So, now we know your employer can watch you while you work. But what about the limits of allowing someone to watch you when you are out of work - like at a department store? I'm reminded of that episode of the Jeffersons (a million years ago) when Florence gets a job in a department store. All of the mirrors in the dressing rooms are actually two-way glass with security guards on the other side of the glass who watch people try things on and make sure nothing gets shoplifted. Florence gets assigned to watch the dressing rooms and is hopelessly conflicted when shes a woman try to stuff some article in her purse. Anyhow.....
While it may make for funny in a 70s kind of way tv, you need not fear that you are being observed naked in the dressing room under fluorescent light. Florida law does not allow for a store to place you under surveillance in the dressing room or any other place where you might have a "reasonable expectation of privacy." The Florida Legislature even passed a statute on this - §877.26 Fla. Stat.
And, just so you know, not only is it illegal to be watched, but it constitutes a crime to violate the statute. Nice.
Now, there are some limitations on this prohibition. Your right to privacy extends only so far as the dressing room really. Remember, you only have a right to be free from being watched in those areas where there is a reasonable expectation of privacy. If you step out of the dressing room to show your sister how great some dress looks or just how bad the outfit she picked out for you is, you will be in a place where it's perfectly ok to have cameras and be observed by store employees. Beware.
You could, of course, just do yourself the favor and stay in the dressing room.
Tuesday, January 6, 2009
Monday, January 5, 2009
All Eyes On You
Happy New Year, everyone!!! Today's entry is a special request and very much related to the major constitutional issue of this new millennium - privacy. Specifically, just how much privacy do you have in the workplace? Can your employer place you under surveillance?
The answer here is a qualified "yes." Unlike your home, there is a lessened right to privacy at your employment. Florida recognizes the tort of invasion of privacy and, as regards your personal life, the stretch of this privacy is pretty broad. If you, for instance, decide to videotape whatever is going on in your neighbor's house without his/her consent or permission, your neighbor's privacy has been invaded and would have a claim against you (and would also likely accuse you of being a sicko).
At work, however, you are handling the assets - tangible and intangible - belonging to someone else, whether they belong to the employer himself/herself or the shareholders. As a result, many employers keep an eye on what those persons who have no fiduciary relationship to the asset owner might be doing.
From what I was able to find on my short journey down this road, keeping your employees under surveillance (by having other employees watch over them or by camera, etc.) to protect a legitimate business interest is ok provided it is not undertaken in a "vicious and malicious matter not reasonably limited to a legitimate purpose."
Sound inky, fuzzy, not clearly defined? You would be correct. There is no strict enumeration of what would be considered legitimate business interests (but the case law concerning legitimate business interests is pretty varied) and what constitutes a vicious or malicious manner is not well-defined. So, I'm going to tell you the same thing every law professor told us confused law students whenever we were looking for a bright line rule or a clear answer - "Each case is decided on its own particular facts."
The answer here is a qualified "yes." Unlike your home, there is a lessened right to privacy at your employment. Florida recognizes the tort of invasion of privacy and, as regards your personal life, the stretch of this privacy is pretty broad. If you, for instance, decide to videotape whatever is going on in your neighbor's house without his/her consent or permission, your neighbor's privacy has been invaded and would have a claim against you (and would also likely accuse you of being a sicko).
At work, however, you are handling the assets - tangible and intangible - belonging to someone else, whether they belong to the employer himself/herself or the shareholders. As a result, many employers keep an eye on what those persons who have no fiduciary relationship to the asset owner might be doing.
From what I was able to find on my short journey down this road, keeping your employees under surveillance (by having other employees watch over them or by camera, etc.) to protect a legitimate business interest is ok provided it is not undertaken in a "vicious and malicious matter not reasonably limited to a legitimate purpose."
Sound inky, fuzzy, not clearly defined? You would be correct. There is no strict enumeration of what would be considered legitimate business interests (but the case law concerning legitimate business interests is pretty varied) and what constitutes a vicious or malicious manner is not well-defined. So, I'm going to tell you the same thing every law professor told us confused law students whenever we were looking for a bright line rule or a clear answer - "Each case is decided on its own particular facts."
Monday, December 15, 2008
Liquid
We sure do hear a lot about liquid these days - stock markets, personal investment portfolios, the Everglades water table, county water restrictions. This liquid theme inspired me to discuss the liquidated damages provision found in many contracts (based solely upon word association).
Many service contracts contain a liquidated damages provision. It typically provides that unwarranted termination or breach will result in the breaching party paying an agreed to amount as liquidated damages to the other party instead of suing for breach of contract and trying to otherwise ascertain the damages occasioned by the breach.
Why would a contract contain such a provision? Well, as I pointed out above, these clauses are usually found in service contracts where (unlike contracts for the sale of 4,000 widgets at $5.00 a piece) ascertaining the exact value obtained from the provision of a service can be difficult to calculate. In fact, that's the hallmark of a liquidated damages provision- the difficulty, if not impossibility, of determining what the true value of any damages caused by a breach would be.
Agreeing to such a provision assists in lending predictability to the parties' contractual dealings. If something goes wrong, both parties know exactly what the outcome should be down to the penny.
There is, however, an important limitation to the liquidated damages provision. Because it is intended to streamline the parties' relationship and provide predictability where there might otherwise be none, the value of the liquidated damages cannot be tantamount to a penalty. It is improper to insert a liquidated damages that would penalize the breaching party for breaching the contract instead of trying to approximate fair compensation.
Let's give an example. Suppose you have a contract to paint Bob's house. You can fairly estimate that it will cost $2,000 in paint and supplies and about 15 hours of labor (at $35.00 per hour) to paint Bob's house. This is a contract that would be perfect for a liquidated damages provision. You could, in the interest of expediency, include a liquidated damages provision for $2500 (the cost of paint, supplies and estimate of labor). You could not include a provision for $100,000 - this would clearly be a penalty wholly out of proportion to the contract's value.
Many service contracts contain a liquidated damages provision. It typically provides that unwarranted termination or breach will result in the breaching party paying an agreed to amount as liquidated damages to the other party instead of suing for breach of contract and trying to otherwise ascertain the damages occasioned by the breach.
Why would a contract contain such a provision? Well, as I pointed out above, these clauses are usually found in service contracts where (unlike contracts for the sale of 4,000 widgets at $5.00 a piece) ascertaining the exact value obtained from the provision of a service can be difficult to calculate. In fact, that's the hallmark of a liquidated damages provision- the difficulty, if not impossibility, of determining what the true value of any damages caused by a breach would be.
Agreeing to such a provision assists in lending predictability to the parties' contractual dealings. If something goes wrong, both parties know exactly what the outcome should be down to the penny.
There is, however, an important limitation to the liquidated damages provision. Because it is intended to streamline the parties' relationship and provide predictability where there might otherwise be none, the value of the liquidated damages cannot be tantamount to a penalty. It is improper to insert a liquidated damages that would penalize the breaching party for breaching the contract instead of trying to approximate fair compensation.
Let's give an example. Suppose you have a contract to paint Bob's house. You can fairly estimate that it will cost $2,000 in paint and supplies and about 15 hours of labor (at $35.00 per hour) to paint Bob's house. This is a contract that would be perfect for a liquidated damages provision. You could, in the interest of expediency, include a liquidated damages provision for $2500 (the cost of paint, supplies and estimate of labor). You could not include a provision for $100,000 - this would clearly be a penalty wholly out of proportion to the contract's value.
Thursday, December 4, 2008
Beware the Indemnity Clause!
I'm glad I'm not the one who has to explain this to the client - and, for the sake of the lawyer's sanity and my ethical obligations, I will not say whose client it is or who is about to the wind knocked out of their sails.
If you take a look at your business agreements - especially those of you who recently re-modeled any part of your home - you will likely find and indemnity provision. It basically provides that you will pay the other contracting party the value of any judgment (usually including costs and attorneys' fees) entered as a result of some liability arising because of the other guy's contractual performance for you.
Example: you hire a contractor to remodel your bathroom and the contract has an indemnity provision. Contractor breaks the water main while performing the work, which floods the neighbor's house, as well as yours. Not surprisingly, the neighbor sues you and the contractor. Under the indemnity provision, you get to pay for the judgment against the contractor, plus his attorneys' fees and costs. Neat, huh?
Now, this example is somewhat academic since the reality of the situation is that your liability is not likely to be very different from the contractor's and the damages imposed against one won't be any different than from the other. So, you two will share a single liability.
Now, on to today's problem for my anonymous attorney acquaintance. She/he represents a large company defending a lawsuit for significant money. Her/his client provides a service, which is delivered by party B and billed for by party C. The client's contracts with B and C each have indemnity provisions. All three got sued. The client believes it can win its suit against the unhappy customer. B and C do not. B and C are about to settle their claims with the customer and try to recover their few million in settled exposure from the client under the indemnity provisions. The law seems to support the idea that they can do this under the type of claims asserted.
I think this is the wrong result under public policy, even if it is the right result under the law. That said, the provisions are enforceable and the client is about to learn the unfortunate consequences of spreading its risk and losing control of the consequences.
If you take a look at your business agreements - especially those of you who recently re-modeled any part of your home - you will likely find and indemnity provision. It basically provides that you will pay the other contracting party the value of any judgment (usually including costs and attorneys' fees) entered as a result of some liability arising because of the other guy's contractual performance for you.
Example: you hire a contractor to remodel your bathroom and the contract has an indemnity provision. Contractor breaks the water main while performing the work, which floods the neighbor's house, as well as yours. Not surprisingly, the neighbor sues you and the contractor. Under the indemnity provision, you get to pay for the judgment against the contractor, plus his attorneys' fees and costs. Neat, huh?
Now, this example is somewhat academic since the reality of the situation is that your liability is not likely to be very different from the contractor's and the damages imposed against one won't be any different than from the other. So, you two will share a single liability.
Now, on to today's problem for my anonymous attorney acquaintance. She/he represents a large company defending a lawsuit for significant money. Her/his client provides a service, which is delivered by party B and billed for by party C. The client's contracts with B and C each have indemnity provisions. All three got sued. The client believes it can win its suit against the unhappy customer. B and C do not. B and C are about to settle their claims with the customer and try to recover their few million in settled exposure from the client under the indemnity provisions. The law seems to support the idea that they can do this under the type of claims asserted.
I think this is the wrong result under public policy, even if it is the right result under the law. That said, the provisions are enforceable and the client is about to learn the unfortunate consequences of spreading its risk and losing control of the consequences.
Wednesday, November 26, 2008
Fee Fi Fo Fum
Living in Florida, the land of hurricanes, uninsured drivers, unlicensed doctors and wildfires, it's likely that you've had to make a claim at some time to one of your many insurance carriers - auto, home, umbrella, health, disability, dental - and the list goes on.
Despite these cushions of insurance that surround us, I find that a great many of you are hesitant to make claims. I'll give you a perfect for instance. A client/friend of mine recently had her entire apartment wiped out by a flood occasioned by a broken water pipe (which carried sewage). Her clothes, shoes, purses and papers were ruined by the water. Most of her furniture was damaged. I told her that she needed to make her claim right away (against her renter's policy). In the end, she decided to just move and call it a day.
She explained that she didn't want to go through the hassle of negotiating with the insurance company because they never pay the value of what was lost and she didn't want to spend the money to have to sue the company.
I was dumbstruck. Seriously? Is this what we've come to? People spend a fortune on insurance and decide not to recover their contractual benefits for fear that they will have to hire and pay an attorney to recover for them?
Let me try to sort out both major points. First, I don't grant the premise that insurance companies don't pay what's fair. What you receive back is often a limitation of the policy or coverage you purchased. Like I said a few weeks back, when you see these policies- read them. They will tell you exactly what you are entitled to recover. Make sure that the policy you bought will properly compensate you for the risk you intend it to insure. Insurance companies actually DREAD screwing people over because their exposure on the back end is potentially huge (that's a story for a different day).
Second - and the reason for the title of this entry - YOU don't have to pay an attorney to recover against your insurer in those instances where you do hire one to recover from the insurance company. Florida has a statute that expressly states that, if you have to sue your insurer and you prevail, you get attorneys' fees back. That's right, the insurance company has to pay your fees!!!!
Please- before you start making these decisions- consult with someone who has knowledge of the insurance industry and the legal system before you decide to just walk away.
Have a great Turkey Day!!!
Despite these cushions of insurance that surround us, I find that a great many of you are hesitant to make claims. I'll give you a perfect for instance. A client/friend of mine recently had her entire apartment wiped out by a flood occasioned by a broken water pipe (which carried sewage). Her clothes, shoes, purses and papers were ruined by the water. Most of her furniture was damaged. I told her that she needed to make her claim right away (against her renter's policy). In the end, she decided to just move and call it a day.
She explained that she didn't want to go through the hassle of negotiating with the insurance company because they never pay the value of what was lost and she didn't want to spend the money to have to sue the company.
I was dumbstruck. Seriously? Is this what we've come to? People spend a fortune on insurance and decide not to recover their contractual benefits for fear that they will have to hire and pay an attorney to recover for them?
Let me try to sort out both major points. First, I don't grant the premise that insurance companies don't pay what's fair. What you receive back is often a limitation of the policy or coverage you purchased. Like I said a few weeks back, when you see these policies- read them. They will tell you exactly what you are entitled to recover. Make sure that the policy you bought will properly compensate you for the risk you intend it to insure. Insurance companies actually DREAD screwing people over because their exposure on the back end is potentially huge (that's a story for a different day).
Second - and the reason for the title of this entry - YOU don't have to pay an attorney to recover against your insurer in those instances where you do hire one to recover from the insurance company. Florida has a statute that expressly states that, if you have to sue your insurer and you prevail, you get attorneys' fees back. That's right, the insurance company has to pay your fees!!!!
Please- before you start making these decisions- consult with someone who has knowledge of the insurance industry and the legal system before you decide to just walk away.
Have a great Turkey Day!!!
Tuesday, November 18, 2008
Long time - and sometimes too long
I have been gone two weeks. Sorry about that, but I was almost called to trial and had to scramble to get all of the out of town witnesses in line and the experts lined up to testify. It always takes longer than imagined and things go wrong that you never suspected could. That said, I am back.
So, let's talk about lapses in time. The law here in Florida (and everywhere else, as far as I can tell) requires you to timely bring your action or lose it forever. Different theories are subject to different time frames, but they are all pretty clearly spelled out in statutory law. They are called statutes of limitation and we touched on this subject once before - briefly.
What am I talking about? Well, if you slip and fall in the grocery store and want to sue Publix for negligence, you better do it within four years of your accident or you will be barred. If there is a breach of your contract, you have 4 or 5 years, depending on whether it's an oral or written agreement. If your doctor amputates the wrong foot, you have a very, very short window of time to bring suit.
Why does the law require this? Because we want things resolved while the greatest body of evidence is still around to be examined and used to support the claims and defenses. We don't want witnesses disappearing or document to go missing or have them destroyed as part of the ordinary document retention policies. It's designed to maximize the use of evidence.
So, what's so big about limitations periods that I needed to bring them up again? Well, there appear to be an ever increasing number of investors who want out of their real estate deals because the market has gone south. Whether they have a claim has a lot to do with when their deal closed, when the terms of that deal may have adversely changed and when the market went south. So, if you might be one of these people, you should check carefully to see when you first closed on your faltering investment.
So, let's talk about lapses in time. The law here in Florida (and everywhere else, as far as I can tell) requires you to timely bring your action or lose it forever. Different theories are subject to different time frames, but they are all pretty clearly spelled out in statutory law. They are called statutes of limitation and we touched on this subject once before - briefly.
What am I talking about? Well, if you slip and fall in the grocery store and want to sue Publix for negligence, you better do it within four years of your accident or you will be barred. If there is a breach of your contract, you have 4 or 5 years, depending on whether it's an oral or written agreement. If your doctor amputates the wrong foot, you have a very, very short window of time to bring suit.
Why does the law require this? Because we want things resolved while the greatest body of evidence is still around to be examined and used to support the claims and defenses. We don't want witnesses disappearing or document to go missing or have them destroyed as part of the ordinary document retention policies. It's designed to maximize the use of evidence.
So, what's so big about limitations periods that I needed to bring them up again? Well, there appear to be an ever increasing number of investors who want out of their real estate deals because the market has gone south. Whether they have a claim has a lot to do with when their deal closed, when the terms of that deal may have adversely changed and when the market went south. So, if you might be one of these people, you should check carefully to see when you first closed on your faltering investment.
Monday, November 3, 2008
Severability - legal surgery
Well, it's Monday again. I hope everyone enjoyed the weekend. As promised, it's back to business.
Today- severability. Let's suppose you have a contract. A real one, a nice one with page numbers and topic headings and actual terms and conditions. You know, a contract you paid your lawyer to draft up for you and the kind that you tell your friends has all sorts of "legal mumbo jumbo" in it. Well, today's topic is some of that legal mumbo jumbo.
If you have a contract like this somewhere in your possession, take a look at it. Somewhere above the signature line - but not too much above it, is likely a heading entitled "severability." Essentially, it provides that if there ends up being a problem with the contract or the law changes in some way that makes some part of the contract or the underlying deal illegal, the rest of the contract is still enforceable.
Does this sound hypertechnical? Well, it's intended to limit litigation. You see, in the common law, there is an old defense to contractual performance based upon illegality. It's sort of common sense, right? If the contract becomes illegal or the stuff sold under it is illegal, then the contract is not enforceable.
The idea with a severability clause is that it helps draw a line between the illegal and the legal. If, for instance, you have a contract to sell 100 widgets to someone who will pay for them in 6 installments at 18% interest and the law changes to reduce the maximum interest rate to 12%, you probably don't want your whole contract voided. With a severability clause, the contract will expressly provide for the illegal interest provision to be disregarded (or severed out) but it would leave the rest of the contract in place. Neat, huh?
So, sure things like severability clauses may be "mumbo jumbo" but it's handy mumbo jumbo.
Today- severability. Let's suppose you have a contract. A real one, a nice one with page numbers and topic headings and actual terms and conditions. You know, a contract you paid your lawyer to draft up for you and the kind that you tell your friends has all sorts of "legal mumbo jumbo" in it. Well, today's topic is some of that legal mumbo jumbo.
If you have a contract like this somewhere in your possession, take a look at it. Somewhere above the signature line - but not too much above it, is likely a heading entitled "severability." Essentially, it provides that if there ends up being a problem with the contract or the law changes in some way that makes some part of the contract or the underlying deal illegal, the rest of the contract is still enforceable.
Does this sound hypertechnical? Well, it's intended to limit litigation. You see, in the common law, there is an old defense to contractual performance based upon illegality. It's sort of common sense, right? If the contract becomes illegal or the stuff sold under it is illegal, then the contract is not enforceable.
The idea with a severability clause is that it helps draw a line between the illegal and the legal. If, for instance, you have a contract to sell 100 widgets to someone who will pay for them in 6 installments at 18% interest and the law changes to reduce the maximum interest rate to 12%, you probably don't want your whole contract voided. With a severability clause, the contract will expressly provide for the illegal interest provision to be disregarded (or severed out) but it would leave the rest of the contract in place. Neat, huh?
So, sure things like severability clauses may be "mumbo jumbo" but it's handy mumbo jumbo.
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