Suttons Bay Law

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

Tags: Estate Planning, Know it Now by Dan Penning
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The push to develop alternative sources of energy continues to gain momentum and has created a sense of urgency among various federal, state and local governmental agencies and private power companies. The Detroit Free Press reported in an article in its Sunday, August 16, 2009 edition that one significant problem of increasing wind and solar energy is the overburdening of the nation’s electrical grid and increasing the threat of blackouts. The funding committed by President Obama to prepare high voltage lines for handling the additional load of alternative energy supply is less than 5% of the 130 billion that power users, producers and the U.S. Energy Department say is needed. The Free Press article quoted John Wellinghoff, Chairman of the Federal Energy Regulatory Commission as stating that “. . . as we add more wind power, the grid will get more stressed and there is going to be a point where the grid can’t handle anymore.” He further stated, “The first thing we need to do is build out transmission capacity.”

With that being said, a full refit of the U.S. grid would cost 13 billion dollars annually over ten years, compared with the 5 billion dollars per year averaged over the last decade according to Rich Lordan of the Electric Power Research Institute, an industry funded research organization located in Palo Alto, California.

The amount utilities will spend is limited by how much consumers are willing to pay for transmission work and alternative energy, said Keith Martin, a lawyer at New York based Chadbourne and Parke, LLP who represent developers of renewable projects. The Department of Energy estimates that a new solar power facility costs three times as much as a coal fire plant of the same size.

Closer to home, the State of Michigan is requesting local municipalities to comment on a Michigan Wind Energy Resource Zone Board (WERZ) report. The WERZ report identifies four regions in the state with the highest wind energy potentials which include many areas where the local economy depends on its national lakeshore, inland lakes and natural beauty in the state. One such location identified in the WERZ report is most of the Leelanau peninsula. The possibility of windmills out in Lake Michigan and on land along the coastline is of great concern to county residents. State Senator Michelle McManus (R-Lake Leelanau) has been quoted as indicating “. . . the biggest concern I have with utility grade windmill farms – either out in the lake or on land – is the impact on our local economy. In Leelanau County, we rely so heavily on tourism and the natural beauty of our area. Windmills would certainly affect the aesthetics here.” McManus further commented that although there is a need to conserve energy and create jobs, “. . .we also need to take care that constructing windmills all over the place could affect our local economy, particularly tourism.”

Local municipalities have been requested to provide input regarding the WERZ report and the deadline for the submission of that input has been extended to September 4, 2009. Many local townships, such an Empire Township in Leelanau County, are seeking wind energy input into scaled down approaches to the alternative energy option by gathering input from their residents regarding the allowance of wind towers producing energy solely for onsite use with height limitations that produce energy solely for onsite use as a special land use with special permission from its planning commission. This approach seems to be the most popular among Leelanau County residents.

In summary, residents seem to be in favor of local use of alternate energy which would be less intrusive with respect to disrupting the natural beauty of the area but yet allow for the supplementing of traditional energy with alternative energy sources for private use.

Our firm will continue to monitor the issues surrounding alternative energy and keep you advised on the relevant issues, both positive and negative, that may affect you as a consumer and/or business owner, as this initiative moves forward.

Dan A. Penning

Tags: Environment and Law, Know it Now by Dan Penning
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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.

Tags: Employment Law, Know it Now by Dan Penning
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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.

Tags: Business Management/Law, Know it Now by Dan Penning
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“In response to this increased risk, Wright Penning and Beamer has developed a comprehensive MIOSHA manual that addresses the areas most cited by MIOSHA inspectors.”

With the current economic climate, many businesses are having to re-evaluate their workforce and reduce the number of employees based on economic constraints. This can result in terminated employees filing complaints with various agencies regarding alleged labor violations, including MIOSHA violations. Inspections by governmental agents under MIOSHA can be very costly both in time and money to a business. In response to this increased risk, Wright Penning and Beamer has developed a comprehensive MIOSHA manual that addresses the areas most cited by MIOSHA inspectors. It should be noted that MIOSHA inspections do not only occur in manufacturing businesses but can occur in all types of businesses.

Many businesses do not have a full understanding of their rights when a MIOSHA inspector walks in the door unexpectedly to conduct an inspection. For example, employers are entitled to a pre-inspection conference, they may appoint a representative to walk with the inspector during the inspection, and many more rights are available to protect an employer. At the very least, each business should have a plan in place before an inspection occurs. A designated employer representative should prepare a MIOSHA inspection plan, with names and telephone numbers of top management and counsel to contact immediately. Also, a prepared and updated list of trade secrets to be protected should be readily available due to the fact that citation information is available via the Freedom of Information Act, and to protect trade secrets, an employer must, at the beginning of the inspection, identify the trade secrets that should be protected. Other management personnel should be trained not to consent to an inspection without proper procedures being followed. The more people involved in an inspection usually results in more inconsistent statements to the inspector and thus more scrutiny.

If you are interested in discussing this matter further, please contact me and I would be happy to provide you with more information regarding how you may want to proceed to protect your company with respect to possible MIOSHA inspections and other labor related types of claims.

Dan A. Penning

Tags: Employment Law, Know Your Business by Dan Penning
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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.

Tags: Suttons Bay Depot by Dan Penning
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