Monthly Archive for March, 2012

Can Employers Require You to Disclose Your Facebook Password?

If you’re looking for a job in this economy, or are worried about your job security, you’re probably aware that the current job market – with unemployment over 8%, and more people returning to the job search amid signs of improvement – generally favors employers. They have a large pool of highly-qualified candidates to choose from, and they know it. Over the last few years, employers are increasingly bold in placing new conditions on employment which most job applicants would consider onerous and/or distasteful just a few years ago.

One of the most striking examples of this phenomenon comes from this story: some employers are now asking job applicants to hand over their login credentials for social networking sites, and even email accounts. Also reported here.

Some job applicants have withdrawn their applications for jobs when asked to do this. However, it’s likely that many more felt that they didn’t have that option (perhaps it was their dream job, or they had been unemployed for a long time), and have reluctantly agreed to this.

But as you can imagine, many people see this as an unnecessary invasion of privacy, and a few state legislatures are currently considering bills that would outright ban this practice. According to the article linked above, Illinois and Maryland are currently mulling legislation to ban the practice. While I don’t know if legislative action is necessarily required to deal with this issue, I do think a good “Seriously? What the hell, guys?” is in order.

I understand the need to conduct basic background investigations of prospective employees in certain industries. However, employers were able to conduct thorough background checks long before the advent of Facebook, and, traditionally, there’s always been an unwritten understanding between employers and employees that what happens outside the office is, for the most part, none of the employer’s business.

And there were always commonsense exceptions to this rule. It was, and is, considered perfectly reasonable for an employer to fire an employee if the employee is arrested or convicted of a crime. If the employee drinks heavily or uses drugs on their own time, it definitely becomes the employer’s business if it interferes with the employee’s job performance, or potentially exposes employers to liability.

Maybe I’m just old-fashioned, but I honestly have no idea how an employer would ever come to the conclusion that this type of practice is acceptable. While there’s no denying that the Internet generally, and services like Facebook in particular, have changed how we view privacy, I don’t believe that we have completely given up any expectation of privacy online.

So, how should you deal with this question, if you don’t want to disclose this type of information? Obviously, that depends on what kind of stand you want to take, and how badly you need the job that you’re applying for.

One possible solution is to scour your Facebook page and remove anything that you might not want your employer to see, or set up a separate Facebook account for the consumption of employers.

Or, if you want to be a smart-alec, you could inform the interviewer that the Facebook terms of service prohibit you from sharing your password with anyone, for obvious security reasons. But maybe some employers are from another generation and don’t really know what they’re asking for when they ask an applicant to disclose their Facebook login credentials. Maybe they aren’t aware that many people (especially younger adults who are now entering the workforce) use private messages on Facebook as their primary two-way messaging service, largely replacing email and text messages. Those messages are meant to be private. That’s not too different from an employer asking for access to your email account, or to your personal diary.

And while it’s true that information posted on sites like Facebook can theoretically be made available to everyone, there are settings designed to give users control over who sees what. Many people who have a small circle of friends and family members on Facebook may post things on that site that they’re OK with those people seeing, but wouldn’t want it to be open to the whole world.

The constitutions of some states (California, for instance) have an explicit protection for privacy rights codified into their text. This is in contrast to the U.S. Constitution, which does not have a right of privacy explicitly written into it. The right to privacy is protected by the California constitution more strongly than it is in virtually any other state. The right applies against the government (the police, etc.), as well as private parties. This means that, in California, your constitutional right to privacy applies both against the state and private companies, including your employer. While I’m not an expert on how California courts have construed this right, it doesn’t seem unreasonable that this type of conduct might already be illegal there, and in some other states.

In the long run, however, I think evolving societal rules of what’s acceptable and what’s not will determine whether or not we, as a society, think that this type of conduct is acceptable. And as the job market improves, and employees regain a little bit of the leverage that they once had, employers will get over the sense that they can engage in this type of conduct with impunity.

In some cases, the law has advanced causes well before public opinion was behind them. School desegregation and the CivilRights laws of the 1960s are good examples. More often, however, the law trails public opinion. I have a feeling that, by the time any laws governing this practice are passed, public opinion will have ruled on it long ago, making the laws largely irrelevant.

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Does The Treyvon Martin Case Vindicate Opponents of “Stand Your Ground” Laws?

If you’ve been paying attention to the news at all, you’re probably familiar with the basic facts of the Treyvon Martin case. A teenager named Treyvon Martin was walking alone on a sidewalk in a gated community, where he was staying with his father, who lived there. He was approached by George Zimmerman a member of the local neighborhood watch.

What happened after that is unclear, but it ended up with Martin being shot and killed by the watchman. It turned out that Martin was unarmed and had no criminal record. There are few eyewitnesses to the event, and the ones that exist give conflicting accounts of exactly what happened, so it’s not at all clear who the initial aggressor was in this incident.

Because of the respective races of the people involved (Martin was African-American and the watchman is white), and the somewhat suspicious circumstances of the shooting, this tragic event has reopened wounds that we all would have liked to believe healed long ago.

Pundits from virtually every political stripe have weighed in on what this tragic incident says about race relations in America, the need for more or less gun control, and, as I’m going to discuss in this post, the propriety of “stand your ground” laws.

Under almost every legal system in the world, people have a right to use lethal force to defend themselves against an aggressor who they reasonably believe poses an immediate threat of serious injury or death. However, the exact details of when and how this right can be used vary widely.

Even in the United States, where the laws of self-defense are considered quite a bit more permissive than much of the rest of the world, the details can vary significantly from state to state. There are, however, a few different categories that most of the states can be grouped into, when assessing how they deal with different issues that can come up in a self defense case.

Many states have a so-called “duty to retreat.” Basically, this means that if you’re confronted with a threat from another person, you are supposed to retreat from the threat, if it’s possible to do so safely. Only if retreat is impossible are you allowed to use lethal force. This means that the law (properly, in my view) only sanctions lethal force as a last resort to defend yourself. In most states that have this rule, there is an exception of the victim (the person exercising their right to self-defense) is attacked in their own home. This is based on the premise that a person should not be required to retreat from their own home.

Some states, however, have done away with the duty to retreat for some cases, and have instead adopted “stand your ground” laws, which permit a person to use lethal force to defend themselves without imposing a duty to retreat. The reasoning behind this rule is that everybody should be able to meet force with force.

In Florida, where this tragedy took place, this law had been enacted just a few years before this shooting. When the law was being debated, its opponents claimed that it would make it much easier for people to get away with racially-motivated killings. If there are no witnesses to the incident, or the only witnesses are sympathetic to the killer, it might be easier for the killer to convince the police that he was acting in self-defense, and that he simply chose to exercise his legal right to stand his ground. It was also suggested that it could cause arguments that might otherwise end in a minor scuffle to escalate to the point that one or both of the parties try to use deadly force.

I should be absolutely clear about one thing: we don’t know what happened the night Treyvon Martin was shot. I am not saying that the shooter murdered Trayvon Martin. I hope that this case is thoroughly investigated, and if there is significant evidence that the use of force was not warranted, Zimmerman should be tried. And if convicted, he should be punished.

But whether or not Florida’s “stand your ground” law applies in this case (and apparently Zimmerman’s lawyer is claiming that it doesn’t), are these laws a good idea? In general, I think we should always encourage potentially-violent confrontations to de-escalate, while preserving the right to use lethal force in self-defense as a last resort.

Even in jurisdictions that have a duty to retreat before exercising the right to self-defense, I would hope that courts give law-abiding citizens the benefit of the doubt, and assume that they honestly believed that they could not safely retreat from an attack before they used force, absent very strong evidence to the contrary.

Ultimately, I’m hopeful that the truth, whatever it is, will prevail in this case. And if it prompts discussions about race relations, gun control, and the scope of the right of self defense, I think that’s fine. Sometimes it takes the worst tragedies to prompt a society to do any real soul-searching.

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Teacher + Ex-Porn Star Past + Conservative School District = Career Suicide

It seems like schools have gotten a lot sexier since I left their hallowed halls.  First there was a sudden uptick in teachers shacking up with their students, and now there are reports of not just one, but two teachers who have either been suspended or straight up fired for being former porn stars.

Stacie Halas, a 31-year middle school teacher for Richard B. Haydock Intermediate School out in California, was the first to be identified and suspended for her allegedly shady past as porn star “Tiffany Six.”  If you’re at work, don’t Google that name or any other names that appear in this post for that matter.  It’s some pretty graphic stuff, more Hustler than Playboy.

Halas was put on leave a couple of weeks back while her school district decides what to do with her.  But as luck, or misfortune, would have it, no less than two weeks ever Halas’s saga came to light, the story of another teacher by the name of Shawn Loftis was brought into the public eye.  Loftis, 32, was a former gay porn star who own his own company called World of Men and worked in the industry for six years.

Despite possessing a master’s degree in public administration, shortly after landing a substitute teaching gig in Nautilus Middle School in Florida, Loftis was kicked to the curb by the school’s principal due to his past employment history.  Loftis received his teaching certificate, but his future teaching career in Miami-Dade doesn’t appear too rosy as the district’s only comment on his case was that a “[teaching] certificate does not guarantee employment.”  Ouch.

Crazy coincidences aside, these stories do bring up the very important question: why their past should even matter.  Now before the cacophony of “because they’re porn stars” outbursts reach my eardrums, stop for a moment and think to yourself whether working in the sex industry really negatively affects Halas and Loftis’ abilities to teach.  I mean, as far as anyone could tell, neither one has had any report or complaints against them for poor teaching techniques.  And it’s certainly unlikely that either one has been coloring their instruction with stories of their past profession or teaching kids how to do a good money-shot (don’t Google that either if you’re at work).

The only issue is one of moral turpitude.  But looking over each of their respective district’s regulations, being an ex-porno star doesn’t count as a moral turpitude offense, or for that matter, a crime.  In fact, the only negative side effect it seems that can be attributable to their backgrounds is that some students may have a hard time respecting their authority.  But in all honesty, the only reason anyone knows of their pasts is because their schools’ administration drudged it up and made it public.

However, the most interesting part of all this is that there may very well be the possible and blatant First Amendment violation going on here.  Now some of you may be surprised to hear that the First Amendment doesn’t just cover your right to freedom of speech, religion, and expression, but it also covers your freedom to associate with whomever you please.  This is called the freedom of association and when government actors are involved, the government isn’t allowed to discriminate against a person by denying them employment based solely on their past associations, including being a porn star.

But let me stress that the U.S. Supreme Court has stated that discrimination on the basis of prior or current associations can be allowed in certain situations, such as when the position is for a high ranking government job, or the affiliated association intends to overthrow the government, or when moral turpitude is a factor in deciding whether one may do a particular government job.  There are more factors, but the last one I mentioned is probably the most pertinent to Halas and Loftis’ cases.

The question is whether one would consider being a porn star an offense against good moral turpitude.  As stated earlier, both the California and Florida school districts don’t have rules prohibiting such behavior nor any that specifically label such past occupations as showing bad moral character.  Like most legal questions, this one will be for the courts to decide should it ever get that far.  However, for me, and I hope most of you, it shouldn’t have to be because there’s nothing wrong with what these two did in the past, both from a legal and moral standpoint.

Now certainly teachers are supposed to be role models and arguably the most damaging aspect of Halas and Loftis’ past is that it may not make them suitable people for their students to look up to.  But by shunning them, the school districts are in essence condemning an industry that has every legal right to function.  Though many may object to the porn industry of moral grounds, the fact of the matter is that it’s a regulated business that is legally allowed to exist.  The idea of condemning it in this fashion would be no different that keeping teachers who were former taxi drivers from teaching because their old jobs were too blue collar for kids to look up to.

As far as I’m concerned, a good teacher is a good teacher.  I went to public schools and looking back, many of my favorite teachers had flaws.  But none of their blemishes mattered because they were so captivating as teachers.  Their instruction methods made learning fun.  And if any teacher, porn star or not, is capable of doing this for their pupils, than shunning them from the profession will only harm the students.

What do guys think about Halas, Loftis, and what is and isn’t an appropriate prior vocation for teachers in general?  As always sound off with your thoughts below.

On an unrelated note, this is my last post as a regular writer for the LegalMatch Law Blog.  I still may contribute pieces in the future from time to time, but for now I must bid you adieu.  I’ve enjoyed my time here and I’ve especially loved interacting with all of you, dear readers.  Thank you all for your support and thank you to LegalMatch and my editor for letting me write for them for so long.

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No, You Can’t Sue a Movie Theater for Overpriced Popcorn

In a lawsuit that I’m sure “tort reformers” will point to as being yet another example of how broken our legal system is, and why we desperately need to immunize wealthy defendants from compensating the victims of their wrongdoing save the economy from frivolous lawsuits, a moviegoer has decided to sue the owner of a movie theater for charging what he believes to be an unfair price for concessions. Yes, really.

This is an example of a lawsuit filed by someone who obviously has no idea how the American legal system (or economy) works. I’ll just get this out of the way: you don’t have a legal right to cheap popcorn, soda, Milk-Duds or Junior Mints at a movie theater. Are the prices on these items at movie theaters ridiculous? Yes, you could make that argument. But are you being forced at gunpoint to buy a $5 box of Sno-Caps? If your answer is “yes,” I suggest you leave that theater and call the police. Maybe there’s only one movie theater in your town, so you don’t have any basis for comparison; but I can assure you that the employees of normal theaters don’t behave that way.

But since this man’s lawsuit doesn’t allege that he was in any way forced to pay those high prices for candy, I’m going to go ahead and assume that that’s not the case. This lawsuit betrays a basic misunderstanding of both the law and simple economics. First, he claims that the high price of concessions at movie theaters violates the Michigan Consumer Protection Act, which is similar to the unfair competition laws that exist in the majority of U.S. states. These laws are meant to prohibit legitimately unfair business practices, such as false advertising, defamation of one’s business competitors, price fixing, and the like.

Most Michigan lawyers would probably say that the law in question doesn’t apply to this case, as the movie theater does not provide a vital service, does not misrepresent its prices, and many other reasons. What’s most surprising to me is the fact that this guy actually found a lawyer to take his case, and he isn’t just some crackpot representing himself (with the complaint hopefully written in crayon). According to this article, the plaintiff’s lawyer has publicly stated that the lawsuit is at least in part based on the fact that movie theaters charge far more for their food items than other stores charge for the same items. Last I checked, that’s not a legal wrong that warrants compensation.

But I’m most surprised by the fact that this guy actually found a lawyer to take his case. There’s really no question that the case is a loser. I hope for his sake that he’s not working on contingency.

But more importantly, cases like these, and the lawyers who take them, call the entire legal profession into question by cheapening and delegitimizing it.

This is because there are certain interests, most of them connected to business, who have a strong interest in changing tort law to their advantage. Because large corporations engage in the largest number of transactions with the general public, they’re subjected to the largest number of lawsuits. This is not a criticism of large corporations, mind you. It’s just an illustration of the simple fact that, in day-to-day life, a certain percentage of things go wrong.

And, sometimes, when a transaction goes wrong, whether one party breaches a contract, or a customer slips and falls in a grocery store on some oil that was spilled hours before and never got cleaned up, one party is clearly at fault. To deal with those cases, we have a legal system that compels culpable parties to compensate the victims for any harm directly caused by whatever culpable conduct they engaged in.

There are some plaintiffs who have abused this system, either by fabricating injuries or suing over injuries that were obviously nobody’s fault. And, occasionally, one of these lawsuits will fall through the cracks and a plaintiff will end up walking away with a significant judgment. Or, more often, the facts of a lawsuit will be misreported by the media, making the plaintiff’s case look ridiculous when it’s actually valid.

This has led to a movement that’s broadly referred to as “tort reform.” Tort reform largely involves making it more difficult for plaintiffs to recover for injuries they’ve sustained, through heightened burdens of proof, shorter statutes of limitations, damage caps, and other measures. The stated goal is always to protect the economy from being drained by nonsense lawsuits. And I don’t doubt that many people who advocate for tort reform are sincere in this goal and in their beliefs. But the simple fact is that many tort reform organizations are backed by large corporations, and engaged in significant political lobbying.

And one of the most powerful pieces of ammunition is lawsuits like this. I have no doubt that this lawsuit will be thrown out in its very early stages. However, it will almost certainly be used as “proof” that, in order to prevent absurd lawsuits like this one from happening is to prevent victims of medical malpractice from collecting more than $250,000 in damages, or something similar.

I hope the public, and our state legislatures, resist these calls. Cases like this are amusing, and can be dismissed with a laugh. But more importantly, they test our commitment to one of our society’s core values: access to the courts. Let’s hope that that value isn’t compromised any time soon.

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Mississippi Supreme Court Upholds Outgoing Governor’s Controversial Pardons

Shortly before leaving office, the outgoing governor of Mississippi, Haley Barbour, issued several pardons of convicted criminals, including four convicted murderers who, as part of a prison work-release program, had worked at the governor’s mansion. The vast majority of states allow their governors to pardon convicted criminals, just like the U.S. Constitution allows the President to pardon people who are convicted of federal crimes (but the President cannot pardon people convicted in state courts of state crimes, where the vast majority of criminal prosecutions take place).

The U.S. Constitution says that the President can pardon anyone convicted of a federal crime. This power exists to give convicted criminals one final avenue of appeal when they have exhausted all the remedies afforded to them by the court system. Because the President does not need to give any reason for his decision to grant or deny a pardon, this theoretically allows the president to act based on his sense of fairness and justice, acting independently of the legal and factual findings of the courts.

Most states follow a similar model. This means that the state governor can pardon any convicted criminal, for any reason whatsoever, or for no reason at all.

Mississippi’s constitution gives its governor this authority, though there are a few minor procedural hurdles that a convict must jump through when submitting a request for a presidential pardon. But the attorney general of Mississippi decided to challenge these pardons in court. And the Mississippi Supreme Court has just upheld the former governor’s pardons.

The attorney general argued that the former governor had not followed a provision in the state constitution which requires any convict applying for a pardon to have a notice published in the county in which their crime took place, at least 30 days before the pardon is effective.

However, the Supreme Court ruled, citing the basic doctrine of separation of powers, that because the power to grant pardons rests entirely with the governor, it is also up to the governor to decide whether or not this constitutional requirement had been satisfied.

In its opinion (PDF), the court’s 6-3 majority took pains to note that they were not ruling on the wisdom or tactfulness of the governor’s decision. Nor were they deciding whether or not the governor is above the law, taking it as a given that he is not.

The court was essentially ruling on its own authority: the question was whether or not it the state’s judicial branch has the authority to intervene in an area that the constitution explicitly assigns to the governor.

I’ll be the first to admit that the former governor’s judgment in issuing some of these pardons was questionable, at best. However, without being an expert on Mississippi state constitutional law, I think I can still say with some confidence that the court made the right decision in this case. Our government is divided into three distinct branches, each of which performs functions essential for governing a free society. By dividing power among three branches of government, no single one can become too powerful, and each acts as a check on the power of the other two. This court in this case found that it did not have the authority to intervene in a matter that’s exclusively reserved to the executive branch of the state government.

Some people are certain to be angered by the court’s decision, and that is perfectly understandable. I can’t imagine the pain that the loved ones of a murder victim must go through. And this controversy almost certainly re-opened those old wounds. Despite the fact that I think the court made the right legal decision, I am not in any way trying to disparage their objections to the actions of the governor, or the anger they must be feeling over the court’s decision.

However, I hope that pundits avoid engaging in knee-jerk accusations of “judicial activism.” Because this is, in fact, the exact opposite of judicial activism – the court declined too intervene in a matter reserved to another branch of government. This court’s decision was actually a textbook example of judicial restraint.

While the criticisms of the governor’s actions may be perfectly valid, and we have every right to express them, I’m glad that the court followed the state constitution in this case. And if the voters and state legislature in Mississippi decide to ensure that this never happens again, they can amend the state constitution to limit the governor’s pardon power.

That’s the beauty of our constitutional system: if enough people are dissatisfied enough with the actions of one branch of government, chances are good that they can fix it.

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