In the latest Weekly Wright Report:
- Help! My New Employee Just Brought Their Emotional Support Puppy to Work – read now
- Winning the Get Out of Arbitration Award Free Card – read now
Help! My New Employee Just Brought Their Emotional Support Puppy to Work
What should you do when your new employee brings his 100-pound “emotional support” dog to work on his first day? Oh, and this without any mention during the interview that he’d have an untrained animal accompanying him all day on the shop floor.
The Americans with Disabilities Act (ADA) makes a clear distinction between a service animal and an emotional support, therapy, comfort or companion animal. Generally speaking, the ADA defines “service animal” as a dog that has been individually trained to do work or perform tasks for an individual with a disability. The task(s) performed by the dog must be directly related to the person’s disability. On the other hand, “comfort animals” are pets that provide comfort just by being with a person. If a comfort animal has not been trained to perform a specific job or task they will not qualify as service animal under the ADA.
The ADA also makes a distinction between psychiatric service animals and emotional support animals. If the dog has been trained to sense that an anxiety attack is about to happen and to take a specific action to help avoid the attack or lessen its impact, that would qualify as a service animal. However, if the dog’s mere presence provides comfort, that is not considered a service animal under the ADA.
If your work environment has furry friends visiting that are not ADA-approved, let me help you through the process of addressing what documentation and accommodations are needed.
Winning the Get Out of Arbitration Award Free Card
One of the characteristics of arbitration is that the arbitrator’s award is final and generally cannot be appealed or set aside except in very limited circumstances. For some this is a benefit of arbitration; for others it is a detriment of arbitration. Recently, a federal circuit appellate court threw out an arbitration award using one of those limited exceptions. In Monster Energy v. City Beverages, Monster obtained a final arbitration award in its favor in a dispute with one of its beverage distributors concerning Monster’s termination of the parties’ distribution agreement. Monster moved to confirm the award in federal court and the distributor moved to vacate the award.
The distribution agreement’s arbitration provision specified that the parties had to arbitrate any disputes concerning the agreement through the JAMS arbitration service. JAMS provided a list of arbitrators and the parties selected one – a retired judge. The arbitrator made the standard disclosure that as a JAMS neutral he had an economic interest in the overall financial success of JAMS. After the award was issued, the distributor discovered that the arbitrator was a co-owner of JAMS—a fact that was not disclosed to the parties prior to the arbitration. The distributor also discovered that over the course of the preceding 5 years, JAMS had conducted over 97 arbitrations involving Monster– no doubt due to the fact that JAMS was specified in Monster’s agreements as the arbitration service. From a business standpoint, Monster was a good customer of JAMS.
The Federal Arbitration Act, which governed the dispute, permits a court to vacate an arbitration award “where there was evident partiality … in the arbitrators.” 9 U.S.C. § 10(a)(2). The Maryland Arbitration Act similarly provides that an arbitration award can be vacated if “there was evident partiality by an arbitrator appointed as a neutral.” Md. Code Ann., Cts. & Jud. Proc. § 3-224. The Supreme Court has held that vacating an arbitration award is supported where the arbitrator fails to “disclose to the parties any dealings that might create an impression of possible bias.” The Court has further noted that when an arbitrator has a “substantial interest in a firm which has done more than trivial business with a party, that fact must be disclosed.” By contrast, courts have also observed that “long past, attenuated, or insubstantial connections between a party and an arbitrator” do not support vacating based on evident partiality.
In Monster’s case, the federal appellate court held “given the Arbitrator’s failure to disclose his ownership interest in JAMS, coupled with the fact that JAMS has administered 97 arbitrations for Monster over the past five years, that vacatur of the Award is necessary on the ground of evident partiality.” Accordingly, the court vacated the arbitration award and the award of hefty attorney fees in favor of Monster.
The takeaway here is that while arbitration awards are difficult to get overturned, it is not impossible. “Evident partiality” might be your get out of award free card. When you are dealing with an arbitration clause that specifies a private arbitration service that will mean that the private arbitration service likely conducts many arbitrations for that party. That could be the beginning of partiality. Sometimes you just have to dig a little deeper.
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