Employment: Disability, and Service Animals

The Americans with Disability Act is an important piece of civil rights legislation that prohibits discrimination based on a disability. There have been serval amendments of the ADA, and Michigan has its own civil rights legislation that also provides protections for disability and other classes.

Title I — Employment
In an employment setting, disabled persons may face discrimination over the type of disability they have as well as with their ability to have a service animal. The ADA, Elliot-Larson Civil Rights Act of Michigan, and the Persons with Disabilities Civil Rights Act, and others offer protection over disabled employees (with certain exceptions).

Here are few short questions that may settle some questions for employers as well as employees. Our answers are generalities as there are numerous exceptions and procedures; for example the CFR is constantly evolving and implements the statutes in a more digestible fashion.

May an employer ask whether or not I am disabled before a job offer has been made?
No, but an employer can ask whether or not you can perform the duties of your job with or without a reasonable accommodation (see 42 USC 12112(d)(2))

May an employer ask whether or not I am disabled AFTER a conditional job offer has been made?
Yes, provided all entering employees are subject to such an examination (see 42 USC 12112(d)(3)).

May an employer ask job related inquiries as to the nature of a disability?
Yes, provided such inquiries are shown to be job related and consistent with business necessity (see 42 USC 12112(d)(4)).

What is a reasonable accommodation?
The term reasonable accommodation generally includes making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and job restructuring, acquisition or modification of equipment, and other accommodations for individuals with disabilities (see full definition at 42 USC 12111(9)); the general caveat to reasonable accommodation comes down to whether or not there is an undue hardship on the employer (see 42 USC 12111(10) and 12112(b)). And where such action would otherwise be discrimination by an employer for failure to provide a reasonable accommodation (see 42 USC 12112(b)(5)).

When do I need to tell an employer I am disabled?
If you believe you need a reasonable accommodation (during the application process or for your employment), it is generally on the employee to tell the employer of your physical or mental limitations (see 42 USC 12112(b)(4) and (5)), it may be sufficient to say categorical disabilities such as “anxiety disorder” or “mobility disability”  if you do not want to tell your employer about your specific disability.

However, when the disability or accommodation is not an obvious one, the employer may ask the disabled person for reasonable documentation about their disability and functional limitations (see  29 C.F.R. pt. 1630 app. 1630.9 (1997); see also EEOC Enforcement Guidance).

After requesting a reasonable accommodation what may an employer ask about my disability?
The employer is entitled to know that you have a covered disability for which you need a reasonable accommodation. Your employer may ask for your specific and reasonable accommodation in writing and to generally describe your condition and how it affects your work, but may not refuse your initial request. Without making such a request the employer wouldn’t know what accommodation you need to be able to perform your job and whether or not they can assess if such accommodation is an undue burden. It may be an option to have the health care provider write a letter containing what accommodation is being requested, particularly if the disability is one you do not want disclosed.

Reasonable documentation means that the employer may require only the documentation that is needed to establish that you have an ADA disability, and that the disability necessitates a reasonable accommodation. You may be asked to sign a limited release allowing the employer to submit a list of specific questions to the health care or vocational professional. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act.

Alternatively, an employer may simply discuss with you the nature of your disability to verify the existence of an ADA disability and the need for a reasonable accommodation.

Is a reasonable accommodation ever an animal?
It is important to identify Title I from Title III. While Title III defines service animals (and creates a right), Title I does not. Therefore, an employer must assess whether or not the animal is a reasonable accommodation, and subsequently whether or not it is an undue burden.

Drunk Driving, DUI, OWI

What is the penalty for first offense drunk driving? Amongst other penalties and consequences (employment, public scrutiny, etc.) for an OWI, you may see jail time (0 to 30 days minimum) imposed in consecutively more harsh minimums for each subsequent offense.

Michigan’s limit for citation of an operating while intoxicated (OWI) driving under the influence  (DUI) is (a) a blood alcohol concentration of 0.08% or greater or (b) any amount of a controlled substance in your body. Furthermore, if you are operating a vehicle while under the influence of alcohol or drugs you may be charged with an OWI or other related crime. This extends to operating while visibly impaired if, from an observer, you are driving with less ability than a ordinary, careful and prudent driver would be driving.

Are there consequences for refusing to take a breathalyzer in Michigan? Yes, you could be penalized with a year or more of suspended license.

A DUI in Michigan is a serious matter that will potentially follow you for the rest of your life, it is important that every defendant hires an attorney; the difference can impact your life long earning potential, employment, friends and family. Criminal Defense Attorneys who can help.

Real Property: Boundary Line Disputes

In Michigan, property lines may be adjusted through various means, one of the most common is adverse possession. Which in essence involves one party actively working to take land from another, usually as neighbors. Often times this is done through real hostility and aggressive behavior. And that ends up deterring a more reasonable and less confrontational neighbor from telling their neighbor they believe their neighbor is trespassing and to stop, solidifying the adverse possession attempt after the statute of limitations have run.

Adverse possession is real, happens every day, and is the legally binding end result of a boundary dispute ignored by one party. Adverse possession can have serious consequences with the mortgage, taxes, and other ordinances, if you suspect your neighbor is attempting an adverse possession or you have a boundary line dispute contact an attorney immediately.

Real Property: Common Law and As-Is Clauses

Caveat Emptor, let the buyer beware.
Historically, sellers of real property have sought to limit their liability for defects in such real property, to prospective buyers by relying on the common law doctrine of “caveat emptor”, or let the buyer beware. Essentially, without an express agreement to the contrary, the seller’s liability, for property conditions, ended when the deed changes hands. This of course has been modified by American Jurisprudence, after all, a house (which is generally what most real property transactions center around today) is a vastly different creation today than it was just a few decades ago.

Fraudulent Concealment and Misrepresentation (Michigan).
Outside a fraudulent statement on the Michigan Seller’s Disclosure Statement, a seller commits intentional misrepresentation when:
• made a representation of a material fact;
• such representation was false when it was made;
• the representation was knowingly false or made recklessly, without knowledge of its truth;
• such representation was made to induce the buyer’s reliance;
• the buyer acted in reliance; and,
• the buyer was injured as a result of such representations.

This has been taken further where, fraud may be committed by silence. Where a seller has an affirmative duty to speak but fails to disclose material facts, causing the plaintiff to have a false impression. This has also been extended to sellers who acquire information which makes a prior statement misleading. However, a defendant is protected from claims of innocent misrepresentation where the contract contains an effective “as is” clause.

A buyer commonly sue, sellers, real estate brokers and sales associates, and property inspectors for such above misrepresentation.

A seller commits fraudulent concealment when:
• it concealed or suppressed a known material fact;
• that this material fact was not within reasonably diligent attention, observation, and judgment of the plaintiff;
• that the defendant suppressed or concealed this fact with the intention that the plaintiff be misled as to the true condition of the property;
• that the plaintiff was reasonably so misled; and,
• that the plaintiff suffered injury as a result.

Generally, public policy dictates that society is better served where both sides have a fair opportunity to assess the transaction. A seller who knows the ‘drywall’ in the basement is just painted newspaper has a duty to the buyer to disclose such fact. Or for another example, where a seller knows the roof leaks in spring, and it is now early summer, such fact should be disclosed to the buyer. If however, the buyer refuses to hear such information, or refuses to read such disclosures, or generally knowingly and voluntarily waives its rights, the law will not protect such buyer.

Will an as-is clause shift liability?
In 1839, in Smith v Richards, a seller of a gold mine induced a buyer to buy by ‘salting’ the mine (fraudulently adding gold (or other minerals) to a mine to make it appear better than it is). The seller wrote “I, however, sell it for what it is, gold or snowballs; and leave it to you to decide, whether you will take it at my price, or not.” The Court found the seller liable for fraud. Generally, an “as-is” clause depends on the situation, it will permit a seller to sell the property in whatever condition it may be in, but not also to require the buyer to go on an Easter-egg hunt to discover fraud of the seller.

With the exception of perhaps Alabama, a seller may not hide behind an as-is clause to shield itself from misrepresentation. In Dygert v. Leonard, sellers repaired and painted over cracked foundation of the house. Whilst in the purchasers possession, the foundation began to show cracks. The purchasers sued the sellers for fraud. Ruling in the purchasers favor, the court denied the sellers’ motion for summary judgment (called summary disposition in Michigan), for reason that an ‘as is’ clause does not “shield defendants from judicial inquiry into specific allegations of fraud in the inducement of the contract.”

As put by the Texas Supreme Court, “A buyer is not bound by an agreement to purchase something ‘as is’ that he is induced to make because of a fraudulent representation or concealment of information by the seller. . . A seller cannot have it both ways: he cannot assure the buyer of the condition of a thing to obtain the buyer’s agreement to purchase ‘as is’, and then disavow the assurance which procured the ‘as is’ agreement.”

A seller may find it prudent to seek the advice of counsel prior to listing their home with statements such as “According to previous owners new roof shingles were installed in [date]” and “Home being sold AS-IS with Seller not contributing toward repairs.” Because although many red-flags are raised between the lines of those two conflicting statements, does the seller know something that they should have disclosed to the buyer? Could the purchaser discover a flaw in the roof and successfully argue that the seller provided assurances? Is the seller assuring the buyer of the condition of something and then disavowing the assurance?

Noncompete Agreement Update Early-2017

Reasonableness was once a common misconception amongst commercial noncompetes. The Michigan Supreme Court in Innovation Ventures, LLC v Liquid Mfg LLC, 499 Mich 491 (2016) has resolved this confusion once and for all by making it clear, employee noncompetes must be reasonable to be valid, while commercial noncompetes are invalid only if they fail the “rule of reason” within the antitrust (a much higher standard).

Employee noncompetes must be reasonable: limited in “duration, geographical area, and the type of employment or line of business” (scope) and only so necessary as to protect the employer’s legitimate competitive interest (“competitive business interests”) MCL 445.774a. Reasonableness underscores the enforceability. This means from a lawyers perspective, drafting an enforceable employee noncompete is a challenge, it means you should not use a form, and the agreement should consider the particular employee and the particular interest being protected. The literal language of an agreement may not even define the enforceability of the noncompete. Employees have a general freedom to change employment and maximize the value of their labor (it sort-of violates public policy, for societal harm, to tie a productive employees hands behind their back).

Employee noncompetes should be standalone signed agreements (not in the handbook). Multi-jurisdicational employers should consider which state law will control (California and North Dakota prohibit certain noncompetes and Illinois requires a duration of employment). Will the employee be preforming services in other states from where the employer is located, where does the employee live (domicile)?

The noncompete must protect a legitimate business interest and competition is not a legitimate business interest. A reasonable geography could be a few miles, state, or world. Reasonable duration varies as well, a fast pace industry may only support a few months, where as a corporations long term strategy may be supported for years. And the restrictions are employment must be limited to only those jobs where the competitors could benefit from the employer’s proprietary information. Legal consideration is required in all noncompetes (value in exchange for covenant).

Commercial noncompetes may be broad and so long as they do not have an adverse impact on the competition in the relevant market they will generally be enforceable. More time is often spent on these noncompetes since the parties to the contract will consult with a lawyer and are sophisticated enough to consider the commercial implications of unreasonable terms.