Author Archive for Jason Cheung

Woman Fired From Job For Giving Trump the Middle Finger

Juli Briskman was riding her bicycle on Lowes Island Boulevard mid-afternoon on Oct. 28 when she found herself in the same lane as the motorcade of President Trump, which was leaving the Trump National Golf Course in Sterling, Va. Ms. Briskman made a spontaneous gesture – she pointed her middle finger at the motorcade. News cameras captured the scene and the picture spread across the internet like wildfire.

Briskman had been working for Akima, a federal contractor, as a marketing and communications specialist, for six months. Although few could tell it was her in the picture, Briskman alerted Human Resources to the internet scandal. Her supervisors summoned her to a meeting, where they terminated her. Akima has a company policy against posting lewd and obscene things on social media pages; such postings could harm the company’s reputation as a government contractor.

Briskman’s social media pages do not mention her employer and the incident happened when she on her personal time. Briskman claims another employee had written a profane on Facebook, but was merely reprimanded and forced to delete the post, but allowed to keep his job.

trumpBriskman Doesn’t Have a Case for Sex Discrimination

Virginia, like most states, has “at will” employment laws. At will employment means private-sector employers can fire people for any reason, except for illegal reasons, such as illegal discrimination or breach of contract. If an employer doesn’t approve of a social media posting, the employer has the power to terminate that employee, regardless of how “fair” it is.Briskman could allege that there was illegal sex discrimination here, since her male co-worker was reprimanded for his crude internet posting while Briskman was outright fired. If the employer was biased against women, these incidents would be one manifestation of that bias.

Although Briskman was punished more harshly than her male co-worker, the employer may be within their right to do so as long as the employer has a reasonable explanation. The employer may believe that a personal insult directed at unknown persons is less damaging than insults thrown at public figures, especially since the public figure is famously thin-skinned. The employer might believe giving the middle finger to the President would harm their chances of obtaining a government contract whereas insulting random internet nobodies would not have the same adverse effect. Or the employer might be pro-Trump. The employer doesn’t need a good reason to terminate a worker, only a reasonable alternative to sex discrimination.

Can Employees Use Social Media Without Employers Watching?

So what can employees do if they don’t want their employers to monitor their Facebook or Twitter use? Currently, the law offers very little recourse for employees or potential employees. Remember, default employment law in the U.S. is “at-will.” If an employer doesn’t like Facebook pictures of their employees smoking marijuana, they can terminate an employee for that.

As stated earlier though, there is a line. Employers cannot violate employment laws or their own contracts with employees. Some people use marijuana to alleviate a disability. If a disabled employee asks an employer for a reasonable accommodation, the Americans with Disabilities Act requires the employer to honor it (it’s questionable whether using marijuana would be a reasonable accommodation under the ADA since marijuana is still illegal under federal law).

The second exception is that employers cannot violate their own contracts. Courts have recognized some employer policies as binding contracts between the employer and the employee. If an employer enacts a process of review for social media usage, the employer should follow that process. For example, Akima requires its employees not to post any obscene materials on their social media accounts. However, if Akima social media policy had required that all first time violations result in a warning, then Briskman might have a breach of contract claim. This of course depends on the policy, and how much each party relies on the policy.

Of course, the best revenge is success. After Akima fired Briskman, she received over $30,000 in donations from GoFundMe and 453,678 job offers. One of the biggest benefits of a free-market system is that if an employer is a real dummy about social media use, other employers will be more than happy to scoop up talented workers.

Can Roy Moore Be Prosecuted For Molesting a 14-Year-Old 40 Years Ago?

Early this month, the Alabama Senate race between Republican Roy Moore and Democrat Doug Jones took a new turn. A Washington Post piece accused Roy Moore of sexually molesting a then 14-year-old girl he meet outside of a child custody hearing (among others). National Republicans have withdrawn their support. Democrats condemned Moore and some of them, including Ted Lieu, have called for an investigation. Many State Republicans have doubled down in their defense of Moore and have presented a number of arguments in his defense. Are any of these arguments enough to get Moore off the thin ice he now finds himself on?

Does the Statute of Limitations Apply?

Although Alabama imposes a five year statute of limitations for most criminal offenses, there are some big exceptions. In this case, Alabama Penal Code Title 15. Criminal Procedure § 15-3-5(4) would be applicable. Under that statute, sex offenses against minors under the age of 16 have no statute of limitation. Ted Lieu is correct. There is no statute of limitation to protect Roy Moore.

Where is the Due Process?

Roy Moore is owed due process under the law. Before Moore can face any criminal penalties, the following process must occur:

  1. Alabama needs to indict Moore.
  2. Moore’s charges must be read to him by a judge. No excessive bond may be set.
  3. Moore must have the opportunity to plead guilty or not guilty.
  4. Moore must be given a trial by a jury of his peers, with a presumption of innocence. Moore has the right to publicly confront his accuser(s) during this trial.
  5. The prosecution must prove that Moore committed the alleged crimes beyond a reasonable doubt.
  6. If Moore is found guilty, no cruel and unusual punishment may be imposed.

However, this process is a legal process. Although Moore has a right to a trial before he can be thrown in jail or have criminal fines levied against him, Moore does not have a right to be a U.S. Senator. Whether Moore wins the election depends entirely on Alabama state voters. However, Moore can still be indicted, tried, and convicted even if he wins office. He would have no immunity by virtue of office.

roy mooreIs This Wrong?

A few of Moore’s defenders have argued that Moore did nothing wrong. Breitbartin particular issued a preemptive defense minutes before the Washington Post published their article. Breitbart pointed out that 3 of the 4 accusers were at least 16 in 1979, at the minimal age of consent.

Breitbart and other defenders are correct that Moore did nothing legally wrong with 3 of the 4 women (but still creepy). However, the fact that one of the women was 14 and unable to consent. The fourth accusation is still statutory rape and Alabama law is quite clear on this.

Under Alabama Code Title 13(A). Criminal Code§13A-6-67, an individual is guilty of sexual abuse in the second degree if: “He, being 19 years old or older, subjects another person to sexual contact who is less than 16 years old, but more than 12 years old. ” Under Criminal Code §13A-6-60(3), “sexual contact” is defined as “Any touching of the sexual or other intimate parts of a person not married to the actor, done for the purpose of gratifying the sexual desire of either party.

Under the state criminal law, if the victim is less than 16 but more than 12, and the defendant over 18, and subjects the minor to sexual contact, then the defendant is guilty of second degree sexual abuse. Sexual contact is defined as any touching of the sexual parts of another person. According to the Washington Post, Moore told the 14 year old“how pretty she was and kissed her. On a second visit, she says, he took off her shirt and pants and removed his clothes. He touched her over her bra and underpants, she says, and guided her hand to touch him over his underwear.”

Since the bra and underpants are covering sexual parts, this is sexual abuse. The only defense, if this is true, is that the girl still had her bra and underpants on. However, this seems like a silly line to draw, as the code defines the touching as “for the purpose of gratifying sexual desire.” If the intent of contact was for sexual pleasure, then it wouldn’t matter if she was wearing a bra and underpants. It is doubtful that any court would follow a clothing defense.

Also worth nothing is that there is no “Romero and Juliet” exception here. Many states include an exception in their sexual abuse laws for young adult relations. With the Alabama State Code, if the defendant is 18 and the minor is more than 12 years, there would be no crime. However, Moore was in his thirties, so no exception exists here.

Is This Biblical?

Alabama State Auditor Jim Zeigler was particularly creative in his defense. Zeigler said: “Take Joseph and Mary. Mary was a teenager and Joseph was an adult carpenter. They became parents of Jesus, there’s just nothing immoral or illegal here. Maybe just a little bit unusual.”

Alabama state law makes sexual relations with a minor under 16 a crime. The Bible is not relevant to whether or not a sex act is illegal in Alabama in 1979.

Is the Washington Post Biased?

Some Republicans believe that the allegations are not true because the Washington Post reported on them. There are two things wrong with this argument. First, the Washington Post is an award winning paper that broke the Watergate scandal; the Post might make mistakes, but purposely lying seems improbable without evidence they are lying. Second, there are numerous women corroborating the story, so the allegations exist independently of the source. If the Washington Post hadn’t printed this, it is very likely another newspaper would have. Attacking the media outlet that published this doesn’t actually address the allegations.

Why Didn’t They Come Out Earlier?

State Representative Ed Henryhas argued this is a nothing but a political hit job prior to the election. “If they (the women) believe this man is predatory, they are guilty of allowing him to exist for 40 years, someone should prosecute and go after them. If this was a habit, like you’ve read with Bill Cosby and millions of dollars paid to settle cases and years of witnesses, that would be one thing.  You cannot tell me there hasn’t been an opportunity through the years to make these accusations with as many times as he’s run and been in the news.”

There is no law requiring victims of a crime to publicly accuse their abusers or risk state prosecution. A statute of limitations might compel criminal victims to say something before the deadline arrives, but as stated earlier, there is no statute of limitations for molesting a 14 year old girl.

Interestingly, Henry puts the burden of coming forward on the women. If Moore were just a private citizen, this might be true. However, I believe that our public officials should have higher standards than a private citizen. Instead of asking why the women took forty years to come forward, maybe we should ask how Moore was able to run for office for forty years without anyone asking any questions.

It was Moore’s failure to disclose any potential issues prior to each election he took part in. It was Alabama’s failure to conduct a background check on their twice elected Chief Justice. It was the Republican Party’s failure to properly vent candidates prior to nominating them. The failure is not with the women, but with the way America chooses her public servants.

Failure to Pay Rent on Your Furniture Could Mean Jail Time

In Texas and Florida, you might go to jail for failing to pay for your furniture. Rental companies in the state had successfully lobbied for a little-known law that allows rental companies to press criminal charges up to felony theft for failure to pay for a rental property. A dispute over a $3000 bed set can turn into six months of jail time for the debtor. The Texas Tribune and NerdWallet found rent-to-own companies have pressed charges against thousands of customers in Texas and in other states.

Customers faced with these charges are allegedly that they were misled. Their understanding was that the rental agreements were installment payments to purchase the furniture. An agreement to pay $8,000 for a $5,000 piece of furniture, only to return the furniture to the company, is absurd. The companies claim they only want their property back under the terms of the lease.

rental companies21st Century Debtor Prisons?

One of the biggest concerns with public policies like these is whether the agreement is an adhesion contract. Adhesion contracts are standardized agreements that are on a “take it or leave it” basis. Adhesion contracts are often scrutinized because their standardized nature causes people to read them less carefully than other agreements. Rental contracts are often adhesion agreements when it comes to criminal charges. Nobody expects to get arrested because they signed an agreement to rent a chair.  If customers don’t read the agreement and fully understand what it is they are agreeing to, they may find themselves blindsided when the police show up.

The use of criminal charges to collect rental property is unnecessary because all states have civil procedures for debt collection. Civil laws provide a wide array of tools for creditors to get their money back. Lienswage garnishment, and civil suits are available to those who are owed money. Pressing criminal charges is a means of avoiding the usual due process of debt collection.

However, anyone who’s had to collect debt knows that it can be a long and expensive process. To obtain legal remedies like wage garnishment, the creditor must initiate a lawsuit and then convince a judge of one’s position. Calling the police would seem like a cheap and quick solution in comparison.

What is the Future of These Types of Contracts?

On one hand, it’s extreme and abusive to pursue criminal charges just because someone signed a piece of paper. On the other hand, the rental companies do have a right to recover their property and threats of criminal action are probably more effective than the use of liens. One possible solution would be to require rental companies to explicitly inform the customer that they may be subject to criminal charges in the event they fail to pay or return the rental property.

Customers would have notice that these clauses are in their contracts and could decide whether they wanted to do business with a company that would press criminal charges for missing a thousand dollars of property.  If rental companies are forced to disclose potential criminal liability in their agreements, it might increase competition between companies that use the police and those that do not. This would be a win for both customers and the free market.

Did Attorney General Jeff Sessions Lie to Congress?

With Special Counsel Robert Mueller’s first indictments, new questions have arisen regarding Attorney General Jeff Sessions’ testimony regarding Russia and the Trump campaign. During Sessions’ Judiciary Committee confirmation hearing on January 10, Senator Al Franken asked him what Sessions would do “if there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign.”

Franken was referring to a news report alleging that Russia had compromising material on Trump and Trump surrogates were in contact with the Russian government. Sessions replied that he was “not aware of any of those activities” and said “I have been called a surrogate at a time or two in that campaign and I didn’t have—did not have communications with the Russians, and I’m unable to comment on it.” Sessions followed up in January 17 letter to Senator Patrick Leahy that he, Sessions, had not been “in contact with anyone connected to any part of the Russian government about the 2016 election.

SessionsWhat Made the Attorney General’s Office Change Their Mind?

After news about Papadopoulos’s guilty plea emerged, the Attorney General’s office changed it’s tune: “As far as Sessions seemed to be concerned, when he shut down this idea of Papadopoulos engaging with Russia, that was the end of it and he moved the meeting along to other issues.” Instead of being “unaware of any of those activities,” as Sessions had testified under oath in January, the Attorney General thought “It was a bad idea and the Senator didn’t want people to speak about it again.”

Even if we give Sessions the benefit of the doubt that he did everything to discourage meetings with the Kremlin, he should have made these revelations to Congress in January. Instead, Sessions waited until after news of Papadopoulos’s guilty plea to disclose what he has now apparently remembered. These revelations should have been made earlier, especially because Session’s supervisor has been screaming “FAKE NEWS!” whenever a journalist mentioned secret meetings between the Trump campaign and Russia.

What’s truly disturbing is that this is not a single incident. This administration has a history and pattern of making absurd claims which are either easily debunked or which are debunked by later evidence.

But Did He Do it Knowingly and Willfully?

Perjury is the intention act of knowingly or willfully making a false statement while under oath, either verbally or by writing. Statements which are merely false do not constitute perjury. The defendant must know that the statement was false, but made it anyway.

The issue is whether Sessions knew he was making false statement when he said he was “not aware of any activities” between the Trump campaign and Russia, when in fact he was at the meeting when Papadopoulos claimed he could set up connections between Russia and Trump himself. There are two questions that need to be answered before we can determine whether Sessions has committed perjury:

  1. Did Sessions believe Papadopoulos was speaking as a representative of the Kremlin?
  2. When Sessions said he was not “not aware of any activities,” did he know that “aware” also included “to discourage?”

If the answer to both questions is yes, then Sessions would be guilty of perjury. If Sessions believed that Papadopoulos represented Russia, then there was a connection between the Trump campaign and Russia right in front of him. If Sessions also knew that discouraging activity between the two was part of the question asked, then Sessions would have committed perjury. If the question had been “Did you encourage activities between the campaign and Russia,” Sessions would not have been stating a falsehood under oath. However, the question is merely about whether the meeting took place, not Session’s reaction to that meeting. If Sessions understood what the question was about, then he would have committed perjury.

Obviously, if Sessions lied under oath, he should at least meet the same punishment as President Clinton: disbarment, if not impeachment. Unlike the President though, Sessions would have to resign from his position anyway because the Attorney General must be an attorney.

Bank Regulations are Being Rolled Back, How Will It Impact You?

Have you ever been abused by a major bank? It’s happened to many people. Sometimes, Wells Fargo opens an account you never authorized and charges you fees for it. Other times, Bank of America promises an underwater homeowner it will negotiate with them, only to foreclose on the homeowner behind his back. After the collapse of the housing market in 2007, the new Obama administration introduced a series of regulations to keep banks from engaging in such underhanded practices again. Those regulations are now being reversed.

What Happened?

Last Tuesday night, Congress and Vice President Mike Pence voted to overturn a rule limiting arbitration clauses in contracts between banks and consumers. The 45th President is expected to sign it. Congress has the power to review and overturn any rules made by the Consumer Financial Protection Bureau within 60 days of the Bureau’s creation of a new rule. The Treasury Department recommended overturning the CFPB rule because it would generate 3,000 in class action suits over the next five years, requiring those banks to spend up to $500 million in legal defense. The Treasury Department warned these suits would result in windfalls for plaintiff’s attorneys, but “zero relief” for the consumers who bring these suits.

regulationsThe CFPB’s rule banned the use of arbitration in contracts between banks and customers. Arbitration is favored by most industries because it is cheaper and less time-consuming than going to the court. However, arbitrators have often been accused of being biased, especially when the contract allows the business to decide who the arbitrator will be. Plaintiffs can hardly expect a fair hearing if the arbitrator was chosen by the business they were suing. Parties would not trust a judge handpicked by the very people they were suing, and yet it is somehow okay for this to occur in arbitration. Even worse, arbitration is often binding in these kinds of contracts – in other words, it is next to impossible to appeal a decision made by an arbitrator.

This is not to say that all arbitrations are like this. If two business partners agree to resolve their disputes through arbitration and they each agree on an arbitrator, arbitration would probably be fair and just in that case. However, when arbitration occurs because of an adhesion contract, such as those commonly found between banks and consumers, arbitration looks less like a cheaper option to trial and more like a kangaroo court.

Will This Even Work?

The CFPB’s proposed rule might have been imperfect, but at least it attempted to deter big banks from abusive practices. Although class actions might not be the best vehicle, at least they are a vehicle which consumers had. The CFPB’s report shows that consumers obtain 1,000 times more money from class action suits by plaintiff’s attorneys than through arbitration. Preventing consumer attorneys from representing classes of attorneys might protect banks from such lawsuits, but the individual consumers would be harmed even more if forced into arbitration.

This was evident in the mortgage crisis and recession ten years ago, when the major banks were caught forging documents and engaging in other shady practices to recover from losses in the housing industry. Repealing the CFPB’s rule looks even worse given that the Wells Fargo Account Scandal occurred only last yearand the Equifax scandal came out this summer. When it is obvious that the large banks and private financial institutions have not learned from the mistakes that triggered the worst recession since the Great Depression, repealing financial regulations now is not only foolhardy, but outright dangerous.