Is That Legal: Day of Silence

April 12, 2012 by Leave a Comment

Day of Silence by Megadeth's Girl

The Day of Silence is coming up on April 20th. The Day of Silence was started in 1996, and it’s a day when middle school, high school, and college students refuse to speak to bring awareness to the “silencing effect of anti-LGBT bullying and harassment in schools.”

I think this is a great event but, as always, it raises the question, “Is it legal?”

Does the First Amendment include the Right Not to Speak?
Absolutely! Your right to free speech includes your right not to speak.

Am I Allowed to Refuse to Speak in Class?
Check with your school. In general, they can’t prohibit you from participating in the Day of Silence before school and between classes, but they may be able to require you to speak if asked a question in class. You still have a choice not to speak, but you might lose participation points in class or find yourself in detention.

Get your school on board in advance. It would be awesome if the administration requires teachers to respect students’ right not to speak on the Day of Silence. The Day of Silence website has a template for cards that you can carry that inform people why you are being silent. This would be a good reminder for teachers if they forget that it’s the Day of Silence.

Can I Wear a LGBT or Anti-Bullying Shirt, Sticker, or Button?
It depends. In general, your First Amendment rights include the right to wear clothing or buttons that shows support for a cause as long as it’s not profane or lewd. However, a school is allowed to restrict speech if the school has a reasonable belief that not restricting it will cause a “substantial disruption to the school.”

I went to a private high school and we had a strict dress code that prohibited all verbiage on clothing except for high school and college t-shirts and sweatshirts. If you have a dress code like this, you’ll have to get special permission to deviate from the dress code for the day. It’s a request worth making. There were a few times in high school when I wanted to wear my lucky shirt to school and it had illegal verbiage on it. The dean of students always approved it as long as I got her permission in advance.

Can I Wear Duct Tape on my Mouth?
It depends. The same rule about not causing a classroom disruption with your clothes also applies to wearing duct tape on your mouth. I think wearing duct tape would be awesome.

A word of warning – if you go to a school where you are the target of physical assaults, you may want to use some kind of buddy system if you’re going to have duct tape over your mouth. If you get pinned to the ground and someone plugs your nose, you could suffocate.

Can Other Students Have an Anti-LGBT Day in Response?
Yes.  The right to free speech generally gives other people the right to be closed-minded and stupid. The Day of Dialogue was created as a counter-protest to the Day of Silence, and some conservative groups urge parents to keep their children home on the Day of Silence if a school was observing it. If your school is allowing a counter-protest, the restrictions that your school puts on you should apply equally to them.

The official Day of Silence website has some additional resources and information. If you see anyone participating in the Day of Silence, let them know you support them, even if they can’t verbally respond. They can still give you a smile or a hug. Your support means a lot.

Filed Under: Cyberbullying & Cyberharassment, Education Law Tagged With: , , , , , , , ,

Is That Legal: International Pillow Fight Day

April 5, 2012 by Leave a Comment

 

AZ Pillow Fight by Sheila Dee

International Pillow Fight Day is always on the first Saturday in April. Over 100 pillow fights will be taking place all over the world this year. Public pillow fights are lots of fun, but of course, there is always the question of whether they are legal.

Doesn’t a Pillow Fight Count as Assault and Battery?
Probably not. Most state laws regarding assault and battery require offensive touching or an imminent threat of offensive touching. Some laws require physical injury or at least intentionally touching someone with the intent to provoke or insult them. As long as you’re hitting other pillow fighters, you’re probably not committing assault and battery.

There was an incident at a pillow fight in New York a few years ago where a woman was arrested for hitting a cop with her pillow. Don’t do that.

Be sure to check your state laws for laws against fighting or mutual combat. It might be hiding in a catch-all law like disorderly conduct.

What If My Pillow Explodes?
I don’t think pillows explode. I think people cut their pillows so the feathers fly everywhere.

Regardless of the cause of your pillow’s explosion, clean it up. There are laws against littering. If the feathers from your pillow cause any damage, you might be responsible for that too. There was a pillow fight on a rainy Valentine’s Day in San Francisco in 2009. Wet feathers clogged drains and caused ~$20,000 in damage due to flooding and clean-up costs.

Where’s a Good Place to Hold a Public Pillow Fight?
If I were to organize a public pillow fight, I’d look for a big public park. If you’re not on private property (like a mall), it’s harder to be arrested for trespassing. I’d pick a place that does not interfering with other’s enjoyment of the park and wouldn’t block any sidewalks or thoroughfares.

What If the Cops Find Out about the Pillow Fight – Can They Stop It Before It Happens?
I don’t think so, but that doesn’t mean they won’t try. In 2009, the Detroit police confiscated pillows at a park before the fight was scheduled to occur. Carrying a pillow in public is not illegal, so I don’t think the cops had the authority to prevent the fight was happening. I think the better course of action was to warn people about what laws they might break if they strike someone with their pillows and to warn them that they would be cited or arrested if they broke any laws.

The laws that apply to public pillow fights are mainly state criminal laws so be sure to consult your state’s statutes before having a pillow fight. When in doubt, consult an attorney who specializes in flash mob law.

Filed Under: Flash Mob Law Tagged With: , , , , , , , , , ,

8 Questions to Ask Before Posting a Blog

March 29, 2012 by Leave a Comment
No I'm Blogging This by Andre Charland

No I'm Blogging This by Andre Charland

I taught a class this week at Gangplank, an awesome collaborative co-working space in Chandler, on some of the legalities of blogging. It was part of Gangplank Academy. As I was going through my notes in preparation of this class, it occurred to me that there are some critical questions every blogger should ask themselves before publishing a new blog post.

1. Is all the information in your blog verifiable?

2. Is every statement that isn’t verifiable indisputable?
Statements like “My knee hurts like it’s going to rain tomorrow” and “My favorite color is blue” may not be verifiable, but there’s no one who can say those statements aren’t true.

3. Do you accuse anyone of committing a crime?
It’s one thing to say, “My neighbor gives me the creeps,” but you might get sued if you say, “In my opinion, my neighbor’s a pedophile.”

4. Are you sharing any information that you learned in confidence?
When you break up with your partner, don’t write a blog post sharing all the personal information you learned during the relationship like their weird fetishes and habits.

5. Are any of your statements misrepresentations or half-truths?

6. Do any of your statements insinuate anything that isn’t true?
If you write a blog about how you don’t like seeing drug users in the park and you include a photo of a person lying in the grass with their eyes closed, they may be unhappy and sue you if they’re not a drug user but were only taking a nap.

7. Is all your information public? Are you writing about a topic where your subject might have an expectation of privacy?
Your neighbor has no expectation of privacy in how he looks naked if you saw him at a public nude beach. He does if you had to creep up to his house and peer through the cracks in his closed blinds to see him.

8. Is all your information from reputable sources?
If you copy or repeat someone’s defamatory statement, even if you didn’t know it was false, you might get sued for defamation.

I love bloggers who push the envelope and sometimes it’s hard to know when you’re crossing the line. When in doubt, consult a lawyer who is a media expert and always follow my rule: “Never put anything online that you wouldn’t put on the front page of the newspaper.”

Filed Under: Geek Law, Legalities of Blogging Tagged With: , , , , , , , , , , , , , , ,

How To Respond If An Interviewer Asks For Your Facebook Password

March 22, 2012 by 18 Comments

Padlocks by Jon Worth

The news media recently exploded with reports that employers are asking prospective employees for their Facebook passwords. A few years ago, I heard of interviewers asking prospective employees if they could see their Facebook pages. This takes it to a whole new level, and I think it’s disrespectful.

A lot of prospective employees are desperate for work, so I suspect a lot of them are complying with the request. I think a lot of people are shocked by the question and are saying “yes” without fully realizing what they are doing.

If a prospective employer asked for my Facebook password, my first thought would be two choice words (seven letters – you figure it out). Hopefully before those words escaped my lips, I’d temper that thought with something like, “I’m a very private person. I use Facebook to connect with close friends and family. I’d rather not give you that information.” I could follow that up with a statement that all my tweets are public if they want another glimpse into who I am as a person online.

I look at this question like when a police officer asks to look in your bag. They wouldn’t ask the question if they didn’t need your permission. You have the right to say “no” to the cop, just as you have the right to say “no” to prospective employer who asks for your social media passwords.

When a prospective employer asks for your social media passwords, they are opening themselves up for liability. There are a lot of things an employer can’t ask about in an interview, and they can be sued if they make hiring decisions based on things like race, gender, disability, or religion. If they have access to your otherwise privacy protected Facebook page, they may see information like your race, religion, or disability that could influence their hiring decision and put them at risk of getting sued for discrimination.

If anyone asks for your Facebook password, whether it’s your best friend or a prospective employer, the answer is always, “No.” If an employer won’t hire you because you won’t turn over your Facebook password, you don’t want to work for them anyway. A concerted effort from prospective employees pushing back against this question could be enough to make it stop.

UPDATE (3/26/2012): Facebook is warning users not to give their passwords to prospective employers.

Filed Under: Business Law, Employment Law Tagged With: , , , , , , , ,

Form Contracts are the Beginning

March 15, 2012 by Leave a Comment

Signing a Contract by Victor1558Last weekend, I went indoor rock climbing with my friends. It’s not uncommon for me to participate in activities that require signing a liability waiver. I think most people just sign them without reading it. My friends get a kick out watching me read every word and change the terms I disagree with. I respect that these companies want to protect themselves against liability. I accept that I participate in risky activities and as such I might get hurt, but if I get hurt because of their horrific negligence, I want to be able to get them to pay for my injuries that they caused.

The same ideas apply to businesses. A lot of businesses have form contracts that they use for providing services, creating intellectual property, and/or licensing you software or equipment.   I look as these as a jumping off point to begin negotiations.

Whoever writes a contract write the terms that best protect their interests. If a company hires the lawyer, the lawyer writes the best provisions for their client. They may not care about your interests at all. It’s your job to read these contracts carefully and propose the terms and conditions that work best for you. Lots of things may be open for negotiation such as

  • Payment rates,
  • Whether you’re licensing, renting, or purchasing software or equipment,
  • The length of the contract,
  • Whether you can end the contract early,
  • How disputes will be settled, and
  • If their creating intellectual property for your use, who owns it.

There are so many things that could be open to negotiation. It’s best to think of the worst-case scenarios and to protect your interests and assets if one occurs. There may be more than one way to address a potential problem; you and the other side can decide which way works best for the both of you.

If you’re given a form contract and you don’t like a provision, change it and see what the other side says. They may accept it. (Be sure to check with your lawyer so you know how to properly change the contract, or better yet, hire a lawyer to review your contracts before you sign them.) If the other side says they can’t accept an altered contract, ask to speak with someone who can or seriously consider doing business with someone else.  You don’t want to set yourself up to be screwed down the line.

The law generally holds you to the contracts you create, so think hard before signing your name.

In my personal life, I’ve changed contracts and the other side has accepted the changes without question. Sometimes they’ve come back and said they can’t accept it with the changes, and that opened the discussion about what they could accept. Sometimes I have to walk away from an offer if we couldn’t make a deal and sometimes I bind myself to the original contract provisions, but I always know what risks I’m taking and I try to set myself up to be protected.

Filed Under: Business Law Tagged With: , , , , , ,

Why You Need an Operating Agreement

March 8, 2012 by 4 Comments

Sailor race cardboard boat in base competition by Official U.S. Navy Imagery

If you have an LLC and your company has more than one owner, you need an operating agreement. Period.

An operating agreement is a contract between the owners of a business that tells them how they’re going to run their business. Think of it as the owners’ rule book and prenuptial agreement. It puts everyone on the same page from the beginning in terms of what each person owns, what each person is responsible for, and how you’re going to resolve problems.

Your operating agreement can answer important questions like:

  • If an owner wants out, how much notice does he have to give? Do the other owners have first dibs on buying his portion of the company?
  • Do owners ever have to contribute their own money to the business?
  • What do you do if an owner isn’t pulling her weight? Can she be voted out of the company?
  • How will disputes be settled? If there’s an even number of owners with equal votes on each side, what’s the tie-breaker?
  • What happens if an owner dies?

Don’t think that you don’t have to create an operating agreement if you’re going into business with your best friend, spouse, or relative. We all know someone who has gone through a nasty divorce. The same can happen in the break up of a business if there isn’t an operating agreement that tells you how events will proceed.

It may seem strange to think about how you’ll handle problems at the beginning of the business, but it’s the ideal time to put these provisions into place. Hopefully everyone is optimistic and thinking about the business’ best interests which will make it easier to decide the best way to handle major decisions down the road. If you put off figuring out how you’ll resolve disputes until one occurs, you’ll be fighting over how the company should resolve its problems and you’ll be fighting over the problem at hand.

Operating agreements aren’t just about resolving problems. They give you the ability to create the company you want. Some companies may decide disputes in mediation, but you can choose to settle problems with a coin flip, a game of ping pong, or let your dog decide if that’s what you and the other owners want. You can also use your operating agreement to declare other rules like requiring everyone to bring pie to work on March 14th (Pi Day) and allowing video games as an acceptable brainstorming technique.

You’re not required to have an operating agreement if your LLC is in Arizona, but you’re asking for trouble if you don’t. This is one of those times when it’s worth it to pay a lawyer. You will pay a lot less to have someone draft the agreement for you, than to clean up the mess that could result when you and the other owners have a major dispute and everything goes to hell.

Filed Under: Business Law Tagged With: , , , , , , , ,

Copyright Infringement on Pinterest

March 1, 2012 by 21 Comments

My bulletin board (for inspiration) by Monica Arellano-Ongpin

There’s a strong possibility you’re committing copyright infringement on your Pinterest board.

For the sake of full disclosure, I’m not on Pinterest. I don’t need another internet addiction. From what I hear, everyone who’s on it, loves it. Essentially, Pinterest lets you create “boards” where you share pictures of things you like. As you visit various websites, you “pin” things that you like, and add them to our Pinterest boards. Then people who visit Pinterest can see your boards and everything you like.

So Where Does Copyright Come Into Play?
Copyright protection is extended to any original work of authorship that is fixed in a tangible medium. You don’t have to register it with the U.S. Copyright Office to get this protection. When you have a copyright in a picture or other work, you have the exclusive right to copy, distribute, display, and perform the work and to make derivative works based on your work.

If you take a picture, you have the exclusive right to decide where it will be displayed, including on which websites. When someone pins your picture and adds it to their Pinterest board, they likely made a copy of it without your permission. That’s a violation of the Copyright Act.

What About Fair Use?
The Fair Use provision of the Copyright Act allows you to copy a work for the purpose of criticism, comment, news reporting, teaching, or research. Pinning something on your board probably doesn’t qualify as any of these things.

Is Pinning Someone’s Work Ever Ok?
Absolutely! You can pin someone’s work without worrying about being sued if they’ve given you permission to do it. Look for works that come with a Creative Commons license. You may be required to give an attribution to the author when you pin their work. If a work doesn’t have a license, you could always ask the author for their permission to pin their work.

Should I Be Worried about Pinterests Terms & Conditions?
Probably. Have you read them? A woman who is a lawyer and a photographer recently deleted her Pinterest boards after reading them. According to her, Pinterest users agree to some strongly worded terms.  If you are a Pinterest user, you’ve agreed

  • You own or have permission to use everything you pin on Pinterest;
  • That nothing you pin violates or infringes on any third party’s copyright, trademark, or other intellectual property or rights to publicity or privacy;
  • You will defend, indemnify, and hold Cold Brew Labs (Pinterest’s creators) harmless against all claims, damages, and expenses (including legal expenses) related to your use of the site or violations of the site’s terms and conditions; and
  • You accept all the risks related to using the Pinterest site “to the maximum extent permitted by law.”

So, if you and Pinterest get sued for copyright infringement for something you pinned on your board and you lose, you’re required to pay your and Pinterest’s legal fees and the fine assigned by the court. The fine for willful copyright infringement can be up to $150,000. (Hat tip to Cold Brew Labs’ legal counsel on drafting such great terms and conditions!)

What Do I Do If My Copyright’s Being Infringed on Pinterest?
You have three main options when your copyright is being infringed on Pinterest:

  1. Nothing.  If you don’t have a problem with it, do nothing. I think a lot of people select this option because Pinterest exposes their work to a larger audience.
  2. Sue for copyright infringement. This can be a long expensive process, but it’s your best chance for a financial gain.
  3. Send a DMCA takedown notice. If all you want is for your work to be removed from someone’s board, send a Digital Millennium Copyright Act takedown notice to Cold Brew Labs’ statutory agent. The Copyright Act tells you what information you have to include in the notice, or you can find a local attorney to do it for you.  Once Cold Brew Labs gets the notice, they’re required to remove the work that allegedly infringes your copyright.

From what I know of Pinterest, I suspect copyright infringement is occurring on most Pinterest boards. You have to decide for yourself how much risk you’re willing to take. If you need help assessing the legal risk related to your Pinterest boards, contact a copyright attorney in your area.

UPDATE (3/26/2012): Pinterest announced its new terms of service will become effective on April 6th. They allegedly make it easier to report copyright infringement.

Filed Under: Intellectual Property, Photography & the Law Tagged With: , , , , , , , , , , , ,

You’re Screwed if your Social Media Policy Violates the NLRA

February 23, 2012 by 3 Comments

Money by 401K from Flickr

The National Labor Relations Act (NLRA) protects private employees, in particular their rights to “to join together to improve their wages and working conditions, with or without a union,” and it’s enforced by the National Labor Relations Board (NLRB). Employees are allowed to engage in “protected concerted activities,” which includes discussions about wages and work conditions on publicly accessible social media sites.

According to a 2010 survey, nearly 50% of small to medium size businesses don’t have a social media policy, and based on the recent report from the NLRB, I suspect many companies that have social media policies, are in violation of the NLRA. If you’re an employer, you need a social media policy, but it’s critical that it complies with the NLRA.

So, if you fire or discipline an employee based on a social media policy that violates the NLRA, you could be in a world of hurt. Here’s what happens. The employee will file a charge against you with the NLRB. The NLRB will conduct an investigation and have a decision about the merits of the case in 7 to 12 weeks. The NLRB receives 20,000 to 30,000 charges each year.

Here’s the good news – more than 50% of these charges are withdrawn or dismissed.
Here’s the bad news – if the case has merit, you’re probably going to be paying a lot.

If the NLRB decides the case has merit, there’s usually a settlement between the employer and employee – meaning you have to pay the employee for violating their rights. If you can’t come to settlement, the case is decided by an NLRB Administrative Law Judge. The judge may make you provide a remedy to your employee such as giving them backpay and reinstating them in their job.

In 2010, 8,257 cases were decided by NLRB judges. Employers were required to pay over $86 million in backpay and fines. That’s an average of over $10,000 per case! The NLRB judges also required 1,633 employers to offer an unlawfully discharged employee reinstatement of their job – and most of them accepted!

So what’s the worse-case scenario if your social media policy violates the NLRA?

  • You have to pay your unlawfully discharged employee over $10,000 in backpay,
  • Offer them their job back (even though you’d rather they be gone),
  • Fire the person you hired to take the unlawfully discharged person’s place if they accept,
  • Deal with the expense and hassle of an NLRB investigation, and
  • Revise your social media policy so it complies with the NLRA.

If you want to avoid all this financial and professional heartache, make sure your company has a social media policy that’s drafted by an attorney who understands social media and who keeps up with developments from the NLRB. The cost of not doing so is too high.

Filed Under: Business Law, Employment Law Tagged With: , , , , , , , , ,

When Does A Business Exist?

February 16, 2012 by 5 Comments

La Divina Maple Now Open by Infrogmation of New Orleans

Last Friday I had dinner with friends. Many of them are entrepreneurs and/or have major creative side endeavors. One of my friends, Sam, was excited to share that she had created an LLC for her new business. We were all happy for her to strike out on her own. I asked her how long it took to get the approval back from the Arizona Corporation Commission.

“Five days. I had it expedited because I didn’t want to wait,” she said.

Then it struck me – no one tells entrepreneurs that they don’t have to wait to get their LLC approved by the Arizona Corporation Commission before they can open their doors. Unless you’ve taken a class on business formation, you don’t know that you’re are allowed to call your business an LLC and conduct business as an LLC as soon as your file the paperwork and pay the fee. My friend paid an extra $35 for expedited filing because she thought her hands were tied until she her business had been approved. I bet a lot of people make the same mistake because it’s a logical assumption.

One of the first things I did when I opened this firm was file an application for a PLLC. It took almost six weeks to get the letter from the State saying that the Articles of Organization for my business were approved.  While I waited for my approval, I opened bank accounts, purchased software and equipment, created a website, filed my application for trade name protection, and entered into contracts as a PLLC. All of those activities were completely legitimate.  I kept a copy of my PLLC application in case anyone needed proof that I had filed it.

So what’s the take-home lesson? For most people, you can save yourself $35, file a regular LLC application, and conduct your business as an LLC once you’ve sent in your LLC application and fee. Don’t wait for approval from the Arizona Corporation Commission to get your business up and running.

Filed Under: Business Law Tagged With: , ,

New Rules for Company Social Media Policies

February 9, 2012 by 2 Comments

Snark by Loozrboy

The National Labor Relations Board (NLRB) released an update last week with the latest developments in social media and employment. In a nutshell, this report says that you can say a lot online about your workplace and your employer and not get fired.

The law protects employees when they are engaged in a “protected concerted activity.” This includes discussions for mutual aid and protection about wages and work conditions with co-workers and third parties, statements where you are representing your coworkers or are outgrowths of previous employment discussions, and statements that are intended to induce group action. You can be pretty critical of your employer and/or coworkers without getting fired.

You can still get fired if your posts are defamatory, disparaging, or threatening or are simply gripes or rants.

The unexpected take-away from this report was how hard it is for employers to draft a social media policy that isn’t overly broad or doesn’t impede a protected concerted activity. You could tell that many of the employers in the report were thoughtful about their policy’s verbiage, and it was still found to be unlawful.

Based on the NLRB report, here’s what you can’t do with your company social media policy:

  • Restrict all public statements regarding the company,
  • Prohibit disparaging comments about the company on any media,
  • Prohibit employees from communicating with the media without prior authorization
  • Tell employees to avoid identifying themselves as the company’s employees or require approval to identify themselves as an employee,
  • Require all communications on social media sites to be honest, professional, and appropriate,
  • Prohibit “inappropriate conversations” and “disrespectful conduct,”
  • Prohibit engaging in unprofessional communication that could negatively impact the employer’s reputation,
  • Prohibit the disclosure of “confidential, sensitive, or non-public” information unless you provide examples,
  • Require employees to state on every post that they are stating their opinion and not the employer’s (but it’s ok to require this somewhere on their personal accounts), or
  • Require employees to bring “work-related concerns” to the company first.

The only policy described in the NLRB report that found to be lawful was narrow and specific. It prohibited “the use of social media to post or display comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.”

These policies are hard to write and a lawful one requires the employer to accept that they can’t control what their employees say outside of work and that, in a lot of cases, the employees can voice harsh judgment about the company without being at risk of getting fired as long as it’s a protected concerted activity.

Filed Under: Employment Law Tagged With: , , , , , ,
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