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Disney to Pay Out $3.8M in Wage-an-Hour Lawsuit

A little over a week ago saw news of an immense payout as Disney agreed to pay $3.8M to employees of their many resorts and timeshares.  The agreement comes after the United States Labor Department began an investigation into Disney which concluded that they routinely failed to pay employees for around fifteen minutes of work performed before and after their shifts.  Disney was also accused of deducting the expenses of uniforms from employees pay in such a manner that it would occasionally make it so that an employee received less than the minimum wage.

This agreement covers an enormous number of employees, well over sixteen thousand workers.  Thus, this payout isn’t quite as immense as it initially appears–coming out to a bit over $200 per employee.  However, it’s a good example of one of the most common types of legal action in the U.S. –wage-an-hour conflicts.  With this in mind, we’re going to look at exactly what wage-an-hour is and how it works to help you protect your rights as an employee or protect your business from costly lawsuits.

How Wage-an-Hour Works

Wage-an-hour lawsuits generally fall into a couple of categories.  First, where an employee isn’t being paid minimum wage–an obvious violation.  An extension of these lawsuits is what happened in the case of Disney, not paying employees whatsoever for hours worked.  Clearly, zero dollars is below the minimum wage anywhere in the country .  Second, where a company fails to pay their employees overtime hours which they are owed.

DisneyThe Fair Labor Standards Act (FLSA) guarantees each employee will be paid the federal minimum wage throughout the country, currently $7.25 an hour.  However, almost every state has their own individual law which is quite similar to the FLSA.  Minimum wage obviously varies a fair bit from state to state, as does the approach each state takes to enforcing minimum wage.  However, while the legal procedures of pursuing a case may vary a bit state to state, all the cases come down to establishing that you were not paid minimum wage for time worked.  This includes salaried positions where your salary paid divided by your hours worked comes out to less than minimum wage.  There are a couple exceptions to this general rule under the FLSA and many state laws: where tips compensate for what would otherwise be pay below minimum wage, student learners, and employees in training.  Not all of these exceptions are mirrored on the state level, and many of them are quite controversial in effect as they essentially allow pay well below a living wage.  Where an employer fails to pay minimum wage, an employee may sue them–or in many states file an action with a government organization specifically designated to handle such actions–and receive the pay they are due within the time period of the statute of limitations along with potential additional damages through state statutes.  Disney’s agreement bypassed any legal action, instead simply agreeing to pay a fixed amount in reparation for their failure to pay for all the hours their employees worked.

The second common wage-an-hour action, failure to pay overtime, does not particularly apply in Disney’s case.  However, it is important to know as cases dealing with unpaid overtime are extremely common.   Overtime generally includes any hours in excess of 40 in a week, 8 hours in a day, or being required to work more than 6 consecutive workdays.  Where you work overtime, an employer must pay generally pay you time and a half–although some states have situations where an employer must pay an even higher multiplier of your base wage.  There are situations where an employee may be exempt from overtime–most commonly where they receive pay of over $455 per week and have duties -usually within specific statutory categories–which require a certain amount of independent decision making in performing work.  Each state has a different approach to exactly when a position is overtime exempt, and more recently it’s been an issue targeted at the federal level as well.

The Importance of Keeping Complete Records

Disney’s case focuses on failure to pay for time worked, and there was apparently a fair bit of evidence to this point.  However, Disney is rather well known as a particularly litigious company.  So you might be asking yourself, why didn’t Disney fight it out?  The answer may be in the record-keeping practices of the resorts the employees worked at.

The FLSA requires employers to keep accurate records of the hours their employees work as well as wages earned.  These recordkeeping requirements can become more involved from state to state, and even the FLSA has some more specific requirements.

This requirement to keep proper records has sunk many an employer’s chances in a wage-an-hour case.  This is because, where an employer fails to keep proper records, employees can rely on representative evidence to establish the hours they’ve worked. This evidence only needs to be sufficient for a reasonable inference that the employees’ evidence is an appropriate approximation of the hours they worked.  For this reason, it is incredibly important for an employer to keep legally compliant records.  If they don’t, their employees basic approximations of time worked in what format they can provide it–from testimony to crudely kept notebooks–will determine what hours the court will consider that they worked.

Apparently, Disney’s resorts failed to keep statutorily compliant records of the hours worked by many of the employees in the class action lawsuit brought against them.  This likely was the straw that broke the camel’s back when it came to deciding whether to fight the case against them.  Without properly maintained records their chances of success dropped precipitously, they likely simply decided that around $200 per employee wasn’t too much to pay in light of the expenses of litigation and their chances of success.  So as an employer, remember, if bad record keeping can sink Disney it definitely will do you no favors.  As an employee pursuing a wage-an-hour case, if it sank Disney it’s worth determining whether your employer has kept sufficient records if you believe you have been paid unfairly.

Twitter Assault: Can a Tweet Be Used For “Assault with Deadly Weapon”

Social media has sure come a long way. Nowadays, it’s not uncommon for people to use the internet for just about everything. Want some food delivered to your door? You can do that with a click of a button. Want to read the latest New York Times article? You can easily find it in their archives.

But now social media is being used for things far more sinister. People distribute and look at child pornography so easily on the internet. Cyber bullying has caused kids to take their own lives.

And now in Texas, a Grand Jury found an animated GIF tweet an “assault with a deadly weapon.”

Backstory

Twenty-nine year old Maryland man John Rivello tweeted an animated flashing GIF to journalist Kurt Eichenwald last year. Eichenwald had been critical of Donald Trump during the presidential campaign, and Rivello, a Trump supporter, knew Eichenwald suffered from epilepsy. With the intent to cause Eichenwald a seizure, he tweeted the animated flashing GIF and messaged another Twitter user saying “I hope this sends him into a seizure” and “let’s see if he dies.” He later altered Eichenwald’s Wikipedia page to show a fake date of death of the date he send the GIF.

twitter assaultHow Does a Grand Jury Work?

In general, grand jury proceedings are much more relaxed than jury trials. A grand jury proceeding has no judge present and often times does not even have any attorneys except for the prosecutor. The prosecutor explains the law to the jury and works with the jury to gather evidence and hear testimony. Unlike a jury trial, a grand jury has broad power to see and hear almost anything they would like. These proceedings are also held in strict confidence, which has the effect of encouraging witnesses to speak freely and protecting the defendant’s reputation in case the jury doesn’t decide to indict. If the grand jury find there’s enough evidence to indict, the case goes to trial. All that is necessary is a finding that the accused person probably committed the crime.

Grand juries only need a simple majority of two-thirds or three-fourths agreement for indictment, depending on the jurisdiction.

Why an Indictment?

The evidence showed the following: Eichenwald was a journalist with 318,000 followers on Twitter and had been critical of Donald Trump throughout his presidential campaign. On December 15, 2016, he saw that @jew_goldstein had replied to one of his Twitter post with a GIF. When Eichenwald clicked on the file, a strobe light triggered a seizure. Eichenwald fell to the ground and was incapacitated for several days, lost feeling in his left hand and had trouble speaking for several weeks.

Assault with a deadly weapon is a felony offense. In order to prove assault with a deadly weapon, the state must show that a defendant used  a deadly weapon or dangerous instrument. Many states consider guns or firearms deadly weapons. Nevertheless, a variety of instruments can be considered deadly weapons. Assault can include knowing, intentional, or even reckless conduct.

Here, the evidence demonstrated the defendant had an intent to cause Eichenwald harm. Rivello knew that Eichenwald suffered from epilepsy and bragged to another Twitter user that he hoped Eichenwald would suffer a seizure and die. While a GIF is not generally considered a “deadly weapon,” to someone who suffers from epilepsy, a strobe light is as dangerous as a tangible weapon. What’s more, it’s a well-known trigger to cause epileptic seizures. In this way, the grand jury considered the disability of the victim, the intent of the defendant, and the use of the GIF to cause the defendant’s desired result.

Now the case will go to trial to see whether a jury of Rivello’s peers will convict him of assault with a deadly weapon.

Treason: Is It the Future for President Trump?

It’s hard to believe that President Trump has been in office for less than 100 days.  While Trump’s ties to Russia paint an incomplete picture, we are starting to see that there’s more than merely circumstantial evidence of a connection to Russia. The word “treason” is being thrown around in the same breath as Trump’s young presidency.

What is Treason?

In the most basic sense, treason is the crime of betraying one’s country. Under Article III, Section 3 of the U.S. Constitution, any person who levies war against the United States or adheres to its enemies by giving them Aid and Comfort has committed treason within the meaning of the Constitution.

treasonHow is Someone Convicted of Treason?

There are two ways to commit treason, by either levying war against the government or providing and or comfort to the enemy.

Levying war against the U.S. includes forcibly opposing the law. Planning to overthrow the government alone isn’t considered levying war. There must be an assemblage of people who intend to use force to overthrow the government. In this way, no person acting along could be guilty of levying war.

Providing aid or comfort to the enemy can include a wide array of actions, from providing financial assistance to harboring an enemy soldier. Any intentional act that helps weaken the United States or aides an enemy’s hostile design can be considered treason.

It’s important to note that the Treason Clause only applies to disloyal acts committed during times of war. If an act of disloyalty is committed during peacetime, they are not considered treasonous under the Constitution.

What Acts Have Been Found Treasonous in the Past?

Iva Toguri d’Aquino, a Japanese-American radio host who was better known as “Tokyo Rose,” was convicted of treason. Born to Japanese parents in America, she visited Japan in the early 1940s when war broke out and she became stuck in Japan. She took a job as a wartime DJ for Radio Tokyo, playing popular American music and engaged in banter that was considered a means to undermine the morale of U.S. troops. Although most later believed that her banter did not undermine U.S. troops morale, there was public outcry when Tokyo Rose asked to return to the U.S. after the war. She was tried and found guilty of one count of treason for “[speaking] into a microphone concerning the loss of ships,” per the FBI. She served over six years of a 10-year sentence.

And you’ve probably heard of Julius and Ethel Rosenberg. They were the first American civilians executed in the electric chair under the Espionage Act in 1953. Julius and Ethel were arrested in July 1950 for heading a spy ring that passed top-secret information concerning the atomic bomb to the Soviet Union. They were sentenced to death after a short trial. However, they were not charged with treason because the Soviets were not considered at war with the U.S. at the time.

No one has been convicted of treason in the United States in nearly 70 years.

Can Trump be Charged with Treason?

The short answer is “no.” Treason is only found if a country or entity has declared war or is in a state of open war. While Russia is generally a foreign adversary, we are not at war with Russia. It is much more likely that if the FBI could prove Trump’s ties to Russia, Trump could be charged under the Espionage Act. The Espionage Act is commonly used to prosecute leakers and bans the conveyance of information meant to interfere with the operation of the United States Armed Forces or promote the success of America’s enemies.

Treason Punishment

One could argue that we are at cyber war with Russia. In that case, what could Trump’s punishment be if convicted of treason?

According to the Constitution, a person who is found guilty of treason in the U.S. “shall suffer death, or shall be imprisoned not less than five years and fined…not less than $10,000; and is incapable of holding any office under the United States.” In other words, Trump would be stripped of his Presidency and likely imprisoned and fined.

Trump: Can He Just Take the Land to Build His Wall?

If you say “The Wall” anywhere in the United States, whoever you’re talking about will almost certainly know what you’re referring to–the wall along the border of Mexico which was one of President Trump’s most frequent talking points during his campaign for the presidency.  The controversial topic of building a wall of dubious use and dubious necessity, estimated to cost in the tens of billions of dollars, has also been accompanied by equally controversial claims that the wall would be paid for by the Mexican government.  With statements out of Mexico fairly unequivocally stating that this will never be the case, the wall has moved forward but with U.S. taxpayers footing the bill.  In fact, even before President Trump was officially inaugurated, the Department of Homeland Security had already begun sending of Declarations of Taking seizing land along the border by eminent domain.

trumpThis isn’t the first situation where the government has sought land along the border–about a decade back the Bush administration seized quite a bit of border territory to build fencing under the Secure Fence Act of 2006.  The letters already sent to those along the border state that the Department of Homeland Security will be taking the land from property owners–with at least one letter offering $2,900 for approximately 1.2 acres of land.  Those receiving the letters have stated that they feel like they have no recourse in the face of these letters, either because they believe they have no rights or because they simply fear facing the awesome force of the Federal Government.

However, not all have felt this way.  As the letters continue to roll out, several property owners who would be effected have sought legal help and have ongoing cases against the government.  Understanding your rights in the face of eminent domain proceedings requires an understanding of the complex area of law which is government takings.  With in mind, let’s take look at when and how the government may seize private property, as well as the sorts of legal actions you can take in response to such a taking.

What is an Eminent Domain Proceeding?

Under the Fifth Amendment and the Takings Clause of the Constitution, the U.S. government has the power to take property from private citizens under the principles of eminent domain.  The government does this through a process known as condemnation–marking specific property for destruction, modification, or government use.  However, the government does not have the power to go around taking property randomly–although the power of the Takings Clause is broad. For the government to take private property, they must show that they are taking the land for public use and must provide the owner with just compensation for the taking.

There are two types of government takings. The first form is simple: any time the government physically occupies any portion of privately owned land that is a taking. This includes both temporary and permanent occupation of property.

The second form of taking is a bit more complex-regulatory takings.  This is where the government passes a law–usually a law regulating the use of land–which removes all (and I do mean all) viable economic uses for a piece of property.  But it gets a little more complex from there with the courts looking to whether a regulation interferes with investor-backed expectations for use of the property, what reasonable uses existed for the property, and whether a law has greater effect on some property owners than on others.

Once a government action is established as a taking, they must justify it as taken for the public use.  A government official can’t take private property for their own private use, the taking must benefit the public and someway.  However, benefit the public in some way is essentially where the analysis ends.  From court to court exactly what makes a taking for public use may vary to some degree.

So we have a taking and it’s for the purpose of public use, now the government has to provide just compensation. Where the full property is taken the government must generally pay the fair market value of the property as if the owner were to sell their property to a purchaser at the time the condemnation was issued.  The same is true is a regulation removes all economically viable use from the land.  Where the government only takes part of a property, there a couple of approaches the courts will take.  It is most common however to look at the difference in the value of the property before and after the condemnation occurs and simply require the government to pay the difference.

What are Kind of Legal Actions Come Up When the Government Seizes Land?

So we’ve seen the way eminent domain seizures work, now what are your rights in the face of a condemnation action?  The first thing you’re almost certainly asking is the same thing those along the Texas border have been asking in the media–can I stop the government from taking my property?  Unfortunately, this is a particularly challenging thing to do if the government can establish a public use for the property it is taking.  You are basically required to prove that your losses from the taking would be greater than the overall benefit to society created by the public use for which the land is being taken.  This is not only extremely hard and complicated to establish, it is also rarely the case.  Thus, while you can and should seek your day in court on the issue if you believe you are being treated unfairly, the government will usually get its way once it begins a condemnation proceeding.  However, where you do succeed the courts can grant an injunction preventing the government from taking your property.

The more common ways of challenging a condemnation proceeding strike at the basic requirements on the government to show that any given taking is constitutional–public use and just compensation.  A case attacking public use would essentially argue that the government has no good reason which benefits society behind their taking.  However, given the direction case law has gone in regards to what constitutes a public use, this is a hard point to succeed on barring clear abuse of the takings clause.  For example, despite the controversial nature of the wall Trump intends to build, it is very unlikely that any of the property owners along the border could challenge a taking on grounds that the wall has no public use–even if they personally opposed the idea of building a wall or wanted to bring evidence that the wall would not achieve its stated purpose.  The government can almost certainly establish that the wall has a reasonable public use of some sort–from security to immigration reform.

A few of the lawsuits from along the border of Texas deal with something very rarely seen in eminent domain proceedings–treaty rights.  A few property owners own property in the floodplains of the Rio Grande.  A treaty between the U.S. and Mexico forbids the building of any structures which could displace floodwaters into nearby communities.  One or two lawsuits have alleged that takings by the U.S. government to build a wall on this land would not satisfy public use requirements as they would violate this treaty.

Sometimes, the Best Answer is the Simple Answer

Perhaps the most common way to challenge a condemnation proceeding is to say that the government is not paying you enough–they haven’t provided you just compensation.  This is much easier to establish, simply show how much your property was worth and show that the government didn’t give you that much.  This is the path most of the lawsuits from property owners along the border have taken.  As you might imagine, many don’t consider $2.9K just compensation for over an acre of land.  The actual value of acreage in Texas varies substantially depending on where it is purchased.  However, in many places it can go for much more than the government has offered here.

While it is not particularly the case for those along the Texas border, there have been many situations where the government commits a taking but does not acknowledge that taking.  In this case, a property owner would need to bring a lawsuit against the government saying they have taken their property–a process known as an inverse condemnation proceeding.  This requires the person bringing the party bringing the lawsuit to establish that a taking has in fact occurred, and they have not been justly compensated.

The property owners along the Texas border, their property being condemned and purchased on the taxpayers’ dime, certainly have rights in the courts.  They can and should challenge any taking that does not appropriately compensate them.  However, it is unlikely that these property owners will be keeping their land.  It is much more likely that the costs of taking this land from these private owners will simply be another expense on the many billion-dollar pile that Trump’s wall is posed to cost.

Trump and Russia: FBI Director Confirms Investigation into Possible Ties

March 20th was a big day. Federal Bureau of Investigation (FBI) director James Comey revealed two bombshells during a special hearing before the House Intelligence Committee. First, he confirmed that there is no evidence to corroborate Trump’s claims that the Obama administration wiretapped Trump during the election. Second, Comey announced that the FBI is investigating whether members of President Trump’s campaign colluded with Russia to influence the 2016 election. The investigation continues on despite Trump’s insistence that the Russia story is “fake news”. The revelation is certainly unusual given the FBI discloses its investigations only in rare circumstances when it is in the public interest.

What does the FBI Investigate?

The FBI is tasked with many things, including but not limited to terrorism, public corruption, cyber crimes, and counterintelligence. Since 1917, the FBI is responsible for “identifying and neutralizing ongoing national security threats from foreign intelligence services.” They are designed to identify security breaches, spies and compromised officials. In general, counterintelligence investigations are among the FBI’s most difficult and time-consuming cases.  They rarely lead to criminal charges.

What has the FBI Found?

In short, we don’t know. Comey made sure not to reveal anything because of the ongoing investigation. According to Comey, he doesn’t want to undermine an ongoing investigation. He did, however, confirm that an investigation of Trump’s possible ties to Russia is underway, and whether Trump helped undermine the Presidential election. According to Comey, the FBI has been conducting a counterintelligence investigation into Trump associates and Russia since late July 2016.

Trump and RussiaTrump’s Possible Russian Ties

To date, there are five identified people affiliated with the Trump administration that has ties to Russia. The people that got the most media attention for Russian ties are attorney general Jeff Sessions and former National Security Adviser Michael Flynn. Flynn went so far as to have had an undisclosed meeting with the Russian ambassador back in December. As a result, Flynn resigned from his post.

Jared Kushner, Trump’s son-in-law and current senior adviser, also had a meeting at Trump Tower with Flynn and the Russian ambassador during campaign season. The extent and frequency of any of Trump’s inner circle to Russia remains unclear.

It’s certainly alarming that so many people close to the President have ties to Russia. Remembering what Trump has repeatedly said throughout his campaign, we know that he admires Russian President Vladimir Putin. Trump’s actions show us that he respects Putin more than his predecessor President Obama. Why?

Some believe Russia is blackmailing President Trump. They theorize that Trump borrowed money from Russia to keep his personal businesses afloat in the early 90s after a string of bankruptcies, which could explain why Trump refused to release his tax returns. They further believe Russia has some sort of incriminating information about Trump.

What Would Happen if Trump has Ties to Russia?

If Trump is in fact working with the Russian government to compromise our own, two things will happen. First, he will be impeached. Second, he will be tried criminally for treason.

Impeachment is an accusation of wrongdoing committed by the sitting President. The House of Representatives can vote to impeach, or kick a President out of office, and the Senate tries the case. A simple majority of the House of Representatives (at least 218 votes) is required to impeach, followed by two-thirds majority vote in the Senate (at least 67 votes).

Under Article III, Section 3 of the U.S. Constitution, any person who levies war against the United States or adheres to its enemies by giving them aid and comfort has committed treason. From the looks of things, there seems to be plenty of circumstantial evidence suggesting Trump and Russia are in cahoots. News outlets are now reporting there’s more than just circumstantial evidence proving a Trump and Russian connection.

Stay tuned.