July 2019

Discussion of a recent ABA article regarding law school closings

Wednesday, July 24, 2019

I recently read a rather depressing American Bar Association (ABA) article regarding the closing of certain law schools across the country, written by ABA writer Stephanie Francis Ward and titled Urge to Merge: Difficult Times for Law Schools Have Prompted Several To Attempt To Be Acquired By Other Schools," ABA Journal, July 1, 2019 (which can be found on ABAJournal.com). It appears that those law schools facing closure are attempting (often without success), to find another university or college willing to buy them, receive them as gifts, or have a merger of schools. See Urge to Merge at Id. Many of these law schools are unable to make these transactions work, for several reasons, such as the fact that they have poor accreditation, suffer from financial strain and/or have low admission standards. See Id. Another problem for some law schools facing closure (and a contributing factor to closure itself), is financial irresponsibility by the school’s administration. See Ken Otterbourg, After a law school shuttered, aspiring lawyers find real lawyers to sue it, Washington Post (Lifestyle Magazine), June 13, 2018.

Closings are a problem for students attending a law school facing the kind of challenges mentioned above, because while many students can finish their degree programs at a school before it closes, or transfer to another school, some are not as fortunate, and are unable to eventually transfer elsewhere, or finish up where they began their studies. See After a law school shuttered at Id. The students in these situations can have difficulty finding employment and are often stuck with considerable student loan debt. See After a law school shuttered at Id. It seems that one way for a law school to avoid closure is to be financially strong and academically sound on its own. See Urge to Merge at Id. Another means of survival is to become part of a larger university, so that the law school can have access to additional funds. See Id. Finally, prospective students should investigate a law school before they apply to it, to make sure that the school can assist in enabling the students to have eventual success in a legal career. See After a law school shuttered at Id.

-Attorney Matthew Ludwinski

Essential Job Functions: An Important Aspect of ADA Claims

Monday, July 15, 2019

When an employee claims that their job has failed to accommodate their disability, the courts are faced with a number of difficult factual questions. Among these are the type and severity of the disability, the process for evaluating accommodations, and whether any accommodations present an undue hardship to the employer. In order to reach these questions, however, the employee must first be able to establish that, despite their disability, they are able to perform the "essential functions" of their job. Even more complicated are situations where there is no formal job description of the position, or where the duties of the position have changed over time. All of these were at issue in a recent decision out of the federal Court of Appeals for the Seventh Circuit in Bilinsky v. American Airlines, Inc.

Kimberly Bilinsky suffers from multiple sclerosis which makes her very sensitive to excessive heat. While American Airlines is based out of Dallas, for many years they allowed Bilinsky to work primarily from her home in Chicago, managing and publishing articles for internal distribution in the company and preparing other communications materials for employees. All parties agreed this represented an appropriate accommodation for her disability. However, in 2013 American Airlines merged with US Airways, and as part of the integration Bilinsky's department expanded its workload, including shifting to more live events versus written communications. The next year, the Department Vice President changed the policy which governed Bilinisky and other "work-from-home" employees, mandating that they be present at the Dallas headquarters to be better prepared to assist with local meetings and events. Bilinsky maintained that she was unable to live in Dallas year-round, and after repeated demands that she do so, was terminated in 2015. She filed suit, alleging that American had failed to accommodate her disability.

This is where the importance of "Essential Functions" comes into play. The Appellate Court ruled that, while Bilinsky was capable of fulfilling those functions prior to the merger, as evidenced by her successful work from home for nearly two decades, the Essential Functions of her job had effectively changed in the years following 2013. In the Court's view Bilinsky, not being capable of these new functions, was no longer afforded the previous protections that she had enjoyed-there was no accommodation that would get around the fact that the job now required her to live in Dallas. The Court drew parallels to situations where a position is eliminated entirely, leaving a disabled individual incapable of fulfilling any of the remaining jobs at a company. An employer, while they must make reasonable accommodations in existing positions, is not required to retain a job position that they would otherwise (legitimately) eliminate simply because it is held by a disabled person. Bilinsky was able to present significant evidence that she was extremely successful in her position, but the Court's found that, based on the testimony of other employees, that the duties of the department were slowly drifting in a direction which simply required presence in Dallas as an essential function of the job.

The facts of this case add up to an extremely unfortunate court decision from the perspective of disabled employees. It would be one thing if Bilinsky's position had been entirely eliminated, but the sort of Essential Function drift portrayed in this case could be argued by employers in almost any circumstance where there is no written job description. It is very common for jobs to have slighting shifting responsibilities over time. Hopefully, this does not represent an ominously moving target for similar claims in the future.

-Attorney Travis Dunn

Agency Liability: Not Only for Employees

Tuesday, July 2, 2019

In a personal injury like a car accident, especially a fairly straightforward accident like a rear-end collision, it might seem obvious who to bring suit against. The proper defendant is the one who hit you, right? That's probably one of them, but it might not be the only one. There's a number of situations where third parties might also be responsible for you injury. Probably the most common of these are agency or employment relationships, where the primary defendant is acting on behalf of someone else when they injure you. This can create liability for the companies or entities that they are working for and open another avenue of recovery for the injury.

A recent example of this, with some complicating factors, is the decision out of the First Appellate District, where the court upheld a judgement in Blockmon v. McClellan (2019 IL App (1st) 180420). In this case, the defendant driver was driving on I-80 and looking at the GPS application on his phone. Distracted, he rear-ended the vehicle of Walter Blockmon III at a high rate of speed, causing injuries which led to Walter's death.

Where this diverges from a straightforward, albeit particularly tragic, vehicle collision claim is the reason why McClellan was looking at his phone: in fact, he was running late to an appointment with a possible customer for the Cutco knives that he had purchased through Cutco Corporation and it's parent, Vector Marketing. The victim's Estate, in bringing suit, claimed that McClellan's relationship with the corporations in selling their products, even though explicitly characterized as being that of an independent contractor, created liability for the corporations for the death due to the degree of control that they had over the activities of the driver as well as their lack of guidance in handling things like driving to customer appointments. A jury agreed with the estate, entering a large judgment against Vector, Cutco, and the driver. The corporations appealed.

The appellate court, in this case, was essentially reviewing whether or not the companies were entitled to a directed verdict in the trial. They brought up several procedural arguments along with the argument that there had been no evidence presented at trial which would allow a finding of vicarious liability or control of the driver. Ultimately, the appellate court found that the estate had presented enough evidence of an agency relationship that the jury could have found for them, including the fact that the companies had control over the use of their names, prices of their products, and expected regular contact between the "independent" salespeople and the company. So regardless of the tax or employment status of the parties involved, it was reasonable for the jury to have concluded that the driver was acting under the control and for the benefit of the companies at the time of the accident.

It's important that you have an attorney who will explore every avenue of recovery. If you've been injured, please call our office toll free at 1-888-488-4LAW or via email at [email protected]. We look forward to hearing from you.

-Attorney Travis Dunn