Wearable Technology a Violation of Employee Privacy?

Performance-monitoring devices are become more prevalent in the workforce. These devices keep track of the day-to-day activities of employees in order to better gauge work performance. An ongoing concern is whether basic civil rights, in particular, right to privacy, are being violated through the use of these devices. These devices can be found everywhere. Even the police department has made use of body cameras to keep track of their police officers. How far can employers go in enforcing these devices?

The Good, The Bad, and The Ugly

There are many reasons why an employer would want to make use of such performance-monitoring devices. The first basic reason is that the employer will be able to manage the work efficacy of the employees. No matter what line of work they are in, the employer will be able to keep track of the individual’s work performance every step of the way. This is good and bad.

For one, the employee might feel uncomfortable knowing that their higher-ups will be able to monitor everything they do within that window of time. One other aspect to this that is often overlooked is that the employer may have a preconceived bias towards a certain employee (for whatever reason—race, gender, or even personal relationship with employer) that will cause employer to give more attention to that individual over other such employees. This is unfair because they will be unduly scrutinized for the same work done by others.  Camera

As for the positives, this new form of work surveillance, if you want to call it that, gives the employee incentive to stay on track and not fall behind. It will be a motivating force that will increase productive output. Furthermore, in the case of truck drivers and other such work responsibilities, it will keep them awake in the case of long working hours. A Rackspace study found that as a result of wearing these devices, employees are more productive and satisfied with their work.

Right to Privacy

Now to address the elephant in the room. What about basic civil rights violations? The biggest concern here is the right to privacy. Although the right to privacy is not expressly stated in the United States Constitution, it is referenced in a number of different contexts. The Fourth Amendment implies people have a right to be secure from any intrusions. Moreover, there is case law that strengthens this concept that has been in development for the past couple hundred years. Mass surveillance and privacy is an ongoing issue in various industries and it will remain at the forefront because the law in this area is vague and not clearly defined.

However, in general, it seems these performance-monitoring devices, although violating certain privacy rights, have enough benefits to them that it might not warrant stricter guidelines. Although employees are in a sort of panopticon (conceived by famed philosopher Foucault, a panopticon refers to a surveillance system where the person is constantly in fear of being punished), this new system works towards a better work experience. Whether the courts will take this into consideration remains to be seen.

As for the police force retaliating against the police department for abusing their rights, this is a matter that is not quite the same as a typical employer-employee dynamic. A police department is an arm of the government and as such, should be held to a higher standard. Unknowingly, police officers have been recorded with body cameras on their person. There has been outrage as a result. In light of recent police brutality that has garnered national attention, the police department has sought to make sure that their police officers are in compliance and do not act out of line.

This will speed up the evidence-gathering process if there ever comes a time when the officer is investigated for committing such activities. On the other hand though, there are privacy concerns. Should the police officer be obligated to wear such devices at all times? And it seems that the police department did not inform their officers of the use of such devices. One officer stumbled upon the body cameras. As this has been an issue that has received much press but little actual litigation, only time will tell what will come of this. The justice system needs to see this through.

Ohio Lawyers Face Discipline If They Advise Clients Regarding Marijuana Dispensaries

Any lawyer who wants to do business or advise clients in the marijuana industry must first consider State ethic rules before accepting representation. The Supreme Court of Ohio’s Board of Professional Conduct recently concluded that a lawyer cannot advise a client to engage in conduct that violates federal law.

Marijuana, medical and recreational, is considered illegal under federal law, this new ethics rule means a lawyer can’t provide legal services to any client who wishes to operate a medical marijuana Marijuana 2enterprise or transact business with a person engaged in medical marijuana enterprises.

Ohio is the most recent state to pass such ethical standards. Last year, the Disciplinary Board of Hawaii’s Supreme Court similarly issued an opinion limiting the role lawyers can play in the marijuana dispensary industry. Likewise Pennsylvania’s Rules of Professional Conduct prohibits lawyers from counseling a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.

Federal Controlled Substances Act

The Controlled Substances Act (“CSA”) is the federal drug policy that regulates the manufacture and distribution of controlled substances like stimulants, narcotics, hallucinogens, and depressants. The Act categorizes drugs into five schedules based on their potential for abuse. Marijuana is considered a schedule one controlled substance. Because it is listed as a controlled substance, it is considered illegal under Federal law.

Discrepancy between State and Federal Laws

Medical marijuana is legal in twenty-three states and the District of Colombia. Many of those states have amended their ethics rules. Connecticut, for example, requires that a lawyer must inform his client of the conflict between Connecticut and federal law even though the state of Connecticut legalized medical marijuana. Arizona and Washington have taken a looser approach. In those states, a lawyer who fully advises a client of the Federal law implications and how they differ from State law can still advise a client so long as the counseled conduct is expressly permitted by state law.

Hawaii versus Ohio

Hawaii legalized medical marijuana about sixteen year ago, but only recently enacted a law that would license marijuana dispensaries for patients. The law set up a state-wide dispensary system with a total of up to 16 dispensaries. The law requires potential licensing candidates to have at least $1.2 million in the bank. Nevertheless, lawyers licensed by Hawaii are not permitted to give legal advice or assistance beyond counseling on the validity, scope, and meaning of the law to any individual who wishes to set up a dispensary or marijuana production center.

Hawaii’s Disciplinary Board cited two main reasons for its decision. The first reason is the fact that Congress hasn’t amended federal law since marijuana is still considered illegal. Secondly, Hawaii’s professional code of conduct states that “a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, and meaning of the law.”

On the other hand, Ohio’s medical marijuana law will take effect September 8, 2016. Under the new marijuana law, people can possess and use the drug without going to jail. However, the law does not specify where these Ohio citizens can obtain marijuana since Ohio marijuana dispensaries are not yet set-up. Lawmakers have stated that their residents can travel to another state and bring the marijuana back.

Just like Hawaii, one of Ohio’s main reasons for prohibiting lawyers from counseling or assisting a client who wishes to associate with the marijuana industry is the illegality of marijuana at the federal level.

Ohio goes one step further and concludes that a lawyer who seeks to use medical marijuana or in any way participate in the medical marijuana business violates federal law, which could adversely reflect on the lawyer’s “honesty, trustworthiness, and fitness to practice law.” In that regard, Ohio lawyers are held to a higher standard and are seemingly prohibited from using medical marijuana themselves.

Massachusetts Bans Employers From Asking About Salary History

Massachusetts has passed a law prohibiting employers from asking employees about their past salary history. This is a step in the right direction. Wage inequality has been an ongoing and unresolved issue in this day and age. In an era where employment opportunities are ample and there are federal laws in place that outlaw labor discrimination against women and other minorities, this type of wage disparity still exists and needs to be set aside once and for all.

Step in the Right Direction

Women’s rights has been a recurring issue in American history and politics for the past couple hundred years. From Seneca Falls to women becoming active participants in voting rights, this has been a nagging and ongoing topic of discussion with no end in sight. This recent Massachusetts law, along with similar laws enacted in other states, reinforces women’s rights and wage equality.

Although gender wage inequality is the problem posed here, such legislation helps other minorities as well. Federal law prevents gender-based pay discrimination yet wage gaps still exist. There are studies, including one from the United States Census Bureau that puts the average national salary for women slightly below their male counterparts. Piggy Bank

The new Massachusetts bill, aside from preventing employers from questioning salary history, also allows employees to share their salary with others. This not only puts the issue at the forefront, but also validates the issue. In other words, spreading the word about their respective salary, employees can gain an awareness of where they stand compared to others in the same line of work or similar profession. Furthermore, employees can better understand where they stand relative to others in their industry.

For example, if a programmer is receiving a salary and bonuses that is less than the average programmer in the same industry or particular niche, then this could be grounds for complaint for that individual. However, in light of this new piece of legislation and other such laws enacted elsewhere, this is without a doubt a step in the right direction.

Holding Its Own

Although this bill is a state-enacted piece of legislation, it has sent a ripple effect all throughout the country. Even though the Supreme Court is the law of the land, i.e., it governs all, state laws have dominion over their own borders unless Supreme Court says otherwise.

As mentioned before, although there are federal laws in place such as the U.S. Equal Employment Opportunity Commission, Equal Pay Act of 1963, and other like bodies of law, this state law has its own weight of authority and brings into focus the issue on a more personal level. This idea that employers cannot raise questions of salary history could work in a court of law because undoubtedly, this is the goal that we have been aiming for all these decades.

Since the end of the Second World War, women have sought better work conditions and more work opportunities, and rather than just be sit-in mothers. They want to be a part of the tour de force of society in building and assuming the roles of pioneers, innovators, and holding a position in society that is appreciated and will contribute towards the evolution of socio-economic values.

A Subsisting Problem

Hopefully, with this legislation and others, as well as SCOTUS stepping in to bring this much-needed change, we will be one step closer to achieving what the founding fathers strived for and what is rooted in our core values. Of course, this needs to be a group effort. Both major parties, as well as the judicial branch, need to play their part. Congressional Republicans have blocked passage of certain bills, such as the Paycheck Fairness Act, that would push for greater wage equality. For progress to be possible, politicians need to put their differences aside and work in unity for the greater good.

Stephen Colbert Asked to Change Television Persona

Stephen Colbert, known for his political satire and witty social commentary, has inadvertently run into some intellectual property issues regarding his persona. Formerly of “The Colbert Report” which was the intellectual property right of Viacom, Colbert is now the host of “The Late Show” on CBS. Viacom insists that the Stephen Colbert persona and image no longer be used, as it is their intellectual property. Colbert aimed to create an alternate persona by identifying himself as “Stephen Colbert,” a twin identity to his well-known and celebrated image. This is not likely to hold much weight in court if a lawsuit is initiated.

The “Character” of Things

There are many different angles to this issue. For one, there is an obvious copyright implication. In the copyright world, stock characters generally are not given protection. Under the Copyright Act, before something is given copyright protection, the work must meet a certain level of creativity. A stock character, such as a cliché action hero is not given protection because it is generic and lacks the threshold creativity to warrant protection.

However, in this case, the Stephen Colbert persona is quite unique and is associated with the satirist himself and not a particular genre or other individuals in the same field. Of course, this is a matter that would be decided by the jury. If the jury associate the Stephen Colbert persona with Stephen Colbert himself and not that genre, then Viacom has a strong claim of intellectual property over the persona. Colbert

When it comes to a character, such as Bart Simpson or Batman, the question of whether there is copyright over that particular character depends heavily on the medium. Copyright law treats literary characters quite differently from visual characters. The standard is higher for a literary character. A literary character such as Tom Sawyer will be protected as a copyright work only if that character is essential to the story being told. In other words, if a character is merely an afterthought, then that character will not receive copyright protection. On the other hand, a visual character does not require the same standard.

For example, the xenomorph from the movie Alien will only have copyright over it if it is delineated; in other words, if it is fleshed out enough to be identified on its own. This is a lower standard and is easily met. Here, as Colbert is a visual character, it only has to meet this lesser standard. It goes without saying that the Colbert persona is a character with enough depth and substance to stand on its own, and as a visual character nonetheless, Viacom will be able to meet this standard.

Hence, Viacom might have a good shot at claiming copyright over the original persona developed on “The Colbert Report.” At the same time, Colbert might be able to create his own persona, a la this twin cousin. If the original persona and this doppelgänger of sorts can be viewed as separate concepts by everyday viewers, then Colbert can claim that it is a different character altogether. This will be difficult to do of course as both characters seem quite similar and not enough distinction is between them to set them apart.

Another side to all of this is the work-for-hire doctrine. Under copyright law, if a work has been done on behalf of someone else, the rightful owner of the copyright is the person who requested for the work to be done. In other words, the author or creator of the work doesn’t actually have ownership rights; instead it is the person who commissioned the work. If Viacom can establish that they in fact commissioned the work, which is likely the case as they funded the show and put Colbert on the seat, then they will have copyright over the persona.

Trademark Law

Aside from copyright implications, there are potential trademark issues here as well. Can the Colbert persona be viewed as brand imaging? Is there consumer confusion? There can be a potential trademark to the Colbert persona if it is viewed as a consumer brand. Trademark is easier to establish than copyright, as it is rather easy to place a trademark on something. If Viacom can establish that the Colbert persona is a trademark and that consumers identify with that persona when investing their time or money on it, then it will be deemed a trademark that belongs to them.

Change of Hands

Licensing is a big part of this kerfuffle. If licensing terms are clearly laid out, then it will become quite clear who owns the intellectual property rights to the Colbert persona. Even if Colbert decides to invent an alternate persona, there might be restrictions to this that are expressly stated in the license. Ultimately, this is something that will be addressed if the issue is taken to court.

Pokémon Go Now Catching Lawsuits

Unless you’ve been living under a rock, you probably have heard about Pokémon Go.

Pokémon Go has become a popular national pastime. It is an augmented reality game made for iPhone and Android devices. Once people download the app, they are asked to travel to a fictional world so they can collect every Pokémon creature. What they end up doing is traveling to public places, but also to private properties and places of business in order to “catch them all.” There have also been stories of people getting severely injured, even falling off cliffs or getting hit by cars, while playing the popular game. Now, the creators of Pokémon Go are fielding a slew of lawsuits.

Class Action Lawsuit for Personal Injury

The creators of Pokémon Go may be looking at a class action lawsuit as the amount of people who suffer various personal injuries while playing the game increases. As if texting and driving weren’t bad enough, many players play Pokémon Go while driving, and it’s only a matter of time before one of those players causes a horrific accident.

In Florida, two teenagers playing the game in a car parked in a residential area were shot at by a man who believed they were burglars. A group of young kids playing in Hawthorn, Wiltshire, became lost in caves and had to be rescued. And there are numerous other instances of personal injuries sustained while playing the game.  March of the Pikachu

How does Niantic, Pokémon Company, and Nintendo, the creators of Pokémon Go, avoid liability? The creators included a friendly welcome that warns players to abide by local laws. The game’s terms of service also explicitly state the following:

Players should be “aware of your surroundings and play safely. You agree that your use of the App and play of the game is at your own risk, and it is your responsibility to maintain such health, liability, hazard, personal injury, medical, life, and other insurance policies as you deem reasonably necessary for any injuries that you may incur while using the Services.”

There is legal precedent which establishes no liability for the makers of video games. The most famous lawsuit against a video game company was filed by the widow of a teacher who was killed in the Columbine High School massacre. The widow sought $5 billion in damages. The judge ruled that none of the defendants named in the lawsuit were liable for the slain teacher, primarily because “the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor’s conduct.”

But a case against Pokémon Go creators is different. The game very clearly puts people in harm’s way by making them collect characters in these dangerous places – while driving, on private property, in the middle of the street, etc. Nevertheless, they have a very well-crafted statement which states that the players assume the risk of playing the game and that the players are responsible for any personal injuries sustained while playing.

Only time will tell whether a lawsuit against Pokémon Go for personal injuries will hold water.

Invasion of Use and Enjoyment of Private Property

A Michigan couple recently filed a class action lawsuit against Niantic, Pokémon Company and Nintendo, claiming the game has turned their neighborhood into a “nightmare.” Evidently a Pokémon gym and Pokéstop is located near their private cul-de-sac. Players are blocking driveways and parking their cars on private lawns. According to the complaint, players also peer into their windows and even cuss at them when they ask the players to leave.

The lawsuit alleges the placement of Pokéstop and Pokémon Gyms on or near private property constitutes invasion of use and enjoyment. The couple requested that the gym and Pokéstop be removed as stops near their home, but their request was met with generic responses via the company website.



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