Archive for the 'Government' 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.

Texas Sues Austin For Banning Guns in City Hall

Texas Attorney General Ken Paxton, along with others, has filed a lawsuit against the city of Austin for banning guns in City Hall. This suit comes on the heels of recent events involving gun control and the Second Amendment. There are legal grounds by which the Attorney General may proceed with the lawsuit and he is using it to full effect.

Ramifications of Second Amendment

A recently enacted law permits a party to initiate a lawsuit against local governments over their prohibition of gun laws. Paxton jumped on this and is planning to take the issue to court. City Hall has banned guns and this has led to outcry from both the National Rifle Association as well as other gun rights groups who want the full protection of the law in accordance with the Second Amendment.

Under the Second Amendment, every person is entitled the right to gun ownership. This sounds simple enough. However, the entire political spectrum has been upended because of this concept. In light of recent shootings that have been occurring nationwide and overseas, politicians and legislators are taking up a stand for or against these alleged weapons of destruction. Some will go as far as to ban even the most harmless of firearms, such as airsoft guns and the like. On the opposite side of the spectrum, there are hardline conservatives that will do whatever it takes to provide full access to guns and ammunition. Gun

There are strong arguments made on both ends. Texas has gained notoriety for being a rather staunch believer in gun rights, and has gone to great lengths, as shown here, to give the maximum gun rights to the people. Paxton is no newcomer to this issue. He has been fighting for gun rights in his home state of Texas and nationwide for a long time and hopes this new legislation will pave the way for further rulemaking that will enable full gun control across the nation. City Hall does not allow guns to be carried at their facility but with this lawsuit, Paxton hopes to curb gun control by giving people the right to carry firearms on their person even at sensitive locations such as government buildings and courthouses.

Discrepancies in the Law

As I mentioned earlier, the Second Amendment essentially grants the right to gun ownership; however, there are nuances to this very broad area of law. Case law, which acts as valuable precedent, has tweaked the framework when it comes to the Second Amendment ever since its conception. United States v. Miller did not give unlimited gun rights to a gun owner, but limited it accordingly.

For example, an AR-15 might be exempt because an AR-15 might not fulfill the intention of the Second Amendment, which was to equip individuals with a defense that was in line with a well-regulated militia (as required by the Second Amendment). This is but one case that has discussed the Second Amendment and built on it in some way. There are many more and it is still an ongoing debate.

Furthermore, every state has its own set of rules when it comes to gun control. For instance, in California, it is a conceal carry system, meaning that for someone to go around publicly holding a firearm on their person, they will need some form of permit. In other states such as Florida, it is an open carry system, and this permits the gun holder to publicly carry their firearm. Texas has a similar approach.

The point of all this is that the Second Amendment by itself does not govern the issue. It is an intertwined system that is controlled by many different judicial layers and there are political underpinnings to it that make it that much more difficult to understand. It will come down to the legislators to change the system into a more functioning and uniform entity that will not continue to polarize the major political parties and will hold true to the values embedded in the Constitution.

Old v. New

One of the inherent problems with this gun rights debate is interpretation. The U.S. Constitution was conceived during an era when the open landscape allowed for gun use. Today, we live in an entirely different era. How should the Constitution be altered to fit with this new way of life? The late Supreme Court Justice Scalia strictly adhered to the language of the Constitution and this left little room for interpretation.

On the other hand, there are others who will allow for more interpretation. And even further along the spectrum, there are jurists who will mold the interpretation so that it is reflective of the times. Zeitgeist, or the spirit of the times, is the real deal, and the Constitution needs to be interpreted according to the frame of mind that exists at the time. Today, we live in a world where terrorist attacks are rampant and security measures are not where they need to be. None of the founding fathers were plagued with an international threat such as this, so they couldn’t possible have had this in mind when they put together the Constitution.

There needs to be change. The text of the Constitution is important, but adjustments have to be made. The reason why the gun rights debate is so polarizing is because one side adheres so strongly to the Second Amendment while the other side wants to change the old by injecting a new model that does not necessarily change the old but places it in a new and relevant context. There is a reason why close to thirty constitutional amendments have been made over the last couple centuries.

Transgender Teen Can’t Use Boys’ Bathroom Right Now, Supreme Court Rules

A transgender teens landmark win over his school’s refusal to let him use the bathroom he associates with has been blocked by the U.S. Supreme Court, at least temporarily.

Gavin Grimm, a transgender student who associates as a male, attends a Gloucester County School in Virginia. The school originally accommodated Grimm, allowing him to use the boys’ bathroom. After complaints from other parents though, the school board later barred the school from making any accommodations.

They allowed Grimm to use a unisex bathroom, but that only caused Grimm further stress; he became so distraught about not being allowed to use the boys’ restroom that he began avoiding it all together at school, which ultimately led to health concerns for the young teen. He ultimately filed suit against the school alleging civil rights violations. Gavin Grimm

In April earlier this year, a federal appeals court ruled in favor of Grimm declaring that schools must allow transgender students to use the bathrooms that match their gender identity. The decision was based on a regulation issued by the Department of Education, which declared that Title IX prohibits schools receiving federal funds from discriminating based on upon a student’s sex.

The school requested to stay the preliminary injunction requiring the school to accommodate Grimm as they prepared for an appeal to the U.S. Supreme Court. The high court granted the schools’ request, staying the decision. Grimm, in the meantime, will not be allowed to use the boys’ bathroom while the appeal is pending.

Is This Discrimination?

That’s obviously the hot topic issue right now. Title IX states:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

According to the U.S. Department of Education, this includes 16,500 local school districts, 7,000 postsecondary institutions, charter schools, for-profit schools, libraries, and museums. So, if you want their money, you need to comply with their rules.

Refusing to allow a child to go in the bathroom designated for the gender in which they associate is in itself discriminating based on sex. Forcing a transgender student to go into a separate designated bathroom is also a no go.  The Supreme Court decided long ago in Plessy v. Ferguson “separate but equal is inherently unequal.”  The school has privacy interests to protect, but it also has to protect the rights of transgender as well.

One major issue that seems impossible to overcome is the fact that if schools want to enforce the rule that you have to use the bathroom corresponding with the sex you were born with, someone has to be policing and actually enforcing these rules. Put another way, schools cannot practically check what a student’s gender is before letting them use the bathroom. What policies could the school possible put in place to monitor compliance with their rules that wouldn’t violate students’ privacy on another level? Under Title IX, the school cannot require a student to provide legal or medical evidence in order to have their gender respected.

So, What’s Next?

The school is in the process of appealing the decision to the Supreme Court. In the meantime, Grimm will be required, according to the school’s policy, to use the girls’ bathroom.  If the Supreme Court refuses to hear the case, the 4th Circuit decision will stand.  Because the 4th Circuit decision is a federal appeals court, the original decision is binding on all five states within the Fourth Circuit—Maryland, North and South Carolina, Virginia, and West Virginia.

California, Colorado, Connecticut, Massachusetts, New York, and Washington have all already enacted policies requiring schools to permit transgender students to use the bathrooms of the gender they associate with. Others are not so keen on the idea and a Supreme Court ruling on the matter could mean law changes.

While North Carolina has passed legislation requiring students to use the bathroom corresponding with the sex they were born with, whether the 4th Circuit decision is upheld will have a huge impact on that legislation and any other state wanting to ban transgender from using the bathroom they associate their identity with.

With such a controversy on the topic, just like they did with gay marriage and most recently workplace discrimination based upon sex, the Supreme Court will likely hear the case, if not now, than at some point in the near future.



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