Willa Bepayed is a standout attacker and a Senior on State Tech’s volleyball team. Willa read about Kan Doit, the Southeastern quarterback who’s leading the unionization drive before the National Labor Relations Board (NLRB). Like Kan, Willa Bepayed and her teammates also routinely spend 40 to 50 hours a week on volleyball – a full-time job. She also contends that her commitment discouraged her from entering State Tech’s pre-med program. Can Willa Bepayed and her teammates form their own union and bargain collectively? If so, do they risk encountering negative consequences if they are permitted to unionize?

Not likely to unionize, in Texas. The NLRB decision is limited to private universities as public institutions are governed by state labor laws. And, given that 24 states, including most of the South, are right-to-work jurisdictions, the vast majority of major college football teams could not unionize as Southeastern may.

Continue Reading Gimme a U-N-I-O-N!

Special thanks to Gray Reed’s Drew York for this blog contribution.

Bedder Sailz, a salesman for Orange Computers, Inc., lives in Seattle, Washington, and frequently travels on business. After successfully closing a computer deal in Dallas, Sailz catches East-West-Wings (EWW) flight #101 from Dallas home to Seattle. When the plane’s front wheel collapses on landing, Bedder sustaines back and neck injuries sending him to a Seattle hospital.  To recover his medical expenses and lost wages, Bedder files suit – not in his home state of Washington, but in California – against EWW, a Texas corporation headquartered in Dallas, alleging that EWW’s flights to leased gates at LA International Airport were “continuous and systematic contacts” permitting Bedder to sue there.  Where should EWW be sued? In Dallas, its HQ? In Seattle, where the wheel collapsed? Or, in California, where Bedder thinks he will get a more sympathetic jury?

Not surprisingly, Bedder’s lawyers prefer to “forum shop” to file his claim in California, believing that California courts are most friendly to his claim. EWW argues its “home court” of Dallas– where a jury is more likely to be friends, neighbors and family members of employees and happy customers.

Continue Reading Avoiding Judicial Hellholes

Whizzle Blour, a professor of surgery at University Medical School, complained to his supervisor that trauma residents at University Hospital were treating and operating on patients without an attending physician’s supervision in violation of Medicare and Medicaid law.  After agreeing to settle those federal claims, University Hospital stripped Whizzle of his faculty chair position claiming he was a poor administrator. Later he was fired. He filed a whistleblower suit alleging his demotion was in retaliation for reporting the federal law violations. Will Whizzle Blour prevail?

No. Whizzle Blour failed to prove all the required elements for retaliation under the Texas Whistleblower Act (TWA). Reporting the Medicare and Medicaid violations to his supervisor did not satisfy the TWA because the supervisor was not qualified as “an appropriate law enforcement entity.”

Continue Reading Whistleblowers, Do Tell?

Special thanks to guest blogger Alex Fuller for this month’s post.

            Who steals my purse steals trash; ’tis something, nothing;

            ‘Twas mine, ’tis his, and has been slave to thousands;

            But he that filches from me my good name

            Robs me of that which not enriches him,

            And makes me poor indeed.

                        –Othello Act 3, Scene 3

While on a date to the Laugh Factory Comedy Club, Terry Tellsall busted a gut laughing and was rushed to Texas General Hospital. Incensed by the treatment and bedside manner he received from Dr. B.D. Manner, Terry barraged his friend Cindy Cussin with texts detailing Dr. Manner’s inability to remember critical surgical procedures and his comments that “with a belly that size, you’re lucky you only busted one gut.” The next day, Terry posted his accusations on a popular doctor-rating website.

Luckily for Terry, the attending Nurse Nancy smelled Dr. Manner’s whiskey breath, heard his comments, and thankfully reminded him of the right procedure. However, Terry’s friend Cindy Cussin was Dr. Manner’s cousin and forwarded Terry’s texts to him. When Dr. Manner read the texts and received the early morning Google Alert with Terry’s website posts, he immediately instructed Able Attorney, Esq., to file a defamation lawsuit against Terry. Is Terry liable for libel?

Probably not. Truth is still a defense to any claim of verbal (slander) or written (libel) defamation. Better yet, the 2011 Texas Anti-SLAPP statute makes it harder for defamation lawsuits to be used as a bullying tactic.

Continue Reading The Case of the Defamed Doctor – SLAPP’ing Down Defamation Cases in Texas

During the holiday season, Bullseye, a big box retailer, was the victim of a cyber attack that compromised the credit and debit card information (including PIN and CVV codes) of nearly 40 million of its customers.  The attack immediately spawned dozens of class action lawsuits against Bullseye by customers, alleging that the retailer was negligent in protecting their financial information. What liability does Bullseye face and what can be done to mitigate that exposure?

Continue Reading Don’t Be a Target: Mitigating Liability From Cyber Attacks

Fresh off his last Tonight Show monologue, Jay Lento is scouring the vintage car dealers’ websites to find replacement wheel hubs for his antique BMW. Searching worldwide, he finds none. When his friend N. Gennyus mentions that he can make exact computer replicas with a 3D printer to create a cast to manufacture the vintage wheel hub, Jay wonders if it’s legal?

Continue Reading There’s a Printer for That!

As 2013 was winding down, the law firm of Dewey, Cheatum & Howe also known as www.BestLawfirmEver.com was calculating its partners’ year end distributions. Before the ink was dry, Dewey announced he was leaving, taking an associate AND the law firm website www.BestLawfirmEver.com. Cheatum and Howe were convinced that the domain name and the website stayed with them and the other lawyers at the firm because their client was the web designer Dee Sine. Who wins?

Continue Reading Domain Names – Possession is 9/10ths of the Law

On a brisk January day, Mary A. Richman opened her mailbox and was confronted with the sobering sight of thick envelopes from Visa, American Express and MasterCard each containing a month’s worth of extravagant Christmas purchases.  Although she expected the bills to be large, she didn’t expect them to be this large.  When she carefully reviewed the charges, the weather wasn’t the only thing giving Richman the chills. She quickly noticed entries for businesses with which she was unfamiliar, including a $1,200 Visa charge on December 25th for a bar in Chihuahua, Mexico called Tequila Mockingbird.  Richman lost her Visa card on December 21st, but never reported it.  Is Richman liable for the unauthorized charges?

Continue Reading Lost or Stolen: Liability for Unauthorized Credit Card Charges

‘Twas the week before Christmas when at the North Pole,

Santa checked his throughput and moaned, “We’re in a hole!”

“We’ll never get done, we’re far from ready, let’s get some interns – some students will do.

Surely they’ll want to learn what elves can do!”

“On Juniors and Seniors, Thetas, Lambda Chi’s, you’ll learn a lot – just kiss your evenings and weekends Good-Bye!”

So, Santa called Magical Elves, Inc. to find college students who would accept his unpaid internships. Is that a problem?

Actually, internships may be a good option for Santa’s non-profit operation – so long as he does not pay a stipend or offer any benefits and clarifies whether interns are unpaid volunteers or paid employees. Paying a “stipend” could cause unintended negative consequences that might cause the Department of Labor to classify Santa’s interns as employees. If employees, Santa would owe back wages (at least minimum wage) and back taxes. On the other hand, if Santa follows the wage regulations closely his interns may be treated as “trainees.” If “trainees,” nonprofit may be relieved from paying minimum wages, yet need carefully to document how the internship primarily benefits the intern — not the nonprofit. And, also, workplace injuries could be a problem.

Internships in the “for-profit” private sector will most often be viewed as employment and violating the law if not paying minimum wages because often the manner and means by which the intern’s work is accomplished is controlled by the hiring party If interns qualify as employees rather than trainees they typically must be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek. The Fair Labor Standards Act (FLSA) defines “employ” very broadly to include “suffer or permit to work” and  must be compensated under the law for the services they perform for an employer.  

The Test For Unpaid Interns. To confirm FLSA determination of internship and to avoid employment obligations, the following six criteria must be applied:

 The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

  1. The internship experience is for the benefit of the intern;
  2. The intern does not displace regular employees, but works under close supervision of existing staff;
  3. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  4. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  5. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

 Assuming these are met, no employment relationship exists, and the FLSA’s minimum wage and overtime provisions do not apply. This employment exclusion is necessarily quite narrow because the FLSA’s definition of “employ” is very broad.

Other States. Some state statutes, like New York’s Minimum Wage Act and Wage Orders impose rules and guidelines in addition to the FSLA. California and Oregon recently extended application of sexual harassment and discrimination laws to interns.  By the way, none of these laws are apply to governmental employees.

Tilting the Scales in Your Favor.

The more your internship program is structured around a classroom or academic experience as opposed to your actual operations, the more likely the internship will be viewed as an extension of the student’s educational experience (this often occurs where a college or university exercises oversight over the internship program and provides educational credit).  The more the individual receives skills viable in multiple employment settings, as opposed to skills particular to your particular operation, the more likely your intern would be viewed as receiving training.  Ideally, your intern does not perform routine business work on a regular and recurring basis, and the business is not dependent upon the work of the intern.  On the other hand, if your interns are engaged in your operations or perform productive work (for example, filing, performing other clerical work, or assisting customers), then incidentally receiving new skills or improved work habits will not exclude application of the FLSA’s minimum wage and overtime requirements. 

Soon, the days of having to wait for your online purchase to arrive may be a thing of the past.  Nile, giant online retailer of everything from books to breakfast cereal, announced that it intended to deploy a fleet of commercial drones to deliver packages mere minutes after your order is placed.  Are there legal hurdles that might ground Nile’s ambitious plan?

             FAA:  Drones Pose Air Traffic Nightmare.  Although the FAA allows for governmental use of drones within U.S. airspace (e.g. surveillance along the borders), those drones are operated by ground-based pilots who are in regular contact with air traffic controllers.  Currently, the FAA bans commercial drones, such as those proposed by Nile.  Smaller drones, operated by individuals, utilize the rules for radio-controlled model planes and avoid the ban by flying within the operator’s sight, by staying below an altitude of 400 feet and away from airports.  Congress directed the FAA to propose safety regulations permitting commercial drones in domestic airspace by September 2015. The FAA has promised draft regulations for small commercial drones (weighing less than 55 pounds) by next year.  Even the most optimistic estimates are that commercial drone regulations for operators like Nile are years from enactment.

             Privacy:  Another obstacle to Nile’s drone deployment will be the myriad of privacy concerns.  Privacy concerns have been the focus for most of the forty-three states that have considered around 100 drone-related bills.  Warning that “companies could use drones for information gathering whether that is taking a photograph of your patio furniture or recording the make and model of your car,” Texas Republican Representative Ted Poe introduced legislation to protect people’s privacy from drones. 

            Possible Implications and Responses. How would you feel about a Nile drone flying over your house and then emailing you with suggested products or services?  Rep. Poe’s Preserving American Privacy Act seeks to prohibit individuals and companies from using drones for photography and surveillance and to prohibit surveillance by government drones without a warrant.  Poe stated, “Congress has to make sure that the use of drones in the future does not infringe on the right of individual citizens to privacy… Just because big brother or private companies can look through a person’s windows doesn’t mean they should be able to.”  Just imagine the detailed, current information Nile must gather to safely deliver a package to your doorstep.  We marvel at the functionality of Google Maps, but it is usually out-of-date and only accurate within several meters.  While this is plenty accurate to navigate to a friend’s party, Nile’s drones, on the other hand, would require constant updates about potential obstacles such as trees, new construction, etc., would have to be able to land on a precise GPS coordinate and would know the physical characteristics of your home better than you.  To effectively deliver a package, they might even track when you are home or when you are away.

             Liability:  Even more important than assigning liability for stolen or damages packages will be the inevitable issue of personal liability.  To deliver a 5-pound package, a Nile drone would be equipped with a substantial motor, a dangerous propeller(s), and would have many obstacles to avoid.  Who would be liable when a drone malfunctions (mechanical, weather, a neighbor’s 13-year-old son shooting it down with a bb gun) and hits and injures a person, pet, vehicle or collides with a downtown skyscraper?  Would we ever feel safe with these autonomous, self-guided flying machines filling our skies?  Even Google’s self-driving cars, which prove safer than cars driven by humans, are not yet a reality because of a morass of potential legal issues arising from our inherent distrust of the technology. 

The idea of packages delivered to your doorstep within minutes is incredibly intriguing. However, the significant legal hurdles suggest that Nile’s extraordinary plan may be more PR stunt than practical reality.