San Diego Estate Planning Lawyer Blog

In San Diego, there are many employers with 15 or more employees. It is crucial to follow all State and Federal laws relating to all facets of employment. Our law firm of Pinkerton, Doppelt & Associates, LLP can assist with many legal problems. Please e mail us directly with any questions.

The Americans with Disabilities Act (ADA) prohibits disability discrimination in employment for employers with 15 or more employees. The prohibition is far-reaching and covers hiring, firing, and everything in between, such as promotions, benefits, and harassment in the workplace. The smallest of businesses are not affected by the ADA because of the 15-employee threshold for coverage. The ADA does apply, however, to many of the roughly 25 million small businesses in the nation.

Who Is Protected?

The ADA protects three categories of individuals: those with a physical or mental impairment that substantially limits one or more major life activities (like sitting, standing, or sleeping); those with a record of such an impairment, such as a person who had debilitating cancer but is now in remission; and those who are regarded by employers as having such an impairment, even though the individuals otherwise are not so impaired as to be "disabled" under the ADA. Regardless of the category, the ADA protects only persons who are qualified, that is, they meet job-related requirements and can perform essential functions for the job, with or without a reasonable accommodation.

Hiring

While an employer can ask an applicant a wide range of questions concerning job qualifications, the ADA does not allow medical examinations or questions about disability until the employer has made the applicant a conditional job offer. An exception is recognized for questions directed to an apparently disabled applicant about whether a reasonable accommodation will be required.

After a job offer is made, an employer can ask any disability-related questions and require medical examinations, so long as these requirements apply to everyone in the same job category. For example, if, during a medical examination required of all employees in a job involving the use of dangerous machinery, it is revealed that an applicant has frequent and unpredictable seizures, the employer can withdraw a job offer to that individual.

Medical Information

Once a person is on the job, the ADA allows required medical examinations or questions about a disability only where there is a reasonable belief, based on objective evidence, that a particular employee will not be able to perform essential job functions or will pose a direct threat because of a medical condition. As an example, if a normally reliable employee has told her employer that a new medication she takes makes her lethargic, and she begins to make many mistakes, the employer can ask her how long the medication can be expected to affect job performance.

Reasonable Accommodation

The ADA differs from most other employment discrimination laws in imposing an accommodation duty on employers. If a disabled person needs a reasonable accommodation in order to apply for, or perform, a job, the employer generally must provide it unless to do so would create an undue hardship. An undue hardship means significant difficulty or expense, based on an employer's resources and operations.

Most accommodations are not expensive or burdensome. A diabetic employee may need regular breaks to eat properly and monitor blood sugar and insulin levels, or a blind employee may need someone to read information posted on a bulletin board. If more than one accommodation will work, the employer may take the option that is less costly or easier to provide.

In addition to the undue hardship defense, an employer need not provide an accommodation which:

* assists an individual off the job;

* removes or alters the essential functions of a job;

* lowers production or performance standards; or

* excuses violations of rules on good conduct.

Helpful Handbook

The Equal Employment Opportunity Commission, which is charged with enforcement of the ADA, has issued a handbook to help small businesses comply with the ADA. The handbook provides many examples of factual situations with which small businesses could be confronted.

In San Diego, there are many different security firms. These include K Tech Security, Brinks, Pinkerton, and many others. Our law firm of Pinkerton, Doppelt & Associates, LLP does not endorse any agency however the partner at our law firm is a distant relative of the original Pinkerton who founded the detective agency. If you or a loved one has been injured or killed by a security guard, please feel free to e mail us.

n a case, a manufacturing company contracted with a security firm to provide a security guard. The guard shot and killed an individual who was trespassing, but not for criminal purposes, on company property, after the person had obeyed the guard's order to lie on the ground. The company argued that it could not be held liable for the negligent acts of an independent contractor, but a state supreme court ruled otherwise.

The court agreed that the security firm and its guard were independent contractors. The manufacturing company's downfall was an exception to the rule of no liability for acts of independent contractors. If the work to be performed is inherently dangerous, the work can be delegated to an independent contractor, but the duty to use reasonable care cannot be avoided by the employer. Work is inherently dangerous when it involves a foreseeable risk of physical harm to others and requires special precautions.

In the case of the trigger-happy security guard, who was armed and instructed to "deter" thieves and vandals, dangerous confrontations between the guard and persons entering the property were contemplated. In the context of such danger, the independent contractor status of the guard became a mere legal technicality that did not shield the manufacturing company from liability.

In San Diego, many residents find services on the internet. There are many search engines such as Google, Yahoo, MSN and many others. Our law firm of Pinkerton, Doppelt & Associates, LLP suggests you investigate all companies with the San Diego Better Business Bureau before entering into a contract. If the seller is an individual, as in the example below, this would not be an effective strategy. In the below example, the buyer would have to sue not in the San Diego Superior Court [if he was a resident of San Diego County] but in the state where the seller lived. This would be expensive and time consuming. Our firm suggests having an expert inspect any vehicle prior to purchase if you are not an expert in this area. Similarly, if you have a question regarding the law, please feel free to e mail or call our firm. We would be happy to assist.

Robert found just the excavator he wanted advertised on an Internet auction site. Before making the successful bid, he contacted the seller through e-mail and received assurances from her that the product was in good condition. Robert then traveled to the seller's home, which was several states away, and bought the excavator. When the equipment did not perform as expected and the seller did not respond to Robert's request for a partial refund, Robert sued the seller in his home state.

Robert's lawsuit failed because the seller was not subject to the jurisdiction of the courts in Robert's home state. For a nonresident to bring herself within the reach of a state's "long-arm" jurisdiction, she must purposefully have benefited from the privilege of doing business in that state. Perhaps the seller could have foreseen that residents of any state might bid on the excavator, but that was insufficient to bring her into the courts in Robert's state. She had no control over who would ultimately be the winning bidder, nor could she exclude bidders from particular jurisdictions.

Also weighing against subjecting the seller to litigation was the isolated nature of the transaction and the fact that she was not a commercial seller and was using a third party's site. A different result might have been achieved against a business that used its own website to advertise itself and make transactions across state lines.

In San Diego, there have been many law suits in the San Diego Superior Court over the taking of land by the government. In San Diego, this is not unusual for the building of highways, roads, schools and private development. The forcible eviction from your home, even when compensated, can be devastating. If you have any questions about this or any other legal issue, please feel free to e mail our law firm of Pinkerton, Doppelt & Associates, LLP. If our firm cannot assist you in your legal matter, we would be pleased to refer you to the San Diego County Bar Association Lawyer Referral Service.

The power of government to take private property for a public use, with payment of fair compensation, has been nearly unassailable in our legal system. In most condemnation cases, the right to take the property is a foregone conclusion, and the parties litigate only the amount of compensation. Courts generally have deferred to the government's articulation of a public purpose for the taking, even when private parties also benefit.

In recent years, there has been a trend toward closer scrutiny of a proposed condemnation to find a paramount public purpose, and even to stop the proceedings where one is lacking. Property owners targeted for a taking are receiving a more sympathetic hearing when they contend that the true beneficiary of the proceedings is not the public but simply another private party with designs on the property.

Although they were largely unsuccessful, challenges to takings as lacking a public purpose first arose in urban renewal cases. The government would condemn blighted property so that it could be redeveloped, usually by private developers. The government could point to the overriding public benefits from such revitalization of property and could successfully argue that benefits to private parties were incidental.

In successful attacks on use of the condemnation power, it is harder to find the public use and easier to see private profit as the motivation for the taking. For example, in one case, the developer of an automobile racetrack wanted some neighboring land for a parking lot, but the company that owned the land did not want to sell it. The developer reached an agreement with a regional authority that had condemnation powers, by which the developer would pay for proceedings to condemn the land in return for getting the property from the authority immediately after the condemnation. A state supreme court found that this transparent arrangement to take land so that it could benefit the racetrack developer was a misuse of the eminent domain power. As the court put it, that power "is to be exercised with restraint, not abandon."

In another successful challenge to a condemnation, a city tried to take land owned by a church in order to turn the land over to a major discount retailer. The property had been vacant for a decade, despite having been declared a blighted area. The city tried to use blight removal and redevelopment of the property to justify its actions. This reasoning was undermined by the city's denial of permits sought by the church for more church buildings on the property, even though such a use would have eliminated blight just as well as the commercial use favored by the city.

The more believable motive for the city was its desire to generate more revenue by putting a taxable business on what had been tax-exempt church property. But the city had other ways to generate revenue. As to both of the city's ostensible goals--blight removal and generation of revenue--the city was "using a sledgehammer to kill an ant." In issuing an injunction against the condemnation proceedings, the court characterized the condemnation as resting only on "the desire to achieve the naked transfer of property from one private party to another."