Archive for the 'Personal Injury' 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.

Rio Games More Than Just Olympics – Also Features Crime and Doping Scandals

Even if you’re not a fan of the Olympics, you’ve probably heard of all the controversy surrounding the Olympic Games in Rio de Janeiro. The concern initially was whether the games should be held in Rio given the Zika virus. The focus then shifted to whether Rio was an appropriate venue given the crime rate and the political unrest. Now that the Olympics are underway, athletes and spectators alike are wondering whether many Russian athletes, who have been caught using illegal performance enhancing drugs in the past, should be allowed to compete in the Olympics at all. Many Russian Olympians have already been banned and those that are competing are getting booed by spectators.

What legal remedies do people traveling abroad have if they’re the victim of crime in Rio, and do the banned athletes have any legal recourse against the Olympic committee?

Crime in Rio

The Olympic Games are well underway and already there have been a number of crimes. Brazil has deployed 85,000 police and soldiers to combat crime and the threat of terrorism specifically for the Olympics. Rio’s Mayor Eduardo Paes promised that Rio would be the safest place to visit in the world given the extra security measures taken. Despite his promises, street crime since the beginning of the Olympics is well-documented.

The Chief of Security for the Opening Ceremony was mugged at knife point as he left the Olympic Stadium after the ceremony. A Portuguese education minister was assaulted while taking a walk in an upscale neighborhood in Rio. One Greek official was robbed of $11,000 in electronic equipment. One New Zealand jiu-jitsu athlete even claimed he was kidnapped in Rio, and there have been a host of other crimes in Rio during the Olympics. Olympic Flag

What is causing the crime? Mainly the financial crisis that the state government declared in June, which led to police and firefighters protesting lack of pay just weeks ahead of the games. The crisis combined with the worst political crisis Brazil has seen in decades has led to this “perfect storm” of crime coupled with little financial resources to combat against it. This is all happening when Rio is being judged by the rest of the world as the hosts of the Olympic Games. Bad timing.

While there is no doubt a wave of crime is hitting Rio and all of its visitors, there is nothing that these victims of crime can do legally against Rio or the Olympic committee. Why not? Just as people elect to vacation in various places in the world and may be the victim of crime in those countries, Olympians and spectators elect to visit Rio for the purpose of attending the Olympic Games. They knew of the potential for crime in the area and essentially assumed the risk. Even Olympians choose to go to the games, and some even decide not to because of the danger in Rio, most notably basketball superstars Stephen Curry and Lebron James.

This means that any person, Olympian or civilian, who traveled to Rio for the Olympic Games will have to be extra vigilant to ensure they are not robbed, assaulted, or worse.

Doping Scandal

A doping scandal has left the Russian Olympic team sparse. Many Russian athletes are not being allowed to participate in the Rio Games. Russian track and field athletes filed a class action and individual lawsuits with the arbitration court to challenge the International Association of Athletics Federations (IAAF) decision banning them from the 2016 Rio Olympics. The arbitration court ruled against the athletes and banned them nevertheless.

Now, the Russian Paralympic Committee (RPC) is in talks with the International Paralympic Committee (IPC) on speeding up court procedures regarding the blanket ban of Russian Paralympians from their participation in the 2016 Rio Paralympics. Paralympic Games is the major international multi-sport event for people with physical disabilities. It is the Olympics for the disabled. Like their Olympic counterparts, Russian Paralympic athletes are suspected of doping. Given the way things went for the Russian athletes who contested their Rio Olympic ban, the Paralympic athletes will probably be banned as well.

Both the Olympics and Paralympics have very strict rules regarding performance enhancement drugs, which they consider cheating given the unfair advantage they give to athletes. Anyone who takes them suffers the consequences. In this case, that’s a ban against competing.

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.

Pokémon Go Away: Property Owners Suing Pokémon GO

The phenomenon that is Pokémon GO has swept the nation and the world. However, as this blog has addressed in the past, the way the game works has the potential to draw many different kinds of legal liability.  Less than a month after its release our predictions have come true, the companies behind Pokémon GO—Niantic, the Pokémon Company, and the Nintendo Company—have been slapped with a class action lawsuit.

Pokémon GO is an augmented reality game. Players walk through the real world and find Pokémon that appear in random locations throughout the world.  In order to catch Pokémon, the players must walk within a 40-meter radius of the Pokémon’s GPS location.  The game also includes “PokéStops” and “Pokémon Gyms” which allows players to gather resources or asymmetrically battle other players so long as they are within that 40-meter radius of its location.  Players can even use resources earned in the game to apply a “Lure” to a Pokestop—making Pokémon (and eager players) come to that location.

The lawsuit, brought on behalf of New Jersey personal injury lawyer Jeffrey Marder, alleges that Pokémon GO creates a nuisance and unjustly enriches itself through its use of private property as locations for PokéStops, gyms, and Pokémon without permission from the owners.

The world of augmented reality games is a very new one, and full of new issues of law and fact. Both of the charges of this lawsuit raise new and interesting issues.

A Poké-Nuisance

A nuisance claim requires a showing of an unreasonable, non-physically invasive use of their property where the use substantially interferes with the quiet use and enjoyment of that property.

Non-physical invasions can include things like loud noises, pollution, vibrations, or excessive light. Here, the lawsuit argues that the invasion is the additional foot traffic of players coming to catch Pokémon and use PokéStops, the noise they make, and the occasional gamer walking up to your door and asking if they can come in and catch a Pokémon. Due to the fact that nuisance does not require a physical invasion, the fact that PokéStops only require people to come within a 40-meter radius does not prevent liability.  A PokéStops on or near your property would still suffice, so long as it created an invasion that could be called a nuisance.  So the question is, does this rise to the level of a nuisance? Pokemon Go 3

An invasion needs to fulfill several requirements before it is considered to be a nuisance. First, the invasion must be a foreseeable result of the actions of the person accused of nuisance. In this case, the goal of the PokéStops is to draw as many players as possible into the game.  Thus, it seems clear that people using the PokéStops that you place is foreseeable.  It also seems foreseeable that where a large group gathers around private property, their presence could be noisy and disruptive—although there is some argument as to how much disruption could be predicted.

The invasion must also be substantial—more than the usual noise off the street. This is a tough standard to break down, as it highly fact specific. Whether a specific PokéStop has actually created a nuisance might depend on exactly how many people were drawn to the PokéStop and what they did while they were there.

Finally, the invasion must be unreasonable. In order to determine this, the court looks at several factors—how bad the harm was, how long the harm went on, how hard it would be for the defendant to prevent the harm, and the value of the defendant’s conduct to society.  The balance of harms here would, once again, depend on the exact extent of what happened.  However, it probably wouldn’t take a great deal to outweigh the difficulty of not using these locations and the social benefit of a mobile game.

As it is, the actual harm that has been shown by Mr. Marder is pretty tame—maybe not rising to the level of a true nuisance.  However, augmented reality is new.  There is no case addressing whether placing digital landmarks on or around your property could be—by itself—a non-physical invasion of your property just like smoke or excessive light.

This nuisance case has some question marks moving forward, especially considering it contains never before addressed issues. However, it’s also notable that the lawsuit doesn’t bring a claim for trespass—a similar claim to nuisance but with a physical invasion of the property.  This is probably because any trespass that has taken place was done on the initiative of the players, not Pokémon GO.  Pokémon GO has a trainer guide which advises players to always respect the community and adhere to the rules of the real world.  Their terms of service require players to not violate the legal rights of others.  It’s unlikely that Pokémon GO would be liable for the trespass of their players.

Unjust Enrichment

The lawsuits second charge, unjust enrichment, is one of oldest concepts of law—people shouldn’t be able to unfairly get ahead at the expense of another without compensating the other person.  In order to establish a case for unjust enrichment you need to show just that, along with the fact that equity demands you be repaid for what was taken from you.  This issue is especially important in this lawsuit because it represents the majority of the potential for damages in this case.

The lawsuit argues that by using the private property for their games, they have increased the value of their game. They argue that, because they did not pay or even ask permission for this use, they have been unjustly enriched.

Whether this gives rise to a case for unjust enrichment hinges on one very important question.  A question that has not been addressed by the courts before and will change the future of augmented reality gaming.  Does owning property in “the real world” extend property rights to any digital, location specific, intellectual property elements that may be put on it?  If so, not only does the lawsuit have a strong case for unjust enrichment, it would make augmented reality gaming incredibly expensive to implement.  It would essentially force game developers would limit their games to public areas.

The Pokémon GO Lawsuit Going Forward

The lawsuit has already led to action by Niantic, they’ve issued an update with specific warnings not to trespass built into the game. They’ve also promised to be more transparent with the process of removing PokéStops, a function which has always been available.

It’s not surprising that they’re taking the lawsuit so seriously; the lawsuit seeks damages in excess of $5M—although it is not specific about what, if any, damages Mr. Marder has suffered—and an order preventing Pokémon GO from using private property without permission. An order like that would make it much harder for an augmented reality game to function, especially where nuisance law prevents you from even bringing players into the immediate vicinity of private property.

Augmented reality is new and it’s huge. This isn’t the last case we will see dealing with these issues.  For now, we’ll have to wait and see whether this case will change the landscape of these games forever.

What We Should Learn From the Fox News Sexual Harassment Scandal

“Although this was a difficult step to take, I had to stand up for myself and speak out for all women and the next generation of women in the workplace.”

-Gretchen Carlson, New York Times Interview (7/12/2016)

On July 6, 2016, newscaster Gretchen Carlson filed a lawsuit, alleging that she had been a victim of sexual harassment while working for Fox News. Ms. Carlson’s complaint asserts that Roger Ailes, the network’s chief, had made sexual advances and threatened adverse employment actions if she refused. She also claims that a 2013 pay cut and demotion were linked to rejected sexual advances.

Soon after Ms. Carlson’s filing, approximately another dozen women claimed they had been victims of Mr. Ailes’ sexual harassment. Mr. Ailes strongly denies any wrongdoing.

Subsequently, Mr. Ailes stepped down from his position at Fox News. (The network has indicated that Mr. Ailes’ departure is not related to the sexual harassment claims.) However, both he and Fox News may now face sexual harassment and employment discrimination claims from female employees. The related litigation may be extended, considering the number of potential plaintiffs.

Unfortunately, powerful individuals can use their reputation, influence, and celebrity to silence victims of sexual harassment. While we do not know all of the facts in the Fox News cases, there are some important lessons to be learned from the allegations.

Sexual Harassment Can Happen Anywhere and To Anyone

There are two kinds of sexual harassment:

  • Quid pro quo harassment, which involves offers of professional advancement (or threats of demotion or termination) in exchange for sexual favors, and
  • Hostile work environment, where there is pervasive sexual hostility or misogyny in the workplace. Roger Ailes

Both forms of harassment are illegal under state and federal law. The claims against Mr. Ailes primarily are of quid pro quo harassment.

While women are the most frequent victims of sexual harassment, men also may have valid claims. The perpetrators of sexual harassment can be either a man or woman—and same-sex harassment also occurs. Sexual harassment is present at a wide variety of workplaces—from factory floors to executive offices. As Ms. Carlson’s claims demonstrate, even high profile employees may become victims.

Understand the Statute of Limitations in Sexual Harassment Claims

Before you file a federal lawsuit, you must first file an EEOC complaint. EEOC complaints must be filed within 180 or 300 days of the discrimination, depending on the circumstances. The EEOC will investigate your claims and may issue a “right to sue” letter. You must file a federal lawsuit within 90 days of receiving this letter.

You may also have claims under state law. Statutes of limitations vary from state-to-state. You may have to file a complaint with your state’s anti-discrimination agency before filing your lawsuit.

Statutes of limitations are unforgiving. If you do not file a sexual harassment lawsuit within the correct deadlines, your claim will be dismissed. Because sexual harassment lawsuits involve strict filing procedures and deadlines, it may be in your best interest to speak with an experienced discrimination lawyer early on.

What Can Women Do to Get Their Stories Out Sooner?

It is understandable why many women stay quiet about sexual harassment. Complaints may result in workplace tension, retaliation, and emotional distress. Some victims decide simply to quit their jobs and move on.

However, it is important that women (and male victims) enforce their rights. We need to actively combat the stigma surrounding reporting harassment. And, victims of sexual harassment may be entitled to a variety of damages, including compensation for lost wages, pain and suffering, and even job reinstatement.

Be Brave

Gender bias and harassment are a part of many workplaces—the increase in caregiver discrimination and the EEOC’s steady volume of gender-based claims are evidence of this.  Filing a sexual harassment complaint can be emotionally difficult. You may face retaliation and public scrutiny. Unfortunately, silence will not fix the problem.

It may be tempting to ignore harassment—or laugh it off as friendly horseplay. However, sexual harassment is illegal and harmful. It can permeate a workplace and result in poor work performance, low employee retention, and homogeneity. (Studies have shown that diverse workplaces are more productive and agile.)

As a culture, we need to combat and discourage sexual harassment and other forms of discrimination. A lawsuit can force a business to evaluate and change its practices and workplace policies.

Document the Harassment and Subsequent Retaliation

In order to win a sexual harassment claim, you need evidence. Keep copies of any emails, text messages, or other harassing communications. You also should keep copies of any complaints you made to Human Resources (as well as HR’s responses). This documentation will help support your claim and give you a better chance of winning.

Seek Counseling and Emotional Support

Again, sexual harassment litigation can be difficult. Because many claims are “he said, she said,” your credibility may be scrutinized. You may face retaliation or hostility at work. Nonetheless, it is important that we take a stand against sexual harassment and discrimination. By reporting harassment, you may protect other potential victims, change workplace policy, and recover damages.

A counselor or support group may provide the emotional help you need during a harassment investigation and lawsuit. Consider career or vocational counseling to help rebuild your resume and restore confidence.

Hire a Sexual Harassment Lawyer

A sexual harassment lawyer can also provide important support and guidance. A lawyer can assure that you meet filing deadlines, prepare you for an investigation and lawsuit, and help you change your workplace’s culture and behaviors. Additionally, legal representation can help you secure fair compensation for your damages.



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