Law and Daily Life: December 2010 Archives
Law & Daily Life - The FindLaw Life, Family and Workplace Law Blog

December 2010 Archives

Virtual Visitation: Top 3 Tech Custody Tools

Virtual visitation. It's a sign of the times, and not necessarily in a bad way. It's a new tool for parents to use is difficult custody situations.

U.S. family courts have begun to devise virtual visitation rights allowing parents the ability to interact with their children online, as reported in a recent FindLaw Writ post. "Virtual visitation," has also been referred to as "e-visitation." While obviously parents do not need a court's permission to visit with their own children online, the courts can order such time to be set aside if the custodial parent is not cooperating.

As of now, Florida, Illinois, Texas, Utah, North Carolina, and Wisconsin have virtual visitation laws on the books and more states are considering it.

With that, here are our top three technology tools for easier virtual visitation:

Fired for Whistleblowing: Now What?

Whistleblowers shed light on corruption and wrongdoing. They do so at the threat of losing their job, or worse.

Although there are numerous state and federal protections for whistleblowers, coping with job loss for reporting illegal activity can be both emotionally and financially challenging. It is illegal to fire an employee for reporting illegal employer misconduct and other acts of misconduct.

If you find yourself in such an unenviable situation, one of the most important aspects of asserting your legal rights is painfully obvious: you actually have to assert your rights. States vary but there is usually a fairly small window of time (90-120 days) to step up and speak out.

Our Email More Protected Thanks to Enzyte Case

The male enhancement pill Enzyte may be worthless, but the man behind it has done us all a good turn in another way. In a decision on the appeal of the convictions for fraud and other charges against Enzyte founder Steven Warshak, the 6th Circuit Court of Appeals has confirmed that the government does need a search warrant to search your email. That is, at least if you live in Ohio, Kentucky, Tennessee or Michigan.

However, now that the legal ice has been broken, it is quite possible other federal circuit courts will follow this lead.

Warshak's conviction for defrauding banks and investors was upheld by the court of appeals as we noted on FindLaw's Decided blog. Key evidence of this fraud was found in Warshak's emails, reports Forbes. Under the 1986 Stored Communications Act, the government was allowed to subpoena an Internet Service Provider (ISP) for any emails stored over 180 days and proceed to seize and search those emails without any further court action, such has a warrant.

Your Smartphone Apps Are Spying On You

Is your iPhone secure? Can your CrackBerry be trusted? Is your Droid the Noid? (Yes, that was an 80's Domino's pizza reference.)

Lame jokes aside, privacy advocates and consumers are becoming concerned that our precious little smartphones are storing, tracking and sharing all kinds of unwanted information. Or, more specifically, the apps are tracking them.

Will the Tyler Clementi Family Sue Rutgers?

Will the parents of the Rutgers student who committed suicide this past fall sue the university for their son's death? The parents of Tyler Clementi, who killed himself in a case of cyberbullying. He committed suicide after his roommate allegedly streamed video of Clementi having sex. His parents have now filed a court document indicating they wish to preserve the right to sue.

Jane and Joseph Clementi filed a notice of claim which will protect their right to file a lawsuit within the next few months, reports CNN. The Clementis will undertake more investigation. The notice appears to allege that Rutgers University failed to "enforce policies and practices that would have prevented or deterred such acts, and that Rutgers failed to act timely and appropriately."

FindLaw's Top Ten Legal Issues for 2011

Each year, FindLaw.com, the web's most popular legal information website, releases its list of the top legal issues for the coming year. This year, FindLaw's in-house legal team has reviewed the issues that consumers of legal information have asked about, read about and learned more about, all year long. Based on our knowledge and on the most-searched terms from everyday legal consumers, we have put together this year's FindLaw Top Ten List of Hot Legal Topics for 2011. Here, in descending order, are the FindLaw Top Ten:

10. Immigration: In 2010, the passage of Arizona's SB 1070 turned up the volume on the immigration debate. With President Obama still pressing for the passage of the Dream Act, a recent ruling by the California Supreme Court on in-state tuition for illegal aliens and SB 1070 itself still in the courts, immigration will continue to be an issue for debate far into 2011.

NOW Charges Hooters With Catering to Kids

Hooters wants to have its hot wings and eat them too, legally speaking.

New complaints filed last week against the restaurant chain in Sacramento, San Francisco, San Bruno and Orange County claim that Hooters wants want to be classified as places for sexual entertainment and as a family friendly restaurant -- all at the same time. The National Organization of Women's complaints argue Hooters can't have it both ways.

Hooters has been the subject of many suits for sexual harassment, over uniforms, and as recently discussed in this blog, for weight discrimination. Now, NOW charges Hooters with a completely different and potentially more successful tack. According to the San Francisco Chronicle, NOW says that in the past, Hooters has successfully defended itself against the implementation of federal rules regarding sexual harassment of its servers. Hooters claimed they are in the sexual entertainment business and their waitresses know they will be working in a "sexually-charged atmosphere" Patricia Bellasalma, NOW's California president, told the Chronicle.

Estate Tax Suicide: Dying Just to Avoid Taxes?

The estate tax is a tax on the estate of a deceased person. 2010 represented a year in which, upon dying, no tax was levied against the estate. But with a new year brings new standards and a dramatic departure from 2010. It's been a roller-coaster ride, but some estates may end up getting a huge tax hike -- depending on what Congress does in its final days. One approach to combat the rise .... estate tax suicide.

In this world, nothing is certain but death and taxes. The famous words of Benjamin Franklin are being tested by potential estate tax suicides that find people literally dying to avoid taxes. The cases may not seem as extreme as might first meet the eye. Rather, concerns over an estate tax suicide are thought to be limited to those cases in which an individual is already close to death. Morbid? Yes. Financially prudent? Could be, yes. What type of an affect that such a permanent action would have on say a life insurance policy depends on individual cases.

Don't Ask, Don't Tell Repeal: What's Next?

The secret is out. Don't Ask Don't Tell, the controversial policy which bans openly gay military members from disclosing their sexual orientation, has been repealed 65-31 in a historic senate vote Monday.

The don't ask don't tell' repeal also rested on a detailed Pentagon study looking at the potential effect openly gay servicemen and woman will have on troop morale and combat issues. Opponents of the DADT policy argued that such a ban was a violation of a gay military member's right to due process, free speech and open association.

The 300-page DADT Pentagon report will also be instrumental in what will hopefully be a seamless integration of gay and lesbian soldiers. The report outlines numerous situations that may arise and also poses potential solutions ranging from religious issues to combat concerns.

The central inquiry was whether changes in the policy would affect troop readiness, cohesion or military recruitment and retention. It will be interesting to watch just how each branch will incorporate and embrace the DADT repeal.

Do Seasonal Holiday Employees Have Any Rights?

Holidays are in full swing. Stores are busy and in need of extra hands to help meet the demands of last minute shopping. Last year alone retailers hired 453,600 seasonal holiday employees to work between October and January, according to Inc.

Working as a seasonal holiday employee has its advantages: make extra money over the holidays, short-term work schedule, etc. 

But the unique employment position also begs the question, what rights do seasonal holiday employees have?

Is Job Loss Leading to Suicides?

As we noted in our post on the Florida school board shooting which ended in the death of gunman Clay Duke, his despair over a family job loss and the economic stress he was under lead him to commit a desperate and criminal act. And Duke is not alone. Just days ago, the Mayor of Springfield, Illinois, Tim Davlin, apparently committed suicide rather than face the repercussions from possible accusations of mismanagement of an estate he was overseeing and a federal tax bill of over $90,000. These are tragic individual stories, but do they point to a larger trend?

Suicides historically rise in tough economic times, confirms The Christian Science Monitor. Since the start of the Great Recession, the rate of suicides in the workplace, for example, has increased from 196 in 2007, to 263 in 2008, according to numbers reported by the National Census of Fatal Occupational Injuries. The number of workplace suicides dropped back down slightly in 2009.

Springfield Mayor Tim Davlin Commits Suicide?

The death of Springfield, Illinois, Mayor Tim Davlin is still a mystery.

Reports point to suicide, but this early in the investigation, police will not confirm. Officers received a 911 call and arrived at the home of Mayor Davlin on the morning of December 14 to find the mayor dead of an apparent gunshot wound. There is no information about who made the emergency call.

The Illinois State Police are in charge of the investigation of the mayor's death, reports The State Journal-Register. The Springfield mayor was scheduled to appear at a court hearing regarding the estate of his late cousin, when the news came of his death. His death shocked the city and those who knew him, but Tim Davlin had legal and financial problems.

Discharged Gay Vets Sue For Reinstatement

Yet another suit challenging the constitutionality of don't ask don't tell has been brought before a court. Three decorated, discharged gay veterans filed suit in federal court in San Francisco seeking reinstatement because the law that was used to dismiss them from the military is unconstitutional.

This case is meant as "a shot across the bow" to Congress to compel them make the decision on don't ask before the courts do, reports The Los Angeles Times. The Obama Administration has repeatedly said it wants the law's repeal to come from the legislative branch of government, not from the judicial.

Top 5 Tips for Your Unemployment Hearing

Denied. If that was the response you got after filing an unemployment insurance claim, all is not lost. An unemployment hearing provides the recently unemployed a chance to contest their unemployment eligibility. Be sure to act promptly as there is usually a small window (typically 30 days) to request a hearing.

To begin, knowing the reason for your denial is key to preparing for an unemployment hearing. Claims can be denied for various reasons, including: quitting voluntarily without good cause, misconduct, failing to make a timely request, and making false statements.

The unemployment hearing will be your chance to tell your side of the story. But your former employer, who will be on the hook for benefits if you win, will be eager to present the other side. Bear that in mind before and during the proceedings.

Which Are the Most Ticketed Cars?

Folk wisdom says, don't buy a little red Porsche, you are just be begging for a ticket. But on the list of the most ticketed cars for this year, that little red Porsche was nowhere to be found.

So what takes the cake, or more specifically the ticket? Number one on the list of most ticketed cars, reports Forbes is a Mercedes. The report was compiled by San Francisco-based Quality Planning, based on its review on the average of violation count per 100,000 miles driven. Here is the full list:

Schools, Cops Single Out, Punish Gay Youth

Bullying, whether perpetrated in the real or cyber world, has received a tremendous amount of publicity of late. Now, a new study has found that lesbian, gay, and bisexual teens are becoming the target of another type of bullying: school and criminal punishment.

In a study conducted by Yale University, researchers found that gay youth are more likely to be singled out for punishment by school officials and police. Specifically, gay, lesbian and bisexual students are 40% more likely to get expelled from school and arrested by the police than their heterosexual counterparts, the Hartford Courant reports.

Police stops were the most out of balance when it came to comparing the various groups, with an almost 50% higher chance that a homosexual teen would be stopped.

Elizabeth Edwards' Funeral: Church to Protest

Resting in peace may not come easy at Elizabeth Edwards' funeral. The 61-year-old Edwards, who passed away after a six-year battle with cancer is scheduled to be buried in Raleigh, North Carolina. In attendance will be Kansas-based Westboro Baptist Church to picket the funeral.

The church known to take extreme and public stands against topics has taken a bizarre case against John Edwards' estranged wife. The Huffington Post quotes the Church: "She is now a resident of hell, where her rebellion and rage will take full flower." Westboro Baptist Church made references to the death of Edward's 16-year-old son and the couple's choice to have more children with the aid of fertility treatments as the primary source for their resentment of Elizabeth.

What the Hell? Top 10 'Most Obscene' Cities

Ho, Ho, Tampa, Florida. Santa has a gift for you. 

Did you know you are Number 2 on Business Insider's list of The Most Obscene Cities in America? But fear not Tampa and Pittsburgh and Washington, D.C. suburbs. This list isn't really about obscenity, it's about profanity, and that (in most cases) is protected speech. So you can tell the list to go ... well, you know the words.

State of Our Unions: Less Money, Less Marriage

Marriage ... it's an institute you can't disparage, unless, that is, you are a middle class American.

More middle and working class Americans are not only disparaging the idea of marriage, they are turning their backs on it, according to 2010's The State of Our Unions survey from the National Marriage Project.

In a surprising trend, those with more education are getting married more frequently and staying married longer.

The State of Our Unions marriage study shows a clear trend, reports CNN. Right now, 44% of those with only high school diplomas have children without being married. That is more than three times the rate of having children outside of marriage than it was in the so-called wild 1970s. However, for women with a four-year degree, the rate of having children outside of marriage increased only 6%.

Is YouPorn Wrongfully 'Sniffing' its Users?

Before delving into charges that adult website YouPorn is wrongfully sniffing its users, let's first discuss just what is sniffing? "Sniffing," or "history sniffing," is a technique in which a website uses surreptitious technology to harvest information about websites a user has visited. The browsing history would ostensibly then be sold to better target marketing efforts.

In a complaint filed in federal court, two California plaintiffs seek unspecified damages from YouPorn, alleging that the website was sniffing their browser history in violation of cybercrime and consumer protection laws.

Passengers are Stripping for TSA Agents

The new TSA procedures have instilled an array of reaction in air travel passengers. Many are worried about airport body scanners radiation; other are upset about being felt up in the now infamous TSA pat downs.

From pasties designed to block the screening to National Opt Out Day, passenger reactions to the enhanced pat-downs and screenings have been making as many headlines as the procedures themselves.

Recently a man walked through Phoenix's Sky Harbor airport with nothing but a Speedo on and "I Heart TSA" written on his back. Whether this was a form of protest or support is still unclear. The video has since been posted on YouTube and has received over 10,000 views to date.

Best Ways to Avoid the Holiday Custody Crunch

The holidays are a time for family, but family is a challenging concept if you are divorced and share custody of your child or children. 

How do you work out a way for each parent to have some time with the kids during the holidays without it devolving into a pine-scented fight? 

Here are a few ideas to help make your holidays more Happy Days, and less Law and Order.

Prop. 8's Day in Court Begins With 'Standing'

All eyes are on San Francisco today as the high-profile Prop. 8 appeal beings with an interesting legal question: Do these particular parties even have the right to argue this case?

Arguments in the Prop. 8 appeal begin with two one-hour sessions devoted to standing and the constitutionality of the voter-approved proposition that defined marriage as between a man and a woman. The latest Proposition 8 arguments represent an appeal of the highly-publicized August ruling by Vaughn Walker that found Prop. 8 to be in violation of the Equal Protection and Due Process clauses of the U.S. Constitution.

The basic legal principle of standing is first up before the judges, and it will serve as a gatekeeper for the second argument. Specifically, the issue before the 9th Circuit will be whether Imperial County (where voters overwhelmingly supported the proposition) and other members to the suit have the right to bring the issue before the court in the first place.

Essentially, the randomly chosen three-judge panel will determine if ProtectMarriage, a group that may not be directly affected by the latest Prop. 8 ruling, can even bring their case. The panel will also hear whether a California county, and not the state that regulates marriage, can bring their appeal.

Top 3 Things To Do When You Get Fired

Whether the famous words come from Donald Trump's mouth, or a different boss, "You're Fired" is always an unwelcome phrase to hear.

Losing a job is challenging both emotionally and financially. But there are certain steps an employee should consider if a job comes to an end. Here are the top things to do when losing your job:

1. Finalize Things at Work: At the top of the list of things to consider when losing your job should be to finish things at your job. From collecting your final compensation package to determining whether you are entitled to severance pay, there are a lot of loose ends to attend to, even if it is not an amicable parting. Your former employer will also have to sign off on any unemployment compensation you may be eligible to receive in the coming months. Of course, getting fired is not the time to get fired up yourself. If you feel like your dismissal was in some way unlawful then handle the situation with a lawyer, not with words and actions you might regret.

Nearly 10% of Americans are Unemployed

"So how's that hopey changey thing workin out for ya?" It was one of Sarah Palin's digs at President Obama's campaign messages for hope. Critics such as Steven Colbert mocked her, suggesting a campaign slogan for her based on that theme: Palin 2012: Abandon All Hope That Anything Will Ever Change.

But politics aside, one thing remains clear--the economy is still not where most people would like to see it.

A new unemployment report underscores that fact. Employment barely crept forward in November while the jobless rate hit an unexpected seven-month high. 

The unemployment rate in November hit 9.8 percent. If unemployment stays in that range, it could be a major problem for President Barack Obama in 2012. Presidents are often judged upon the economy, and regardless of whose fault it is, Obama is likely to take much of the blame.

Could Apple Lose Right to Sell U.S. iPhones?

It seems that nearly everyone has or has seen one of those newfangled smartphones. They seem to do everything and be everywhere. But you might not know that a legal war is brewing over the touch screen technology on smartphones.

Apple and Nokia are embroiled in a massive patent lawsuit over smartphone technology. The International Trade Commission is set to hear the issues in a case that will have major repercussions on the smartphone market. The conflict first landed in court in 2009 after Nokia filed a patent suit against Apple. Nokia alleged that Apple infringed on 10 Nokia patents when it created the iPhone. The iPhone has been a huge hit, with over 73 million units sold.

Golfer Lana Lawless Drives LPGA Rule Change

The LPGA players, collectively, just hit a hole in one.

The players voted to remove the "female at birth" requirement from the association's constitution during their year-end meeting at the LPGA Tour Championship in Florida. One woman who will certainly call the change a win is transgendered golfer Lana Lawless, whose suit against the LPGA spurred the move.

As discussed in a prior post, former police officer and women's long-drive champ Lana Lawless filed suit in October claiming the policy of the LPGA discriminated against her on the basis of her sex in violation of California's civil rights law, the Unruh Act. A second defendant in Lawless's suit was the Long Drivers of America, who changed their rules to mirror those of the LPGA after Lawless won the 2008 tournament. When she wanted to apply to compete in 2009, she was told she was ineligible.

Judge Refuses to Step Down in Prop. 8 Case

A motion that Ninth Circuit Court of Appeals Judge Stephen Reinhardt remove himself from the panel hearing arguments in the Proposition 8 appeal has failed. 

Proponents of California's law banning same sex marriage asked the judge to recuse himself from the case because his wife, Ramona Ripston, is a strong opponent of Prop. 8 and the executive director of the ACLU of Southern California. The ACLU is not a party to the appeal.

After considering the motion, Judge Reinhardt ruled he would not recuse himself and that he would absolutely be able to rule impartially, reports the San Francisco Chronicle. In their motion to disqualify Judge Reinhardt, lawyers for Protect Marriage (a group supporting the law) said the judge's impartiality could "reasonably be questioned" due to his wife's involvement in the issue. The judge's order denying the motion said that while he recused himself when the ACLU was a party to the case before him, that was not the situation here.

FindLaw Survey: Most Americans Don't Have a Will

Do you have a will? Chances are you answered no to that question.

A new survey by FindLaw.com confirms that just over half of adult Americans don't have a will. Whether it is just a lack of planning, or an unwillingness to think about unpleasant things, most of us have not taken the time to sit down and make clear what we want to happen to the things (and even people) we care about most after we die.

Not surprisingly, younger people are even less likely to have a will, the FindLaw survey finds. Of those between the ages of 18 and 34, only one in six have a will. As we get older and more affluent however, the numbers change. For those over 55, the majority do have a will. It is also interesting to note that the numbers of people lacking a will have been remarkably consistent since FindLaw.com began measuring the prevalence of wills in 2001.

Airport Scanner Privacy Products Hit Market

The phrase, if you can't beat them join them, immediately comes to mind after perusing the latest airport body scanner privacy products. Part mockery, part protection measures, the new items such as a strategically placed fig leaf underwear and "flying pasties" are being marketed as a chance to keep your dignity while going through the new measures at the airport body scanners.

The most obvious problem with the body scanner products is that while they try to avoid a privacy intrusion, they may actually be inviting more intrusions.

If the x-rays and body scanners show any type of object hidden under a passenger's clothes, then it is an automatic ticket to an "enhanced" full body pat-down. Thus, if the products provide the type of protection they tout, they are also seen as blocking the scanner. Oh the irony.