Legal Q&A • Northwest Indiana Business Magazine

Legal Q&A

Our annual roundup of answers to business law queries.
by Michael Puente

Summer is the time for beaches, backyard barbeques and just having fun.

But it's also a time for Hoosiers to adjust to new laws passed by the Indiana General Assembly back in the spring.

Indiana has a host of new laws – namely a statewide smoking ban and a designation as a so-called right-to-work state.

Each summer, Northwest Indiana Business Quarterly asks local attorneys to help explain new laws.

Right to Work
Indiana is now a Right to Work state. What does this mean for companies and how they chose to follow this new law?
Gerald Lutkus, Barnes & Thornburg, South Bend
It's a pretty clear-cut law. When you negotiate a contract with a union, you can't have a provision in your contract that requires employees to be a member of the union. It's just a matter of eliminating those union shop clauses from the collective bargaining agreements.

“Contracts that were entered into before March 14 that includes a union shop clause will remain in effect until the contract expires or when a new collective bargaining agreement is reached. There potentially could be tension between guys who worked next to each other for a number of years and one of them decides to opt out. They could be called freeloaders and I do think there could be a lot of pressure put on them by the union.

“As an employer you've got the right to control the operations. To the extent that during working hours, aggressive behavior between the unionized worker and the worker who opts out, you have to take your normal disciplinary steps to address that situation. I think the guys who do decide to opt out are going to be subject to a lot of pressure. The problem is you don't have much control over that outside the workplace.

“As an employer, you have a duty to protect both employees. That employee who decides to opt out, he has a right under the National Labor Relations Act not to be a member of a union. So, the employer has an obligation to be on alert for that kind of action.”

Indiana's new statewide smoking ban
What are the legal ramifications for businesses who donÕt want to follow this law and how are businesses to implement such a new requirement?
Melanie M. Dunajeski, Drewry Simmons Vornehm LLP, Merrillville
“For starters, businesses need to remove all ashtrays and smoking paraphernalia from any area considered a public place. Businesses also need to post a prominent sign at each public entrance to the effect that smoking is prohibited by state law.

“Presumably the legislature did not authorize or require businesses to physically remove a non-compliant smoker, but advising a person to leave and then calling the police if they will not are well within the intent of this statute. Further, there is a process for confirming any exemption to the law that a business claims.

“The procedure and forms are available through the Indiana Alcohol and Tobacco Commission. Employers must affirmatively advise all employees and prospective employees that smoking is not permitted in the workplace.

“Employers can accomplish this through postings on their bulletin boards, making amendments to employee manuals, making announcements at meetings or sending e-mail notices designed to reach all employees. For prospective employees, a notice on a written application or a separate written notice would be advisable.

“The purpose is to design a notification process that will ensure that all employees are aware and remain aware that the workplace is a no smoking area. Employers can provide a smoking area for employees, but it must be outside of a structure and more than eight feet away from any public entrance. Fines for violations range from $1,000 to $10,000.”

The Americans with Disabilities Act
The ADA became law in the United States in 1990. Most people might assume the act deals with mainly providing ramps on sidewalks or elevators for wheelchair-bound individuals, but the act covers so much more ground and there is a steady stream of civil lawsuits aimed at enforcing the act. So what must companies do to comply with the ADA and what are the requirements?
Michael J. Hayes, Tuesley Hall Konopa, LLP, South Bend
“There are two broad categories of rules under the ADA: Those concerning employees and those concerning building accessibility. Indiana businesses generally have the most questions and concerns with the employment provisions of the act and especially those concerning ‘reasonable accommodations.' The ADA does not apply to businesses with 15 or fewer employees.

“Recent amendments to the law broaden the interpretation of what amounts to a protected disability. Almost anything can count. It's nearly impossible to describe how the ADA rules play out in specific employment situations because the law's requirements are designed to vary based on unique circumstances.

“For example, an employee with a heart condition who cannot stand for more than 15 minutes most likely has a disability under ADA definitions. If the employee works on a factory floor where standing for hours is the norm, the employer may need to accommodate her by adding a chair to her workspace. The risk to an employer who fails to participate in the interactive process or does so half-heartedly is civil liability. An employee can seek familiar remedies such as back pay, front pay, reinstatement, lost benefits, and the like.”

The Americans with Disabilities Act was amended in 2008. What impact do those amendments have on businesses?
Richard W. Castleton, Burke Costanza & Carberry LLP, Merrillville
“Congress passed the Americans with Disabilities Act Amendments Act in 2008 to reverse several Supreme Court decisions that had been considered employer friendly. The ADAAA significantly expanded the definition of what constitutes disabilities, making it much easier for an employee to establish the definition of what constitutes disabilities, and making it much easier for an employee to establish that he or she has a disability within the meaning of the ADA. This means many employers will likely see an increase in requests for accommodations under the ADA.”

“A common issue employers have difficulty with is finding a reasonable accommodation that will adequately address the needs of the employee, while at the same time minimizing the impact the accommodation will have on the business. This is particularly true when an employee is in a customer service position and requests an hour of leave on a daily basis, or the ability to arrive late to work on a regular basis. Employers should review job descriptions and emphasize that timeliness and regular attendance are essential functions of employment in these types of positions.”

Social Media
Many employers are now requiring job applicants to allow access of their social media accounts. Some states have clamped down on this practice. Is this generally considered good practice for a company to peek into someone's social media activities such as Facebook or Twitter, or is that infringing on someone's personal activities?
Robert J. Dignam, Hoeppner Wagner & Evans LLP, Merrillville
“Many employers investigate social media activity of job candidates when deciding whether to offer employment. One prominent social media entity prohibits users from sharing password information, and considered suing employers who required prospective employees to share passwords so they could view the applicants' personal information.

“Although the invasion of privacy litigation was not pursued, viewing prospective employees' social media activity may expose employers to claims of discrimination under Title VII or other anti-discrimination laws, which also apply to the hiring process. If an employer determines a job applicant's age, religious affiliation, disability or membership in other protected classes, it could be accused of discriminatory failure to hire on those bases.

“The Indiana Civil Rights Law applies to employers of six or more employees and has similar prohibitions. Based on such concerns, Maryland became the first state to ban employers from requiring prospective employees to provide user names and passwords. Other states are expected to follow suit.”

Protecting Intellectual Property
Musicians, writers, movie directors and even videogame designers or developers of new smartphone apps painstakingly come up with their ideas to get them to market. But in this global economy, how can one protect their intellectual property?
Nicholas J. Chulos, Krieg DeVault LLP, Schererville
“Intellectual property (such as trademarks, copyrights and patents) affects virtually every business in some fashion. In the global economy in which we operate, protecting intellectual property rights merits significant attention by businesses.

“Perhaps the most frequently-encountered form of intellectual property involves trademarks. A trademark is any word, name, symbol or device, or any combination of these, that identifies and distinguishes the products or services of a business from those of others. “Trademarks are commonly seen in advertising, displays, packaging, labels, literature and correspondence of a business. Trademarks are often among the most important and valuable assets of a business and a distinctive trademark allows a business to build public goodwill and brand reputation in the goods and services the business sells.

“However, trademarks can be surprisingly fragile, and businesses must protect their trademarks not only from infringement but also from misuse. Even if accidental, a misuse of a trademark can diminish the degree of protection to which a trademark is entitled and, in extreme cases, can even result in the loss of trademark rights altogether. The companies that own some of the most well-known trademarks in the world are both vigilant and vigorous in the protection and use of their trademarks. Protecting trademarks includes complying with a number of technical requirements, and proper professional guidance should always be obtained, particularly because trademark requirements can vary from country to country.”


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