- LLCs have a number of tax advantages over corporations. For example, an LLC may make "special allocations" among the partners. A twenty percent (20%) member could be allocated ninety percent (90%) of the depreciation deductions attributable to a particular property.
- Family partnerships have been a safe harbor for purposes of shifting income and allocating wealth among family members. Transfers can be made to family members without adverse estate, gift and income tax consequences and loss of control.
MORTGAGE FINANCING:
When LLC's obtain mortgage financing, the title insurance companies will require the following:
- Certificate of Good Standing or status letter from the Secretary of State.
- Articles of Organization indicating that there is no limitation on the LLC's authority regarding real estate or financing.
- Operating Agreement indicating who has authority to execute real estate documents.
- Resolution by the members or managers authorizing the real estate transaction.
- Deed in the name of LLC and not in the names of the managers or members.
- Guarantees by members or managers in their individual capacities.
Safety Is Your Duty
You have a duty to maintain your store, office building or other place of business which is open to the public in a reasonably safe condition.
This duty requires that:
- You regularly inspect your premises to ensure that there are no hazards to the safety of your customers or clients. This is especially important if slippery conditions are created by customers coming in from rainy or snowy weather or your floors have recently been washed or waxed.
- Warning signs be posted if any unusual conditions exist.
- Doors, floors, aisles, steps, lighting and displays of merchandise be properly maintained.
- Entrances and exits be properly lighted.
If you fail to meet your duties, a customer who suffers an injury on your business premises may have a right to sue your business if it can be proven that:
- There were unsafe conditions on your premises.
- The customer's injury was caused by the unsafe condition.
- You knew of the unsafe condition or the condition had existed for so long that you should have discovered it during the course of regular inspections.
What is the Cause of Most Business Failures?
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What is the cause of most business failures?
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Most businesses are unsuccessful because they fail to:
- plan properly,
- monitor financial statements,
- understand pricing,
- monitor cash flow,
- manage growth,
- borrow properly and/or
- plan for transition periods.
A sound, well-thought-out business plan will anticipate and help your business avoid these problems.
A good business plan accomplishes the following:
- It allows the new business owner to determine the feasibility of the proposed business and identifies its start-up requirements.
- It provides a basis for outside investors and banks to determine whether to invest in or lend money to the business.
- It provides the groundwork for more detailed operational plans and serves as a valuable management tool for monitoring and planning future growth.
The businesses with the highest SBA loan failure rates are drinking establishments; plumbing, heating and air conditioning contractors; drug stores; furniture stores; and commercial printers. The businesses with the lowest failure rates are industrial machinery; equipment rental and leasing; hotels and motels; business services; and dental offices. For further information on business plans, order
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