Law Blog

A lot of HR departments have trouble with some basic legal issues.  TheWashington Post recently wrote an article for small businesses on how to handle some common “HR nightmares.”  The article lists the following as common issues employers tackle:

• Misclassifying Workers
• Overtime
• Breaks
• Firing Procedures
• Discrimination and Harassment

Below are some suggestions on how to handle such issues:

Am I Dealing With an Employee or Independent Contractor?

It is very important for employers to understand the difference between an employee and an independent contractor.  Basically, if an individual has control over their hours, working instruments, and method of work they are an independent contractor.  If an employer sets the hours, provides instruments and strategies procedures/working methods, an employer is dealing with an employee.  There are numerous lawsuits every year because employers have violated labor laws by treating an employee as an independent contractor, or vice versa.

The best thing to do is to read the labor law of your state, extract the definitions set forth for “employee” and “independent contractor,” and refer to it before classifying an employee.  Such small efforts can easily avoid later litigation. 

Overtime—To Pay or Not to Pay?

Since these laws vary state to state, it is important for every employer and/or HR department to understand its state laws on what is considered overtime, and when to pay it.  There are also tricky nuances.  For instance, California views an employee working over eight hours per day as overtime.  However, over forty hours per week is also considered overtime.  Many lawsuits have arisen because employees, who have wanted longer weekends, agreed to work over eight hours a day Monday through Thursday, in order to have Friday off.  Although the amount worked totaled forty hours per week, since employees were working over eight hours a day, labor laws required them to be paid for overtime.

A lesson to take from this is that when reading laws, pay attention to conjunctions such as “and” or “or,” because they hint towards small nuances, which, if not followed, can lead to litigation. 

Breaks—Employees Need to Step Away from Their Work.  It is the law!

It is very important for workers to take proper breaks.  Some workers choose to eat lunch at their desks or skip break because “they have too much to do” or are “almost finished with something.”  Sometimes, employers themselves are in meetings with employees, these meetings run long, and break time passes.  Employers often then encourage everyone to “get back to work” rather than instruct them to go out and make up their break time.  Such behavior from both employees and employers can get employers into trouble.  Why?  Later on, these same employees may claim to have been working diligently during their allotted break times, bringing employers into trouble for violation of labor laws.

What to do?  A lot of companies now have break rooms where no work can be conducted, or require workers to leave the premises during their breaks.  This is a great idea.  Overall, employers need to be proactive and ensure that employees take breaks.  If in a meeting, employers should be conscious and either announce a break during the meeting, or instruct employees to take their break after the meeting is over.  Otherwise, employers should create break rooms and/or have signs up that require employees to physically leave the office area during allotted break times. 

Firing Procedures

The major issue here is that employers establish firing procedures in the company handbook, and do not follow them.  This gives employment lawyers ample ammunition against you in court.  For instance, perhaps the company handbook will state that there will be a review process with the Board of Directors before firing someone.  However, that was not followed when an employee was terminated.  This can get employers into trouble.

To stay away from litigation, follow the procedure your company has established when firing someone.

Discrimination and Harassment—What Employers Think It is and What the Law Says It Is May Be Different

Most of the time, discrimination and harassment are not obvious.  Small comments on appearances guised as “compliments,” or harsh words with multiple meanings during a heated conversation can be discrimination or harassment.  People often associate extreme cases with these concepts; however discrimination and/or harassment instances can be subtle acts in workplace communication.  Many HR departments and employers do not understand this.

A great solution is to first understand the statutory meaning of these two terms.  Then, along with the usual description and “no tolerance policy” written in most corporate handbooks, it is a great idea to have a workshop for employees and management personnel on discrimination and harassment in the work place.  This not only will educate one’s work force, but will also make the company’s “no tolerance” policy clear to everyone.  Such small efforts are a great way to avoid any potential lawsuits. 

Of course there are more solutions to tackle these problems.  Employers should educate themselves and their HR departments, and have lengthy discussions with the corporate attorney(s) to ensure that the company is protecting itself from any potential lawsuits.   This article has some suggestions, and meeting with your corporate attorney will definitely yield more!

It’s no secret that times are tough.  Everyone’s hurting for money and people are always looking for ways to cut corners, while also earning some more dough.  Apparently, some towns have figured out a much better and faster shortcut to solve their community’s cash woes: print their own money.

Alright, you got me, my lead-in paragraph was a little deceptive.  It’s not really a complete contravening of the federal currency system (but in some cases, it’s pretty darn close).

Regardless, it’s an interesting trend to say least.  Small towns across the country from Massachusetts to New York to Oregon have started printing out their own version of currency to be used within their community.  One might be thinking: what would be the point seeing as we already have a national currency that works fine right now (other than the constant inflation, of course).

It’s not as pointless of an exercise as it might initially seem to be.  These local currencies generally hold a higher exchange rate than regular old US dollars in their respective communities.  For example, in Southern Berkshire, Mass., that town’s created currency, dubbed BerkShares, trades at 100 BerkShares to $95.  The little bit of extra money can go a long way in these hard times of ours.  And so far in the communities that have started currency programs like it, spending has gone up within these respective towns injecting some much needed money into their local economies, while also allowing residents to get a little more bang for their buck.

Now it’s always nice to hear when financially struggling people, or in this case a town, figure out a way to help dig themselves out of the red.  However, since this is a law blog, you’ve probably already deduced that I’m likely about to say something to ruin the party.

And you’d be right.  Because as far as I can tell, I’m pretty sure what some of these towns are doing may very well be in direct opposition to the Article I, section 10, clause 1 (aka the Contract Clause) of the U.S. Constitution, which states in relevant part that “No State Shall . . . coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts . . .”  The Contract Clause basically makes it unconstitutional for states to make their own currency, as the power to coin money is one that is reserved for the federal government.

Yeah, I know, I’m a party pooper.  But before you guys start tossing your hate mail at me, let me reiterate that these currency programs only might be unconstitutional.

The link I put up shows ten towns that have enacted their own form of currency.  Of the ten, nine of them seem to be perfectly constitutional because their currency acts more like a bartering or discount services program, ala a Groupon or Living Social deal, rather than a usurping of congressional power.  These nine currency programs were started privately by individuals or organizations who worked out deals with local business to accept their currency which in turn was “exchanged” or rather purchased by locals using actual dollars.  In this sense, these nine currencies are more akin to privately sold coupons than actual money since there are fewer places that actually accept them and treat them like money.

The main issue I have is with Southern Berkshire’s BerkShares, as that one seems to be closest to functioning as actual money.  Over 13 banks in their town accept and deal in it; these banks charge a percentage fee to exchange them, over 400 businesses in town accept them and there have been over 3 million BerkShares issued since the currency was launched in 2006.

However, the most important characteristics that set BerkShares apart from other local currency is that it appears to be endorsed by the local town’s government body and it also is more valuable than U.S. dollars in the community since $95 will get you 100 Berkshares.  These two characteristics of government authorization and devaluation of US currency have been viewed by the courts to be essential to the determination of an illegal currency.

Now it might not seem like a big deal if a town wants to create its own money, but it really is.  The reason is because the creation of unauthorized currency can cause financial instability in the country.  For instance, if a state is independently wealthy using its own money, it would have less incentive to adhere to federal guidelines.  It would in a sense become its own true sovereignty, and while states do have this right to some extent under the Constitution’s state police powers, allowing a state to print its own currency is a step too close to succession.

For now it doesn’t seem like too big of a deal to the federal government as no one other than me appears to have noticed this possibly unconstitutional action over in Southern Berkshire.  It’s helping their community and so far hasn’t led to any declarations of independence, so I guess more power to them.

Arizona is on a roll. First, it passes one of the most restrictive anti-immigration laws in the country, on the (false) premise that the federal government is becoming lax in its enforcement of existing immigration laws. Its largest county continues to elect a sheriff who blatantly disregards the constitution, and fails to investigate hundreds of sexual assault cases because he’s devoted all his resources to going after immigrants.

And now, another one of that state’s brilliant and not-at-all-racist laws is having some…interesting consequences. A recent state law bans public schools from teaching ethnic studies courses. This effectively bans schools from teaching subjects like Mexican-American studies.

The law officially bans public schools from teaching any subjects that “promotes the overthrow of the United States Government, promote resentment toward a race or class of people, are designed primarily for pupils of a particular ethnic group, or advocate ethnic solidarity instead of the treatment of pupils as individuals.” Taken at face value, this law seems pretty reasonable. However, it’s had the effect (which was its intended effect) of banning just about any class that seeks to educate students about other cultures.

An Arizona court has just ruled that Shakespeare’s play The Tempest cannot be taught in class. This is because The Tempest is about a banished duke who seeks revenge through magic, and deals with themes such as colonialism, slavery, and racism. Apparently, it’s just not OK to discuss those subjects in the classroom.

As you can imagine, I’m not in favor of this action, or the law that prompted it. I’m not sure what’s going on in Arizona, but it’s definitely nothing good. In a school district where close to 60 percent of the students are Latin American, a law that effectively bans schools from teaching students about that group’s history and culture sends a pretty clear message, whether it was intended or not: your culture has so little value that we feel the need to ban public schools from teaching any classes about it.

Laws like this will probably be short-lived, as Latin-Americans are by far the fastest growing demographic in Arizona, and contrary to the apoplectic ravings of talk radio hosts, most of them are there legally, and of those, a large percentage are U.S. citizens, meaning that they can vote.

To be honest, I don’t even have much of an opinion on the educational value of ethnic studies programs in public schools. However, this law pretty obviously is not motivated by an honest, good-faith belief that these programs lack educational value and that school resources are best spent elsewhere. It seems to be motivated by antipathy towards, or at least suspicion of, Latin-American culture, and Latin-Americans in general.

From a legal standpoint, however, I don’t know if there’s anything that can be done to stop this. States are free to regulate the curriculum of public schools, and there’s nothing in the Constitution that stops them from doing so. Unless Arizona begins segregating its schools by race, it’s unlikely that the federal courts can do anything about it. And, frankly, I think it might be counterproductive for the federal courts to intervene at this time.

We live in a time where many people are extremely suspicious of the motives, and even the very legitimacy, of the federal government. So, if the federal courts were to intervene, there’s a chance that Arizona officials could simply refuse to comply with whatever the court orders, regardless of the order’s legal merits. This would leave the federal government with an incredibly unpleasant decision: give the government of a state a pass on obeying the law, or taking more forceful measures to enforce a court order.

Given the current political climate, nobody wants that.

Ultimately, I hope that our country moves past this nativist, xenophobic phase we’re going through. It seems that we go through a phase like this every few decades, and they usually coincide with economic hardship and/or social unrest. And they eventually pass.

Hopefully, what we’re seeing now is also just a phase. Of course, I should note that the concerns that these laws, and others like them, mean to address are not entirely imaginary. Illegal immigration is a real issue, and we need a sane policy to deal with it. Personally, I think that the solution to illegal immigration, to the extent one exists, is to simplify the entire immigration process, and to make it easier to come into this country legally.

I hope, in the long run, that cooler heads will prevail on the issue of immigration.

It’s a sad state of affairs when our country’s internet might become more censored than China’s.  Because that’s apparently the kind of plan that Texas senator and professional hypocrite Lamar Smith has in store for the country with his Stop Online Privacy Act bill.  Thankfully though, our president along with those still looking out for our Constitution appear to have taken enough action to likely put SOPA down before it becomes law.

On paper, SOPA might initially seem like a good idea.  That’s because much like every bill introduced in Congress, SOPA is couched in patriotic, agreeable language that ultimately tells the public nothing about its horrible insides.

If you haven’t been following the news and haven’t heard of SOPA, just pop those letters into Google and watch your screen explode with results.  The bill proposes to end online piracy of movies, books, television shows, music, etc. by criminalizing the streaming/transmittal of such copyrighted content.

Now again, this might sound like a good idea at first.  Online piracy is costing our country’s economy millions of dollars in taxes, not to mention even higher figures for those who produce the material.  SOPA would likely impede a lot of it by way of the bill’s strict criminal penalties.

However, the trade off is far worse as passing it would undoubtedly change the way the internet is used forever, or at least until SOPA is repealed.  The internet under SOPA would no longer be a place for the free exchange of ideas; rather it will become a commercial venue for companies to reap high revenue while leaving users with a world wide web more akin to a television set than the internet we know today.

How would SOPA do this?  Before we get to that answer, it’s important to first discuss the way television works.  Yes, I’m aware everyone out there knows how to work a television, but humor me.  Television delivers content to viewers via a fixed one way path.  It’s fixed in the sense that what we see on T.V. is controlled completely by the stations and studios that produce and broadcast the programming we see.  In this sense, other than our ability to change channels, viewers have no control over the content that will appear from the television.  The T.V. is a fixed medium in which corporations have full control of both the content and advertising that is transmitted.  Sure, people can buy cable or spend money on getting premium channels like HBO, but in general everything that we see has been carefully vetted and controlled.

The internet as it is today, on the other hand is the exact opposite of television.  It’s a non-fixed medium in which any user may create, post, and view the content created and posted by other users.  It’s a medium in which corporations and the general public are on equal footing in terms of reach, in that anyone who has an internet connection can view both a commercial website or a person’s personal web page without having to pay anything extra to do it.  There’s no barrier to entry, anyone can post anything, as long as it doesn’t violate our country’s law.

This is where SOPA comes in.  If the bill somehow were to pass, the stiff penalties it carries would change the internet into a slightly more interactive television set.  You see, SOPA would make it a criminal offense for anyone to post copyrighted material.

Copyright content is vast: it’s not just movies, T.V. shows, or music; it’s also pictures, poems, news articles, short stories, pretty much any type of content that can be created by people can also be copyrighted.

For example, if one were to change their profile picture on Facebook to an image of Optimus Prime from Transformers and the image is one that has been copyrighted by Hasbro, the current owner of the Transformers property, that Facebook user’s page could be shut down.  And if everyone on Facebook did the same, under SOPA, all of Facebook could be shutdown too for copyright infringement.

YouTube, forget about it, that site would be down faster than a piñata full of hundred dollar bills at a birthday party.  SOPA would also make it illegal for sites to even link to pages that contain copyright infringing materials.  This means a search engine, like Google, could no longer bring up all the pages that it finds for us every day.  Furthermore, even if someone were to try to go directly to a website with some infringing content, under the broad language of SOPA, internet service providers would be required to block access to those websites.

So what kind of internet would we be left with it SOPA were to pass?  We’d be left with a television that we can type on.  It would be an internet run by corporations, where any time we want content, we’d have to go directly to the only source that produced it.  We’d have to suffer through their advertisements, registration requirements, and in all likelihood we’d also probably have to pony up some cash on top of it all.

The message here is a simple one: SOPA is bad for the internet.  But of course, that’s just my opinion.  Though in this case, I’d find it hard to imagine if anyone other than a corporation would disagree with me on this point.

Stephen Glass was a journalist for the highly-respected news magazine The New Republic. This would be an incredibly coveted position for any young journalist. So, it was to the surprise of many when it was revealed that Glass had completely fabricated several of the articles he wrote for the magazine. He was caught in 1998, and immediately fired. Obviously, he was completely disgraced as a journalist, and these days he probably couldn’t get a job sweeping the floors at a newspaper.

Over the last 10 years or so, he’s largely kept out of the public eye. While working at The New Republic, he attended law school at Georgetown University. He graduated, and passed the New York bar exam in 2000. However, because of his history of pathological lying, the New York bar refused to grant him a license, on the grounds that he lacked the moral character necessary to practice law in that state. He has spent most of the last 10 years working as a paralegal and performing in a comedy troupe, of all things.

After petitioning the New York bar for several years, he gave up on his attempts to get a law license there. He then took and passed the California bar exam, and is now facing the exact same obstacles to getting admitted to the State Bar of California.

I should note that Glass was not convicted of any crime in connection with his inglorious tenure at TNR. He was never even charged with a crime, as far as I can tell. Indeed, making up a bunch of news stories is not a criminal act.

However, a criminal conviction is not a necessary precondition for a finding that an applicant lacks the moral character necessary to practice law. State agencies tasked with licensing and regulating lawyers are free to look into every aspect of an applicant’s background, searching for conduct that reflects poorly on their character. And they should be free to do this, in my opinion.

Based on his history, the State Bar of California refused to give him a law license. So far, however, Glass has fared better in his efforts to challenge this decision than he did in New York: after a 10-day trial, California’s State Bar Court ruled in Glass’s favor, overruling the State Bar’s initial decision. The Bar Court’s appellate division upheld the trial court’s ruling in a 2-1 decision, agreeing that Glass proved, at the trial, that he had rehabilitated himself, and should be given an opportunity to practice law.

However, the Supreme Court of California has accepted the State Bar’s petition to review the decision. While the state Supreme Court is technically the final arbiter of questions relating to a California attorney’s fitness to practice law, it rarely gets directly involved in these cases, having delegated most of those duties to the State Bar, and the specialized courts it has at its disposal. This is the first time the Supreme Court of California has agreed to review a prospective attorney’s moral character in 11 years.

This indicates that the Court has serious doubts about the decision of the lower courts and, by extension, the issue of Glass’s moral character.

While I haven’t reviewed the entire transcript from Glass’s trial in the lower court, and obviously can’t see into his soul, I think the Supreme Court made the right decision in deciding to take this case, even though I haven’t formed an opinion on how it should ultimately decide.

California’s rules governing the moral character of attorneys are meant to be flexible. There are few offenses that are an absolute bar to becoming admitted to practice law in that state. Instead, the State Bar is given broad discretion, allowing it to view an applicant’s history in the most complete context possible. This also allows them to consider events that took place after the applicant engaged in some type of suspect conduct, to determine if he or she has been rehabilitated.

As I mentioned earlier, the fact that the California Supreme Court took this case (a type of case it rarely accepts) indicates that it has very serious reservations about letting Stephen Glass practice law. And while it may ultimately uphold the decisions of the lower courts, and allow Glass to practice law, I think it’s correct to take a very close look at this case.

Honesty and loyalty are very important in the legal profession, and Stephen Glass has shown in the past that he is (or was) a pathological liar. He may have some type of mental illness or personality disorder that caused his pathological lying. If that’s the case, it’s sad, and he should seek help. But that would not change the fact that a pathological liar is unfit to practice law, regardless of the root cause of their lying.

While I’m not going to second-guess the court’s ultimate decision, my gut tells me that Glass should probably not be admitted to practice law. Regardless of his subsequent actions, he’s shown that he’s capable of telling huge lies to advance his career in journalism, and that he will go to extreme lengths to cover them up. This demonstrates serious issues with his character and/or psychology.

While I think the legal profession should be open to as many people as possible, that doesn’t mean I think it should be open to everyone. Habitual liars are one group that I’m not too worried about excluding from the practice of law.