Tag Archive for 'harassment'

Facebook Involved in an Unusual Lawsuit between Uncle and Nephew

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Family feuds have been a common form of entertainment on television.  Many of us have tuned in to watch shows like Family Feud, Modern Family, Growing Pains, etc.  In the legal realm, family feuds have comprised of a practice termed family law.  Attorneys who practice family law are considered to have a “tough heart” by many because it is not easy watching families endure events such as divorces and custody battles.  Speaking of families and lawsuits, a recent lawsuit of a nephew sewing his uncle for harassment over Facebook pictures gives new meaning to the term “family feud.”

A man from Minnesota named Aaron Olson sued his uncle because his uncle had posted childhood pictures of him, in front of a Christmas tree, in a rabbit costume.  Rather than untagging himself from the picture, or calling his uncle and politely asking him to remove the picture, Aaron sued his uncle for harassment in a Minnesota district court.

Olson’s claim was based on the fact that the pictures were “innocuous family photographs.”  Posting such photographs on Facebook establishes a platform for mean comments to be directed towards Olson.  The court dismissed this case, and the Court of Appeals of Minnesota denied Olson’s complaint.

The Judge in the Court of Appeals of Minnesota stated that harassment occurs when words have some sort of adverse effect on the safety, security, or privacy of another person.  Therefore, mean or disrespectful comments do not constitute harm to one’s safety, privacy or security. The court ruled that the district court was correct in stating that the evidence submitted by Olson (the Facebook pictures of him in a rabbit costume, in front of a Christmas tree) did not satisfy the requirements to prove harassment.

This lawsuit is probably the most ridiculous one I have heard of to date.  The obvious lesson to take away is that if you have a minor issue with a relative, talk to them.  The power of effective communication can do wonders, keep people out of court, and put the money spent on potential litigation back into your pocket!

More importantly, when frivolous suits are brought into court, it is a misuse of the judicial system and a waste of judicial resources.  People should realize that the judicial system is there to tend to complex matters that cannot be solved in the home or office environment, not minor family feuds over embarrassing photos.

So, a few tips to people out there.  Before thinking about going to court, evaluate the basis of your lawsuit.  If your lawyer explains things to you, you will be hit with a hefty legal bill.  Rather than depending on your lawyer, think about how much merit you have in your claim.  Next, think about solutions that do not involve litigation.  Often, litigation complicates matters before reaching a resolution.  If there is a quicker way to achieve some closure out of court, go for it.  Lastly, confide in a close confidant to see if your potential claim passes the “straight face test.”  Specifically, after conveying your claim to your confidant, examine their expression.  If it is not of a straight face, and rather is one of disgust, surprise, or awkwardness, it is likely that your lawsuit is frivolous.  Avoid filing it and resolve matters in the comfort of your own home!

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Helpful Legal Hints for Employers

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A lot of HR departments have trouble with some basic legal issues.  TheWashington Post recently wrote an article for small businesses on how to handle some common “HR nightmares.”  The article lists the following as common issues employers tackle:

  • Misclassifying Workers
  • Overtime
  • Breaks
  • Firing Procedures
  • Discrimination and Harassment

Below are some suggestions on how to handle such issues:

Am I Dealing With an Employee or Independent Contractor?

It is very important for employers to understand the difference between an employee and an independent contractor.  Basically, if an individual has control over their hours, working instruments, and method of work they are an independent contractor.  If an employer sets the hours, provides instruments and strategies procedures/working methods, an employer is dealing with an employee.  There are numerous lawsuits every year because employers have violated labor laws by treating an employee as an independent contractor, or vice versa.

The best thing to do is to read the labor law of your state, extract the definitions set forth for “employee” and “independent contractor,” and refer to it before classifying an employee.  Such small efforts can easily avoid later litigation. 

Overtime—To Pay or Not to Pay?

Since these laws vary state to state, it is important for every employer and/or HR department to understand its state laws on what is considered overtime, and when to pay it.  There are also tricky nuances.  For instance, California views an employee working over eight hours per day as overtime.  However, over forty hours per week is also considered overtime.  Many lawsuits have arisen because employees, who have wanted longer weekends, agreed to work over eight hours a day Monday through Thursday, in order to have Friday off.  Although the amount worked totaled forty hours per week, since employees were working over eight hours a day, labor laws required them to be paid for overtime.

A lesson to take from this is that when reading laws, pay attention to conjunctions such as “and” or “or,” because they hint towards small nuances, which, if not followed, can lead to litigation. 

Breaks—Employees Need to Step Away from Their Work.  It is the law!

It is very important for workers to take proper breaks.  Some workers choose to eat lunch at their desks or skip break because “they have too much to do” or are “almost finished with something.”  Sometimes, employers themselves are in meetings with employees, these meetings run long, and break time passes.  Employers often then encourage everyone to “get back to work” rather than instruct them to go out and make up their break time.  Such behavior from both employees and employers can get employers into trouble.  Why?  Later on, these same employees may claim to have been working diligently during their allotted break times, bringing employers into trouble for violation of labor laws.

What to do?  A lot of companies now have break rooms where no work can be conducted, or require workers to leave the premises during their breaks.  This is a great idea.  Overall, employers need to be proactive and ensure that employees take breaks.  If in a meeting, employers should be conscious and either announce a break during the meeting, or instruct employees to take their break after the meeting is over.  Otherwise, employers should create break rooms and/or have signs up that require employees to physically leave the office area during allotted break times. 

Firing Procedures

The major issue here is that employers establish firing procedures in the company handbook, and do not follow them.  This gives employment lawyers ample ammunition against you in court.  For instance, perhaps the company handbook will state that there will be a review process with the Board of Directors before firing someone.  However, that was not followed when an employee was terminated.  This can get employers into trouble.

To stay away from litigation, follow the procedure your company has established when firing someone.

Discrimination and Harassment—What Employers Think It is and What the Law Says It Is May Be Different

Most of the time, discrimination and harassment are not obvious.  Small comments on appearances guised as “compliments,” or harsh words with multiple meanings during a heated conversation can be discrimination or harassment.  People often associate extreme cases with these concepts; however discrimination and/or harassment instances can be subtle acts in workplace communication.  Many HR departments and employers do not understand this.

A great solution is to first understand the statutory meaning of these two terms.  Then, along with the usual description and “no tolerance policy” written in most corporate handbooks, it is a great idea to have a workshop for employees and management personnel on discrimination and harassment in the work place.  This not only will educate one’s work force, but will also make the company’s “no tolerance” policy clear to everyone.  Such small efforts are a great way to avoid any potential lawsuits. 

Of course there are more solutions to tackle these problems.  Employers should educate themselves and their HR departments, and have lengthy discussions with the corporate attorney(s) to ensure that the company is protecting itself from any potential lawsuits.   This article has some suggestions, and meeting with your corporate attorney will definitely yield more!

When Do Simple Craigslist Pranks Turn Into Cases of Harassment?

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Normally when you think of harassment, you think of stalkers, or persistent people who have lost touch with reality and won’t leave you alone. Craigslist, as a tool for harassment, doesn’t really come to mind.

But as Craigslist has grown throughout the years, so has its uses evolved from a classified advertising webpage, to a tool for pranks in creating phony ads. Of course, Craigslist does not endorse any type of inappropriate postings, and most of its users don’t appreciate these phony ads either. But who hasn’t run across the occasional ridiculous ad and been silently amused by it?

More seriously though, when does posting a phony or false Craigslist ad turn into a crime? Well, off the top of my head, I can think of plenty of circumstances where this situation could get out of hand and turn into something with serious, legal consequences. But one situation that seems to keep cropping up over and over again is a case of harassment involving the use of phony Craigslist ads. Every few months, it seems like, there’s a new case of someone being guilty of harassment for creating a phony Craigslist ad. Let’s take a look at a couple of the most recent cases:

Earlier this month, there was the case of Crystal Oliver who wanted to retaliate against a friend. Oliver snuck into her friend’s apartment and created two Craigslist postings advertising sexual favors from her friend. She also included the friend’s phone number in the posting.  Before the next morning, her friend had received about 70 phone calls and five text messages. The court’s verdict? Oliver was guilty of sexual harassment.

In another case early this year, Jonathan Medina, a former pharmacist from Connecticut, wanted to retaliate against a customer after arguing about her prescription. In response to their dispute, he created a Craigslist ad for the customer indicating that she was looking for sex. As a result, the customer received 25 phone calls, and one person even tried to visit her home. Medina pleaded guilty to misdemeanor harassment and was sentenced to two years’ probation.

These are just two examples, but there are many other, similar cases out there where courts have found that harassment exists. However, none of these cases fit the normal bill of what you would expect a harassment case to be. These perpetrators did not actually make the phone calls that constituted harassment, nor did they even engage in repeated or multiple acts of harassment.  So what exactly constitutes harassment? This would be a good time to review the law on harassment.

To begin with, “harassment” is a general term that encompasses a plethora of different legal actions you could take. There are both federal and state laws against harassment. Additionally, there are both civil and criminal harassment claims. And within criminal harassment, you can be charged with either misdemeanor or felony harassment.

Furthermore, harassment is broken down into several different types—sexual harassment, workplace harassment, verbal harassment, phone harassment, even internet harassment—you name it. My point is that there is no uniform harassment law, and each jurisdiction will have a slightly different variation on what constitutes harassment.

Regardless, there are still some common elements that can be found throughout all or most harassment claims:

1. Intent: This is a frequently found word throughout most harassment statutes, but it can be very misleading. Intent doesn’t usually require that the perpetrator have the express intention of harassing/making life difficult for the victim. Instead, it is usually enough for the perpetrator to have known about the consequences of his actions, but not necessarily have wanted for them to happen.

Take the example of the harasser who persists in making phone calls to a romantic love interest. The harasser certainly does not intend to disrupt the victim’s life, but only wants to prove how much the victim is “loved.” Regardless, the harasser’s actions in themselves are enough to make him/her guilty of harassment. It is of no consequence that the harasser had no intention of actually making the victim’s life difficult.

In the Craigslist cases, courts have made it clear enough that the perpetrators don’t have to be the ones to actually make the harassing phone calls, texts, or home visits, to be found guilty. Instead, it’s enough to just be aware of the likelihood of these consequences happening.

2. Frequency of the act: Most statutes will cite harassment as being a pattern of repeated behavior over time. However, in many circumstances, if the action is severe enough, even one act may be enough to constitute harassment.

For example, in California, one telephone call is enough to constitute harassment if it contains obscenity or violence. If not, telephone harassment only exists through repeated actions.

Somewhat similarly, in the Craigslist cases, the courts found that harassment existed even though the perpetrators had only put up one or two Craigslist postings. However, what the courts were probably swayed by was the fact that the perpetrators knew of the likelihood of these postings leading to a host of offensive phone calls.

This is by no means a precise analysis of what constitutes harassment. However, what I believe we can take away from these cases is that the definition of harassment can be quite broad. This gives courts a great deal of leeway in deciding harassment cases. More importantly, the trend for now in Craigslist cases seems to be that courts will not be lenient towards those who continue to use Craigslist for pranking purposes.

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Your Office Halloween Party Doesn’t Need to Turn Into a Sexual Harassment Case

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Perhaps this is a case of “better late than never.” Or maybe I’m just prepping for next Halloween, in which case I’m extremely early.

In any case, many employers and employees seem to think that Halloween is a day on which most rules don’t apply. This is most definitely not the case, at least not in the workplace. While Halloween is definitely a time to let loose, and ignore some of our less-essential social conventions, civil society and the law don’t cease to exist on that day. The fact that a lot of people seem to forget this fact doesn’t excuse them if they get into legal trouble thanks to their Halloween antics.

The blog post I linked to above describes several colorful court cases from around the country (some are also discussed here and here) which involved sexual harassment and other inappropriate conduct at office Halloween parties, usually resulting in significant judgments for the plaintiffs.

There’s absolutely nothing wrong with offices hosting Halloween parties, or allowing and/or encouraging employees to wear costumes. However, it’s important for managers and employees alike to exercise some discretion. Halloween parties invite all kinds of inappropriate behavior. Inappropriate and offensive costumes are just one thing that can get employers into trouble. Sadly, there are still no laws against dressing up as whatever everyone is sick of hearing about in a given year. Write your Congressman.

So, what specific things should employers do to keep their Halloween parties fun, while avoiding legal issues including, but not limited to, lawsuits for sexual and/or racial harassment?

First of all, if you are going to encourage employees to wear costumes to the office, make sure they have clear guidelines as to what is and isn’t allowed – prohibit costumes that are too revealing, excessively gory, or racially offensive. Obviously, individual employees are going to have different opinions as to when a costume crosses the line. For this reason, managers need to be attuned to the sensibilities of their employees, since, obviously, a costume seen as perfectly acceptable in one workplace might be seen as offensive in another. In general, however, it’s best to avoid costumes such as “sexy [nurse/witch/maid/hippie/angel/devil/whatever],” and any “funny” costume whose humor rests almost entirely on a racial or ethnic stereotype.

Secondly, under no circumstances should an employer serve alcohol at any office party, Halloween or otherwise. The reasons for this are numerous, and obvious. First of all, alcohol impairs judgment and coordination. If you are the manager of a workplace that has any type of machinery or other dangerous items (such as knives, stoves, etc.) on the premises, you’re inviting an accident that could lead to a costly worker’s compensation claim.

Also, alcohol tends to lower a person’s inhibitions. In a workplace, this is a recipe for disaster. Combine revealing costumes with the consumption of alcohol, and somebody is probably going to say something wildly inappropriate, or make some kind of overt sexual advance at a co-worker. If you’re in a management position in your workplace, you’ll be held legally responsible for the actions of your employees while on the clock, so it’s essential to keep an eye on these things.

Office parties, particularly those for Halloween, also invite a wide variety of conduct which is not directly actionable, but which might lead to tension that could hurt workplace morale, or lead to a direct confrontation that leads to a lawsuit.

For example, while Halloween costumes focused around current events are usually popular (and if it’s something that we’ve all been sick of hearing about for months, so much the better!), a costume which directly conveys a message relating to politics, religion, or other controversial subject is a bad idea. Combine this with alcohol, and it’s very possible that it could lead to an argument which might get out of hand. Fisticuffs in the office? That’s a lawsuit.

I’m probably coming off as quite the wet blanket right about now. Is it possible to throw an office party that’s any fun at all, without risking a lawsuit? Honestly, I don’t know. The fact is that our society is fairly litigious, particularly in employment matters.

The U.S. has fairly strong laws prohibiting discrimination and harassment in employment, and most of these laws are primarily enforced through private action (if the law is violated, the victim of the unlawful activity brings a lawsuit for compensation). This is the system we’ve chosen, and it’s certainly done a decent job at rooting out overt employment discrimination. However, by its very nature, it necessarily means that there will be more lawsuits brought by employees against employers. That’s the tradeoff we’ve chosen to make.

Opinions will vary as to whether or not that’s a good thing. If we, and our elected representatives, agree that the positive aspects of laws against discrimination and harassment outweigh the negative, we’ll simply have to accept that maybe office parties won’t be as much fun as a party you’d throw in your own home. But, if you ask me, that’s not the worst thing in the world. We’d all love our jobs to be constant Happy Fun Times, but for the vast majority (if any) of us, that’s just not in the cards. It’s called “work” for a reason. If the laws that protect you from losing your job (or being driven out of it by harassment) based on your race, gender, or religion result in office Halloween parties that aren’t as much fun as they might otherwise be, I guess we’ll just have to deal.

It seems like a pretty fair trade to me.

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What Do You Do If You Have Overly Intrusive Parents? Sue Them, Apparently

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Do you remember how your mom used to go through all your stuff when you were a kid?  How she would read through all your mail, listen in on your phone calls, and basically be completely intrusive throughout your adolescence?  No?  Well lucky you then…  For the rest of us with a normal childhood who had to suffer through this invasion of our privacy, the only conceivable option we ever thought of was… well, nothing.  Just grit your teeth, stomp up to your room, and bear through it until you were 18, or become an emancipated minor (if you were rich enough, of course).

But at least all that intrusion made you a better adult, right?  To those of you who answered “no” to that question, didn’t you wish there was some authority you could call to get your parents off your back?  Apparently there was one, we just weren’t aware of it.

Yep, apparently you can actually file criminal charges against your parents for harassment.  That’s what one 16-year-old Arkansan boy did to his mother and according to the Arkansas prosecutors, the plucky young future lawyer was perfectly within his rights to do so under Arkansas law.  The mother claims she was just being a good mom by checking up on her son Facebook page.  According to reports, she figure out her son’s password, logged into his Facebook account and read his online posts.  When she didn’t like what her son was saying online, she changed his password and locked him out.  Apparently this infuriated her son enough for him to file a harassment suit against his mom in criminal court.  That’s right, criminal court, not civil court.  That’s coooooooold.

Now this might story might seem pretty crazy to you, or at the least make for some really awkward dinner conversation with your children.  I mean, she’s the mom.  That’s what moms do, right?  Well, though children generally do have limited rights (especially in regards to their parents), depending on the state, privacy rights are usually one set of rights that aren’t limited for minors.  Really in this case, the legal question is whether the mom’s action qualifies as harassment.  In short, the answer is maybe, or at the very least it’s enough of a violation to warrant a court to decide on the matter.

Harassment statutes are generally written to be very board in magnitude, and with good reason.  An overly narrow harassment statute won’t do much in helping to protect victims from unwanted contact or disturbances, especially when those incidences can lead to placing the victim’s safety in jeopardy.  So most legislators intentionally use very vague and broad wording when they draw up harassment laws to ensure victims will get full protection under the law.  Arkansas harassment statutes are no different, in this case it reads: “a person commits the offense if he engages in conduct or repeatedly commits acts that alarm or seriously annoy another person.”

You don’t need to be a lawyer, law student, law professor, or have any legal training other than the ability to read to see that this statement can pretty much include any unwanted conduct as a form of harassment.

So what’s a mother to do?  Well, in this case if she is found guilty, the judge can impose a fine for past harm to be paid to the court or the victim along with an injunction preventing her from accessing her son’s Facebook account.  However, from what I’m told and what I’ve seen, judges generally have some leeway in their discretion for harassment cases.  And in all likelihood, rather than cause greater tension between son and mother by issuing such as order, the judge will probably just order them to family counseling.

However, to all you overbearing parents out there, whatever becomes of this case, you better think twice before you start snooping around in your children’s stuff.  And to all you kids…pssht… you can find a lawyer here.  Just joking.  Come on people.  Can’t we all just try to be a little less dysfunctional here?

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