BizLawBuz …. The Power of Know

Just the other day, I met with a new client. “Beth” is the young daughter of long-standing clients, just turned 18 and off to Michigan State University in a few days to start her freshman year. Beth was in my office to sign her very first General Durable Power of Attorney, Health Care Power of Attorney and Release for medical information.

Beth came to see me not because she’s an astute and responsible young person, although she is certainly both of these. She came in because her parents had recently watched friends, whose 18-year old son suffered devastating injuries that landed him in intensive care, be denied access to any information about their son because he was now an adult. Beth’s parents were deeply alarmed and asked me how their family could avoid ever being in that horrific situation. The answer was simple: Beth, if she was willing, needed to sign powers of attorney giving her parents authority to access her information and to act for her should she be unable to act for herself.

Many parents don’t realize that once their kids turn 18, they are responsible for their own decisions and all of their information becomes private. If you have an 18-year old, for instance, you may discover that you can no longer set your child’s medical or dental appointments. You will certainly discover that you cannot call your child’s school and find out whether tuition has been paid or what their grades are. And, most importantly, you will not be able to make a health care decision or get information from a hospital or doctor unless your child is capable of giving that permission at the time.

General and health care powers of attorney, which give you power to speak and act on behalf of your child, are the answer. They are something that every adult should have and are relatively simple documents to put in place. You do so much to prepare your kids for college. Please don’t neglect this important detail!

Lee Flaherty

The Equal Employment Opportunity Commission (EEOC) enforces most employment related civil rights laws including Title VII, the Americans with Disabilities Act (ADA) and the Age Discrimination and Employment Act (ADEA). Given the ailing economy and increased job cutbacks, the EEOC expects discrimination claims to rise.

On July 15, 2009, the EEOC issued a written guidance intended to help both employers and employees understand what it looks for when deciding whether to challenge the validity of waivers and releases of claims by former employees. The EEOC guidance points out key issues to watch.

First, regardless of the type of discrimination claim, the guidance reminds employers and employees that a waiver will not be enforced if it was not knowingly and voluntarily given. Thus, it is crucial that employees understand that they have the right to refuse to sign the waiver. For this reason, it is equally important that employees be receiving some tangible, additional benefit (typically severance pay) when signing the waiver that is over and above what they would otherwise receive at termination. The release document must make it clear that the release is part of what is being given by the employee in return for severance pay.

Second, because the waiver must be knowing and voluntary, the EEOC will look much more carefully at situations where employees were not encouraged to consult with an attorney. Employers should never engage in “strong-arm” tactics such as insisting that a release be signed immediately.

Third, employers need to understand that – while an employee may be asked to surrender the right to sue and the right to recover damages – a release will not be effective if it tries to prohibit a discharged employee from filing an age discrimination charge with the EEOC. In our practice, we recommend releases that state expressly that the employee retains the right to file an administrative charge but also make clear that the employee cannot expect to profit personally by doing so.

Whether discharging a single employee or administering a group layoff, employers should always look for opportunities to obtain knowing and voluntary waivers of claims by the terminated employees. Given the benefits a valid release provides and the liability risks if the release is not enforceable, employers should always take the time to ensure that each release is tailored to meet the needs of the particular circumstances presented.

Dirk A. Beamer

Renewable energy, green building, and sustainable design largely require initial capital expenditures that may exceed available resources of businesses just trying to survive this challenging economy. What options are available to businesses that do not require significant capital outlays and provide the opportunity to significantly control energy costs thereby gaining profits and positioning your company competitively?

This summer, the German American Chamber of Commerce of the Midwest held a conference in Southfield, Michigan, on industrial energy efficiency featuring German and US industry and policy experts. One of the experts is a mechanical engineer from the University of Michigan who heads up the Industrial Assessment Center (IAC), one of thirty such centers in the nation. The U-M Industrial Assessment Center conducts, at no-charge, confidential assessments of manufacturing plants, the results of which are used to provide the business owner with solid suggestions on ways to reduce utility costs and eliminate waste throughout the manufacturing process. Funding is provided by the U.S. Department of Energy. “There are no costs whatsoever for the company and there are no hidden strings attached,” said Arvind Atreya, director of the U-M center and professor of mechanical engineering.

According to the Department of Energy, the average cost savings per plant that implements the recommendation of an IAC audit is $40,000 per year. The cost of recommended renovations or new equipment is recovered, on average, in 18 months.

Go to http://interpro-academics.engin.umich.edu/mfgeng_prog/IAC/ to learn more.

On August 29, 2009, Julie Pfitzenmaier will co-instruct a Dale Carnegie® Public Speaking Workshop for the Young Lawyers Section of the State Bar of Michigan. The workshop will focus on assisting participants in organizing their presentations, speaking with more confidence and clarity, holding their audience’s attention, as well as facing challenging and unexpected questions.

Ms. Pfitzenmaier is a certified Dale Carnegie instructor as well as a practicing attorney with the law firm of Wright Penning & Beamer, P.C., in the firm’s Farmington Hills office. Ms. Pfitzenmaier devotes her practice to business, commercial, and probate litigation, as well as probate and trust administration.

For more information, contact Dirk A. Beamer, Wright Penning & Beamer, P.C., at 248-893-1401 or at dbeamer@wrightpenning.com.