You remember email, right?  That thing you’ve been using as your main source of written communication since the last decade?  The major form of correspondence that has surpassed old-fashioned snail mail and which is relied upon by everyone from business titans to celebrities, the president, and your aging grandmother (who floods your inbox with those funny grammatically incorrect cat pictures)?  Yeah, that email – it’s no longer protected against searches from the police.

“No, that can’t be right!  Right?  Email?  They are no different than letters you received in the mail; how can they not be afforded the same protection?” Well, apparently if you think like that you’ve been preempted by a federal judge, my friend.

Specifically, this ruling comes down from and Oregon Federal Judge Michael Mosman (I almost typed Michael Madsen; if he gave the ruling I might’ve been less outraged).  Judge Mosman argues that unlike regular snail mail which is handled by postal employees, e-mail should not be afforded the same protection against unlawful searches and seizures under the Fourth Amendment because when an email is sent, it goes through various Internet service providers.  By traveling through these different providers, each email leaves a digital image of itself with each ISP.  And apparently this fact is enough to distinguish email from regular land mail because by leaving a digital copy of itself, emails are in essence open to the ISP to read and monitor and therefore people who send emails cannot expect to have the same level of privacy as when one sends a regular piece of mail through the post office.  Judge Mosman’s full opinion can be read here (please note that the link is to a PDF).

Sound mental?  Yeah, well it should.  Judge Mosman seems to hang his ruling on the notion that because emails aren’t sealed in envelopes like a written letters, people should expect it to be read.  Now to be fair, police would still need a warrant to search through your email.  However, they’ll just need to submit the warrant to an ISP that has your emails to get access to them, thereby completely bypassing you and giving you no notice before invading your private emails.

Now on one hand, Judge Mosman’s argument makes some sense.  Junk mail in the form of post cards and brochures are almost never sealed and the courts have generally viewed these as forms of advertisement and therefore not protected under the Fourth Amendment since it’s argued that junk mail is meant to be seen by as many people as possible.  However, this is also where Judge Mosman’s argument breaks down because private emails aren’t advertisements, but are actual private communications between parties.

“But Andrew, what about the whole issue of emails leaving digital copies of themselves on ISPs and not being sealed like normal letters?”  Well let me answer that question, too, and thank you for asking so kindly.  Though emails are not physical sealed, they are often digitally encrypted to prevent prying eyes from seeing its contents.  Therefore, an analogy can be drawn between sealing and encryption since they both show the sender’s intent to keep their communication private.  Furthermore, like postal workers who we trust not to open our mail, similarly we trust our ISPs not to read our emails.

Anyway, all my ranting is meaningless until someone challenges Judge Mosman’s ruling or the legislature passes a law that gives emails the same protection against unlawful searches and seizures that physical mail enjoys.

So get started people, write your senators and congressmen, just don’t email them – for now.

Email – It’s Fast, Easy, And Now Unprotected From Unlawful Searches is a post from: LegalMatch Law Blog

Does this mean that your employer is going around firing employees left and right, just for fun? Probably not…unless you work for this guy.

More likely, the current state of the economy (in case you haven’t heard, it’s not doing too hot right now) has led to many people losing their jobs, with no sign that the bloodletting of employment is going to abate anytime soon. When someone loses their job, especially if it’s for economic, and not performance-related reasons, they are understandably upset.

However, the vast majority of terminations are perfectly lawful. In virtually every state in the U.S., employment is “at-will,” meaning that the relationship is completely voluntary, and dependent on the mutual consent of both parties. This means that employees can quit their jobs at any time, and that employers can fire them at any time, for any reason, or for no reason at all.

There are exceptions, however. For example, under federal law, and the laws of almost every state, it is unlawful to fire or refuse to hire a person because of their race, color, religion, national origin, sex, or disability (if it can be reasonably accommodated). Also, if the employee is working under an employment contract, they can only be terminated pursuant to the terms of the agreement.

Whether your termination is ultimately found to be lawful or not, it is not a bad idea to speak with an attorney if you suspect that improper motives colored your employer’s decision. It’s better to talk with an attorney for a few minutes and have them tell you that you don’t have a case, then to sit on your rights, and let a valid claim for wrongful termination slip through your fingers.

Many people seem to recognize this, and are using LegalMatch to help.

LegalMatch Site Data Shows High Interest in Wrongful Terminations is a post from: LegalMatch Law Blog

Was I laying the sarcasm on a little too strong again?  Sorry, bad habit of mine.  *sigh*  The rich not only seem to be getting richer, but they also seem to be able to dictate how this country runs…

Anyway, I guess it’s back to the grind for all us working-class schlubs (and humble bloggers) since we don’t have the luxury of extended vacations and daddy’s money to preserve our physical and mental health.

That’s no joke either.  The working class really does need to keep on working in order to stay above that proverbial poverty line.  Even under an employee co-pay system, the average cost of health insurance for a family of 4 in America is $13,000.  $13,000 is a lot of money, but considering this amount is over a third of what the average person makes in a year and the fact that food, living, and incidental costs just keep going up, you’ll start to get a better picture if how important that chunk of income in.  Not to mention how important and vital a publically funded health care option really is to the vast majority of citizens in America.  Oh, and by the way, don’t forget that the average cost of raising one; ONE child to adulthood (which is 18 years old, just in case any of you alcoholics out there think it’s 21) ranges between $124,000 to over $250,000.  Another interesting note is that single parents with incomes over $39,000 actually spend more on their kids than two-parent households.  Guess missing a parent makes you more likely to throw money at your kid’s problems.  Wish my parents did that with me…

Having free, or at the very least, affordable health care for people and their families in light of these statistics emphasizes how vital the public option really was and is.  People will always fight over money simply because there never seems to be enough of it to go around, whether that money is taken from them through taxes or services that were once free, but no longer given as such.  It’s no surprise then why according to the latest statistics from LegalMatch, over a third of all litigation raised against employers is regarding coverage of employee benefits.  In other words, health insurance.

It’s a brain-teaser how this new democratic congress voted down such an important reform.  I mean, the majority of citizens seemed to be for it.  And last time I checked, public official were supposed to be elected in order to represent the people’s interests.  I guess we’ll never know why thing turned out like they did.  But I wonder if someone might have some clues that could point us toward this anomalous outcome.

Public Option Health Care Reform Voted Down By Democratic Congress… Anyone Else See The Problem With That Headline? is a post from: LegalMatch Law Blog

This latest one comes courtesy of a (former) receptionist (and if she gets her way, soon to be millionaire) by the name of Rebecca Landrith.  Landrith alleges that she pee-peed in her pants on multiple occasions because her former employer, Littler Mendelson, in her words “had no consistent policy or procedure as to when or how [she] could take a restroom break.”

Seriously, is this really a lawsuit?  Call me crazy, but I think the vast, vast majority of us all learned how to go potty before we learned to read.  And the first rule of going number one and/or number two is that you never hold it in.  The second is to try and not miss the pot.

I was going to put a link in that last sentence to highlight my point, but according to my editor and the company’s lawyers that apparently would not have been a good idea and would’ve probably required me to write an additional apology posting.  So since I’m too lazy to write more than I have to, I decided to let that battle go.  But to all you suits-and-ties in the legal department don’t think I’ll always be that easy!

Anyway, I went off on a tangent again, which apparently I also must have to curb.  Back to the subject at hand.

Now some of you might think I’m being harsh here, especially those who were or currently are on an administrative staff for a law firm.  Having been a former assistant at a big corporate law firm I know the difficulties of working behind the scenes, so to speak.  The hours are long, the work is mindlessly boring, and worst of all your efforts often go unnoticed and un-thanked.  And when the work gets really busy, you can sometimes feel like you don’t have a moment to spare.  Furthermore, the double-edge of that last unnoticed/un-thanked sword is that usually as soon as you slow down or stop working, you’ll usually find yourself on the receiving end of a supervisor and/or partner’s verbal tirade.

However, as true as all of what I said is, in the end, regardless of how stressful your work is or how little time you have to do it, there is no reason why anyone, especially an adult, should not know that when they have to go, they have to go.  Would you really sit there and wet your pants if you knew there was a bathroom somewhere on your floor and that you had access to it?  Chances are that unless you’re working in some sweatshop you probably know that you can use the bathroom without the fear that your manager is going to fire or beat you.

One last note about Landrith: if I pissed my pants in front of all my colleagues I’d be pretty embarrassed, too.  But I don’t know if I’d have the guts to demand someone pay me $1.59 million for doing it.

Crazy Lawsuits – Pee Your Pants For $1.59 Million is a post from: LegalMatch Law Blog

Apparently people really can sue for anything.  A Detroit planning department employee is suing the city because she claims the strong scents from her co-worker’s cosmetics are preventing her from working.  Further details regarding the facts of the case are limited at the moment, but I’m going to go out on a limb here and say the plaintiff is probably nuts.  The employee is alleging the fragrances in her office are in violation of the Americans with Disabilities Act, which, as I stated earlier, seems pretty nuts.

Let’s just try to break this one down a little, shall we?  I’m assuming the employee is suing based on Title I of the Act since that’s the part that deals with employment.  The relevant part of this section would seem to be that workplace discrimination based on a person’s disability includes among other things “not making reasonable accommodations to the known physical or mental limitations of disabled employees.”

In reading that section, two words jump out to me: reasonable and disabled.  These two terms are very general and open for some board interpretation that I’m sure any lawyer worth his salt could probably spin into a lawsuit.  However, in my opinion, not one that can or should be won.

You see, though “reasonable accommodations” could mean essentially anything that can be done to allow a disabled person to do their job.  The caveat is that it must actually be reasonable, in other words, not nuts.  The employee wants all similar scents to be banned from her place of employment.  Which, to make an analogy, would be like using a grenade to kill an ant.  Both are ridiculously overkill.  A more reasonable accommodation would be to just give her a separate office or even just prevent people who wear cosmetics with scents from approaching her (though even that one is pushing it).

Now even if the employee were to agree to this compromise, she’d still have a much bigger problem on her hands: proving she’s disabled.

Call me old-fashioned, unhip, uncool, or whatever it is kids use to describe people who aren’t with it these days, but I really don’t think a person is disabled just because they don’t like the smell of something.  Barring some incredibly rare allergy that renders this particular employee in some sort of pained state, there’s no way she’d be able to convince a judge (though maybe a jury) that she’s disabled.  The only thing she’d be able to prove is how overly sensitive and litigious people have become.  Instead of wasting the time of the court, she should just learn to deal with the little daily annoyances of life because last time I checked there are a lot of them.

Sorry, I’ll get off my soapbox now.  All I’m saying is that there are a lot of more important issues for the court to decide.  And it’s those types of cases that deserve our great justice system’s attention.

Don’t Like How Your Co-Worker Smells? SUE!! is a post from: LegalMatch Law Blog

Case in point, the other night a drunken buddy of mine was jokingly trying to figure on how best to mess with his co-workers without them actually knowing that he was doing it.  After another beer and careful convincing that leaving live barn animals in their cubicles wouldn’t be very subtle, he came to the conclusion that the best way would be via annoying text messages from a private line.

Now aside from the incredibly unethical and possibly illegal character of my buddy’s self-created predicament, I couldn’t help but notice how effective the tactic he suggested would be in bothering his co-workers.  Despite the fact that he was joking, in reality the nature of my friend’s solution highlights how much workplace harassment has changed due to technology and social evolution.

A recent Newsweek article suggests that the way people are harassed at work now has changed a lot from how they were decades ago.  For instance, in the case of sexual harassment the stereotypical view has always been that of a boss forcing an underling to have sex with him or be fired.  Nowadays this doesn’t happen so often.  The landscape has changed and harassment, whether sexual or otherwise, comes in many different forms and from some unexpected sources.

In many ways, harassment in the workplace is a lot more subtle now and does not necessarily have to happen at work.  Going back to my buddy for example, he just wanted to piss off his co-workers because he didn’t like them all too much.  The full extent of his plan (as he slurred out) was that he was going to bombard them with text messages from a private line all the time, at the office and out.

To some people this might just seem like a jerk being a jerk, but under Title VII of the Civil Rights Act of 1964 such a practice could likely be considered harassment.  Just because the nuisance isn’t sexual in nature doesn’t necessarily preclude it from being harassment.  Furthermore sexual harassment itself has gotten a lot more subdued.  The Newsweek article suggests that more often than not sexual harassment in the modern work environment is more about one person asserting their dominance over a co-worker or subordinate rather than just someone trying to satisfy a sexual urge.

Anyway, the moral of this article, as they say, is that employment-related harassment can take many forms.  Threatening emails, annoying Facebook messages, calls at odd hours of the night from your officemates could all possibly be considered harassment.  Here are some helpful tips that might help you navigate through these tricky waters.  However, the basic rule seems to be that essentially anything you’re uncomfortable with that’s being done to you by an employer or fellow employee could be workplace harassment.

Remember, you don’t have to take it.

The Changing Face of Workplace Harassment is a post from: LegalMatch Law Blog

However, unlike the election of our new black president, the disorderly conduct charge levied by the Cambridge Police Department against the distinguished director of Harvard’s W.E.B. Du Bois Institute for African American Studies probably wouldn’t demonstrate to most people how much our country has evolved since the Civil Rights Movement.  If anything it seems to show how stunted this country can still be in matters of racial tolerance.

The exact details of the case are still subject to debate.  The only fact corroborated by both sides is that Gates was arrested for disorderly conduct outside of his home after Cambridge police responded to a 911 call from a woman stating she saw two black males attempting to break into Gates’ house.  The men were Gates and his driver, and they were attempting to push the front door open because it was stuck in its frame.  Gates eventually got in through the back door when he was confronted by a Cambridge officer.  Gates claims he repeatedly asked for the arresting officer’s name and badge number, and when he followed the officer outside of his home, he was arrested.  The officer claims Gates accused him of racism and refused to calm down after several warnings that his conduct was becoming disorderly.

Well, it’s all moot now because the charge has been dropped.  So we’ll never get to know the juicy details or witness the spectacle of a public trial.

In this humble blogger’s opinion (because I’m sure you’re all waiting with bated breath to hear it), I suspect both sides decided not to pursue the case because it probably would’ve ended up making both parties look pretty bad.  As great as our country’s adversarial court system is, in cases of “he said, she said” it becomes the job of the prosecution and defense to put down the other side.  So in the end, no matter who wins, everyone ends up getting dragged through the mud.

So what’s the point of this post?  Well, aside from giving me yet another chance to hear myself talk, reading this case got me thinking.  Regardless of who was the one actually responsible for escalating the situation, ultimately this case was started because of race and was given the amount of attention it has received because it involved the presumption of wrongdoing due to the race of a prominent scholar.  It really made me wonder, if someone with Gates’ level of achievement can still face such prejudices, how’s the rest of the country faring?  According to the latest statistics from LegalMatch, apparently not so well.

In the last quarter alone, the number of race discrimination cases received by LegalMatch has increased by nearly 50 percent over the previous quarter.  Approximately 30 percent of these cases stem from being fired due to race and over half of them come from employees in the food service and retail industries.  Even more shocking is that the next highest instances of discrimination originate from those employed in the education field.  Stranger still, the statistics regarding gender discrimination almost exactly mirror those regarding race.

It’s a little disconcerting to see these trends.  Perhaps America isn’t exactly the melting pot it’s cracked up to be.  Either that or maybe someone just needs to turn down the burner a little…

Racial Tension in America is a post from: LegalMatch Law Blog

Let’s start with the basis for any age discrimination claim: The Age Discrimination in Employment Act (ADEA).  The ADEA provides that discrimination of individuals over the age of 40 based on their age is illegal and a prosecutable offense.

Currently, the majority of age discrimination cases we see at LegalMatch are employment related: hiring, firing, and forced retirement contexts.  This trend is not limited to one employment sector but rather affects both blue collar and white collar employees alike.

The most obvious culprit affecting these age discrimination numbers is the rising nationwide unemployment rate, currently hovering around 9.1%.  Any time there is an economic downturn, people lose their jobs.  When alternative jobs aren’t immediately available, a layoff that normally would be ignored can turn into an age discrimination lawsuit.

Interestingly enough, the Supreme Court recently made it much harder to win an age discrimination suit by ruling that the employee now bears the full burden of proving that age was the determining factor in his or her layoff, firing or demotion.  This is a significant departure from the previous balancing test the Court employed, and makes this type of lawsuit especially difficult because rarely would an employee be present when their employers are discussing their future- a key piece of evidence.

A recent article in the Wall Street Journal looked at another interesting aspect of age discrimination in the wake of layoffs- reverse age discrimination.  The article examined the rise in younger employees being laid off, often times in numbers equal or greater than their older colleagues.  Employees in their 20s and 30s are finding themselves more at risk of a layoff, as employers look to avoid age-discrimination lawsuits by adopting a last-one-in, first-one-out policy.

The LegalMatch study also confirmed this trend as a number of the age-discrimination inquires were disgruntled employees under the age of 40.  One of the big problems with this trend is that this younger age group does not have the same legal recourse.  There is no similar protection as the ADEA in place provided for the younger generation.  Essentially, by laying-off the younger members of the company, employers are shielding themselves from an age discrimination lawsuit.

Although the standard for age discrimination has been raised, the potential for suits is alarming and laying off younger workers is seen as a solution.

New Issues with Old Discrimination is a post from: LegalMatch Law Blog

To the lucky few fortunate enough to have dodged the wave of layoffs, as they say, go the spoils.  Only in this case instead of getting those same old boring rewards, this elite group gets the extra special gift of actually keeping their menial soul-draining jobs, but without all that unnecessary stuff, like shorter hours or, you know, more money.  At least they’ll get yolked (it’s slang people, get with it) since they’ll have to do the work of three people just to keep said soul-crushing job.

But with being fired inevitably comes the stages of job loss (which by the way seem suspiciously similar to some other grief process – I think the Kübler-Ross estate might have a lawsuit).  There’s no better feeling than finally getting over being let go, picking yourself up by your bootstraps, and then hiring an attorney to file a wrongful termination suit against your old employer.  Ahhhh, sweet revenge, I’ve missed you…

All joking aside, wrongful termination is a real and serious issue.  Homelessness is on the rise and as this economy continues to tank, more and more people will likely be fired from their jobs.  Unemployment doesn’t only destroy a person’s financial livelihood.  It can also damage a person’s self-worth, not to mention obliterate a marriage.  Finding out whether you’ve been wrongly terminated from your job can be difficult, especially in a bad economy where an unjust firing can easily be passed off as a cost-cutting layoff.  But if there’s one thing that is certain, when people are pushed into a corner, they’ll likely fight back.

In fact, according to our client case database, in the month of June alone LegalMatch.com has seen a nearly 100 percent increase in the total number of wrongful termination cases brought by our clients when compared to the same month in 2008.  Furthermore, the average number of wrongful termination cases handled by LegalMatch.com has consistently increased by approximately 20 percent over the past four fiscal quarters.  Those employed under at-will contracts in the retail, transportation, or manufacturing industries were most likely to bring a claim for wrongful termination, making up nearly one-third of all wrongful termination cases LegalMatch.com received.  These figures increased in portion to the sagging US economy.

So what can you do if you think you’ve been wrongly terminated from your job?  First thing would be to see if you qualify under any of these exceptions:

• Discrimination – The employer cannot terminate employment because the employee is a certain race, nationality, religion, sex, age, or in some states, sexual orientation.
• Retaliation – An employer cannot fire an employee because the employee filed a claim of discrimination or is participating in an investigation for discrimination. This “retaliation” is forbidden under civil rights law.
• Contractual Employees – Generally, an employee with an employment contract can only be terminated for the reasons stated in the contract. Employment contracts for specified periods of time or permitting terminations only for specific reasons are rare today.
• Illegal Acts -An employer is not permitted to fire an employee because the employee refuses to commit an act that is illegal.
• Family or Medical Leave – Federal law permits most employees to take a leave of absence for specific family or medical problems. An employer is not permitted to fire an employee who takes family or medical leave for a reason outlined in the Family and Medical Leave Act.
• Not Following Own Termination Procedures – Often, the employee handbook or company policy outlines a procedure that must be followed before an employee is terminated. If the employer fires an employee without following this procedure, the employee may have a claim for wrongful termination.

However, the best way to find out whether your termination was wrongful would be to consult with a qualified employment lawyer who can sit down with you and walk you through your options.  Otherwise you might end up like this guy.

What!? Fired!?? But Why….? is a post from: LegalMatch Law Blog

In 2006, CareerBuilder.com reported results of a survey that they conducted of over 1,000 hiring managers.  Results indicated that 12% of these managers used social media websites to verify information about a job candidate, with 63% not hiring a candidate based upon the information that they found. (Background Check News)

Today, as quoted from one blog, almost 40% of employers have used Facebook and other social media sites to obtain information about job candidates, and greater than 80% of employers found negative information about the potential employee that may have lead to the candidate not being extended a job offer.  (Employment Background Checks) 

Clearly, taking control of one’s public persona is critical for anyone in the job market.  However, employers could also subject themselves to litigation for negligent hiring practices through the use of social media when making employment decisions.  So, far, no one has made this challenge but expect this to come.

Social media marketing is not only being used by prospective employers but a new crime is on the rise – social media identity theft.  St. Louis Cardinals MLB team manager Tony La Russa was a recent victim.  An identify thief created a Twitter account using Tony’s name and image, posting defamatory remarks on the account.  La Russa sued Twitter and the case is currently pending in court.  La Russa wasn’t alone; impersonators hacked into President Obama’s Twitter account, as well as the Twitter accounts of Britney Spears and Bill O’Reilly at Fox News.  (Twitter, Social Media Indentity Theft & Personal Background Checks)

Prosecutors are also using social media to their advantage.  A 22-year old woman charged with a fatal DUI, faced a 5 year sentence after photos of her on her MySpace page after the accident depicted her with tequila, shot glasses and a T-shirt labeled, “Jail Bird?” came up at trial despite the warnings of her defense attorney.  (Unrepentant on Facebook? Expect jail time)  And, a YouTube video was elevated to fame in 2008 when Ms. Trisha Walsh Smith made a video about her acrimonious divorce from Phillip Smith, a Broadway giant.  Smith complained about her prenuptial agreement and made disparaging remarks about her then current husband.  The New York County judge granted the husband a divorce on the grounds of cruel and inhuman treatment.  (Inside the YouTube Divorce)

If these stories don’t cause you to rethink what you may have posted on social media sites such as Twitter and Facebook, maybe they should give you pause for thought.  Depending upon what you have posted, you could lose a job opportunity or worse.  Count on LegalMatch to continue to monitor these trends; we expect more litigation to revolve around the use of social media.  But, don’t say we didn’t warn you.  Be careful what you write!

Be Careful What You Write: Social Media Marketing is a post from: LegalMatch Law Blog