Sean P Callan Sean callanfraternallaw com 513 763

Sean P. Callan Sean. callan@fraternallaw. com (513) 763 -6751 www. fraternallaw. com 2019 Sigma Kappa National Housing Conference June 22, 2019

Learning Objectives By the end of this session, you will be able to: • Understand the legal context when dealing with a request for an ESA • Understand the legal context when processing a medical excuse to live out • Understand role of a House Corporation board member • Understand DOL guidelines for non-exempt positions and best practices for keeping time

Emotional Support Animals

Emotional Support Animals • Two main statutes that we need to look at • ADA • FHA

Emotional Support Animals Americans with Disabilities Act • Generally prohibits discrimination based on disability in places of public accommodation. • The provisions of this subchapter shall not apply to private clubs or establishments exempted from coverage under title II of the Civil Rights Act of 1964 (42 U. S. C. 2000–a(e)) [42 U. S. C. 2000 a et seq. ]. . .

Emotional Support Animals Fair Housing Act The Fair Housing Act (FHA) prohibits discrimination in renting, buying, or securing financing for any housing. The prohibitions specifically cover discrimination because of race, color, national origin, religion, sex, disability and the presence of children.

Emotional Support Animals Fair Housing Act • • • Prohibits discrimination against persons with disabilities. Requires housing providers to make reasonable accommodations for persons with disabilities. Requires housing providers to allow persons with disabilities to make reasonable modifications.

Emotional Support Animals Fair Housing Act Are social organizations exempt? Nothing in this subchapter shall. . . prohibit a private club not in fact open to the public, which as an incident to its primary purpose or purposes provides lodgings which it owns or operates for other than a commercial purpose, from limiting the rental or occupancy of such lodgings to its members or from giving preference to its members.

Emotional Support Animals Americans with Disabilities Act • The provisions of this subchapter shall not apply to private clubs or establishments exempted from coverage under title II of the Civil Rights Act of 1964 (42 U. S. C. 2000–a(e)) [42 U. S. C. 2000 a et seq. ]. . .

Emotional Support Animals Fair Housing Act Reading the statute literally, a fraternity is permitted to discriminate in housing by leasing only to its members. However, within the ranks of its membership, a fraternity is NOT permitted to discriminate.

Emotional Support Animals Fair Housing Act Could we have a rule that members with disabilities are prohibited from living in chapter houses? If not, then it follows that fraternities must make accommodations to facilitate that use, i. e. , the use of emotional support animals.

Emotional Support Animals So…. . What can we do? Require a letter from the member explaining: the need for the animal, the type of animal, a description of the animal, the animal’s name, whether the animal is housebroken, the date[s] of the medical examinations and prescriptions specifying the need for such the animal, and § the date when the animal was acquired § § §

Emotional Support Animals Fair Housing Act Require a letter from the member’s physician. . . Not. . .

Emotional Support Animals Fair Housing Act Instead require that the member deliver a letter, on professional letterhead, from the student’s physical or mental healthcare provider or licensed therapist or other qualified professional that includes, at a minimum: o the nature of the applicant’s disability, o the provider’s opinion that the condition affects a major life activity, o how the animal is necessary to provide the impaired student access to fraternity housing, and o the relationship between the disability and the assistance the animal provides.

Emotional Support Animals Fair Housing Act - Consider Accommodation q Is the accommodation request reasonable? q Would accommodation result in an undue financial or administrative burden? q Would accommodation fundamentally alter the nature of the house? q Does the specific animal pose a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation? q Does the specific animal pose a risk of substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.

Emotional Support Animals Fair Housing Act If after request, consideration, and assessment, accommodation is deemed reasonable, come up with a plan

Emotional Support Animals Fair Housing Act

Medical Excuses

Medical Excuses • Purpose – avoid contractual obligations • Death or disabling illness would excuse performance of a contract for personal service – but NOT a lease • The only way to break a lease is by using the disability framework • Medical excuses should be considered in the same FHA framework as ESAs

Medical Excuses To Whom It May Concern ******* was at *****on 01/09/2019. She is being treated for ********, she is followed also by Cardiology. If you have any questions or concerns, or if I can be of further assistance, please do not hesitate to contact me

Medical Excuses To Whom It May Concern ******* was at *****on 01/09/2019. She is being treated for ********, she is followed also by Cardiology. If you have any questions or concerns, or if I can be of further assistance, please do not hesitate to contact me

Medical Excuses ******* has been a patient of mine since 2012 and I have managed her Anxiety Disorder and Major Depressive Disorder. Management has consisted of therapy as well as medications since 2016. Secondary to her exacerbation of symptoms when she was in the ***** Sorority House for the semester. it is my recommendation that she be excused from the requirement of another semester in the ****** House as may result in serious worsening of her anxiety and depression. Any further questions or concerns, please contact my office. *******, M. D.

Medical Excuses To whom it may concern: I am writing to request that my patient, *****, be exempt from living in the sorority house due her diagnosis of severe anxiety. ***** has been under my care for the past 1 ½ years and is currently doing well on the current treatment regimen with very few acute exacerbations. Requiring **** to live in the sorority house would cause her anxiety to increase, in turn, forcing an unnecessary change in treatment It is in my professional opinion that this request is medically necessary as it will, or is reasonably expected to, prevent any exacerbations of her condition. Thank you in advance for your time and understanding, and please feel free to contact me with any further questions or concerns. Yours truly,

Role of Board Member

Role of Board Member Main Functions • Fiduciary • Oversight Ancillary Functions • Particularized skill (legal, financial, operational) • Fundraising • Board contributions • Operations (the start up) • Recruitment – officers and board • Others?

Role of Board Member Things that are not your job…. . q Therapist q Police officer q Friend and confidante q Parent q Caretaker Stay in your lane….

Role of Board Member Smith v. Delta Tau Delta A duty of care may arise where one party assumes such a duty, duty either gratuitously or voluntarily. The assumption of such a duty creates a special relationship between the parties and a corresponding duty to act in the manner of a reasonably prudent person.

Role of Board Member Smith v. Delta Tau Delta There is no evidence that the [national fraternity] assumed any duty of preventative, direct supervision and control of the behaviors of its local chapter members.

Role of Board Member • • H/C officer pledged to enact sweeping changes; pledged to fully investigate specific concerns. H/C officer knew that Fiji Island party was “often shut down in the first hour. ” H/C officer knew of Fiji rules and regulations prohibiting construction or use of a pool. H/C officer visited chapter during construction and knew or should have known of pool.

EMPLOYMENT CONTRACTS

Employment Contracts Exempt or Non-Exempt? Employees are presumed non-exempt • unless they engage in work that qualifies them for exemption (and, of course, are paid enough money). • The job duties that qualify an employee as exempt are (generally) Executive, Administrative and Professional.

Employment Contracts Exempt or Non-Exempt Current Threshold - $ 455 per week $ 23, 660 per year Proposed Threshold - $ 679 per week $ 35, 308 per year Obama Proposal - $ 913 per week $ 47, 476 per year

Employment Contracts Exempt or Non-Exempt Penalty for Being Wrong • back pay including unpaid overtime compensation (24/7) • “liquidated damages” equal to backpay. • “fee shifting” statute meaning that attorney’s fees and costs are also recoverable.

Employment Contracts Exempt or Non-Exempt • • • Focus on tracking “Hours Worked” Electronic check in/check out system Time sheet Scheduling Sign for payroll

Employment Contracts Exempt or Non-Exempt With respect to the pay period Date , I declare under penalty of perjury that I have accurately recorded all of the hours I worked (including hours outside of my normally scheduled workweek and overtime), I have received all of the off work periods, meal periods and rest periods, to which I was entitled based on the number of hours I worked, and I have had the opportunity to make any necessary corrections to this time record before I signed it.

Employment Contracts Exempt or Non-Exempt The check issued to me in the amount set forth below accurately reflects payment due to me for the abovereferenced pay period and I am paid in full for time worked in the pay period. If I was injured at work, I have checked the box below beside my name.

Questions

Sean P. Callan, Esq. sean. callan@fraternallaw. com (513) 763 -6751 www. fraternallaw. com