Uncle Dale’s “You Probably Should Know”: Where Do Section 504s Come From?

So the other day three people, a student who is Deaf, a hearing student who knows some ASL and an interpreter came to my office to ask some questions.  In the middle of a great discussion on many topics related to education they, as a group asked:

“What is the difference between the ADA and Section 504?”

That is a good question. The answer is A LOT! For example one is three letters and one is three numbers.  So, can you be more specific?

After a little negotiation to help them frame the actual question (many people would be shocked, I think to realize how often helping students figure out the question is much more important than helping them find the answer) they decided that they wanted to know why a person would choose to use 504 and not the ADA, or the ADA and not 504 or, you know, both at any given time. 

Now that is a question I can answer! It gives me some direction and I can do it… but not in one go.  We are going to be on this topic for a while. 

Ok, you remember how as a kid you had to eat your vegetables first. You wanted dessert but you had to get through the stuff that is good for you first?  

There are answers you want! Now.  You want them right now! You are itching for them, and I could give them to you. But without context the answers I give will be interesting but not helpful. All sugar and no vitamins. 

I am going for helpful. Sorry.  It’s what I do. 

If you want to know the how and when of 504 being useful, you have to start with why.  Why is 504 in the first place.

You have to start with Authority.  So. Here we go.

The 10th Amendment to the Constitution says that Congress can only pass laws on issues or matters that the Constitution specifically gives them the Authority over.  If the Constitution is silent then… no. No Congress can’t.  

If Congress “can’t,” then the authority over THAT (whatever THAT is) is reserved solely to the States (that’s States, Utah, Mississippi, Iowa, Massachusetts…)

So pop quiz hot shot! Where in the Constitution does it give Congress the authority over people who are Deaf? Or over Disabilities?  Go ahead and look for it.  I’ll wait.

Hint? It doesn’t. 

So… how?

Authority is a strange animal.  It lives in various climates and walks on many planes.  That sounded more mystical and shaman like in my head.  Whatever.  

Taxes

Taxes are where Congress gets its authority to pass a law like 504.  Article 1 Section 8 of the Constitution gives Congress the authority to collect taxes and to expend money.  If you can do that then you can choose upon which items you will spend the money.  It’s called “Carrot and Stick” policies.  

Here is an example.  Back in the late 1960s and early 1970s America was in the middle of a gas crisis. The Feds (read Congress) wanted everyone to drive 55 mph. But the Constitution does not give Congress the authority to force States to do that–or anything really. 

So, it came down to money.  

If a State set their speed limit at 55 mph they got federal highway funds (carrot) and if the State did not, they got no funds (stick). 

This is the same reason why all States now have laws saying you have to be 21 to buy alcohol,  and 18 to vote. If States adopted those laws they got funds for drunk driving prevention programs and police equipment and new voting machines. Get it?

So that is the authority Congress used to pass 504. But with 504 the authority attaches to everything. If you accept federal money for almost any thing you can’t discriminate against people with disabilities, according to 504.    

Next problem, the whole of Section 504 is about a paragraph long. Seriously that’s it.  So it has no room for explanations of what discriminate means, or who a person with a disability is or even what it means to accept federal funds

So, all the different Executive Agencies made their own Regulations, basically wrote their own definitions of all those things.  

If you want to know what discriminate means for a hospital you must look to the Regulations from the Department of Health and Human Services and not the ones written by the Department of Education… unless it is discussing a student who is hospitalized long term.  How does the term Disability apply in an employment setting? The EEOC has the regulations for that, but not if you are an independent contractor, for that the Department of Justice wrote the Regulations. And so on.  The Regulations often are similar but rarely the same. 

Yes, it’s labor intensive, confusing and… mistakes are made. Grin. 

Next problem, what does mean except federal funds. Also sometimes a little confusing. 

With State agencies and other executive branch government entities you can usually be pretty sure they accept federal funds under 504, particularly after 9/11, because the Department of Homeland Security made it rain!  

Many private businesses also accept federal funds in fact more than you would think. For example hospitals clinics and doctors that accept Medicare and Medicaid are accepting federal funds. Private colleges and universities who accept federally subsidized student loan’s are excepting federal funds (even the local college of massage therapy or the college of hair design if they get federally subsidized student loans). 

There are some weird limitations to whether 504 applies in some stipulations but not as many as the ADA. For the most part “youse takes the money youse follows da rules.”  The weird stuff I will discuss it all later vlog. 

Ok here we are, authority.  This you will find out is the magic key you need to make 504 work.  If you know that the entity accepts federal funds BANG your in… if you know which Regulations apply.  

The ADA is not so straight forward.  We will talk about that later too.

Finally, an interesting problem that has been solved (just to give you hope).  when Section 504 of the Rehabilitation Act of 1973 was passed it did not have a great deal of clarity on how it was to be applied (you may argue that is still true). So universities, for example, argued that classrooms didn’t accept federal funds and so they didn’t have to be accessible, only the office of student loans accepted federal funds so only that office had to be accessible. Courts agreed.  No joke.

Congress fixed that problem in the late 1980s by passing a statute called the Civil Rights Restoration Act that said if you except federal money in one area of your entity it covers everything that benefits from the money. So in a practical sense, everything.

There you are, quick and dirty on the authority Congress used to pass Section 504.  Next we’re going to talk about the ADA. The authority for the ADA will take at least three vlogs. Yeah, it’s that complicated.  But we’re done you will understand enough that you can take advantage these laws, know how each is applied and you should have an idea  at least as to when it’s best to use one over another… or both!

Remember! Uncle Dale’s Rules may be informative but it is not a substitute for legal advice. If you want information on any of the topic contained herein please talk to a lawyer in your area.

Uncle Dale’s “You Probably Should Know”: Employee vs Independent Contractor (MLM)

I got this question a bunch this week. Many people who are Deaf and a few interpreters are outraged because there is a multi-level marketing convention in town and it has refused to provide interpreters because it says that the Deaf attendees are not “employees.” The MLM is right, they are not employees-but 100% wrong that it does not need to provide interpreters for them.

If you are not familiar with the idea of an MLM, it’s one of those companies that sells soap or skin care products or essential oils or found some awful tasting fruit that they now sell as a health drink.  They don’t sell them from stores or on-line. One person gets a few sales reps “under” them or in their “downline” who then get people “downline” from them and so on and so on… its a huge business.  

Anyway.  Most of these companies are run by lovely people, but every now and again I run into this issue.  A Deaf person joins the group as a sales rep and buys a ticket to a MLM convention (where they have motivational speakers and sales trainings and opportunities to network and build your business) as all sales reps are encouraged to do.  The person who is Deaf requests an interpreter and the MLM says no.  The MLM doesn’t believe it has to because, as I said, the person who is Deaf does not “work” for the MLM; the person who is Deaf is not their “employee.”  The MLM is right.  The person who is Deaf is an independent contractor.  If they try to force the issue using Title I the person who is Deaf will lose because Title I does not apply.

But, if you are not an employee you are “the public” and that falls under Title III.  Once a person who is Deaf bought a ticket to the MLM event that person became a “qualified person with a disability” under Title III (I know the who disability thing leaves a bad taste in your mouth–I wrote a paper on it, me too–but if you want to use the ADA…).  A person with a disability because the Deaf person is… well… Deaf, and qualified because a person is qualified to attend the MLM event if that person has a ticket to the event.  So when the MLM said it would not provide interpreters the person who is Deaf got the last thing they needed to have “standing” (the legal ability) to sue.

[t]o establish Article III standing, a plaintiff must show that: (1) she has suffered an ‘injury-in-fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to being merely speculative, that the injury will be redressed by the relief requested. Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004).

MLM’s at this point will scream and cry that is not on the list of “places of public accommodation” that is contained within Title III, it is not a store nor does it maintain a place that “accommodates” the “public” (not the same thing as a reasonable accommodation— different thing/similar name… different discussion for a different time).

Again, the MLM is right.  It is not on the list of “places of public accommodation” found in Title III.  But the convention center it is using for the convention is.

“Oh,” you say, “so the convention center must provide the interpreter?”  Nope. Well, the MLM can allocate the responsibility to provide interpreters to the convention center by contract… but usually the convention center will be responsible for the physical accessibility (more permanent structures) but the MLM is “operating” the venue (selling tickets, controlling access…) so the MLM would be responsible for non-structural access (psst. interpreters).

The person who is Deaf paid a price to attend the conference, the conference is held in statutorily defined place of public accommodation and the place public accommodation is operated, at least for the duration of the conference by the MLM, which Title III says makes the MLM, for the time frame of the conference at defacto public accommodation (even if the “lease” of the space is for a very short time).

So an “independent contractor” sales rep has the ability to enforce the ADA against an MLM using Title III, not because the person who is Deaf is an independent contractor… but because the person is NOT an employee, just a qualified member of the public.

I included a case that shows how it all works.

Jensen v United First Financial

http://cases.justia.com/federal/district-courts/utah/utdce/2:2009cv00543/70925/20/0.pdf?ts=1411581661

This blog and the attached vlog are informational but not meant to be legal advice or replace discussing your situation with a licensed attorney in your area.

Uncle Dale’s “You Probably Should Know”: The Affordable Care Act and Interpreters 

OBAMACARE? Yow! Thems fightn’ words!  I have another blog where I express my political views and try to keep this one more informative and neutral. At risk of being accused of political speech hear me out!  This is something you probably should know and a scary number of people don’t.

It has to do with hospitals and doctors offices providing interpreters; even live interpreters over VRI.

A little background first. The ADA has five parts called Titles (you will never use the last two). Title II applies to government entities. Title II of the ADA has what is called the “Primary Consideration Rule.”  What that means is when a person who is Deaf attempts to access government programs, benefits and services the government entity must give “primary consideration” to the auxiliary aid or service requested by the person who is Deaf.  What that means is the government agency must give the person who is Deaf the specific aid they requested, like a live interpreter, or the government entity must prove it was not needed.  It is not easy to prove something is not needed.

Title III of the ADA doesn’t say that.

Title III has to do with accessing the services of private businesses, like hospitals and doctors offices. Title III only says the private business “should consult with” the person who is Deaf. IT INCLUDES NO OBLIGATION TO GIVE CONSIDERATION TO WHAT THE PERSON WHO IS DEAF REQUESTS.

In recent years when the Department of Justice has settled cases involving people who are Deaf who sue government entities (the settlement agreements are called Consent Decrees) the DOJ has been including language that says the definition of “primary consideration” is that the government entity must ask the person who is Deaf what kind of accommodation the Deaf person needs*.  Think about that. Prior to that the expectation has always been that the government entity only had to give “primary consideration” to the auxiliary aid or service that the person who is Deaf ACTUALLY REQUESTED.  If the Deaf didn’t ask… too bad! But if that language becomes the standard then anytime the law requires “primary consideration” the entity or business must ASK the Deaf person what they want and give it to the Deaf person or have the burden to explain in court why it did not.

So compare that with Title III where the private business doesn’t even have to consider the request of the person who is Deaf… the law just says it should, not that it must.

Section 504 has always been somewhere in the middle of the two.   The regulations under the Department of Health and Human Services have much stronger language than “should” but still not as strong as “primary consideration.” For some weird reason HHS also limited the application of Section 504 to medical providers with 15 or more employees.  So many small town doctors are not required to follow 504.

Now. I CAN FINALLY get to the thing you probably should know.

A couple of nights ago I was meeting with a group of people who are Deaf and who had complaints about hospitals using VRI and mentioned the Affordable Care Act (Obamacare) and fully 2/3 of the people in the room groaned, rolled their eyes, or made a disgusted face (I will freely admit, the Deaf Republican has always been a strange notion to me) there were comments flying around the room about how terrible Obamacare is and supporting the Senate Bill.  At this point I got everyone’s attention.

“I will not have a political discussion here,” I said, “that is not why we are here-but I will tell you all something you probably should know.”

“Most of the hospitals we are discussing fall under Title III as they are private businesses.”  I explained what the concept of “should” to them.

“Only one of the hospitals is a government entity.” I explained the benefit ‘primary consideration’ like I did above.

“All of them must follow Section 504,” I explained, “because they accept Medicare.”

Here is kicker, ready?

Obamacare has a section called the nondiscriminatory rule or Section 1557.  It applies to any health program or activity, any part of which receives HHS funding, such as hospitals that accept Medicare or doctors who receive Medicaid payments; the Health Insurance Marketplaces and issuers that participate in those Marketplaces; and any health program that HHS itself administers (Medicare Part B is excluded).

In Section 1557 it states that covered entities must give “primary consideration” to an individual’s choice of aid or service.

Yes you read that right!

The Office of Civil Rights confirmed that all covered entities will be held to the higher standards established under Title II of the ADA, which requires covered entities to give primary consideration to the choice of an aid or service requested by the individual with a disability.

OCR also explicitly stated that the communications requirements of Section 1557 apply to all providers even those with fewer than 15 employees.

In essence the ACA/Obamacare makes the standard for Section 504 the same as the standard for Title II. It means that hospitals and doctors must give you the accommodation you asked for (or maybe even ask you what you want) and if they don’t the court will make them prove a live interpreter was not needed instead of requiring the Deaf person to prove it was.

If the ACA/Obamacare goes away, so does that protection.

You should probably know that.

*Primary Consideration. In determining what type of auxiliary aid or service is necessary to comply with the ADA, the ACSO agrees to give primary consideration to the expressed preference for a particular auxiliary aid or service by an individual who is deaf or hard of hearing. “Primary consideration” means that Personnel will inquire as to the choice of auxiliary aid or service of the individual and will honor the expressed choice unless the ACSO can demonstrate that another equally effective means of communication is available.  See Consent Decree for LAWRENCE et al., v. CITY OF ENGLEWOOD, et al., and ARAPAHOE COUNTY SHERIFF para 27 https://www.ada.gov/lawrence-arapahoe.htm 2013

This blog and the attached vlog are informational but not meant to be legal advice or replace discussing your situation with a licensed attorney in your area.

Note from Uncle Dale: A Harsh Examination of the Interpreter  

So, you ask, Uncle Dale who are you… I mean in relation to the Deaf Community.

Good question.  I can only answer for me and certainly not for the Deaf Community.

As I see me, I am a facilitator of communication. I can be an ally, when it is appropriate (sometimes it’s not-sometimes what I see as ally behavior is actually Audism. All of my passion and experience and fluency does not save me from the things my hearing privilege hides from me).

Sometimes… sometimes I am a necessary evil (mental health treatment should not be interpreted–it should only happen directly in the language of the person needing therapy-oh and education. But this is not the world in which we live).

I am not the savior of the Deaf Community. I’m the hired help.

I always remind myself that the Deaf Community was resisting Audism before I got here and will still be fighting long after I’m gone.

I am not needed. What is needed is the work I do.  The work I do is needed and always appreciated, but sometimes the appreciation is… grudging; and that is fine. The Deaf Community does not need to love me AND THAT IS FINE.  I don’t have any say about how the Deaf Community should or should not feel about anything.  I can only make observations on what I see.

There is a level of ambivalence that always seems to exist between me and the community I love and serve. I exist in world where my work is greeted with appreciation and frustration at the same time.

Why? Well. I think of it this way. Imagine that, in order to breathe, you must employ the services of a person who touches the end of your nose-a certified nose toucher.

Now, it may not be that you can’t breathe, but in order to breathe effectively, and specifically at times of stress or when breathing effectively is vital, the services of a professional, certified “nose toucher” is needed (can’t do it for yourself, oh and you have horrible memories of the education system trying to teach you to touch your nose with your elbow, and everyone seems to have a suggestion of installing dubious microchips in your nose, but I digress).

So how would you feel toward the “nose toucher?” You would of course appreciate the “nose toucher” each and every time you took a clear and effective breath. But, you would also resent the fact that you had to depend on this other person for something so basic as breathing, that the world as it is forces this reality.

You would surely be angry each time someone talked to the “nose toucher” instead of you, as if you were unable to think instead of breathe.

Out of necessity you spend time with your “nose toucher,” and so you may develop “a relationship,”  sometimes beyond the realm of “nose touching,” maybe even a friendship.  But, that can lead to problems of its own. A blurry line between friend and professional can be dangerous.

Of course sometimes you will be assigned a “nose toucher” that you just do not like.  That’s a whole new level of frustration.

In the end no matter how much you appreciate the work of the professional, certified, “nose toucher” and even despite perhaps liking some of the “nose touchers,” they are people you MUST be with, not people you choose to be with. Every time they do their job you are grateful for it and also reminded of the fact that you are dependent on them. Appreciation and frustration. Sometimes you just want to go into the bathroom all alone and just choke. Sometimes you would rather just choke.

This is the way I imagine it, but I may be way off. Even if I am exactly accurate in my observations, people who are Deaf have every right to this feeling of ambivalence and it does not diminish the importance of what I do or my love of doing it. For me, recognizing it just keeps my head in the right place so I can do it my job effectively.

Who am I in relation to the Deaf Community? I am as helpful as I can be, as often as I can be. Nothing more nothing less.

Rule 263

VRS Call Center, Saturday 2:30 AM. Your mother was wrong! Those smutty novels weren’t a waste of time; they developed your Extra Linguistic Knowledge for this call!

Uncle Dale’s “You Probably Should Know”: Agreements and Contracts 

The lovely and talented Aunt SuperTam says that when I say “probably” I actually mean “absolutely.” As in:

SuperTam: I’m right!

Me: Probably.

So, when I say interpreters should probably know this… well, you get the point.

I got a bunch of questions about contracts recently (one as recent as yesterday!) WAIT! Don’t go away.  This is actually less boring than it sounds. AND and there is a gift for reading to the end.  Here we go!

Rule 207 says interpreting without a contract means sooner or later just working for free.

Interpreting is a service, you can’t “repossess” it, once you provide it, it’s done and so is your leverage. So, providing that service without a contract in place beforehand means you accept the possibility that the entity that requested your services will just not pay you.  They may “roll the dice” on you not being able enforce your oral agreement with them or bet on you not pushing for payment under a theory like Quantum meruit (if you don’t know what that is then the odds of them getting way with it or you walking away without them paying you are in their favor).*

You need to have a contract or an enforceable agreement.

If you want to know how to write a contract talk to a lawyer in your area. This Post won’t replace the advice of an attorney; it’s just to help you think about what you and your attorney should discuss.

There are good examples of Terms of Service agreements used by other interpreters out there in cyber-space. It’s worth your time to look them over. The terms other interpreters use may or may not make sense to you at first.  There is a reason for that.

If you drive west on I-80 from Salt Lake City for about 40 miles and turn south around Dugway, then drive for several miles you will see a very large, very old billboard that reads “No Weapons Grade Nuclear Material Beyond This Point.”  You know why they put that billboard there? Because sometime or another they had a problem with that.

That is how contract terms are born, they fix a problem, and you may not have ever had that problem… but you don’t want it to happen once you know it could happen.

So… what problems do interpreters want to fix before they happen?

1. Pay

“Interpreter/Translator shall be paid a minimum of two hours and thereafter time shall accrue in units of 30 minutes each.”

“Rates: $150.00 initial two-hour minimum for interpreting services $60.00 per hour thereafter.”

Now, we all know what a two-hour minimum means.  But not everyone does.  I recently wrote a term for an interpreter that says:

Rates: $150.00 for the initial two-hours interpreting services, paid regardless of the actual time required to complete the interpreted activity less than two hours and $60.00 per hour thereafter. No other services are offered nor may be demanded of the interpreter. 

The interpreter showed up to interpret and the Deaf Client’s issue is resolved in 15 minutes, and the business claimed that if they paid for two hours she would stay the full two hours and handed her a stack of  papers to scan.  I kid you not.  So that is now a term.

You need to address special rate circumstances such as legal, Deaf/Blind andPerformance.  You may charge a differential for after hours.

2. Reimbursable Costs

Like mileage or parking or, depending on where you work, tolls, light rail or trains.

3. Unusual Travel/Time Cost

Travel of over 50 miles or requiring over 2 hours of travel or more one way should be billed portal to portal.

4. Coverage of Longer Appointments 

You will want a term that requires a second interpreter for appointments over two hours.  If you are so inclined you can offer to arrange this but make sure you include a term that absolves you from liability for the other interpreters actions and sets how you will be paid for getting the sub-contractor.

5. Cancellations and No-Shows

A “contract” is just an “agreement” and can be cancelled by either arty prior to any obligation maturing.  Wow there is more than you wanted to know, right?  What that means is a contract is not binding until one of the parties is obligated to do… something. So a term such as  Cancellations less than two business days before the beginning of the appointment will be billed for the full amount scheduled matures an obligation (the obligation to cancel) two business days prior to the  assignment and makes the whole thing enforceable.

You might also want to consider a specific term for appointments that require travel outside a radius of say 150 miles of your office or requiring additional planning, travel purchases, and hotel confirmations or appointments spanning multiple days.  I suggest requiring one week’s notice but I have seen terms of up to a month’s notice of cancellation to avoid being charged for the entire assignment.

No-Shows are billed without exception. Say that with me. NO-SHOWS ARE BILLED WITHOUT EXCEPTION!  Do not accept guilt when it is offered by others. You showed up.  You are not the Client’s keeper.  Client no-shows are a cost of doing business, but no your cost.  You showed up. One of your Clients showed up.  You did not call this meeting. You did what you contracted to do.

(Actual voice mail) “We just got your invoice and are frankly shocked you would try to charge us when your Deaf person (seriously… not the Client’s name, “MY Deaf person”) did not even show up.  We think you owe us an explaination.”   I gave them one:

“The Client (name) was scheduled for an appointment with your office, not with me.  I was contracted for an appointment at your office and I was there on time as ready to do my job as you were to do yours.  You may not and I will not accept passing your costs to me.  If you have any further questions I would refer you to our contract and specifically para. 2 wherein it states that I am paid a 2 hour minimum, initial-meaning that is the cost for me to show up, which I did; para. 4 that states No-Shows are billed without exception; and, para. 7 which explains the terms of payment.

Thank you for your business.

Believe it or not, they still call me when they have Clients who are Deaf.  It’s business not personal.

6.  Force Majure

This means one party or the other can’t fulfill the obligations because the very heavens have turned against them!  I suggest covering the most common acts of deity for your area specifically and others generally:

Cancellations due to weather will be billed unless otherwise negotiated or when a weather emergency has been officially declared by the authorities. Furthermore a party shall not be liable for any failure of or delay in the performance of this agreement for the period that such failure or delay is beyond the reasonable control of a party, materially affects the performance of any of its obligations under this agreement, and could not reasonably have been foreseen or provided against, but will not be excused for failure or delay resulting from only general economic conditions or other general market effects.

Not everyone feels the need to include these, but in this age of terrorism I am including these type of clauses more and more.

7. Payment Terms

Here is mine.  It’s pretty standard and I have seen almost exactly the same language in at least three Terms I found on-line.

Net due 30 days from the invoice date. Invoices paid within 15 days will be discounted 3.0%. Invoices paid late will be assessed an additional 5.0% for each additional 30 day period.

It’s a good idea to list all the ways they can pay you. PayPal is great. Venmo is my favorite.  Accepting credit card payments through Square is quick and easy but many banks have a similar system that charges a lower percentage so check with your bank!

8. Prices Subject To Change

Prices subject to change without notice. The prices listed herein are current as to the date of execution of this contract.  An up-to-date pricing list is available at my website. A notice will be emailed to the address on file if prices change more than 10% from those quoted herein. Scheduling an appointment will be considered agreement to pay current prices even if different from those listed above.

9. Subject To Availability

ASL interpreting services are subject to scheduling availability. This office reserves the right to refuse service to anyone at any time for any reason.

That is in no way a complete list of all terms that could be included.  The language is, as I said, just an example of standard language I have used or see used by others.  There are terms that may only apply to your geographic area you may want to consider.  In the end talk to a lawyer in your area.

I promised you a gift and here it is.  Almost every contract has a set of very standard terms.  Terms that are included if you are selling a car, hiring a landscaper, agreeing to trade goods for services or any other situation you can think to contract about.  Attached here are sample of standard language for those standard terms.  Again. Check with an attorney in your area before you cut and past them!

Have fun out there!

Services Contract Sample

*Someday ask me about the lawyer who taught me this lesson by refusing to pay me… it has a happy ending.

Note from Uncle Dale: Non-Compete Clauses are Cute… Until They Are NOT

Uncle Dale back again!

Questions come in groups. This week everyone wants to about non-compete clauses/agreements. It even showed up on FB interpreters group.

Spring is here! “Big VRS” must be on a hiring binge, because that is when I get these questions. DO NOT TAKE ANY THING I SAY AS LEGAL ADVICE. Go talk to an attorney where you live. This is a blog called Uncle Dale’s Rules for heaven sake. Have you met your uncle? Remember your uncle last Thanksgiving? (If you have questions go talk to an attorney). This is just to get all y’all thinking.

So, what actually is a non-compete clause? It’s just like it says on the label, an agreement with your employer, it could be in writing or verbal or signed, not to compete with the employer after the employment relationship has been terminated.

The point of such an agreement is to make sure that, when you leave that job, you don’t set up shop across the road doing the same thing and using the customer list you took from your old job, or sell the knowledge or skills you acquired on this job to the competition. Makes sense right? You can’t learn the Colonel’s Secret Recipe of herbs and spices then quit and open your own chicken shack, or everyone would do just that and no one would give anyone a job because they would be training and setting up the competition.

The problem is such agreements lead to abuse. If I’m the boss, I want to hire talented people and I don’t want them taking that talent elsewhere-so I make my job offer contingent on an agreement not to work in the same industry or in the same geographic area for 2 years if you quit or are terminated. But the reason I hired you is this industry is what you do. If you can’t do it for two years if you quit then what can you do? You are kind of trapped in this company now, unless you can move outside the geographic boundaries of the agreement or live without a job for a couple of years. This gives license for an employer to mistreat employees because they CANNOT quit.

Because of the potential for abuse courts are suspicious of them generally and not every state allows this kind of agreement under statute. Oklahoma bans them out right. See 15 OK Stat § 15-219A (2014). California doesn’t like them. Its State law says they are not allowed, but in practice they may be allowed sometimes to protect Trade Secrets. Cal. Business & Professions Code sec. 16600. New York is contemplating banning them (more on that later) and Massachusetts is trying to prevent abuse by making it unattractive for an employer to enforce one.

I’m already hearing snoring out there so I will try to spice this up a bit!

Suppose you go to work for a VRS company, they are going to want you to sign all kinds of crap before you can sit in the chair and do your thing. They may want you to sign an NDA (Non-Disclosure Agreement).(As the FCC covers the VRS interpreting part of this by strict legal requirements regarding privacy the NDA covers the workplace itself). You can’t tell anyone outside the company what the office looks like, or the equipment or way you log-in and out of the system… seriously. This stuff is protected. When in doubt just don’t talk about it!

Assignment Agreements… hummm… Proprietary Information and Invention Assignment Agreement, or PIIA for short. That is when you agree that anything you invent or think up while working for them belongs to them. These agreements are iffy, yes, but still may be enforceable. You know what? That is its own Note (I’ve seen these pop up lately in VRS employment agreements). Long story short these are hard for companies to enforce if you can show you created the workshop or did the research on your own time and without company funds or equipment.

Non-Compete Agreements. Ok they could be included in the middle of a whole lot of other clauses in a contract or a stand alone document. Ether way the first thing you need to know is a Non-Compete Agreement is a contract. Even if it’s in the middle of another contract, in some states it is still a separate contract.

What is a contract you ask?

A contract has three parts:

Offer;

Acceptance; and,

Consideration.

The first two are pretty well taken care of the minute you sit your butt in the chair. The third is more complex. Consideration is “the price of the agreement.” Each side is getting a benefit-the company gets your work and you get a paycheck but what are each of you paying for the non-compete? You are paying with giving your right to go work somewhere else and the company? Is giving you a paycheck? But that is for the work you are doing not the agreement not to compete. Remember, that is a separate contractual agreement. Some states say the company has to pay you something separate for that, others say continued employment is the consideration paid by the company. That always seemed like a threat more than a payment but the law is rarely pretty. Check with a lawyer in your own state!!!!

Here is the crux of it. Can a company just require you to sign away you ability to work as a VRS interpreter with anyone else as a condition of employment? No. (Maybe).

Non-compete clauses are there to protect from you walking out the door with trade secrets or goodwill (the client’s have not bonded with the company so much as with you and will follow you out the door) or with their extraordinary investment in training or education. These are the things a non-compete is supposed to cover.

So. Ask yourself VRS interpreter, what do you have when you leave that you did not have when you walked in?  I don’t mean to offend but VRS interpreters are like fast food workers, we are not getting and MacDonald’s secrets that we are selling to Burger King. You come, you do your job, you go home. We really came in with the skills to do the job and have the same skills when we leave. (Don’t get too comfortable wait till we talk about Jimmy Johns!)

Do you have a customer list? No. Do you have any special knowledge about the algorithm or programming or mechanics of how VRS works, I mean technology wise, that you could sell to a competing VRS company? No. Are customers going to change VRS provides because you stopped working for one and started with another? No (they don’t even know your name). Did the VRS provider train you to interpret or did they hire you because you already knew how? Is there a unique or secret interpreting technique used by THIS VRS company that others are just DYING to get their hands on? No. Last but not least, did they invest a great deal of time and money in your training? Maybe. Did they pay for workshops? Did they pay for your certification testing? That is where it gets sticky. Courts will likely have to decide if they are enforceable or not.

So in places where non-compete agreements are allowed there are some general rules to how courts test if non-compete agreements are valid or not.

Courts want to know if the non-compete agreement is a product bad faith in the negotiations, in other words is the company using this for an illegitimate purpose (indentured servitude-you can’t leave so we don’t have to pay you well or treat you well) ; is the non-compete agreement necessary to protect legitimate business interest (is there really something you could walk out the door with that would hurt our position in the market or help our competitor); reasonable in time, space, and scope; consideration of hardship (does it say you can’t work in this field anywhere in the whole country forever?).

Consideration of hardship, would enforcing the non-compete agreement just be bad policy. For example in New York the court agreed that Jimmy Johns could enforce its non-compete agreement which stated that after an employee left they could not work for a competing sandwich maker, or any company that derived more than ten percent of its income from putting meat and cheese inside of bread located within 3 miles of a Jimmy Johns for two years. Think about that. What trade secret would a jimmy johns employee have? Jimmy Johns are so prevenient that the 3 mile rule covers most of the US. MacDonald’s-out, Burger King out. Any restaurant that serves subs or wraps-out. According to the New York court you could not work at an amusement park that sold food or s bowling alley if the snack bar sold sandwiches if there was a jimmy johns within three miles. What if your company has cafateria? It would depend on if the cafateria constituted at least 10% of the businesses earnings.

I tell you this because I have worked in VRS and other industries that have required non-compete agreements and I signed them. On two occasions I have received very stern cease and desist letters telling me I could not work at the place I was going to work. I wrote the attorneys back on both occasions told them how adorable I though their cease and desist letters were, explained what a non- compete clause was, wished them all the luck in the world in enforcing it. But I’m me. And it’s fun to be me.

Talk with an atty before you sign one!

Last comments. After the New York court supported Jimmy Johns, the New York legislature started working on making such oppressive non-compete clauses illegal. Jimmy johns was sued in several other states and after having to pay out hundreds of thousands of dollars (over 100,000 in Illinois alone) had dropped its non-compete agreement from its conditions for employment.

Massachusetts has been trying to pass a law that says if a company tries to enforce a non compete agreement it must pay 100% of the former employees highest pay rate for the duration of the time the employer is not to work in the industry (didn’t pass this time but keep trying Massachusetts!)

I know I make even the shortest story long but the point of all of this is non compete clauses are generally disfavored. But don’t treat them lightly.

http://big.assets.huffingtonpost.com/FACExhibitA.pdf