Archive for the 'Employment' Category

Movement to “Ban the Box” Surges Across the Nation

An estimated 70 to 100 million people in the U.S. currently have some sort criminal background.  That’s between one in three and one in four people in the whole United States.  These criminal records, no matter how minor the offense, can be a real hurdle when looking for a job.  There is a real potential that an employer, seeing a prospective employee checked a box on their application indicating criminal history, would reject that application on that basis alone.

If the goal of our criminal justice system is to rehabilitate, barring ex-criminals from gainful employment out of hand is obviously far from ideal.  With this in mind, a movement to “Ban the Box” has swept across the nation.  24 states, many passing laws just this year, have passed laws barring public employers, private employers, or both from inquiring about criminal background on a job application.  To make matters even more complicated, more than 150 individual cities and counties have passed similar laws that apply just in those smaller jurisdictions.

The spread of these laws is still on the rise, just around a week ago Los Angeles County passed their own Ban the Box ordinance.  Connecticut has recently passed a Ban the Box law that will take effect January 1, 2017.  On November 30th, the federal government and the Obama administration even finalized regulations preventing the federal government from asking about an applicants’ criminal background before a job has been offered.  With the upsurge in “Ban the Box” laws, the question becomes fairly simple.  What do these laws mean for employers and employees?

Ban the Box Explained

While the details of any given Ban the Box law vary slightly from law to law, they all have the same basic goal.  They make it illegal for the type of employers named by the law to include questions or check-boxes on employment applications asking about the criminal background of an applicant.  They don’t, by themselves, prevent an employer from asking about criminal history altogether.  However, an employer must raise these questions later in the hiring process.  While violations of Ban the Box rules don’t generally allow for private lawsuits from applicants, applicants can report violations to the state who will then follow up with fines or a lawsuit of their own.

As mentioned above, with so many different places creating their own Ban the Box rules the exact boundaries of those rules can vary from place to place.  Depending on where an employer operates, there can be exceptions Prisonto Ban the Box rules for certain types of jobs—usually positions that are especially safety sensitive.  However, exactly what positions are considered “safety sensitive” is in and of itself a complicated legal concept that varies from state to state.  Employers seeking to avoid the legal troubles of a Ban the Box violation should speak to an employment law attorney to learn whether there is a Ban the Box law in effect where they operate and if there are any exceptions for the type of positions they are offering.

Beyond the Box: Other Employer Restrictions Regarding Criminal Backgrounds

Ban the box is the tip of the iceberg for state to state differences in how employers must approach an employee’s, or potential employee’s, criminal background.  Different states, and even cities and counties within those states, have their own wildly varying laws placing restrictions on either private employers, public employers, or both when it comes to approaching a job applicant or employee’s criminal background.

Depending on where they are an employer may be restricted as to asking about arrests that did not result in a conviction, criminal records which have been sealed or expunged, older criminal records (usually allowing for records no more than five to seven years old), certain types of crimes, or criminal convictions unrelated to the actual position sought.  While these laws have not seen the same rapid spread in recent years as Ban the Box, they continue to be passed nationwide.

In fact, earlier this year, Pennsylvania passed one of the most sweeping laws on the issue to date—albeit with a slightly different approach.  Pennsylvania’s new law requires law enforcement to remove records of arrests after three years have passed without a conviction.  It also allows individuals to petition to limit access to most non-felonies—with an exception for misdemeanors such as sex offenses, child abuse, or witness intimidation—on their criminal records after ten yeas free from arrest or imprisonment.  This law, coupled with the fact the Pennsylvania already bars all employers from inquiring about arrests that don’t lead to convictions, have left Pennsylvania with some of the nation’s strongest employment protections for former criminal offenders.

Are These Laws for the Best?

Ultimately, these laws are put in place to prevent returning criminal offenders from being shut out of employment opportunities before they get a chance to show their merits.  Those opposed to the spread of Ban the Box argue that employers are best suited to knowing their own employment needs and these sorts of restrictions needlessly increase the costs associated with hiring.  They argue that, especially in light of other restrictions on accessing criminal backgrounds, these laws can leave employers in situations where they are left without information they would consider crucial to a hiring or employment decision.

However, despite these objections, it seems more likely that the only way this would truly save costs when hiring for any position that wouldn’t be subject to the common exceptions is if the employer used criminal background as a quick way to disqualify candidates.  Where an employer uses criminal history in this way, it creates a serious roadblock to the rehabilitation and reintegration into society of former criminal offenders.

There is nowhere that employers are totally banned from inquiring into criminal history.  Ban the Box rules are exclusively a timing related restriction, preventing applications asking about criminal history.  Although there are limitations on how background checks can be used a check made as a contingency to employment will likely reveal any criminal history that could be an issue.  However, as seen in Pennsylvania, the limitations on criminal background checks are becoming further reaching.  There is a real push and pull between the interests of an employer in making informed employment decisions and the interests of a former criminal offender—and society as a whole—in a system that provides the best possible chance for rehabilitation.  That being said, a system where an offender is denied that chance outright before the word go is almost certainly not the right one.

Marijuana in the Workplace: Employee Protection as Legalization Spreads

This election has seen a huge boom in marijuana legalization. There are now 26 different states with marijuana legalized in some form or another. Of these states, eight have legalized recreational and medical use while the rest have restricted legalization to medical use.  In all these states, the legislature will have to deal with the unanswered question: how should marijuana be dealt with in the workplace?

Cases on the issue have already begun in many different contexts. Just recently the Massachusetts Superior Court addressed the issue of whether an employer needs to make accommodations due to disability for an employee’s medical marijuana use.  Massachusetts rules that despite the fact that the marijuana was prescribed to treat the employees Crohn’s disease, an employer is still under no obligation to accommodate such use.

This ruling is in line with a trend across the nation.  States are legalizing marijuana, but having difficulty in deciding how or whether to protect its use in an employment context. The approach has been different state to state—as it must be with marijuana illegal at a federal level—and has seen states dealing with employment issues from disability to off duty use, leading to adverse action to employment benefits to workers’ compensation.

Employees Treating Disabilities with Medical Marijuana

Massachusetts’ take on disability is not surprising. While the outer limits of employee protection based on disability is often determined by state law, the minimum protection is governed by the American’s with Disabilities Act (ADA).  The ADA is a federal act protecting against disability discrimination.  However, it explicitly does not it does not cover employees or applicants who engage in illegal use of drugs.  Since marijuana is federally illegal, this means that marijuana use cannot be a protected disability under the ADA. wellness programs

As mentioned above, states can expand their disability protections beyond the floor set by the ADA.  However, many states have not exactly been in a rush to do so when it comes to marijuana use.  Just like Massachusetts, Oregon courts have ruled that an employer need not make accommodations for medical marijuana use so long as it is federally illegal.  In California, the California Supreme Court ruled that employers have no need to accommodate medical marijuana use even when that use is off duty.  Although, it should be noted that this was decided prior to recreational legalization.

This being said, there have been other states that have passed laws protecting medical marijuana users as disabled. Arizona, Connecticut, Delaware, Illinois, Manie, Minnesota, and Nevada all have laws protecting employees who use medical marijuana against adverse action (firing, failure to hire, refusal of promotions, etc.) due to their disability.  The exact nature and scope of these rules varies state to state, but they all have the ultimate effect of protecting employees who use medical marijuana by placing some type of duty to accommodate that use on employers.

Punishing Off-Duty Use?

While disability laws deal with how an employer must deal with prescribed marijuana use, some states have dealt with off duty marijuana use in more broad strokes—deciding how marijuana use factors into a wrongful termination lawsuit.  Wrongful termination is any sort of firing which is contrary to law.  Disability discrimination can give rise to a wrongful termination lawsuit, but the cause of action is much broader than discrimination and includes basically any type of illegal firing.

The most famous of these cases occurred in Colorado after Dish Network fired an employee for off duty medical marijuana use. The firing took place before marijuana was made recreationally legal in the state, but the ruling occurred after this change.

The court ruled in favor of Dish Network. They decided that, despite Colorado law forbidding employers from firing an employee based on their legal off duty activities, an employer could freely fire an employee for off duty marijuana use so long as marijuana is federally illegal.  Thus, the employee was not wrongfully terminated. Similar rulings have been also been reached in Michigan and Washington.

Medical Marijuana Disqualifying Employees From Unemployment Benefits

Very few states have actually dealt with the issue of medical marijuana use and how it affects unemployment benefits.  Only two states have really dealt with the issue and they were unhelpful enough to come to opposite conclusions.

In Colorado, an employee fired for marijuana use—even if it is off duty prescribed medical marijuana use—is disqualified from unemployment benefits. Michigan, on the other hand, has determined that an employee cannot be disqualified from unemployment benefits for their lawful off duty marijuana use.

Workers Compensation and Cannabis

Much like unemployment benefits, rulings have been unfortunately sparse when it comes to workers’ compensation and medical marijuana. Workers compensation laws protect employers from liability in exchange for an agreement to pay for any injuries that take place in the workplace, regardless of cause.

Once again, the rulings have been contrary to one another depending on the state. Maine has ruled that workers’ compensation can’t require an employer to pay for medical marijuana prescribed as a result of a workplace injury.  New Mexico, however, has held that employers must pay for such treatment when it is prescribed.

Marijuana in Federal Workplaces

Even where marijuana has been legalized at a state level, many state employers may still be regulated by the federal Drug Free Workplace Act. This law requires all federal contractors and employers receiving federal grants to maintain a zero-tolerance policy towards any federally illegal drug use.

These workplaces may find themselves in a conflict between state and federal law. In these cases, federal law will generally win out.  What’s more, where a position is safety sensitive, employers may also choose to implement a zero-tolerance policy.  Safety sensitive is a very broad classification and such a classification, coupled with a zero-tolerance policy, will likely alter an employee’s rights under state law.

Complicated Cannabis: Evolving Law

The interactions between marijuana use and employment law are far from fixed and will continue to grow more complicated as the federal standing of marijuana forces all these interactions to be a question of state law. The states have already shown that they are far from in agreement as to how the issues should be approached and most states where marijuana is legalized in some form have not even begun to address these issues.

There are arguments on both sides for how the law should evolve. An employer would certainly not be criticized for firing an employee who showed up to work drunk. However, it would be a different matter if they fired that employee for drinking in their own home while off duty. While this is obviously not a perfect analogy, just as marijuana is not completely analogous to alcohol, it does highlight the question of whether how marijuana is viewed and treated on a legal level will change as recreational use becomes more widespread. Marijuana is now legal in more states than it is not, the law will have to scramble to keep up with the appropriate rights and duties of employers and employees.

Employment Rights in a Religious Work Place: The Ministerial Exception

Kate Drumgoole, New Jersey native, loved her job. She worked for Paramus Catholic High School as a guidance counselor and women’s basketball coach.  She also loves her wife, a fact the school was unaware of until recently.  Upon learning of Ms. Drumgoole’s marriage, the school fired her.  Ms. Drumgoole has since filed an employment discrimination lawsuit against Paramus.

Employers are forbidden from taking adverse employment action, such as firing an employee, based on a protected class like gender, race, or national origin. Sexual orientation, while not considered a protected class in every state, is a recognized protected class in New Jersey and has been considered a protected class by the Equal Employment Opportunity Commission for several years now. However, Paramus argues that they are protected by their First Amendment freedom of religion in firing Ms. Drumgoole for not living according to the tenets of their faith.  In her lawsuit, Ms. Drumgoole contests this allegation, pointing out that Paramus employs faculty members who are divorced or violate other Catholic tenets.

Ms. Drumgoole is not alone; more than 50 people have been fired or had employment offers rescinded by religious institutions for similar reasons since 2010. An Indiana Catholic School recently fired a teacher of purely secular topics after it came to her attention she used in vitro fertilization to become pregnant—calling her a “grave immoral sinner.”  An Ohio woman was fired by a religious institution earlier this year over being artificially inseminated. In Florida, a woman was fired for becoming pregnant outside of marriage.

Discrimination based on pregnancy is well established as gender discrimination, a federally protected class throughout the U.S. So how can religious institutions make employment decisions based on such clearly discriminatory reasons without fear of lawsuits such as Mrs. Drumgoole’s?  The answer lies in the interplay between employment rights and freedom of religion—the ministerial exception.

The Ministerial Exception and the Hosanna Case

To preserve the separation of church and state, as well as the free exercise of religion, employment law has a carve out for religious institutions, allowing them to favor those who share their beliefs. The Ministerial exception is so named because the employees who typically embody this carve out are church minsters. The exception is an affirmative defense—it must be proved by a religious employer seeking its refuge—which has historically been interpreted to allow discrimination on the basis of religion, but not as a loophole to any neutrally applied valid law. It specifically wasn’t generally considered an exception to non-religious discrimination.  This changed with the 2012 Supreme Court case which first recognized the ministerial exception—Hossana-Tabor Evangelical Lutheran Church v. EEOC.

The case was brought by Cheryl Perich, an ordained teacher at a Hossana who went on disability leave after she was diagnosed with narcolepsy. After six months leave, Hosanna asked Ms. Perich to resign.  Ms. Perich refused and threatened a lawsuit for violation of the American’s With Disabilities Act which requires employers to make reasonable accommodations for employee’s with disabilities and forbids discrimination based on an employee’s disability.  Hosanna fired Perich, explicitly over her disability.  Perich sued.

Unfortunately for her, the Supreme Court unanimously came out in favor of a particularly strong version of the ministerial exception. They ruled that employees who have a role in conveying the Church’s message and carrying out its mission” are barred by the First Amendment from suing over employment discrimination. This broad protection meant that religious institutions are totally insulated from discrimination lawsuits so long as the person suing them counts as a “minister.” This left the question, who qualifies as a minister.

Perich was ordained, but spent only a small portion of her time teaching anything that had to do with religion. However, the Court certainly felt she qualified as a minister. Unfortunately, the Court was also intentionally sparse on exactly why. They wanted to avoid a clearly delineated test for fear of excluding religions with different traditions. They did make it clear that the portion of time spent with religious duties is a factor, but not a deciding one on its own. However, as an ordained minister in both Hosanna and her own eyes, the Court felt there was little doubt Perich was a minister.

The Legal Landscape After Hosanna

After Hosanna, many have questioned the breadth of the ministerial exception.  The exception has seen some abuse. Catholic schools adding “minister” to every employee’s job description from teachers to receptionists to janitors.  Religious institutions often supplement this argument by making all employees sign a contract agreeing to uphold the tenets of their faith.

The flip side to this potential is the sanctity of church and state. Should a religious institution be legally forced to employ somebody who conflicts with their beliefs? As an extreme example, a synagogue shouldn’t have to employ a Holocaust denier.

The happy medium likely extends the exception more narrowly, to people whose positions implicate primarily religious duties. As it stands, the ministerial exception is extremely broad. The current state of the law bars ministers from bringing any employment discrimination or retaliation against a religious employer, regardless of whether the discrimination is related to religious tenets. As mentioned above, this clarification is a tricky prospect to say the least due to the differences between religions.

The truth is, since Hosanna the courts have done more to expand the exception than limit it.  There are some courts, such as this year’s Fratello v. Roman Catholic Archdiocese of New York, which have applied Hosanna as a balancing factor test looking at whether 1) the school held the employee out to the world as a minister, (2) the employee’s title connoted a religious “calling,” (3) the employee held themselves out as a minister and (4) the employee had religious responsibilities.  However, prior to this case the vast majority of courts have given much more deference to the religious organization’s categorization of an employee.

The cases discussed in the beginning of this article all deal with employees with completely or primarily non-secular duties. Cases like Ms. Drumgoole’s, pitting protected groups and employment discrimination against the ministerial exception, will help winnow down the exception and assist courts in understanding when a religious institution is properly due the protections of the First Amendment. Generally, the Constitution provides rights to protect yourself—not assert those rights as a license to discriminate or diminish the rights of others.

South Dakota Initiative Fuels Right to Work Debate

Right to work laws have been a center of controversy in recent years, with a number of laws facing constitutional challenges in the courts. You might hear this and be surprised, as “right to work” certainly doesn’t sound like a controversial topic. Pretty much everybody would agree that reducing unemployment is a good thing—if that was what right to work meant.

While right to work sounds purely innocuous, the name is a bit of a misnomer—crafted to intentionally frame a more controversial policy point in as positive a light as possible. The confusingly named right to work actually deals with an employee’s choices when it comes to joining or not joining a union.

The Current Situation

The laws are a product of a federal law from 1947 called the Taft-Hartley Act. The act prohibited employers from running closed shops—agreements where they only hire unionized workers.  However, it allowed union shops—agreements where employees are required to join a particular union within a certain period of time after being hired.  The act also has a section which allows states to ban union shops as well.

The laws based on this section are right to work laws and are, at this point, exclusively state law. While they vary state to state, they all do essentially the same thing—allow an employee to opt out of paying union dues while still benefitting from union representation. Due to the exclusive bargaining agreements unions provided by the National Labor Relations Board (NLRB), The laws do not apply to federal workers, railroad workers, and airline workers.

There are currently twenty-six states which have right to work laws: Alabama, Arizona, Arkansas, Kansas, Florida, Georgia, Idaho, Indiana, Iowa, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, and Wyoming.

Right to work tends to be a conservative agenda point, with liberal interests preferring stronger unions with more money to advocate for higher wages and greater employee rights. Those supporting right to work laws argue that employees should not be forced to pay a union whose positions they do not agree with—often framing the laws as a free speech issue.

Critics respond that you are already allowed to opt out of union political activities and only pay for representation as to your wages and rights in the workplace. They argue that “right to work” is a thinly veiled attack on the strength of unions by taking money out of their pockets—allowing so-called “free rider” employees to get all the benefit of a union without actually paying anything. After all, many employees would take the representation for free if it’s an option, regardless of their opinions about the union.

South Dakota’s Initiative 23

As mentioned above, South Dakota is among the states that have enacted a right to work law.  However, they have certainly been listening to the arguments of right to work critics, as last week they have proposed a new law—Initiative 23—which allows corporate and non-profit organizations–including unions–to charge for services rendered.  This essentially has the effect of allowing unions to charge employees they represent regardless of whether somebody chooses to join that union.

This a huge move as South Dakota is one of the first states to ever introduce a right to work law, doing so via a state constitutional amendment in 1946. Proponents of the law argue that it allows unions to charge for actual services rendered while still allowing employees to opt out of a union if they disagree with its position. Obviously, its opponents say that it’s simply a loophole to right to work—essentially removing any protections provided by South Dakota’s law.

The critics are right to a degree, the initiative neuters South Dakota’s right to work law in everything but the most technical sense. However, this law highlights a nationwide trend of struggle back and forth over whether these right to work laws should exist in the first place.

A Nationwide Controversy

Just this year, shortly after Wisconsin adopted a right to work law, a Wisconsin Circuit Court Judge ruled Wisconsin’s right to work law unconstitutional. The law itself was incredibly controversial even before this ruling, so unpopular that it led to an unsuccessful attempt to recall Wisconsin’s Governor Scott Walker.  The court’s ruling was based on an argument that right to work provisions are unconstitutional takings.

This argument is currently on appeal to the Wisconsin Supreme Court, and frankly is unlikely to stand. Takings deals with the government taking all or part of property from a private party, either through eminent domain (the government simply laying claim to the property) or through regulation removing all use for the property.  Not only does takings generally deal with real property (houses and land and such), making it fairly unsuited to an argument regarding  the potential profits from services provided by a union, the 7th Circuit—of which Wisconsin is a part—has explicitly considered and rejected the argument of takings when it comes to the constitutionality of right to work laws.  The 7th Circuit ruling argued that unions are compensated for their representation by their government sanctioned exclusive bargaining position with employers.

While unlikely to succeed, this isn’t the first challenge of its type or even the only recent one. The constitutionality of Indiana’s right to work law was challenged back in 2012, with the law only found constitutional as recently as 2014. The Indiana case had a bit of a twist to it, in that the Indiana Constitution explicitly guarantees that no person’s services shall be demanded without just compensation.  Unions argued that this guaranteed them pay for the bargaining service they provided. Ultimately the courts disagreed; they ruled that unions were not required to become exclusive bargaining representatives and their choice to accept that role placed responsibilities on them along with the rights it provided.

Recent Debate Over a Federal Right to Work

The struggle over right to work acts hasn’t just pushed in the direction of curtailing these types of laws. Earlier this year, the Supreme Court of the United States dealt with a case with the potential to create what was essentially a federal right to work—applying to all public employees.

The issue was hotly debated, framing the issue as “free riders” versus “compelled passengers.” To highlight just how contentious this issue is, after the death of Justice Anthony Scalia, the Supreme Court was forced to declare a 4-4 deadlock on the issue.  Petitioners have requested a rehearing, but it will have to wait for the next presidency and appointment of a ninth Justice as the conservative side of Congress has made it clear they won’t consider any appointee suggested by the Obama administration.

Right to work is a back and forth battle throughout the country. On one side, the laws provide workers more options, but at the same time they take money away from unions who would use it to negotiate higher wages and better workers’ rights. The direction these laws will take is something only the future can reveal.

McDone: An End to Big Franchised Chains?

You’d be hard pressed to drive a few blocks in any downtown district without seeing one or two franchised businesses. From fast food to coffee shops, franchising is a huge part of business in the U.S.

For those unfamiliar, franchising is the practice of selling your business model and branding to would-be entrepreneurs (franchisees) who then start their own independent business under the banner of the franchisor. For instance, while there are corporate owned McDonalds locations, there are many more locations owned by franchisees—a whopping 83% of all McDonalds around the world.

McDonalds has done very well with this business model. In fact, their stated goal is to increase the number of franchisee run locations to 95% of the total McDonalds worldwide.  With this in mind, the higher ups at McDonalds must be terrified because they’re facing lawsuits from the National Labor Relations Board (NLRB) that could destroy the entire franchisor-franchisee business model.

Making McDonalds an Employer?

Back in 2014, the NLRB brought 43 different cases against McDonalds, arguing that they are a joint employer with their franchisees and are responsible to the employees of those franchisees. Now, two long years later, one of these cases has finally withstood McDonalds’ many challenges to its validity as a case and has been given the go ahead to be seen by a jury—an indication that the judge feels that the facts of the case could go either way.  McDonalds

So what exactly does this case mean for McDonalds? The big allegations are two-fold.  First, McDonalds is a joint employer alongside their franchisees.  In the alternative, the NLRB argues that McDonalds is a joint employer because it has behaved in such a way that the franchisee’s employees reasonably believed themselves to be employees of the McDonalds corporation—a twist on a legal concept known as ostensible agency.

Joint employment is a situation where more than one entity acts as the employer of a single employee, with all the responsibilities that go along with that status. The NLRB’s case on this point has been bolstered by recent changes to how joint employment works in a case this blog has discussed beforeBrowning-Ferris Industries. The argument applying this test has not survived summary judgment—a ruling from the judge on the facts without need to go to a jury.

However, what has survived summary judgment is the NLRB’s ostensible agency argument, bringing this issue before a jury. This argument essentially says that McDonalds is a joint employer because they led the employees of this specific McDonalds to reasonably believe they were their employer through their own act or neglect.

The McDonalds in question was owned by a Hayne’s family. However, the employees all testified that they believed that both they and the Haynes family were ultimately McDonalds employees.  They were required to wear McDonalds uniforms and greeted guests by welcoming them to McDonalds.  All the documents they received read McDonalds and they had to follow “McDonalds Store Policies.”  Most importantly, nobody ever actually told them they didn’t work for McDonalds.  You can see how an employee might be confused.

The argument here is still a tenuous one. California law, applicable since the case is coming out of California, has ruled in a case involving Domino’s Pizza that uniforms don’t show agency by themselves—instead serving to protect the brand.  What’s more, while there is no actual case law saying ostensible agency can’t be used by employees themselves, it is almost always used in cases where an outside party reasonably believes that somebody is making representations within the scope of their agency with a company—making offers that the company they work for has given them authorization to make.

Ultimately, the case will come down to whether a jury believes it was reasonable for the employees to believe they were ultimately working for McDonalds. If they had reason to think that, McDonalds is on the hook as a joint employer.

What Could These Cases Mean?

If a jury decides that Mickey D’s is a joint employer, however unlikely, it could totally change how businesses that franchise out their business model—from 7-Eleven to Dunkin’ Donuts—function. The legal premise would not only open a franchisor up to liability as an employer, it would also open the door to nationwide unionization of that franchise’s employees and all costs that could come along with such a union. At a minimum, these businesses will have to require clear disclosure of exactly who any given worker is employed by.

It took two years to get to the point where this case was given the go ahead to eventually see a jury. It’s likely that it will be many more years before this case sees a final resolution.  With such huge potential repercussions there is no question that McDonalds will take this case all the way to the Supreme Court.  This case, and the many other cases like it, have the potential to change the entire business landscape of the United States.  However, we’re definitely going to have to wait a long while to see if that will be the case.