Archive for the 'Government' Category

Should Restaurant Employees Be Required to Wash Their Hands?

Freshman Senator Thom Tillis has a novel idea: it shouldn’t be mandatory for restaurant employees to wash their hands after using the restroom. The catch would be that restaurants that don’t require employees to wash their hands have to post signs stating so.

Thom TillisMost reactions will be, “I’d never eat at a restaurant that doesn’t mandate employee hand washing!” That’s the Senator’s point: most businesses that posted signs telling customers their workers don’t have to wash their hands would go out of business. The free market is just as effective, if not more so, at regulating the economy than the government.

Critics have expanded Tillis’ reasoning to other issues. If restaurants simply have to post signs that their employees aren’t washing hands, then nuclear power plants can post signs explaining radiation is pouring out of the plant rather than shield the reactors.

Contrary to popular belief, there are many areas of law where disclosure is the rule rather than government mandate. Real estate sale laws are built on disclosures. Government doesn’t force houses off the market if they have problems; consumers are merely advised that the house they are looking at might be subject to landslides or infested with terminates. California, one of the most liberal states in the country, doesn’t require physicians or attorneys to purchase malpractice insurance. If these professions don’t purchase insurance, they merely have to disclose their lack of insurance to clients or patients.

We require disclosure instead of action in many areas of life. Disclosing lack of hand washing instead of requiring hand washing seems dangerous and it is. However, there are far more dangerous activities where the regulation merely requires disclosure.

The Type of Regulation Matters

Tillis’ opponents have also denounced his suggestion as more regulation. Requiring posting signs that employees don’t wash hands instead of a requiring that employees wash their hands is merely trading one regulation for another.

From a practical standpoint there could be a real difference. California doesn’t require professionals purchase insurance because insurance in the golden state is extremely expensive. If doctors or attorneys starting new firms or clinics were required to buy insurance, they might be pushed out business before they could even get started.

Of course, hand washing doesn’t have that practicality dimension. It’s not that expensive to turn on a faucet for a few minutes. No, Senator Tillis is basing his argument on pure principle. The role of government regulation in the market is to ensure that consumers have full and complete information. It is not the government’s role to determine how a company should work. The former is about advising the consumer while the latter is about controlling businesses.

Of course, disclosure laws aren’t perfect. Courts hear plenty of cases about whether real estate sellers or agents have to disclose that a house floods, has mold, or is haunted by a ghost. California deals with complaints that professionals without insurance bury disclosure forms in a mountain of other paperwork. If restaurants merely had to disclose that their employees don’t wash hands, there’s a good chance many of them would put the signs in obscure places.

It’s true that businesses sometimes break disclosure laws. But people break laws all the time, even when the law is mandatory. Ironically, Senator Tillis’ proposal would still require government oversight, but instead of the FDA, it would probably be from sick patients bringing lawsuits to courts.

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Progressive Ballot Measures Passed in 2014

Significant Results of the Mid-Term Elections & State Ballot Measures of 2014

The mid-term elections of 2014 were a massacre against the Democratic Party. Not since World War II have the republicans controlled the majority of the House by a margin so large. They also currently control the Senate.

2014 election ballot measuresAs a result of the republican’s newfound control, Congress will be on the offensive to repeal many of the advances made to provide the country with better health care and equal rights. Democrats will respond by filibustering and the country will be at a stand-still.

However, hope is not lost for the progressive movement. The following is a summary of the progressive state ballot measures that passed in the mid-term elections:

Alaska: Marijuana was decriminalized, minimum wage was set to one of the highest in the country, and salmon were protected from mining projects.

Arkansas: Minimum wage increased to $8.50 and limits were set on campaign donations and gifts from big business.

California: $7 billion in funding was approved for the state’s water system and most nonviolent crimes were reduced from felonies to misdemeanors.

Colorado: Open school board meetings are now required when bargaining with public employee unions and race-track gambling was not extended to fund schools.

Florida: Although the passage of legalizing medical marijuana failed, 58% voted yes. The measure required a 60% threshold.

Georgia: The maximum state income-tax rate will not be raised.

Illinois: Coverage of prescription birth control was approved, the minimum wage increased, and a millionaire tax was approved to fund schools. Unfortunately, with the exception of the minimum wage increase, the laws are not quite in effect, as they were only an advisory to gauge public opinion.

Massachusetts: No automatic increase in the gas tax will occur and extended paid sick time will be mandatory if a company has more than 11 employees.

Nebraska: Minimum wage increase to $9 an hour.

New Jersey: Lower-risk defendants who are unable to afford bail will be released.

New York: A commission was established to redraw political districts for state and congressional seats. Also the state legislature now has the ability to veto the commission’s maps with two public votes.

North Dakota: A measure was rejected that presumed life begins at conception and a restriction was set on non-pharmacists owning a pharmacy.

Oregon: Marijuana was legalized and equal rights are guaranteed with no regard to gender.

South Dakota: Minimum wage was increased to $8.50.

Virginia: When a member of the military is killed in action, the place of residence owned by their spouse will be exempt from taxation.

Washington: A new law mandates background checks on all gun sales and transfers, “including at gun shows and online,” and exempts “weapons transferred within families and for the purchase of antique guns.”

In review, progressives have made leeway in gun control, raising the state minimum wage, rejecting anti- abortion laws, providing paid sick leave, expanding environmental protections, and legalizing marijuana.

LegalMatch.com provides blogs, forums, and thousands of articles dedicated to keeping up with the trends in the law. Also, check out our LinkedIn site for additional resources.

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Ebola Scare in the US: Destroying Liberty through Forced Quarantine

Ebola and the Police State

Americans coming back from Africa have contracted a deadly virus that spreads through direct contact with bodily fluids. The nation is gripped with fear as public officials seek to quarantine those infected. The year is 1982 and the virus is HIV.

ebola nurse in the USThirty-two years later, another virus strikes fear in Americans. On October 24, 2014, nurse Kaci Hickox returned to Newark Liberty International Airport after treating Ebola patients in Africa. New Jersey officials sent Hickox to University Hospital almost immediately. The Hospital locked Hickox into a tent, but she showed no symptoms. After Hickox threatened to sue the Hospital, doctors discharged Hickox on October 27.

Hickox returned home to Maine, but her home state wasn’t ready to receive her with open arms. Despite testing negative for Ebola two times, Maine officials insisted on imposing another quarantine on Hickox. Although the quarantine was only expected to be 21 days, Hickox brought the case into court. The judge ruled in Hickox’s favor. Maine and Hickox came to an arrangement whereby Hickox would be free, but she would be monitored for symptoms until November 10. Now that the deadline has passed without incident, Hickox plans to move out of her home state and away from the publicity that had afflicted her life.

Security in Name Only

Benjamin Franklin once said that “Those who would give up essential Liberty to purchase a little temporary Safety, deserve neither Liberty nor Safety.” It’s difficult to believe this is the same America where Franklin once lived. Americans have become very willing to sell their freedom for little scraps of security. Whether it’s TSA airport inspections, NSA surveillance, and the militarization of local and state police departments, the United States is oversaturated with government restrictions on movement and privacy.

The question is whether Ebola quarantines are a continuation of this shift in American politics. Hickox has been called selfish for endangering others. The quarantine period is only 21 days; Hickox would be inconvenienced for less than a month. It’s hardly a loss of freedom if one is free before Thanksgiving.

On the other hand, it seems that Hickox is incapable of even infecting others with Ebola. First, Ebola only spreads through direct contact with bodily fluids. Being in the same elevator or bus with Hickox, or anyone else with Ebola for that matter, won’t spread Ebola. Second, Hickox was discharged from one hospital without a single symptom. Moreover, Hickox had been tested for Ebola twice, and both times the tests had come back negative. It’s doubtful whether Hickox ever had Ebola. So if she doesn’t have Ebola, we shouldn’t be trying to imprison the woman for any length of time.

Today, it is illegal for employers to discriminate against employees or potential employees because they have HIV or AIDS. States and the federal government did the right thing by passing laws to protect vulnerable patients from fear mongering. However, using equal protection was not the solution. Today, Ebola plays on the fears of Americans and equal protection is insufficient to protect those patients even though there is already protection for a similar disease.

Instead of using equality, the law should give patients due process protection, perhaps due process protection on the same level as criminal due process. Some Ebola or HIV patients might protest being compared to criminals. And yet, when Hickox decided to violate an unreasonable isolation order, many Americans shunned her as a criminal. If Ebola patients are worthy of that type of scorn, they should also be worthy of the same legal protections we give to actual wrongdoers.

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How Wellness Programs Might Result in Employment Discrimination Lawsuits

Employers beware: the EEOC is bringing lawsuits against businesses that use wellness programs to discriminate against disabled employees. The EEOC claims that employers are using wellness programs to subject employees to medical tests unrelated to job performance in an effort to discriminate against disabled employees.

wellness programsIn August 2014, the EEOC filed a suit against Orion Energy Systems for discriminating against Wendy Schobert. The EEOC alleges that Orion shifted premium costs to Schobert after Schobert refused to participate in Orion’s wellness program. When Schobert complained, Orion fired her. Earlier this month, the EEOC filed a second wellness program lawsuit against Flambeau, Inc. The EEOC alleges that Flambeau violated the Americans with Disability Act (ADA) by cancelling employee Dale Arnold’s medical insurance after he refused to complete biometric tests and health risk assessments.

Due to the popularity of wellness programs, the EEOC is expected to file more wellness program suits in the near future. Kaiser Family Foundation reports that about 94% of businesses with over 200 workers and 63% of smaller employers offer wellness programs. A RAND Employer Survey shows that 80% of employers with wellness programs screen their employees for health risks for program planning purposes.

Ironically, the federal government is partly responsible for the recent rise of wellness programs. The Affordable Care Act (ACA), or Obamacare, offers 30% to 50% tax credits to employers who get their employees to meet health goals. Many employers believe the EEOC’s recent lawsuits constituted a bait and switch by the federal government: Obamacare incentives them to create these wellness programs for their employees, but then the EEOC sues the employers for implementing wellness programs in a manner that saves employers on insurance costs.

Doing the Right Thing without Being Punished for It

Health employees are obviously a good thing. The employee lives longer, the employer doesn’t have to change employees as often, and everyone saves money when people don’t need medical attention. The question becomes: how does an employer get ACA tax credits without triggering an ADA lawsuit?

First, an employer cannot defend against an EEOC lawsuit by claiming that the employer had to comply with the ACA. The ACA’s tax credits are completely voluntary. Employers aren’t mandated to create wellness programs. If an employer is slapped with a lawsuit after implementing a wellness program, the employer can’t argue that the employer was entrapped because the ACA is voluntary while the ADA is not.

Okay, so employers can’t argue that they can’t comply with both laws. Employers should probably avoid creating wellness programs that will result in a discrimination lawsuit. Let’s examine what Flambeau and Orion Energy System did wrong.

Flambeau and Orion both attempted to subject their employees to unwanted medical tests. An employer might want these tests to see what kind of program they need and to see how expensive their insurance will be. The problem is that the ADA only permits medical tests on employees if the tests are related to work performance. Insurance coverage and employee health are typically not work related. Employers cannot, and should not, compel employees to take medical exams.

In the EEOC’s collective minds, shifting medical insurance costs from the employer to the employee violates the ADA’s rule on medical tests. Raising costs on an employee who refuses to undergo an exam is viewed as employee retaliation because the employer is adversely affecting an employee who stands up for an ADA right.

If an employer decides to create a wellness program, the employer should make the program completely voluntary. The employer should avoid forcing employees to pay the premiums if the employees refuse to undergo a test. It is likely that health insurance might be higher, so the employer must consider the costs of a possible EEOC lawsuit against higher insurance if the employer implements a wellness program and an employee refuses to comply with medical exams. Obamacare might want employers to promote good health among employees, but no good deed goes unpunished.

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The Right of Free Speech vs. Online Business Reputations

SLAPP Lawsuits and the Internet

In the mid-90’s, Oprah Whinfrey dedicated an entire episode of her talk show to the topic of mad-cow disease spreading around several countries, including the United States. Cattlemen in Texas formed a coalition, claiming that the show negatively affected future beef sales, and sued her in federal court on a tortious interference with business reputation claim. After spending an exuberant amount of money defending the suit, Whinfrey ultimately won, with the court finding that the cattleman failed to show she had made any false statements.

anti-slapp internet free speechSimilarly, in 2010, a towing company sued 21-year-old Justin Kurtz for creating a Facebook page dedicated to criticizing the company for wrongfully towing his car. This was a fairly unique lawsuit at the time because the comments were made on the Internet by a member of the general public, as opposed to a public figure with significant influence on traditional media.

Both of these suits are called SLAPP-suits. These types of lawsuits have triggered much state legislation aimed at protecting the general public under the 1st amendment right to free speech and the right to petition the government for unfair practices of big business.

These relatively new suits, targeting the general public for their negative comments on Internet sites like Yelp and Facebook, are the brain-child of a three decade old problem of lawsuits being filed by big business entities. Critics argue that these lawsuits against the everyday citizens are an attempt to silence them from exercising their right of free speech or their right to petition the government. These suits are called SLAPP suits, which stands for “Strategic Lawsuits against Public Participation.”

Since the real motive of a SLAPP suit is to punish and deter criticism, the lawsuits have been successful in “chilling” free speech and discouraging the public from making future complaints against the company. There are many documented cases where defendants found it easier to remove their posts and remain silent.

States Have Tried to Protect Individual Free Speech with Anti-SLAPP Legislation

Public outcry against these suits resulted in many states enacting anti-SLAPP legislation. The purpose was to prevent an entity from filing a suit when the result would chill free speech. For example, California’s version of anti-SLAPP legislation is California Civil Procedure Code, section 425.16, which states that a person is protected from a suit if “any act of that person in furtherance of the person’s right to petition or free speech under the United States or California Constitution in connection with a public issue.” If the person is sued anyway, they will lose. However, a relatively small number of states have legislation as broad as California and only about one half of the states have legislation at all.

Is the Internet Considered Media?

When a state legislature is drafting Anti-SLAPP legislation, they often leave out protections that would cover the media. The First Amendment does not protect the media for defamatory or libelous statements, for publishing information not of public concern, or for a statements that are false and published with actual malice. These restrictions don’t apply to the general public. A member of the general public would be protected for making statements about the same or similar subject matter. Remember, Oprah won her suit only because the court found the statements were true.

When the Internet became widespread, a federal statute called the Communications Decency Act was passed. Although its original wording restricted free speech on the Internet, the Supreme Court struck down those sections and included wording that ultimately protects sites like Yelp and YouTube. Unfortunately, only the owners of the sites are protected from a defamations suit resulting what other people post. The individuals is not explicitly protected.

Has the Internet Transformed the General Public into the Media?

The question stands, if a person voices their opinion on the Internet, which has become the new mass medium, have they transformed into an agent for the media, and thereby deserving of less protection? If so, what protections should they be awarded when it comes to potential SLAPP suits?

An increasingly popular view is that an individual retains their status as such, and is therefore not an agent of the media and is protected by Anti-SLAPP legislation. In fact, there have been a number of California cases where complaints for defamation arising from Internet postings were successfully defended by using the state’s anti-SLAPP statute.

Some of the protections for Internet postings have remained the same as those for which the traditional anti-SLAPP laws were established: to protect the general public. These protections include the right to free speech (online speech in this case), the fact that the cases have no legal merit, and the fact that the lawsuit creates a “chilling effect”, as explained earlier. The courts have also found that people on the Internet have the right to remain anonymous when posting criticism. Businesses have attempted to issue subpoenas to compel the person to reveal their identity, which has been successful in some cases and found to be a valid defense in others.

The fact remains, however, that there has failed to be consistent rulings regarding Internet use and the protections individuals are awarded. The problem remains that everyday citizens are often not financially equipped to defend lawsuits brought by big business and their criticisms are often silenced.

Modern Technology Calls for Broader Constitutional Rights

Since the states vary in the broadness of their anti-SLAPP legislation, further protection is sorely needed. This type of protection can only come from a broadly defined federal statute, which will force the states to protect their citizens. Recently, many have been advocating for a federal anti-SLAPP law to protect people in states that either do not have laws or have laws that are too broad to adequately protect an individual’s right to free speech.

As a strong supporter of First Amendment rights, my view remains: it is no longer valid that the media should be limited in protection. In a sense, we have all become the media because of the ease in which individuals can widely disseminate information on the Internet, creating just as much influence as traditional media. Therefore, if the goal of traditional anti-SLAPP legislation is to protect individual rights and to protect those who do not have the resources to defend themselves against big business, those protections should be expanded to the media. This would quell the controversy and prevent needless litigation. Most importantly, it would protect the constitutional rights that make the United States unique.