Archive for the 'Business Law' Category

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.

You’re Getting Married: Can Your Spouse Sign Away Student Loan Debt Responsibility in a Nuptial Agreement?

The short answer, yes—you can. Many first-timers don’t even consider nuptial agreements because they don’t have many assets to bring into the equation but, with the rising rate of student loan debt, couples should definitely think about marriage and student loans.

The average student loan debt reaches close to $30,000 and that only includes debt obtained for a bachelor degree.Students obtaining even higher education reach far greater amounts of debt.  Regardless of whether you stay together or end up in a divorce, limiting liability for another spouse’s student loan debt can be a smart financial decision.

Just as the names suggest, pre-nuptial agreements are made prior to the marriage and post-nuptial agreements are made after the wedding.  Almost all 50 states recognize and allow either form.  Both are considered private contracts and, thus, contract law will control rather than divorce law.  That being said, can student loans be included within an agreement?

With a few exceptions, you can include pretty much anything within a pre or post-nuptial agreement. You can never have provisions including anything illegal, you can’t make decisions regarding child support or child custody, you can’t waive alimony rights, and you can’t include personal rules that must be done within a marriage.  Everything else is fair game, which means provisions regarding student loan debt are a green light.

Are There Benefits to Signing a Pre- or Post-Nuptial Agreement?

Of course. State laws vary on how they handle debts when parties get divorced. Debt borrowed during the course of the marriage is easily identifiable as marital debt, but generally all states will treat pre-marital debt as debt of the original owner and not the spouse.  Even so, it can get blurry through the course of a marriage when refinancing happens, debt consolidation happens, or joint funds are used to pay off the debt. Image:

Whether or not a nuptial agreement is for you will depend entirely on the state you’re in, but probably the biggest benefit to signing an agreement in terms of student loan debt is to limit property creditors can get their hands on.  Creditors can often go after marital property even if only one spouse is the debtor.

For example, in a community property state, any debt acquired before the marriage remains the debt of the borrower, but any debt acquired during the marriage remains marital debt, even if only borrowed by one spouse. Same rules apply for assets.  Just because the pre-marital debt remains the debt of the borrower doesn’t mean creditors can’t come after marital assets to collect on it.

Paying your student loans out of a joint bank account? Creditors can use this an implied acceptance of responsibility on behalf of the non-borrowing spouse for the debt.  Think of it this way—if you own property 50/50, a creditor doesn’t care that your spouse has an equal claim to the property—they only care that the original debtor owns the property and that they can legally get their money back.  A creditor won’t be able to touch marital property to collect on student loan debt if an agreement was signed limiting the other spouse’s responsibility for the debt.

Are They Enforceable?

A pre- or post-nuptial agreement will generally determine how student loan debt is going to be divided, if at all, and they’re typically enforceable if both parties are fully informed about the underlying facts of the agreement and what they mean.  But, what if the agreement is later contested?

For debt acquired during the marriage, courts can consider whether the student loan proceeds were used to benefit the marriage, i.e. paying rent, buying groceries, etc. If they were used for the benefit of the marriage, then both parties should be responsible.  For debt acquired prior to the marriage, joint funds could have been used to pay off those pre-marital debts.  How do you determine who exactly paid for what?  Should the non-borrowing spouse be reimbursed for those joint funds when a pre-nuptial agreement says the original borrower is solely responsible for their student loan debt?  That can be a contentious point of argument for many couples facing a divorce.

Validity of post-nuptial agreements can sometimes come into question because, depending on when they were entered and when the separation happened, creditors can make an argument that there was a fraudulent transfer that kept them from collecting.

Disparity of income can also play a major factor when creating an agreement and, sometimes, can even play a role years after-the-fact. Maybe you signed an agreement that all student loan debt will be the responsibility of the borrowing spouse expecting to be a high-income earner, but what if circumstances change? Although agreements are generally enforceable, there’s an argument that can be made if one spouse foregoes their career to stay home with the kids they should be compensated via alimony or spousal support to offset this.

While none of the arguments are iron clad reasons that will invalidate the terms of a nuptial agreement, just as with any other contract, sometimes circumstances not originally considered within the contract will arise and leave room for exceptions.

Did Donald Trump’s Campaign Rip Off A Florida Girl Group?

A Florida man is expected to file a lawsuit against Republican presidential candidate Donald J. Trump’s campaign over what he considers broken promises to his preteen girl group U.S.A. Freedom Kids. Jeff Popick, manager of the group and father to one Freedom Kid, claims that his group was promised two performances at Trump campaign events. However, the Freedom Kids were not compensated for their first performance at a campaign rally and had their second performance cancelled, never to be rescheduled.

Did the Freedom Kids Have a Valid Contract With the Trump Campaign?

Although Popick admits that none of the promises Trump’s campaign made to the Freedom Kids are in writing,  this does not mean that a valid contract doesn’t exist.

One of the essential components in the formation of written as well as oral contracts is that an offer is made by one party (called the offerer) to another (called the offeree). The offerer must spell out the essential terms of the agreement—including the price and subject matter of the contract. According to Jeff Popick, the offer presented to the Freedom Kids was that the group would perform two shows for Trump events in Florida. Although the first Florida event did not pan out, the Trump campaign offered to allow the Freedom Kids to perform at a Pensacola rally.

Popick accepted the terms of the contract when he agreed to have the Freedom Kids perform at the rally in Pensacola. In exchange, the Trump campaign would set up a table at the event where the group could sell their albums. This exchange of the Freedom Kids performance for the table at the rally represents what is known as consideration. Put another way, consideration is the benefit that each party gets in a contract—in this case, the Trump campaign received the Freedom Kids performance in exchange for the exposure and monetary benefit the Freedom Kids were supposed to receive from their table at the rally.

Broken Promises

Although the Freedom Kids did perform at Trump’s Pensacola rally as promised, they were not provided with any table. Popick’s attempts to reach the campaign afterward for some other form of compensation met with no success. As a result, Popick was forced to eat the cost of the promotional materials he purchased for the table. Freedom Kids

When a Trump representative reached out to Popick again, asking if the Freedom Kids could perform at an event for veterans in Des Moines the following day, he agreed. However, just as the Freedom Kids and their families arrived in Iowa, they learned that there had been a change of plans and the group would not be performing after all. Although the performers were still invited to attend the rally—which they did, in their outfits—they were instructed to not speak with the press.

Popick was never compensated for what he spent on the Iowa trip, including the costs of hotel rooms, a rental car and airfare. His subsequent calls and e-mails to the campaign, demanding a second performance at the Republican National Convention, went unanswered. According to Popick, “We are owed compensation, or as the agreement is, a performance. That’s what the agreement was.”

The Trump Campaigns Failure to Perform

The contract law term “performance” refers to the act of doing what is required by the terms of a contract. One element of performance has to do with mutual intent, or the state of mind of both of the parties entering into the contract. In contract law, the intent of the parties is usually ascertained by the language of the contract. In the case of the Freedom kids, the lack of a written contract makes it more difficult to prove the mutual intent of the parties.

However, courts asked to intervene in contract disputes can derive mutual intent from the circumstances, including the parties’ conduct.  In other words, how the parties’ act following the creation of a contract may later prove to be just as effective as an indicator of their intent as the words in a contract. If a mutual agreement can be inferred between two parties due to circumstances, then an “implied contract” is created. It appears that the Freedom Kids’s performance in Pensacola along with their travel to the Iowa rally bolster the existence of an “implied contract” with the Trump campaign.

Contracts are often evaluated by what is known as the standard of substantial performance. Under substantial performance, parties to a contract are allowed a partial or substantially similar performance to substitute for the performance specified in the contract. In other words, you don’t have to perform your contractual duties perfectly to have completed them. However, the standard of substantial performance is not met if there is a material breach by either one of the parties. In a material breach, one of the parties fails to perform the contract in a way that makes the agreement “irreparably broken.” A material breach defeats the purpose of even making the contract in the first place.

The Trump campaign’s decision not to provide the Freedom Kids with a table at their rally or allow them a second performance are material breaches that completely ignore their previously formed contract.



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