May It Please The Court
Quote of the Day - Warning: Do not use diving board when swimming pool is empty.
Lawyer2Lawyer Internet Radio Jumps In With Swimsuits, Steroids & Regulations In The Sports World
Recently the world of sports has been plagued by scandal-from a controversial polyurethane swimsuit used in swimming to steroids putting a cloud over major league baseball. Please join me and my fellow Law.com blogger and co-host, Attorney Bob Ambrogi as we welcome Professor Matt Mitten, the Director of the National Sports Law Institute at Marquette University Law School and Attorney John P. Collins from the firm Collins & Collins as we take a look at the impact of these controversies and regulations in sports today.
Employer May Videotape Workplace
But Better Have A Good Reason
Hoping to capture an evening intruder who surfed the Internet and viewed pornography on a work computer, a company installed a hidden camera to monitor the computer. The hidden camera was not turned on during the day when the employees were present - just at night in the hopes of catching the culprit.
The employees, however, spotted a flashing red light on the camera during the day, discovered the camera and then sued for invasion of privacy. The employer had not disclosed to the daytime workers that it had installed the hidden camera pointed at the employees' computers. The employer did not suspect the employees.
Now here's the rub: employees have an expectation of privacy in the workplace. Why? Well, that's the law, although it seems to this writer that such a right is fairly minimal because it's a work environment, after all, not a home. But then again, I'm from Orange County, not the greater part of the State of California where such rights are taken for granted.
But I'm getting off track.
In our case, Hernandez v. Hillsides, Inc., the California Supreme Court held that a privacy violation based on intrusion would require that the employer "intentionally intrude[d] into a place...to which plaintiff has a reasonable expectation of privacy."
The Court also reasoned that "the intrusion must occur in a manner highly offensive to a reasonable person." While the Court acknowledged that employees have a reasonable expectation of privacy in a "solo office [with] relative seclusion," however, in order to state a claim against an employer, the intrusion must be "sufficiently serious and unwarranted...to constitute an egregious breach of the social norms."
Now there's a definitive rule for you. It depends on the circumstances.
The safest way to install a hidden camera is to do so only after disclosing it to the employees and have them ackowledge that the employer has done so and that they have no reasonable expectation of privacy. Otherwise, employers just may get sued.
Playing Fast And Loose With Deeds Will Land You Without Land
You are about to get sued and you own a bunch of property. What do you do? First, here's a caveat: if you transfer the property to someone else in the face of litigation, then you run the risk of entering into what's called a fraudulent transfer, which would likely be set aside by a court except in certain circumstances.* In this case, that issue didn't come up. What happened, however, is George Lee and his family put their resources together and bought a number of parcels of property. There were a lot of transactions between family members, but one in particular ended up in court.
Back in 2002, George Lee and his wife Kathy transferred their interest to their niece, Fue Sue Lee, and signed over a quitclaim deed to her, making the transfer as a gift. Fue Sue also signed the deed acknowledging her acceptance of the gift, but then sent it to relatives for them to record. Before those relatives recorded the deed someone added other relatives, Ge Lee and Vong Lee, as grantees on the original quitclaim deed. Later in 2005, George had Fue Sue execute a deed reconveying the property back to him and Kathy.
You guessed correctly what comes next. Ge, Vong and Fue Sue filed suit to quiet title in their name. Now there's a surprise.
Once you're over that initial shock, what do you think happened? After all, we've got a deed with someone else's (well, two someone elses) name (ok, names) on it. Plus, they were added to a quitclaim deed, which is a deed where the original owners give up all rights to the property. So why would it matter how many names were added? The now former owners really can't complain, can they?
They certainly did, and asked the trial court to find that the initial transfer to Fue Sue was valid despite the alteration, but then invalid against all subsequent transfers. Now here's an interesting twist to think about first before we get to the actual result: What if Fue Sue had sold the property to Ge Lee and Vong Lee for money -- after she recorded an unaltered quitclaim deed? Don't you just love law-school type questions?
First let's get to what actually happened with the altered deed. Both the trial and appellate court held that the initial transfer from George and Kathy to Fue Sue was valid, but the supposed subsequent transfer to Ge and Vong was invalid because on the initial deed, George and Kathy didn't agree to that subsequent transfer - it wasn't signed by "the parties to be charged (George and Kathy)." Well, it was actually signed by them, but the subsequent transferrees were added without their knowledge.
In other words, the subsequent transfer didn't satisfy the statute of frauds, which requires that all real property transfers be in writing and signed by the parties to the deal.
Now, to get to that law school question. Yes, if Fue Sue had transfered the property to Ge and Vong in a separate transfer, the case would have probably turned out that George and Kathy were out of luck and Ge and Vong owned the property, maybe even together with Fue Sue if they had handled it right. If they had only consulted a lawyer instead of trying to get fancy with the deeds.
*What circumstances? There are too many to detail here, so the best way to find out is to talk with a lawyer.
Guns And Scots - The Ninth Circuit Takes A Second Look At Gun Ban At Alameda County Fair
The Scottish Caledonian Games at the Alameda Fairgrounds is a sight to behold. From dinner with Mary Queen of Scots to whisky tasting (yes, it's without the "e") to historical reenactments, its a wonderful event.
Why then would the Scottish Caledonian Games cross swords - so to speak - with a gun show at the Alameda Fairgrounds? You can thank the Second (right to bear arms) and the Fourteenth (equal protection) Amendments of the United States Constitution.
That's right. Here's the setup according to the Courthouse News Service, "Russell and Ann Nordyke, owners of TS Trade Shows, asked [Alameda] county to grant them the same exception it made for the Scottish Caledonian Games, whose participants reenact historic battles using period firearms loaded with blanks." The Nordykes put on a gun show where citizens could come and buy and sell guns.
Now it makes sense. What's good for one is supposedly good for one is good for the other - that's the basic premise of the equal protection clause in the Fourteenth Amendment. But Alameda County refused to grant the exception to the Nordykes for the gun show because unfortunately there was a shooting at the gun show last year. At the same time, however, the County allowed the Scottish Caledonian Games to proceed, so the Nordykes filed an appeal, which ultimately got upheld by the Ninth Circuit Court of Appeals.
The Nordykes argued the holding in the Heller case, which was the first time the U.S. Supreme Court held that the Second Amendment's right to bear arms applied to individuals instead of the actual wording in the amendment, which appeared to grant that right only to state militias. Heller is the law of the land and the Nordykes asked if it's good enough for the Scots, why isn't it good enough for us?
The Ninth Circuit's opinion pointed out that Heller contained an exception for "laws forbidding the carrying of firearms in sensitive places," and Alameda County could justifiably ban the gun show from the fairgounds. But the Ninth Circuit just issued an order that it will rehear the Nordyke's case and reconsider its ruling.
Look for one of two results: either the County's ban on the Scottish Caledonian Games historical reenactments using guns or the Ninth Circuit's allowing the Nordykes to hold their gun show. How would you vote?
Lawyer2Lawyer Learns Lessons From Professor Gates' Arrest
The arrest of Harvard Professor Henry Louis Gates Jr. at his home in Cambridge, Massachusetts ignited a wide range of legal and social debate as well as a media firestorm worldwide. Please join me and my fellow co-host and Law.com blogger, attorney Bob Ambrogi as we welcome famed attorney and elder statesman, Jack Greenberg, the former director-counsel of the NAACP Legal Defense Fund who, together with Thurgood Marshall, argued Brown v. Board of Education before the Supreme Court in 1954. Now the Alphonse Fletcher Professor of Law at Columbia Law School, Mr. Greenberg shares his perspective on racial profiling, civil rights and what we still need to learn about race relations.
CEO, CFO And Manager Held Individually Liable For Employee Unpaid Wages Upon Corporation's Bankruptcy
If your company files bankruptcy or dissolves and in the process the company fails to pay its employees their wages, vacation and sick time, the Ninth Circuit says you - as the Chief Executive Officer, the Chief Financial Officer and the labor manager - can be held individually liable to pay those back wages. Plus penalties.
Read that sentence again and don't skip over the word "individually." Yep, you got that right. Ouch.
In Boucher v. Shaw, the Ninth Circuit upheld individual liability for supervisors under the federal Fair Labor Standards Act despite two striking facts: (1) they were not individually liable under Nevada wage and hour laws; and, (2) the corporate employer (the Castaways Hotel and Casino) was in bankruptcy court in liquidation proceedings.
In these conomic times, this case is an important reminder that executives are taking the risk of individual liability under the FLSA by failing to ensure that employees are paid upon dissolution or bankruptcy of a corporate employer. This ruling applies in California since it's out of our Ninth Circuit and the law enforced by the court is a federal, not state, law.
MIPTC Is Back And Being Archived Up By The Library of Congress
For nearly the last six months, MIPTC has been transitioning its law practice from WLF | The Williams Lindberg Law Firm, PC to Sedgwick, Detert, Moran & Arnold, LLP. WLF sold its practice back in February. That move has necessitated focusing my complete attention on our clients during the transfer, but unfortunately not on this blog. Regular readers have noticed and commented because the only posts I've been able to keep up with are the Lawyer2Lawyer podcasts. The transition is virtually complete and I can now return to more regular blogging.
To start my return from this hiatus, I'd like to pass along some flattering news: the United States Library of Congress has sought (and obtained) my permission to archive MIPTC as part of its archive regarding Judge Sonia Sotomayor's nomination to the Supreme Court. Eventually, you will be able to find the archive of MIPTC and the other resources here as part of Minerva Web Archiving and Preservation Project. It will take the LOC some time (MIPTC isn't there as of the date of this post), and I'm sure the government will move quickly to make the site available. Right. It will take about a year and a half, but when it gets finished, MIPTC will have a permanent place in history, if not in infamy. Citations to the program are described here.
Welcome back, gentle reader. More to come on a regular basis. Thanks for staying with me.
Lawyer2Lawyer Enters The Great Debate Over Healthcare Reform
Debate continues over Health Care reform. Please join me and my fellow co-host Bob Ambrogi as we welcome Dr. David Orentlicher, professor and co-director of the Center for Law and Health at Indiana University Schools of Law and Medicine and Attorney Joel L. Michaels, the partner-in-charge of the Health Law Department in McDermott Will & Emery LLP's Washington, D.C. office, to discuss legal issues surrounding healthcare reform, its impact on businesses, hospitals, and individuals and the role of federal government in the marketplace of health care insurance. Click on the icon below and give a listen!