The text of the amendments specifically references Congress’ goal of rejecting the Supreme Court’s holdings in Sutton v. United Air Lines Inc. and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams. In general, Congress felt that those decisions narrowed the scope of the ADA with respect to who qualified as “disabled” and was therefore protected from discrimination based on disability. Congress also expressed its expectation that the regulations promulgated by the Equal Employment Opportunity Commission will be revised to include this broader definition of “disability.”

To expand upon the definition of “disability,” the amendments kept the ADA’s general definition that a “disability” is a 1) “physical or mental impairment” that “substantially limits” the “major life activities” of the individual; 2) a record of an impairment; or 3) being “regarded as” having an impairment. However, the amendments provide greater guidance of how “major life activities” are defined by including two non-exhaustive lists of such activities. Specifically, “major life activities” which may be substantially limited by an impairment (and therefore qualify as a disability under the Act) include: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. While some of these have always been recognized as major life activities under the ADA, some, like reading, bending, and communicating, have not. Further, the amendments list “major bodily functions” that are also considered major life activities as: “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

The other primary change in the amendments is to instruct courts with rules regarding how to determine if someone has a disability under the Act. These instructions include a directive that the question of whether someone is disabled under the Act “shall not demand extensive analysis,” and that courts should construe the Act to provide “broad coverage” of individuals. In addition, the amendments clarify that an impairment that is episodic or in remission, such as cancer, which was previously treated as an impairment that was not a disability under the Act when in remission, is now to be considered as if the impairment was active. Moreover, now impairments should not be considered with regard to their mitigating measures, such as medication or assistive technology, except for “ordinary eyeglasses or contact lenses.” This change may allow individuals with insulin-controlled diabetes to potentially be covered under the ADA.

So what does this mean for employers? As the ADA prohibits discrimination based on an individual’s disability, now more employees may qualify as disabled under the ADA and may request reasonable accommodations to perform their jobs. Particularly with respect to the amendments related to mitigating measures and episodic impairments, requests may come from employees who were never previously known to have impairments. Now is a good time to familiarize yourselves with the requirements of the ADA, including the interactive process and reasonable accommodations.

Reporting your lost luggage

Your luggage is the responsibility of the airline that flew you to your destination. Always report your missing items to the airline before leaving the airport and present your luggage receipt as proof of what you checked in. Asking to fill out a Property Irregularity Report (PIR) is also advisable as it will help with any future compensation claim that may be necessary.

Limits on liability

Under the terms of the Montreal Convention of 1999, compensation for lost or damaged luggage on an international flight is limited to a maximum of roughly $1,500—a figure that fluctuates because it is tied to the exchange rate of the dollar against various other currencies. For domestic flights, compensation is a maximum of $3,000 (Information about lost and damaged baggage is available at airconsumer.ost.dot.gov/publications/flyrights.htm.) When your luggage and its contents are worth more than the liability limit, you may want to purchase “excess valuation,” if available, from the airline with which you are traveling. This is not insurance, but it will increase the carrier’s potential liability. The airline may refuse to sell excess valuation on some items that are especially valuable or breakable, such as antiques, musical instruments, jewelry, manuscripts, negotiable securities and cash.

Keep in mind that the liability limits are maximums. If the depreciated value of your property is worth less than the liability limit, this lower amount is what you will be offered. If the airline’s settlement doesn’t fully reimburse your loss, check your homeowner’s or renter’s insurance; it sometimes covers losses away from the residence. Some credit card companies and travel agencies offer optional or even automatic supplemental baggage coverage.

Things the Airlines usually Refuse to Cover

Different airlines may have slightly different lists, but in general, they will usually refuse liability for the loss, delay, or damage to the following:

• Antiques
• Computer Equipment and related items
• Documents (personal or business, negotiable papers)
• Electronic Equipment
• Film
• Fragile Items
• Irreplaceable Items
• Jewelry
• Keys
• Manuscripts
• Medication
• Money
• Paintings or one of a kind works of art
• Perishable Items
• Pets/Animals
• Photographs
• Photographic Equipment
• Samples
• Securities
• Silverware
• Watches

In 2006, Cleveland Tyson, a former Amerigroup VP of government relations blew the whistle on the organization. According to the Denver Post article Amerigroup ”deliberately avoided enrolling recipients with costly health conditions or who were pregnant and in their third trimester. These actions were taken while Amerigroup received Illinois Department of Public Aid (IDPA) payments calculated on Amerigroup providing healthcare to all enrollees.”

On a side note, under federal whistleblower law, Tyson stands to collect 15 to 25 percent of the final judgment.

The National Rifle Association (“NRA”) has primarily spearheaded the effort with the backing of some labor unions, asserting that this measure is a step forward in the ongoing fight to protect individuals’ Second Amendment right to bear arms. The business lobby, on the other hand, including the Florida Chamber of Commerce and the Florida Retail Federation, are actively fighting the new legislation and are hoping to prevent its July 1 effective date. Those opposed to the legislation argue that it violates the privacy rights of employers to decide what is best for their businesses. Additionally, these critics have expressed concern about the potential risks to workplace safety this new measure poses, citing studies which show that organizations that allow firearms on their property suffer higher rates of workplace homicide on company property.

Does this represent a statutory trend? Can we anticipate similar legislation to follow in other states? Do the constitutional rights of individuals trump the rights of private employers to govern their businesses and their property as they see fit? Many outstanding questions remain, fueling the political firestorm this legislation has created in Florida.

Last week the Supreme Court ruled that Americans have a right to own guns for self-defense and hunting. The 5-4 decision struck down the District of Columbia’s 32-year-old ban on handguns and became the Court’s first major pronouncement on gun rights in U.S. history.

The Second Amendment, ratified in1791, reads: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Writing for the majority, Justice Antonin Scalia said that an individual right to bear arms is supported by “the historical narrative” both before and after the Second Amendment was adopted. He said the Constitution does not permit “the absolute prohibition of handguns held and used for self-defense in the home.” Scalia also reasoned “Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, A well regulated Militia, being necessary to the security of a free state, the right of the people to petition for redress of grievances shall not be infringed. That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause. But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.”

The court also struck down D.C.’s requirement that firearms be equipped with trigger locks or kept disassembled, but left intact the licensing of guns.

Not surprisingly, Justice Stephen Breyer wrote a separate dissent and offered, “In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.” Too bad Breyer did not clarify his notion that if loaded guns were not permitted in a private residence in crime-ridden urban areas then where might they be permitted? Not to be left out, Senator Dianne Feinstein, D-CA, a longtime gun control advocate, quickly criticized the ruling. “I believe the people of this great country will be less safe because of it,” she said. However, my research does not support the fine senator’s conclusion. Here’s what I found:

Since the District of Columbia first instituted its ban on handguns, there has been only one year (1985) that the homicide rate in D.C. fell below what it was in 1976. Worse, in 15 of the 29 years since the ban went into effect, the District had either the first or second highest murder rate among the nation’s 50 largest cities. A National Academy of Sciences report based on 253 journal articles, 99 books, 43 government publications and a survey of 80 different gun-control laws, shows absolutely no link between restrictions on gun ownership and lower rates of crime, firearms violence or even accidents with guns. The American public seems to agree. According to Gallup, 73% of the U.S. public believes the Second Amendment guarantees the rights of Americans to own guns. And almost 7 out of 10 Americans are opposed to a law that would make the possession of a handgun illegal.

It’s ironic that the Supreme Court ruling defending a citizen’s right to own a gun in the District of Columbia was the result of a lawsuit filed by Dick Anthony Heller, a lone security officer.  Heller was licensed to carry a handgun while on duty as a security officer in a District Court. However, he was denied a permit to keep his loaded weapon inside his home in order to protect it. Thus, it was no surprise when the National Council of Investigation and Security Services (of which I am Director), and several other state investigative and security associations joined forces to file an “industry” amicus brief in support of the security guard’s Second Amendment claim.

“Generally speaking, private investigators and security personnel have the same rights as private citizens. Therefore, many of the more restrictive laws affecting firearms rights in various states and local jurisdictions have unfairly punished licensed private investigators and security personnel,” states Francie Koehler, NCISS President. “The Supreme Court’s ruling will open the door to greater flexibility for the investigation and security professions.”

The role of the organization is to seek, uncover, and recommend action on any hidden potential problems in legislation which may have an effect on over 600,000 private security personnel, including uniformed security officers, licensed investigators, and other private sector protection professionals. The Council monitors overly restrictive legislation regarding training and standards, and the proliferation of legislation fostering local licensing, public misunderstanding and misinformation on the role and contribution of private investigators and security services. NCISS also often serves to counter the adverse effects of an uninformed media.

The firm perfected what’s known as a “strike-suit,” in which a corporation is sued over a dubious claim of fraud merely because its stock price falls. Milberg’s website claims it was “one of the first law firms to prosecute class actions in federal courts on behalf of investors and consumers. The Firm pioneered this type of litigation and is widely recognized as one of the nation’s leading defenders of the rights of victims of corporate and other large-scale wrongdoing.” In a press release dated June 16, 2008, regarding the settlement, Milberg partner Sanford Dumain states, “We are pleased that the government specifically recognizes that none of the lawyers now at the firm [my emphasis added] was involved in any of the misconduct, and that in fact our former partners who were prosecuted were deliberately concealing their illegal activities from us.” The press release makes no mention of the $75 million settlement or that its former partners had paid kickbacks to plaintiffs in 165 suits from which the firm earned $240 million in fees. Most interestingly, it fails to explain how the firm’s accountants expensed the kickbacks it paid Mr. Paul L. Tullman, the Wall Street broker who steered clients to Milberg, to whom Milberg paid some $9 million in finder’s fees over a 20 year period.

Like those of now-convicted tort king Dickie Scruggs, Milberg’s mass-tort claims gave an incentive for settlements divorced from actual justice. The risk to a defendant of having liability imposed by several hundred cases is often more than a defendant is willing to bear. The effect of these cases did little more than redistribute corporate assets and line the pockets of greedy lawyers. Congress has yet to hold a single hearing on the case.

But let’s go back and do the math. Milberg will now pay $75 million to make nice with government prosecutors on a gain of $240 million over a 24 year period. For simplicity, that’s $10 million a year for 24 years. If Milberg was able to invest the first $10 million in its entirety and receive an annualized compounded return of 7 percent, in 23 years that investment would be worth $47.41 million. Of course, not all of the fees and expenses, (or the investment income) was investable. However, I calculate had it invested about one-half of the $240 million as it was earned, with compounding the total investment, today it would be worth roughly $700 million. In other words, even after the $75 million government payoff, Milberg is still be very much ahead. How much it really earned, retained, or invested is not public knowledge. But what is clear, for some at least, is that crime still pays¾to wit, my first exhibit: Mr. Tullman, and his $9 million in finder’s fees.

However, not so lucky ringleader Mr. Weiss will start a 30 month sentence this month, while Mr. Lerach has already begun the two year sentence he received in February.

 Rumor has it that the two are co-authoring a novel which they intend to title: Dah Firm.

The concept of pretexting or rusing is nothing more than method acting; temporarily being someone else.  However, instead of for entertainment, it is for the purpose of eliciting information not obtainable in any other manner.  Pretexting by investigators is not done without discretion.  It is not used upon the public in general to abuse bank accounts or steal credit cards.  It is a tool that is helpful in determining where a thief is hiding assets, where a fraud is actually working, the name of the creep who has abused the child, the location of the parent who doesn’t pay child support, and the place to serve process upon the dead-beat who has successfully hidden from law enforcement for the last five months. Putting an operative undercover in a workplace to identify product theft or drug abuse is sometimes the only way to prove such secretive activity.  Like any other undercover operation, it is the use of a mild deception for the greater good. The simple ruse should hurt no one, but can uncover information of value to many.

I have followed the debates and the changing laws. I am severely disappointed in those who chose to label the work that investigators perform with such negativity.  I am saddened by national associations that meekly support the idea that investigators work fraudulently or break laws. It has taken years for most of us to break the stereotype of the misguided gumshoe.  Unfortunately, we are all lumped together because of our politicians pandering to fear mongers. Like any other prejudice, it is wrong.  

Yes, Identity theft is a problem.  NO, it was not created by investigators.  Yes, Investigators actually help to identify the Identity thieves.  NO, properly licensed investigators are not wantonly seeking to invade the privacy of the general public.  Yes, properly licensed investigators are using a variety of sources and skills to PROTECT the rights of those who have been defrauded or abused.

Investigators are licensed to perform a service.  That service is the pursuit of information for a fee.  All but five states regulate the work of the investigator to insure that the job is being performed by people of acceptable character with appropriately legitimate purposes so that the public is protected from potential misuse of authority.  Regulatory authorities govern the work of the Investigator and assign penalties to those who abuse the privilege afforded by license.  The investigator is not permitted to do more than the average citizen, but generally has knowledge accrued from years of experience that enables a swifter finding of solutions. Using this, or any other investigative tool in an inappropriate or illegal manner deserves punishment.

It is not always possible to obtain necessary information through public records, surveillance or library research.  Frequently, because of the delicate or dangerous nature of the search, information is being overtly hidden by persons who are knowingly breaking laws, hiding assets, abusing children, or worse.  The hands of the investigator are regularly and methodically being tied by unnecessary and frivolous laws imposed by a scared society.  Investigators are not performing illegal acts, but uncovering them. Punish the thieves, not the innocent!

Years ago, prior to the privacy scare, I testified in a court of law about having infiltrated a situation whereby I observed a child who had been kidnapped from the father.  I had simply knocked on a door and “pretended” to be a new neighbor (this was a pretext). I actually held the child as I spoke with the women who had abducted him.  As a result of this work we were able to recover the baby and I subsequently testified in court to my actions.  I was praised by the judge.  In fact, using a similar ruse I was lauded from the stand by a second judge who said something to the effect that, “an investigator uses ruses and pretexts like an undercover police officer.  You wouldn’t expect a police officer to say, ‘I’m here to find out if you are selling drugs in this neighborhood’ now would you?” 

My use of pretexting in the past has always been for the purpose of fulfilling my job, solving an unsolved problem, and locating information necessary for litigation purposes or to assist in a conundrum of some sort.  The purpose of my work has always been in pursuit of legitimate purposes.  I do not and have not “stolen” information for personal use or to further any fraudulent endeavor for a client.  Pretexting has been one of many investigative tools that can and should be used ethically, in the same manner as all other investigative tools.  When applied properly with consideration for the rights of all people (clients, attorneys, witnesses and the public in general) a pretext can elicit necessary information to execute on judgments, locate missing persons, identify the identity thief, or find the insurance fraud who is raising rates for all of us.

Instead of belittling the work done by it’s members, I would be much happier to see state and national associations support their good works, provide education for those who need it, embrace an ethical code that demands fair and equitable treatment by the investigator and enforcing penalty only upon those who knowingly break the law or abuse the privilege of their license.

Thank you, Kitty.

Kitty Hailey, CLI is the author of Code of Professional Conduct: Standards and Ethics for the Investigative Profession. She is also an active member of NCISS, ACFE and other professional organizations. Visit her at www.kittyhailey.com.

It is sadly ironic that our firm has been providing Workplace Violence trainings along with Holland & Hart, LLP throughout the greater Denver area over the past several months. Our Workplace Violence training has become increasingly popular as more organizations are getting serious about this topic and learning how to prevent these tragedies. Four more trainings/seminars are already planned for later this summer and fall.

Also, I’m sure we’ll receive a phone call or two from the media to comment on this event because of our Behavioral Science expertise in this area. Our thoughts and prayers are with the families and co-workers affected by this most recent shooting.

Since my post, I have been able to obtain a copy of the TJX claim form “to be used by claimants for merchandise vouchers/checks-in-lieu”. TJX’s settlement offer of merchandise in lieu of cash is restricted to one claim per household and all claims must be submitted no later than October 13, 2008. Other restrictions apply as well (see form). Claimants who meet the requirements of the offer will be provided a store credit of $30 against any merchandise purchase at a TJX store. For more information about filing a claim go to www.TJXsettlement.com.