The Florida Legislature recently passed legislation that classifies Florida workers as temporary workers in another state when the worker is in that state for no more than 10 days in a row or 25 days over a calendar year. The Florida legislation only applies in situations where the worker is temporarily in a state that has adopted a similar law ensuring its workers cannot pursue claims in other states. The bill is now before the Florida Governor for approval. Ironically, Florida does not recognize professional athletes as employees under worker’s compensation laws.  According to a New York Times report, more than 700 professional football players are pursuing cumulative injuries in California.

The Indiana Supreme Court has held that a student athlete on scholarship does not qualify under the definition of employee under the Indiana worker’s compensation statutes and therefore is not entitled to recover under a claim of worker’s compensation if injured.  Rensing v. Indiana State Univ. Board of Trustees, 444 N.E.2d 1170 (Ind. 1983).  In Indiana there is no specific exclusion of professional athletes under the worker’s compensation statutes.

If you have any questions regarding this or any other sports law issue, please contact the author, Greg Granger.

The new law also increases the exemption available to each Class A transferee from $100,000.00 to $250,000.00.  This increase applies to transfers made by a person dying after December 31, 2011.  The exemptions available to Class B ($500.00) and Class C ($100.00) transferees were not changed.  Class A transferees are essentially the deceased person’s lineal ancestors and lineal descendants.  Stepchildren and their descendants are included as Class A transferees.  Surviving spouses of a deceased child or stepchild are included as Class A transferees as of January 1, 2012.  Class B transferees include a deceased person’s siblings and their descendants.  Class C transferees include anyone not included in one of the first two classes.  Note: Transfers to a deceased person’s surviving spouse generally qualify for an unlimited marital deduction which effectively eliminates inheritance tax on such transfers.          

If you have any questions regarding this topic or any other estate planning matter, please contact the author, David E. Gray.
 

This dispute arose out of a medical examination administered to the Plaintiff by an independent medical examination agent.  It is undisputed that the examination did not go well; the dispute centers on why Defendants rescinded an offer of employment to Plaintiff. Plaintiff contends that it was rescinded because she refused to answer questions posed in the exam about pregnancy, abortion, sexual activity, birth control, and similar subjects — all of which were allegedly posed only to female applicants — and because she complained of these questions to Defendants. Defendants contend that the offer was revoked because of Plaintiff's “attitude” — they thought her “rude.”

The Court noted that the ADA prohibits an employer from requiring an applicant to undergo a “preemployment” medical examination, unless it is focused on “the ability of the applicant to perform job-related functions.”  However, once an employer has made an offer of employment to an applicant, the ADA permits employers to require an “employment entrance examination” in which they may inquire into a range of topics unrelated to job-related functions.

On summary judgment, Defendants argued that they could not be held liable for questions contained in the "employment entrance examination" because it was administered by an independent third party, Healthwise.  Defendants contended that, “HealthWise is a company unrelated to [Defendants]” and “Defendants did not direct HealthWise to ask the questions about pregnancy.”  The Court denied summary judgment, holding that an issue of material fact existed as to the degree of control the Defendants exercised over the independently owned medical clinic's screening procedures.

The Court noted that Title VII defines “employer” in pertinent part as “a person engaged in an industry affecting commerce who has fifteen or more employees … and any agent of such a person.” 42 U.S.C. § 2000e(b).  The Court also noted that "an agent of an employer may be identified as an employer for the purposes of the Civil Rights Acts if the employer delegated employment decisions to the agent.”  As generally defined, “Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.”

In this case, the Court found that the Defendants had delegated authority to HealthWise to make certain aspects of Defendants' employment decisions. For example, Defendants notified Plaintiff that she must pass the HealthWise medical examination to receive the job. There was also evidence that the relationship between the Defendants and HealthWise was essentially exclusive.  The Court held that the Defendants had retained some control over HealthWise's screening practices, including reserving control over changes to the medical history questionnaire at issue as well as the purpose of the medical examination. 

The Court observed, "And, of course, the actual exercise of control is not essential to create an agency relationship — the relationship is created if a purported principal 'has the right to control the conduct of the agent with respect to matters entrusted to him.' Restatement (Second) of Agency § 14. Here, an issue of fact also exists as to whether [Defendants] had the right to control the manner in which HealthWise administered the preemployment screening procedures. Accordingly, Defendants are not entitled to summary judgment on Plaintiff's pregnancy discrimination claims brought pursuant to Title VII … ."

Employers use third parties for many aspects of the hiring process, for example, solicitation and review of resumes, background checks, medical screening, and drug testing.  Employers must be careful that their agreements with such third parties do not create an unintended agency.  Employers should also consider the inclusion of warranties and indemnities in those agreements to protect them from mistakes by the third parties.  Employers should audit the performance of these functions to verfiy compliance with all applicable laws.

If you have any questions regarding this or any other employment law issue, please contact the author, Mark Miller.

Each year before the beginning of practice for an interscholastic or intramural sport, a high school student athlete and the student athlete’s parent must sign and return an information sheet acknowledging the nature and risks of concussion and head injuries.  Thereafter, a high school student athlete who is suspected of sustaining a concussion or head injury in practice or a game shall be removed and may not return until the student athlete has received written clearance from a licensed healthcare provider.

The IHSAA has crafted a protocol for implementation of National Federation of State High School Rules for Concussions which includes the filling of an official report with the removed player’s school by the official that removed the athlete from play.  Furthermore, in instances where there is an assigned IHSAA Tournament physician, his or her decision to forbid an athlete to return to competition may not be overruled.

Some states have taken additional steps beyond the national model.  A school committee in Massachusetts passed an interim policy that requires any student in marching band or going on a field trip to take a baseline concussion test.  A Niagra Falls high school is making baseline concussion tests available to all student athletes, and the New Jersey State Legislature approved a bill requiring the State Department of Education to include cheerleaders within its concussion policy.

These safety precautions reflect an increased awareness that concussions are no longer treated as minor injuries and that the majority of concussions do not involve a loss of consciousness by the athlete.

If you have any questions regarding this or any other sports law issue, please contact the author, Greg Granger.

Under the proposed rule change, qualifying undocumented immigrants could remain in the United States when they apply for a waiver. Those immigrants who obtain the waiver would still be required to leave the United States to apply for a visa but the possibility of a quick return and the avoidance of the three to ten year ban would be lessened.  The waiver would be based on the “extreme hardship” to the US citizen (spouse or other qualifying relative).  The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) identified 10 classes of inadmissibility for immigrants.  Those 10 classes are:

 1. Health-Related Grounds
 2. Criminal and Related Grounds
 3. Security and Related Grounds
 4. Public Charge Ground
 5. Grounds relating to labor certifications and qualifications for certain immigrants.
 6. Grounds relating to illegal entrance and immigration violators.
 7. Grounds relating to documentation requirements.
 8. Ineligibility of citizenship.
 9. Grounds relating to aliens previously removed and unlawfully present.
 10. Miscellaneous Grounds.

In 2011, the United States Custom and Immigration service received in excess of 23,000 waiver applications.  The Department of Homeland Security Guidelines provide that the inadmissibility grounds are triggered only if there is a departure after a period of unlawful presence.  Immediate relatives of a US citizen who were lawfully admitted or paroled but have fallen out of status or who have engaged in unlawful employment remain eligible for adjustment of status. USCIS intends to limit this proposed rule change to waivers filed by immediate relatives of U.S. citizens whose only ground of inadmissibility is the unlawful presence bar. Aliens who require waivers for one or more additional grounds of inadmissibility must continue to file a Form I-601 while outside of the U.S.

An alien would be able to obtain a provisional waiver only if a Form I-130 is filed by a U.S. citizen on his or her behalf and that petition has been approved thereby classifying the alien as a “immediate relative” and he or she demonstrates the denial of a waiver would result in extreme hardship to the alien’s U.S. citizen, spouse, or parent “qualifying relative.”

Under the current process, aliens who are immediate relatives of U.S. citizens apply for immigrant visas at department of state counselor posts outside the United States.  After a finding of inadmissibility is made by the Department of State counselor officer, the alien then files a form I-601 application of waiver of grounds of inadmissibility with USCIS.  His or her file is then transferred from the Department of State to USCIS.  Under the proposed waiver process the waiver determination would be made by USCIS and a provisional waiver would be provided in advance of the immigrant visa interview.

The notice of intent generally describes what USCIS is considering.  Any application requesting the new process will be rejected and the application package returned including any fees until a final rule is issued and a change becomes effective.

If you have any questions regarding this or any other immigration issue, please contact the author, Greg Granger.

Most parents with minor children name guardians for their children in their wills.  This normally works fine in the event the parent or parents die, but a court might hesitate to rely upon a designation of guardians in a will in the event the parent or parents become incapacitated rather than die.  There would be a bit of uncertainty about who has the right to custody of the minor children even in the event of death until the will is probated and the court formally appoints the person or persons designated as guardian.  This new provision provides stop-gap coverage for that problem as well as a clear method for naming a person to take over for a parent in the event he or she or they simply become incapacitated.  This could be an important advantage in certain situations.   

If you have any questions regarding this topic or any other estate planning matter, please contact the author, David E. Gray, or the Bowers Harrison attorney with whom you normally work.