What Is “Negligence”? It is a Failure to Satisfy a Legal Duty

Everyone knows that “Negligence” is a scary word that gets thrown around by people after auto accidents. But not everyone knows exactly what the legal theory of “Negligence” means, or how it can affect a business.

Here is what a child care provider should know about Negligence in a professional business setting, and how to limit liability exposure for Negligence problems.

Technically, Negligence is a legal theory, which if proven in court, allows a judge or jury to order a person or business to pay “Damages”.

In other words, if a court finds a business negligent, and someone suffered a loss or injury as a result of the negligence, the court can order the negligent business (or person) to pay.

It is the most common theory listed in a lawsuit when a person sues for a personal injury or property damage. For example, when a driver gets rear ended and injured, they often sue and claim in the lawsuit papers that the other driver was negligence and therefore must pay for the injuries.

To prove Negligence in court, the injured person (usually the plaintiff), must prove the 4 required elements of Negligence:

1) that there was a legal duty;
2) that the defendant failed to satisfy the duty;
3) the failure (breach) was the legal cause of;
4) damages.

An example of a legal duty that all child care providers have is the duty to supervise children at all times.

An example of a breach of a legal duty would be a failure to supervise children by going shopping instead of watching children.

If a child were to be injured on a play ground while the provider was out shopping of site, then it can be said the 1) breach of 2) duty 3) caused the child’s injuries. If the child had medical expenses from the injury and a scar, then there are 4) damages, and all four of the required elements exist.

But there is no “Negligence” in cases of pure unforeseeable accidents, such as if a meteor falls on a child care center. This is because there is no legal duty to stop meteors, because it is impossible. If there is no duty, there is no negligence.

Even if the provider was shopping at the time the meteor hit, there would be no negligence, because the shopping was not the cause of the meteor falling. Nature causes meteors, and there is no way to stop them. Therefore, no negligence for meteor damages even if you breach a legal duty to supervise at the time.

Common defenses to Negligence include: 1) there was no duty; 2) the duty was satisfied; and 3) the breach of duty did not cause the problem.

In order to avoid a claim of negligence, providers should be aware of their most important legal duties, which include:

1) always supervise children in their care (even if parents are late);
2) always provide a safe environment (no holes in the yard, no dogs with history of biting, etc); and
3) provide reasonable warnings for potentially dangerous situations (such as “we cannot guarantee an allergen free environment”).

But in the child care world, things happen. And sooner or later, a claim of negligence may come even if you try your best to perfectly satisfy all legal duties. If someone gets hurt on your watch, regardless of the facts, there may be a claim of negligence. Because of this problem, a provider needs to limit their “liability exposure”.

The best way to limit liability exposure for problems like negligence, is to always have a liability insurance policy in effect. Business liability insurance policies do cover negligence if it happens, and insurers will hire attorneys to defend you if your center is sued for negligence.

For more detailed info on how negligence works, see our self help video on the subject. If you have questions, post a comment. We try to answer all comments for free.

Deal With Peanut Allergy Issues in Your Parent Contract

More than one child care professional has lost sleep over worrying about what happens if a child in their care with a peanut allergy accidentally eats a peanut treat? It is a legitimate worry for many reasons.

Peanut allergies are among the most common and most dangerous food allergies. A tiny exposure to peanuts can mean big trouble for a person with a peanut allergy, with symptoms ranging from sneezing or coughing to the constriction, or narrowing, of airways. Some people die from the exposure. (Science News.org)

Naturally, child care providers can be legally liable if a child in their care has an adverse reaction if the child care provider was “negligent” in preventing the exposure.

And peanuts are everywhere, it is hard to control what other kids bring into a location, and it may be difficult to know in advance which kids have a peanut allergy.

What is a provider to do?  Is there anyway to avoid the liability and the worry?  While there is no way to prevent the risk entirely, the answer is yes – you can reduce the liability risk and the danger by taking reasonable steps to avoid the problem.

1. Require all parents to notify you inwriting of all known allergies a child has.

By forcing the parents to disclose the info, you avoid claims that you failed to inquire about possible problems.  You can have an allergy disclosure sentence in your parent / provider contract such as:  “Parents are required to list allo known allergies theri child may have on the lines below, including but not limited to drug or peanut allergies.”

2. Notify parents that you cannot guarantee a peanut free environment.

It is nearly impossible to prevent all traces of peanuts from appearing in a home, school or play ground.  Even if a provider is super careful never to introduce a peanut product, a child may slip by with an unknown peanut snack, and cause an accidental exposure.  It would be foolhardy to guarantee a parent there will never be peanut residue in a school or center.

But by giving parents notice that there may be peanut residue on your grounds, you prevent a claim that you failed to warn the parents.  You also leave it up to the parents to not use your services if they are not willing to assume that risk.

3.  If you have a child with a known peanut allergy,document your efforts to keep peanuts away from the children.

Reasonable steps to avoid the exposure should be documented – such as a notice to all parents asking them to not send peanut materials to the center, etc.

You can limit resistance from the parents to these terms by explaining the reasoning behind them.  And if a parent demands that you provide a peanut free school, you should carefully consider the practicality of it before you agree.

Effective Use of Late Pick Up Fees: Why a Flat Fee Works Best

Are you using late pick up charges efficiently? If you are using the $1 per minute formula, you may want to rethink your approach.

Does it make sense to charge a $3 late fee for a parent who shows up 3 minutes late? From my point of view, the answer is probably not.

The $1 a minute formula is not enough to deter lateness or to compensate you for the extra cost of late pick ups. And worse yet, it may make your customers angry or give the impression you are greedy. To your customers, it appears to be a penalty, rather than compensation for extra work.

There is a better way. You can use late pick up charges to accomplish 3 legitimate business goals:

1) deter late child pick ups, 2) compensate you for the extra costs involved in late pick ups, and 3) increase customer confidence in your business.

But to get there, you may need to re-think how you do it. Here are some recommendations for a solid late pick up policy.

Consider and Communicate How Late Pick Ups Affect Your Business.

It is no secret that late pick ups are inconvenient for the provider. But there is more to it – late pick ups cost the provider money. You should not be afraid to recognize and communicate this fact to your customers.

If a parent arrives late, employees may have to work late, and may be entitled to extra or overtime pay. The provider or center will have to stay open longer than expected, keep lights on, and maintain quality supervision of the child beyond scheduled business hours.

Extra care to a worried child may be required, and some providers or centers may have to pay for extra time in their business space.

End of the day operations, such as cleaning and safety inspections, may have to be delayed, or prolonged, and management of the business is hindered by this extra work.

Consider the Parents Point of View.

Parents are your customers! If you own a child care business, you need to take care of your customers.

Parents, like all people, often run into unavoidable end of the day scheduling problems. Their own work may run over schedule, they may have transportation problems, or personal issues may force a late pickup. Because of these everyday troubles, some late pick ups are unavoidable.

After a long day at work, like all people, parents can be irritable and stressed at the end of the work day. And like all people, parents are sensitive to wasteful spending, and frequently spend a lot of effort trying to save money where they can.

Consider the Goals of a Late Pick Up Fee and Accomplish Them.

As a business person, your goals with a late pick up fee should be:

1) make the fee is expensive enough to deter late pick ups where possible;

2) make sure it is effectively enforceable.

3) compensate the business for the extra expenses incurred in a late pick up, and

4) give the customer confidence that you are not trying to rip them off.

Why the $1 per Minute Formula Misses These Goals.

The common practice of charging $1 per minute for a late fee is a classic example of a failure to meet these goals.

Topping the list of reasons to not use a $1 a minute late fee is that it causes unnecessary stress to parents. If they are running late, they will be thinking “i’m wasting money!!!” at every stop sign, every red light, and every time they have to wait for another car.

The stress of this minute by minute fee will accumulate quickly during the parent’s drive to the provider, and does not help your business. It will be viewed as a penalty, not compensation for extra work. The parent will relate the building stress they feel with your business, and it will be a negative feature of your business to them.

Secondly, $1 per minute plan is not a real deterrent. Before there is a late pick up problem, the parents see the fee as a $1 problem. Parents will always feel they can talk you out of the $1 charges, and it will not affect the way they schedule their day because it appears at first to be a very small sum.

Third, a $1 per minute late fee is not realistically enforceable. There will always be arguments about whether a parent was 4 or 6 minutes late. Does the clock stop when they pull into the parking lot, or when they first hug their child? And whose clock do you measure the late fee by? What if the clock is 2 minutes off?

if you have to argue with a parent about whether they are 3 or 5 minutes late, you may waste 15 minutes of your time trying to get $2, and make the customer angry at the same time.

Of course, that sort of late fee cannot compensate your business for the extra costs of a late pick up, because it actually causes you to waste even more time trying to collect it.

How to Use a Flat Late Pick Up Fee To Accomplish Your Goals.

Justify a late fee to the parents in advance.

In your parent orientation, you should describe to the parents the business schedule, and be clear about when the child care must end.

Tell the parents what you do after all the children are gone, and why it must be done at a certain time. Get the parents to agree and understand that you must get things done, must clean up, must discuss the days issues with employees, and must go home yourself. Make it clear to the parents that it costs you money when they come late.

By clarifying the schedule and the end of the day work with the parent up front, you can get their agreement and understanding as to why the child care portion of your day must end at a certain time.

Once you have convinced the parent that you need to close operations at a certain time, point out 2 or 3 ways it costs you money if this plan is screwed up. For example, tell them you need to pay employees, or how you need postpone cleaning work, and keep lights on.

Don’t be afraid to tell parents directly that you cannot lose money and provide quality care. They will understand and agree.

If you fail to justify the need for a late fee clearly, it will create bad feelings between the provider and the parent. But if you do justify it, parents will not protest.

Charge an Effective Flat Fee.

Once you have justified the reason for a late fee, charge a flat late fee that is an effective deterrent, and one that compensates you for the extra work for those times when it is unavoidable.

Once you have justified the need to end the day at a certain time, you are in a good position to get the parent to accept a late fee that will prevent late pick ups, or at least compensate you for the extra expenses involved in working extra time.

A flat fee for a late pick is best for this purpose. After all, if a parent is 2 minutes late, it probably causes you as much of a problem as if they were 15 minutes late.

Thus, a flat late fee of $20 (for example) for parents who come 1-15 minutes late makes sense to you as a business owner. It also makes sense for the parent if you have justified it in the parent orientation.

And perhaps best of all, the flat fee approach will avoid arguments when it comes time to enforce it. The parent is either late or not, there will be no question of how much the late fee should be.

Further, a flat fee will prevent angering your customers on a minute by minute basis. It will eliminate the minute by minute stress felt by the parent that is inherent in the $1 minute idea.

If a parent knows they will be late under a flat fee agreement, they will think – “I’m going to be late, I have to pay $20 to compensate the provider for the extra work.” That is much better for you than a stressed parent speeding through a stop light trying to save a dollar on the way to your business.

As a business owner, that is what you want – a recognition that you are doing extra work and must be paid for it. You do not want your late fee to be viewed as a stressful minute by minute penalty.

You Are Free to Choose the Amount of a Late Fee.

You are free to choose the amount of the late pick up fee. There is no limit, other than a customer’s willingness to agree to it. To select the correct amount, you must be able to justify it, and get the parent to agree to it in the parent / provider contract.

You can charge one flat fee for the first 15 minutes, and then more for the second 15 minutes of late pick if you want. Or you can just choose one flat fee for all late pick ups. As long as the parent understands and agrees, it will work.

If you choose a flat late fee that is high enough, and efficiently enforced, the parent will take extra steps to get their child picked up on time. But on those occasions where a late pick up is unavoidable, it will compensate your business for the extra work, and avoid angering your customers. By meeting these goals, you can use late pick up fees effectively.

-Christopher Dort, Esq.

Questions? Post a Comment or send an email to cdort@dortlaw.com.

 

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Child Care Times Welcomes Coach Rossnina!

This blog is pleased to announce we have a new contributor and author, Rossnina Dort, who has ten years experience working with county child care agencies in California.

She promises to write, tweet, and RSS push as much useful content as she can find.

“I finally can publish my experience and training to help others working to improve child care providers, centers and community resources.”

Creating a Privacy Policy Can Increase Parent Confidence in Your Business

Individuals are more sensitive now than ever about how businesses use their personal information. The parents that form the backbone of your business are no exception.

You can use this fact to your advantage by creating a specific privacy policy to show parents how you protect their information. And a thoughtful policy can give you flexibility for advertising your services.

Do You Have Private Information to Worry About?

Yes. If you have any customers, you private personal information you must protect. You have names, addresses and telephone numbers. You may have parents’ work schedules, and children’s medical history information. Further, your billing records, copies of checks from payments, and notices from parents about authorized pick up people all contain sensitive information that could be misused in the wrong hands.

For example, if your business gives an abusive ex-husband a single mother’s new address information, you have done great harm. Because of this (and less serious dangers), you must protect your customers private information in your files from illegitimate disclosure or use.

What Do You Have to Do To Protect Private Information?

The answer to this question is simple: use the private information you have only for the purpose that you are authorized to use it for.

In practice, this means use copies of a parents checks only for keeping billing records. Use address information only for sending notices or emergency contact. Use a childs medical info only for administering approved medication, etc.

In general, you should treat your interaction with parents and their children as completely confidential, and do not disclose or use any information about your clients unless you have a legitimate business purpose for the use.

What Does a Privacy Policy Look Like?

Most large businesses these days have a written policy that tells customers how the company uses private information, such as their customers names, phone numbers, and other personal information. In some industries, such as the banking industry, a written privacy policy is required by law.

For most business, the Privacy Policy is a separate document from other everyday operations policies, and appears in paper form and on the company’s web site. There is no special form or format for an effective policy.

You can draft a privacy policy yourself, on your business letterhead. To make it effect, you simply have to review it with your parents, and get their agreement to any use of their information you want specific permission for.

For most childcare businesses, it can be done on a single page.

What to Include In Your Privacy Policy:

The first thing you should include is a short, clear statement that you consider their personal information private.

Then, you should include a brief description of how you use a parent’s personal information. Tell them what you do use their personal info for, and more importantly, what you do not use it for.

Here are some examples of what to put in:

“We use your private personal information only for the purpose of operating the daycare center. This use includes billing, sending out notices, administering approved medication and caring for the child.” etc.

If you want specific permission for a use of info, such as the ability to use a child’s picture in your marketing materials, you can include that information as well. For example, you can state:

“At times, Center may use images of its students for newsletters, art works, or marketing materials.”

If you are aware of specific privacy issues your parents have, such as in the example of an abused single mother, you can include details on how you will handle requests for private information, such as:

“Center does not disclose parents addresses or contact information to anyone other than persons authorized by parent or as required by law or licensing regulations.”

By telling parents more about what you do not do, you can increase their comfort with your business. For example, you can increase customer confidence by telling parents:

“We do not sell, lease, or distribute your personal information to solicitors or other childcare providers.”

If you use email as a communication tool with parents, you can increase confidence by telling them you will not send them Spam (unsolicited commercial email). You can do this with a statement such as:

“We have a strict No Spam Rule and do not send unsolicited commercial emails.”

Do You Need To Have Parents Sign the Privacy Policy?

Generally, the answer is no. If you review the privacy policy with the parents in your orientation, and give them a copy, you will accomplish the goals of a privacy policy.

However, if you want specific permission for use of the information in business development work (such as pictures in marketing materials, or using parent quotes on your web site), you should get the parent to sign and agree to the policy.

If you create a Privacy Policy that puts parents at ease, it will increase customer confidence in your business. It is a quick and easy way to make your business more professional.

-Attorney Christopher Dort

Questions? Post a comment.

For a free review of your Privacy Policy, email a copy to: childcare@dortlaw.com

President Obama Proposes Increase in Child Care Tax Credit

There may be light at the end of the tunnel for child care providers and parents hit hard by 2 years of bad recession. President Obama is keeping his campaign promise to make child care one of his priorities. And this morning, he proposed a plan to substantially increase the Child Care Tax Credit, (aka Child and Dependent Care Tax Credit).

Currently, the tax credit allows parents to apply a small percentage of their child care expenses directly to their tax bill. Because it is a “tax credit”, and not a “tax deduction”, the credit reduces a tax bill dollar for dollar when it applies, and can even be returned as a tax refund for those with no tax bill.

The parent must pay the expenses to a qualifying provider. To see if you qualify for the tax credit, or how to become a qualifying child care provider, see the IRS web page on, “Child and Dependent Care Expenses”.

At the moment, the plan is only a plan, and the details are not set in stone. But statements from the White House indicate that the plan is to increase the credit from 20%-35% of the money a parent spends on child care expenses for families making less than $85,000. (Source = CNN)

Also included in the plan, lower-income families would receive a $1.6 billion increase in child care funding, the largest one-year increase in 20 years.

The United States Constitution Requires that all tax law start in the House of Representatives, so technically Obama Does not have authority to do on his own. In order to turn his plan into law, President Obama must get a sponsor for a new Bill in the House of Representatives, and then get approval by the House of Representatives and the Senate. But there is little doubt that Obama can find a sponsor for the Bill, and very little opposition to the plan is expected.

-Christopher Dort
www.DortLaw.com

Your Landlord Cannot Prevent a Family Child Care Business

California Health and Safety Code section 1597.40 prohibits landlords, property owners and management companies from restricting tenants’ freedom to use rented property (including apartments) for a family child care business.

Recently, the Child Care Law Center worked with private pro bono attorneys to fight a case where a rental tenant was prohibited by a management company from operating a family child care business. The case spent more than a year in litigation, and resulted in a favorable settlement to the child care provider – including damages for the delay the management company caused in opening the business.

If your landlord or management company is threatening you in an effort to stop you or restrict you from operating a family child care business, send them a copy of the press release on the case which can be found at: http://www.childcarelaw.org/docs/Morrison%202%2013%2009.pdf

-C. Dort

Follow up on Twitter at:

http://www.twitter.com/cdort

Proposition 1D Will Hurt Preschools and Early Learning Development

On May 19th, California Voters are being asked by the State Legislature to Approve or Disapprove a proposed Amendment to the State Constitution that would undo the Children and Families First Act of 1998.

If it passes, Tobacco Tax money now guaranteed to flow to family child care providers, preschools, and early learning development programs, will be diverted to cover other deficits in the State’s budget.

Here is an explanation of why we should not let government divert the money, and why a NO Vote on Prop. 1D is the right thing to do.

Background

In 1998, the California State Constitution was amended when voters approved the  Children and Families First Act  (once known as Prop 10).  The Act increased taxes on cigarettes and other tobacco products by 50 cents per pack, and guaranteed the money could only be used for purposes related to child care and early learning. The money from the Act became known as “First Five” money, referring to the first 5 years of a child’s life, and the programs it funded became known as “First Five Programs”.

With the First Five money, the state government created state and county commissions to establish early childhood development and smoking prevention programs.

Now, the money generally flows to County Child Care Agencies such as the Children’s Home Society of America in Orange County, and the Contra Costa Child Care Council.  These organizations use the money to provide free child care to low income families, and to provide quality training for child care providers such as the recent 15th Annual Early Learning Conference.  They also use the money to ensure family day care centers, child care providers and preschools are providing quality and safe care.

Through these programs, the First Five money benefits children directly.  If a child lives in a low income family that needs child care to be able to go to work everyday, the money provides grant opportunities.  When a new preschool needs help creating  employee policies to create enforceable safety rules to protect children, the money provides legal help free to the provider to get it done.  If a child care provider needs help understanding how to deal with a child that has a tendency to bite other children, the money provides training seminars taught by child behavior experts.

As it turns out, the Children and Families First Act has been a great success.  The tobacco taxes are generating a lot of First Five money, and to a large degree it has allowed the First Five programs to to avoid atrophy while the rest of the economy melts.

People keep smoking in bad economic times, and the First Five money keeps rolling into the early learning programs.

This success is now directly in conflict with the State’s tremendous budget deficits that seem to have no solution.

What is Proposition 1D?

Proposition 1D is a request from the State’s Legislature for Voter approval of a new Constitutional Amendment that would divert that money for five years, essentially ending most First Five programs. (Source)

Why a Constitutional Amendment?

The original Children and Families First Act was a Constitutional Amendment, and the flow of that money to child care purposes is now guaranteed by the State Constitution.  The flow of funding cannot be changed by a regular law or statute.  A new Amendment to the Constitution is required to undo  Children and Families First Act.

So, in essence, Prop. 1D is a Constitutional Amendment to undo a Constitutional Amendment.  It’s crazy to begin with – but moving on . . .

What Happens If Prop. 1D Passes, What Happens If It Fails?

If Prop 1D passes, the state government, and the governor will be legally allowed to use $268 million of the First Five money for other purposes. The Governor has stated that he wants to use the money to save other badly needed programs that are suffering.

Currently, 80 percent of “First Five” money is distributed to county governments for programs, including government “school readiness” programs for pre-schoolers, Medicaid health coverage to children whose family income is above the cap for that program, parent-education training, food and clothing subsidies, and more. Under Proposition 1D, that revenue stream would cease for five years, essentially ending most First Five programs.  (Source)

If the Voters Vote NO on Prop. 1D, and it fails, there will be no changes to the Children and Families First Act.  It will remain as it was passed by the Voters in 1998.

Who Is For It?  Who Is Against It?

Who Supports Prop. 1D?

Budget Reform Now, a coalition of groups assembled by Governor Arnold Schwarzenegger to support the overall 2009-2010 budget agreement and tax increases.

Who Is Against It?

• League of Women Voters
• Health Access California
• Prevent Child Abuse California
• California Nurses Association
• National Association of Social Workers
• California Family Resource Association
• Junior League of San Jose
• American Federation of State, County and Municipal Employees.
• Peace and Freedom Party

Source = www.ballotpedia.org

Why Should Californians Vote NO on Proposition 1D?

Proposition 1D is an attempt to undo something the 1998 voters set in stone, or as close as you can get to setting something in stone these days.  They voted to guarantee the tobacco tax increase money would go to children and early learning programs. It was done because the State’s Voters understood that investments in early learning programs and child care pays benefits to the State in profound ways that are in our best interest to continue.

If we approve Prop 1D, we will undo a great success for children and the community as a whole.  Let’s let the government find another way to solve the budget crisis. Vote NO.

-Christopher Dort, Esq.

Links and Info From Early Learning Conference April 25, 2009

On April 25, 2009, we did a training seminar at the 15th Annual Early Learning Conference (ELDP) sponsored by www.CoCokids.org on Free and Easy Ways to Promote Your Business On Line at the Mt Diablo Valley Community College.

Here are the links from that training for your use:

www.Twitter.com

Twitter is a great and free way to keep the public and parents updated on your program or school.

www.craigslist.org

Craigslist is a great place to post free ads

Google Local Maps Business listings

Great place to list your business with video and photos even if you do not have a web site.

Childcareratingz.com

An example of a free on line child care directory where people can post reviews or find info about your business.

DMOZ.org

A free directory for all businesses with a category for Child Care.

And here is a great tip for getting good reviews from your happy customers:

You can send your parents emails asking them to “Give Us a Grade” with a link to Google business listings or to another directory where reviews can be posted.

-Chris Dort

List Your Center On Web Directories To Promote Your Business

There are many web sites out there that are directories of child care providers (centers, programs and schools).  Many of them allow child care providers to list their business for free, and some allow people to review the programs.

Getting listed on web directories is a great, free and EZ way to promote you business on-line.  There are several, you can find them by searching for “child care directories”.  One I recommend for posting is:  http://www.childcareratingz.com/index2.jsp

You can maximize good reviews by asking your happy clients to give you a positive review.  There is nothing wrong with asking for it.  And often the easiest way is by sending an email titled “Give Us A Grade!” with a link to the directory where they can post a quick and eazy review.

-C. Dort