Legal Common Sense Seminar

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Kegler Brown and the Center for Operational Excellence at The Ohio State University presented "Legal Common Sense: Tips + Trends for the Professional Woman" on Thursday, January 16.

Attorneys Rasheeda Khan, Loriann Fuhrer, Vinita Bahri-Mehra and Stephanie Union discussed the following: employment and social media; doing business internationally; information on Ohio's OVI laws; and balancing work and personal life.

Published in: Social Media, Business, Career
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  • After the Japanese tsunami claimed the lives of more than 15,000 people.
  • Scott Bartosiewicz was a social medial strategist for New Media Strategies, which held the Chrysler social media account. Bartosiewicz was fired after he tweeted this from Chrysler’s corporate Twitter account, mistakenly believing he was on his own account. Chrysler didn’t renew its contract with New Media Strategies.
  • All cases in which the National Labor Relations Board concluded the employer violated the NLRA by firing employees for engaging in protected concerted activity. If it is protected speech if undertaken through ordinary conversation, it is protected if undertaken over social media.
  • So, for example, a Wal-Mart manager was fired after she accused an associate publicly, on Facebook, of lying about the reason she was off work. The associate had called in sick, and then posted photos of herself at a party. Instead of following Wal-Mart’s policy of discussing her concerns directly with the employee, the Manager criticized her publicly, on Facebook, and was fired. The federal court in Texas upheld the termination.Recommend that employers make clear, in a Social Media policy, what that employer’s standards are for social media conduct. Which of these things does the employer consider to be grounds for discipline?
  • Let’s talk about social media policies a little bit, and I want to go back to the story of Laraine Cook….I’m not advocating one way or the other on whether Laraine Cook should have lost her job, but I do think the outcome might have been different if the school district had had a social media policy, and I think it is always a more fair thing to be clear on what the rules are.Social Media Policy: I have slides and a checklist for developing a social media policy. If you want materials relating to that, send me an email, and I can send you those slides.
  • Last one: If the information you obtained through social media is evidence that puts the employee in a protected class, you have to consider the degree to which terminating based on that evidence puts you at risk for a discrimination claim. That fact that you learned the information over social media does nothing to alter the law that you can’t fire someone in a protected class for a discriminatory reason. This also applies to hiring decisions, which is the next topic….
  • From a Careerbuilder study discussed in July 2013.
  • Caution: Public social media pages might reveal information about an applicant, such as a pregnancy, arrest record, medical condition or other facts employers are not permitted to use when making hiring decisions. Once an employer has knowledge, you lose the ability to argue there is no possibility of discrimination because you didn’t know about it.If you are going to look at social media pages, you should consider using a third party, or an internal person who sanitizes the information before sharing. (But, be careful, even seemingly innocuous information can be argued to be related to a particular ethnic or religious group.)Ex: “Speak truth to power” taped across mouth – since learned that phrase was coined by the Quakers
  • How many of you have had to assist your organizations with discovery obligations relating to a lawsuit? Then you know that discovery is the gathering and exchange of information that is relevant or likely to lead to the discovery of information relevant to the claims in a lawsuit. Increasingly, in particular in employment litigation (but by no means limited to that context), parties are seeking and getting discovery of social media.
  • Adverse inference, permits the jury to decide that the destroyed evidence was harmful to the party that destroyed it.If you have information on social media that is relevant to a lawsuit brought against your company, you are likely under a duty to preserve it once you become aware of the litigation. If you
  • Nothing you do with your privacy settings affects this. {Although it does affect the amount of information an opposing party can see without going through the trouble of a discovery request.} While you need to consider that keeping your posts as private as possible makes it harder for opposing parties and counsel to see what you’ve been posting, you also need to know that taking advantage of privacy features on social media is not going to shield your posts from discovery, if they become relevant to a litigation.Some courts have granted requests that the information be reviewed by the judge in chambers before production of only what was necessary for the case to proceed; one federal magistrate judge event agreed to open his own facebook account and to “friend” the plaintiff and other witnesses, in order to minimize the amount of information shared with the opposing party.
  • I’m sure you’re tired of hearing my thoughts, so let me leave you to consider two thoughts that aren’t mine. First, “You are what you share.” But, when we’re sharing, we might do well to also consider these immortal words:
  • Thank you for tolerating me. I’ll be around at the happy hour and would love to talk with anyone who’s interested in more nerdy discussion then.
  • Legal Common Sense Seminar

    1. 1. z
    2. 2. z Information Everyone Should Know About Drinking + Driving in Ohio presented by Rasheeda Khan January 16, 2014
    3. 3. z The Basics: Ohio OVI Law +R.C. 4511.19 – prohibits the operation of a vehicle while under the influence of alcohol, a drug of abuse or both, OR with a specified concentration of alcohol or certain controlled substances or metabolites of those substances.
    4. 4. z The Basics: Ohio OVI Law +No operating a vehicle while under the influence of alcohol and/or drugs. +No operating a vehicle with a specified concentration of alcohol or drugs.
    5. 5. z The Basics: Ohio OVI Law +Operation +Vehicle = cause(d) movement = car, truck, boat, snowmobile, tractor, bicycle, tricycle
    6. 6. z You are Guilty of OVI if: +you test over .08 and are not impaired. OR +you test under .08, but are impaired.
    7. 7. z You are Guilty of OVI if: +“Under the influence” = consuming enough to adversely affect or impair your ability to drive.
    8. 8. z Penalties – First Offense OVI +First Degree Misdemeanor – punishable up to 6 months in jail / $1000 fine. + Mandatory minimum: +Driver’s 3 days in jail or DIP, $375 fine License Suspension – up to 3 years + Mandatory Minimum: +Reinstatement 6 month suspension Fee: $475
    9. 9. z What to Expect if Pulled Over
    10. 10. z Typical OVI Arrest Scenario +Evening Hours +Driver gets pulled over for minor traffic violation or an accident occurs +Officer +Note: suspects you are under the influence It is permissible to pull you over for even minor traffic or equipment violations.
    11. 11. z Important +Any time you are pulled over and have been drinking, expect to become the subject of a criminal investigation +ANYTHING YOU AGAINST YOU!! SAY OR DO CAN AND WILL BE USED
    12. 12. z Irrelevant Statements +I only had a couple of drinks. +I am on my way home. Home is only a block away. +I am fine to drive.
    13. 13. z Test for Arrest = Probable Cause +Based on the totality of circumstances +Miranda Rights do not apply until you are under arrest
    14. 14. z Probable Cause in an OVI +Slurred +Odor speech of alcohol +Bloodshot/glassy eyes +Admission +Bad of drinking “just had a couple” driving
    15. 15. z Field Sobriety Tests +Horizontal +Walk and +One Gaze Nystagmus (HGN) Turn Legged Stand +Just because you didn’t throw up or fall down, doesn’t mean you passed the test! +These tests are voluntary!
    16. 16. z Unstandardized Field Sobriety Tests +Alphabet +Finger / Alphabet backwards to nose +Portable Breath Test
    17. 17. z Do You Take the Test or Refuse? + After arrest: Officer will ask you to take a chemical test + If you test .08 or over, you will lose your license for 6 months. + If you refuse to take the test, you will lose your license for 1 year. + Remember: even if you test UNDER .08, you can still be charged and convicted of OVI. + After arrest, you may or may not go to jail.
    18. 18. z Next Steps +Court date in 5 business days +Arraignment + Decisions to make: Plead Guilty, Plead Not Guilty, Ask for a Continuance +Typical Reductions + Reckless Operation + Physical Control
    19. 19. z Lesson: Get a Cab! Don’t assume that if you only had 2 glasses of wine, you will not be charged with OVI.
    20. 20. z Thank You! Rasheeda Khan, Director Kegler Brown Hill + Ritter rkhan@keglerbrown.com keglerbrown.com/khan 614-462-5481
    21. 21. z Social Media + the Workplace presented by Loriann E. Fuhrer January 16, 2014
    22. 22. z #HasJustineLandedYet
    23. 23. z +“Japan is really advanced. They don‖t go to the beach. The beach comes to them.” +“I just split up with my girlfriend, but like the Japanese say, ―They‖ll (sic) be another one floating by any minute now.‖” -Gilbert Gottfried
    24. 24. z [Intentionally Left Blank] 
    25. 25. z +“I find it ironic that Detroit is known as the #motorcity and yet no one here knows how to [bleep]ing drive.”
    26. 26. z Common Sense Takeaways +Slow Down +Resist the lure of the “Like” +Understand +Be the true audience mindful of the technology
    27. 27. z National Labor Relations Act +Protected Concerted Activity + the right to act together to try to improve their pay and working conditions, with or without a union +Protected Speech + Discussion of Wages or Hours + Discussion of Working Conditions +Avoid policies that “would reasonably tend to chill employees in the exercise of” rights +Cannot prohibit “friend”-ing of co-workers
    28. 28. z Trouble in Mind… +Construction contractor fires employees who appeared in a YouTube video complaining of hazardous working conditions. +Clothing store fires employees for complaining on Facebook about the fact that their employer wouldn‖t close the store an hour earlier, when the other stores closed. +Engineering firm fires employee for discussing salary information with co-workers.
    29. 29. z Not Protected Speech: +Posting confidential company information +Posting information about the company‖s products or services, as opposed to working conditions +Posting information relating to customers or competitors +Posting harassing or other personal comments about co-workers that are not related to terms and conditions of employment +Mere “venting” or “gripe sessions”
    30. 30. z Laraine Cook Revisited +Hearing Panel reversed termination +Inappropriate conduct and bad judgment, but termination unfair remedy +No Social Media Policy in place, or “may have been avoided” +Ordered to “adopt a social media policy to avoid confusion about standards of conduct….”
    31. 31. z Use of Social Media in Firing +Before terminating based on information obtained through Social Media, consider: + Does your policy clearly prohibit the conduct? + Is the speech protected as “concerted action regarding terms and conditions of employment” under NLRA? + What is the risk of a claim that the termination was motivated by discriminatory intent?
    32. 32. z Employer Use of Social Media in Hiring Decisions +39% of employers use social media to evaluate candidates +43% say information from social media factored into decision NOT to hire +19% say information from social media factored into decision TO hire
    33. 33. z Use of Social Media in Hiring +Employers are not prohibited from accessing public social media pages when hiring +Do not request usernames and passwords +Do not “faux friend” +Caution: Cannot unlawfully discriminate based on information obtained via social media +Use third party or walled-off employee
    34. 34. z Discovery of Social Media +Relevance in Employment Cases: + Refute disability or medical condition (ADA, FMLA) + Hostile work environment – what is “hostile” or “offensive”? + Damages – extent of emotional distress; failure to mitigate +Accessing Social Media Posts: + Publicly available is fair game + No fake friending or using employee‖s friend as intermediary + Request through formal discovery requests
    35. 35. z Duty to Preserve +Obligation on every party to litigation not to destroy or permit destruction of relevant evidence +Duty arises when party knows of, or reasonably anticipates, litigation +Sanction for destruction of evidence is “adverse inference”
    36. 36. z +“Although privacy concerns may be germane to the question of whether requested discovery is burdensome or oppressive and whether it has been sought for a proper purpose in the litigation, a person‖s expectation and intent that her communications be maintained as private is not a legitimate basis for shielding those communications from discovery.” • EEOC v. Simply Storage Management, LLC, 270 F.R.D. 430 (S.D. Ind. May 11, 2010)
    37. 37. z +“You are what you share.” • Charles Leadbeater, We Think: The Power of Mass Creativity
    38. 38. z +“There are many things of which a wise (wo)man might wish to be ignorant.” • Ralph Waldo Emerson
    39. 39. z Thank You! Loriann E. Fuhrer, Director Kegler Brown Hill + Ritter lfuhrer@keglerbrown.com keglerbrown.com/fuhrer 614-462-5474 614-774-6127 (mobile)
    40. 40. z International Trade in a Legal Context presented by Vinita Bahri-Mehra January 16, 2014
    41. 41. z International Trade in a Legal Context +Goods, services, technology, contract rights, money and/or people are moving from one market or legal jurisdiction to another market or legal jurisdiction. +The cross-border nature of the trade and exchange means that the law of two jurisdictions or markets/countries apply to the transaction as well as principles of international law.
    42. 42. z Exports from a Market Equals Imports Into a Market Export Goods, Services, Technology, IP, People, Money from USA Import Goods, Services, Technology, IP, People, Money into Foreign Market
    43. 43. z Laws that Apply to International Trade 1. The specific laws of each nation and this includes not just the national or federal laws but also the laws of political subdivisions within a nation such as states, provinces, cities, etc. 2. Public International Law which is the law that governs the relationship among countries and international entities—tax treaties, multi-country agreements such as Convention on International Sale of Goods
    44. 44. z Laws that Apply to International Trade 3. Private international law which is the procedural law that governs or determined what laws will apply to a cross border matter or dispute. 4. Supra national laws which are the laws of regional agreements such as the European Union and trade blocks such as SAARC, Asean, NAFTA. (e.g., India, China, Singapore, Thailand, USA).
    45. 45. z Export/Import Laws of U.S. + Foreign Market USA export laws re: goods, services, technology, IP Export Controls, ITAR, OFAC Foreign Markets Import laws re: goods, services, technology, IP, approval and registration of products, services, technology
    46. 46. z Financial Laws of U.S. + Foreign Market USA Finance laws re: Transfer of Money to Foreign Country and financial reporting, foreign bank accounts, transfer pricing issues, taxes Foreign Markets Financial Control Laws re: foreign currency, foreign investments, transfer pricing, financial reporting, taxes, import duties and fees
    47. 47. z Laws Affecting the Private Relationship of Parties USA laws applicable to contracts, sale of goods, services, technology, IP, financing, resolving conflicts Foreign markets laws re contracts, sale of goods, services, technology, IP, solving conflicts International treaties on IP, Sale of Goods, Contracts, Resolving Conflicts, Taxes
    48. 48. z International Trading or Transfers +The transfer/movement of goods, services, technology, money and/or people can be: +a physical transfer + an electronic transfer + a transfer of rights (such is IP rights in Trademarks, Patents, Copyrights, Trade Secrets)
    49. 49. z Buying Music with a Smart Phone +A physical device designed in US, made in China, sold in Brazil using US technology and IP. +User in Brazil orders music that is downloaded electronically from servers in Europe and including a limited transfer of IP rights to the purchaser which also leads to electronic payment authorizations from a local bank in Brazil and payment anywhere in the world.
    50. 50. z Principal Means of Cross-Border Business + Exporting + Importing + Sales Agents in foreign country + Employees in foreign country + Contract Manufacturing + Joint Venture + Foreign Subsidiary + Distributorship + Franchises + Licensing and other contractual arrangements
    51. 51. z Global Mindset +Successful mindset +The international business requires a global ability to develop and interpret criteria for personal and business performance that are independent from the assumptions of a single country, culture, or context; and to implement those criteria appropriately in different countries, cultures, and contexts.
    52. 52. z Due Diligence – Risk Analysis + Analysis of Opportunity Requires Risk Analysis Market Risks (unexpected market changes, raw material prices, supply problems, new competitors) Regulatory Risks (changes in regulatory scheme) Socio-Political Risks (political/social instability/changes to government programs)
    53. 53. z Due Diligence – Risk Analysis + Economic/Financial Risk (non-payment by third parties, changes in monetary exchange rates) + Operating Risks (inability to maintain high standards of efficiency and production, infrastructure problems, labor issues) + Management Risks (inability to comply with international ethical and compliance norms; poor fit with local culture)
    54. 54. z Due Diligence on Foreign Market Structures + Culture + Government + Political Environment + Judicial System/Dispute Resolution/Governing Law + Transparency, fairness, IP protection, rule of law + Taxation system on imports, income, and sales + Ease of repatriation of funds and earnings + Ease of starting a business and types of structures + Ease of avoiding permanent establishment + Ease of enforcing contracts + Labor/Employment/Immigration Laws
    55. 55. z Things to Ponder + Do Business Internationally…the Global Way: ‘Think Global, Act Local’ + P&G‖s – Shampoo Sachet + Kellogg‖s – no to cold cereals? + McDonalds – ―McVeggie Burger‖ & ―McAloo Tikki‖ + Pizza Hut/Pizza Express – spicing it up + Oreo Cookies – Mint Flavor + Due Diligence is the Key + Knowledge of international business and legal environment leads to steady growth.
    56. 56. z Legal Advice + This presentation is designed to provide an overview of a number of legal principles and considerations. + As each legal issue is fact dependent, this presentation should not be used or viewed as legal advice, and your legal counsel should be consulted on the application of your particular factual situation to the current law. + Copyright: 2014 Kegler, Brown, Hill + Ritter LPA
    57. 57. z Thank You! Vinita Bahri-Mehra, Director Asia-Pacific Team Leader Kegler Brown Hill + Ritter vmehra@keglerbrown.com keglerbrown.com/bahrimehra 614-255-5508 614-464-2634 (fax)
    58. 58. z

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