Contact Adkins Law to speak with an experienced Huntersville DWI attorney about your DWI charge. One of our Huntersville DUI lawyers will arrange a DWI consultation with you to discuss your strategies and options moving forward.
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Economic pressures may have you convinced that anything is better than nothing when it comes to securing employment. Getting hired nowadays can be an uphill climb, however as a new employee, you need to take several things into consideration before signing your employment agreement. By keeping these five things in mind, you can try to prevent litigation should your new venture turn sour. What’s in this thing? The Employment Contract “Congratulations, you’re hired! Sign here and we’ll get started.” Every employer-employee relationship is a contract. Generally, contracts are legally binding. It is imperative that you know your rights and obligations to your employer BEFORE a claim arises. This means that you do actually have to read the agreement, and more importantly, understand it. When a formal written employment contract is required, there are several common terms within it. These terms legally protect both the employee and the employer. Terms may be industry-dependent, but most employment contracts include: compensation plans, benefits or stock options, duration of the contract, grounds for termination, severance clause, a non-disclosure clause, an arbitration provision, expectations and duties, and a non-compete clause. Tricky Terms and Creeping Clauses The importance of understanding terms of contract This is possibly the most important thing to keep in mind when starting a new job. Through the excitement of your new employment, you read your contract, maybe even read it carefully (assuming you understood #1 above). You sign. Six months later you hate it, and quit when a competitor company makes you an offer. Happens all the time - but you could be subject to legal limitations, such as accepting your new offer or retaining your previous clients. If your previous employment contract contained a non-compete clause, you may not be able to work for a similar company or transfer your previous clients for a certain period of time. Many employment contracts contain non-disclosure or confidentiality clauses as well, which prevent the departing employee from sharing information relating to the employer’s business. You don’t want to learn that you signed a non-disclosure agreement after you sent out the recipe for your employer’s secret sauce. The bottom line? Understand what each term or clause in your contract means, as well as your rights and obligations that go along with them. Big Brother is Watching You probably have no privacy rights to your emails It is true. If you forward your personal or non-business emails to your Outlook account at work, anything you send is saved and can be used against you in court. Keeping your accounts separate is kind of a ‘duh’, but don’t get lazy and utilize your work email for anything you wouldn’t want your whole office to see. In a company, not even the CEO has privacy rights to the emails they send. Every document and every email is saved because companies know they have to keep EVERYTHING should a lawsuit arise. It is important for you, as an employee, to do the same. If you save your emails, they can be evidence to build your case should you encounter a lawsuit. Especially be conscious of retaining anything that may be related to illegal activity (i.e. harassment or fraud). Who’s who and who do they answer to? Organization of the Company This one may seem silly, but it is serious. Knowing the organization of the business or company is critical to respond effectively to issues. Be aware of who your boss answers to, and the entire chain of authority for the organization. This makes correcting mistakes easier, relieving liability more probable, and resolving compliance issues faster. Practically… er…Imperfect in Every Way Keeping up with your personal file It may be a surprise that your employer has a personal file on you (it was to me). You previous employer does too. With each person an employer hires, they begin a personal file. This file contains internal memoranda and notes on anything you may have done that they find displeasing. Even if you are convinced you are a perfect employee, your previous HR department may have thought your “sick day” Monday after the Superbowl was a little suspicious. This file typically will only contain negative instances (even very minor occurrences), and are kept in anticipation of litigation. They will also be pulled as prospective employers read your resume and call your references. Once you start a new job, you should check out your personal file after 3 months or so. Each state is different, but usually you can request to access your own file, for instance, twice a year. This is a great way to see how you’ve started out and fix anything you’ve been doing wrong. Hopefully, there is only constructive criticism in there! Contact Adkins Law if you need to speak with a Huntersville employment lawyer. One of our Huntersville employment attorneys can arrange a consultation to discuss your employment matter in detail. Adkins Law is located in Huntersville NC and offers a range of legal services including family law matters such as divorce, child custody, child support, alimony, spousal support, and dividing marital assets and debts. Contact Adkins Law to speak with an experienced Huntersville divorce attorney about your family law matter. One of our Huntersville divorce lawyers will arrange a family law consultation with you to discuss your strategies and options moving forward. Motorcycles are extremely popular. Millions of Americans own and operate them, and unfortunately thousands of those Americans get into motorcycle accidents each year. Much of the advice applicable to automobile accidents applies to motorcycle accidents as well, but motorcycle accidents have their own specific set of concerns that we will outline here. Safety Riding a motorcycle is a uniquely enjoyable and uniquely dangerous way to travel. Statistics show motorcycle riders are sixteen times more likely to die and three times more likely to be injured as automobile occupants. Knowing about common motorcycle injuries can help you make sure that they do not happen to you, which in the long run can save you from the cost of medical treatment, legal fees, and psychological stress.
What to do Immediately After a Motorcycle Accident People involved in a motorcycle accident should follow the same steps concerning what to do following an automobile accident, including remaining on the scene, calling for help, and making as accurate a record as possible of what happened. In addition, motorcyclists should be wary of getting any repairs made to their motorcycles in advance of litigation, since dents to the motorcycle can be important in convincing a court of what occurred during the accident. Motorcyclists should preserve all damage to their clothing for the same reason. Helmets Although research shows that wearing a helmet reduces injury in motorcycle accidents, not all states require it. Twenty states, the District of Columbia, and Puerto Rico required the use of helmets by all motorcycle operators and passengers. Another 27 states make it mandatory only for those under a certain age, usually 18. Colorado, Illinois, and Iowa do not have any laws requiring the use of helmets. These laws have been known to change fairly frequently, and there are advocates on both sides of the issue.
Motorcycle Insurance Except for Washington, all states and the District of Columbia require that motorcyclists have minimal comprehensive insurance coverage. Obtaining insurance and filing a claim under a policy work just as they do when an ordinary automobile is involved, but motorcycle insurance has a few unique features.
For more information on motorcycle accidents and motorcycle safety, please take a look at the following article How to Avoid the Top 10 Most Common Motorcycle Accidents. By Elspeth Crawford Getting divorced and looking to save money? For a lot of people, the first thought that comes to mind that you might be able to save a few bucks by hiring one divorce lawyer for both you and your partner. It's not unheard of, but buyer be warned. An attorney is supposed to be your advocate, and sharing him with your ex might compromise the attorney's ability to perform that role. Here's what I mean. Let's say you and your partner have joint ownership of a car. As you're going through the divorce process, you will need to decide who will take full ownership of the car. Even if you both aspire to be as cooperative as possible, this is a zero sum game, and as a result, your interests are adverse to your partner. In this case, who will the attorney side with? If he sides with you, your partner will feel like he/she isn't getting the full benefit of the attorney fees that he's paying. If he sides with your partner, you will feel like you're not getting the full benefit of the attorney fees that you're paying. No matter how you toss the dice, someone is going to feel slighted. And the potential damage of this arrangement is not limited to you and your partner. Your attorney may also pay the price. Attorneys are required, by law, to avoid conflicts of interest. This is a rule that was set in place in order to protect you - the client. But if you, the client, ask your attorney to represent both yourself and your partner, you put your attorney in a very difficult position. If the state bar association finds out about it, your attorney could be punished. He or she may be forced to pay a steep fine, or even worse, lose his or her license to practice law. For all of these reasons, you and your partner should have separate attorneys. Sure, you could save a few dollars in attorney fees by hiring the same person, but if the underlying service doesn't live up to the price tag, is it worth it? More to the point, there are other ways that you can reduce the cost of divorce. For example, you and your partner can have a prenuptial agreement - this way, all of the contingencies will be worked through while tempers are calm. Also, you can practice the age old art of compromise. Finally, you can search for an attorney who is known for very affordable fees. In short, there are many ways to save money on divorce, and most of them don't involve compromising the quality of the services that you're paying for. By Elspeth Crawford Before you swipe a Google image for your next post, you might want to read further. Online Defamation Law Defamation is a false and unprivileged statement of fact that is harmful to someone's reputation and is published "with fault," meaning as a result of negligence or malice. If the defamed person is a public figure, then the statement must be published with “actual malice”. Posting defamatory content online (p.s., this includes more than blogging) bears the same weight as publishing it in a magazine. Defamation law requires merely that the statement be made to someone who is not the defamed subject of the statement. Be mindful of everything you post about a person. Posting “anonymously” does not protect you, and brings me to my next point. Blogging Anonymously If you operate an “anonymous” account, be it a blog or Twitter, you may be surprised to learn it’s not really anonymous. Every move you make online leaves a trail, a very easily accessible trail known as an IP address. If you’re making derogatory comments about someone, all they have to do is look at your IP address and can simply search it (for free) to discover who you are. Then, you could be staring at a cease and desist letter or a lawsuit complaint. Courts are taking a no-nonsense approach to defamatory statements online with the recent tragedies related to cyber-bullying, so: be nice, not naive. Sharing Content Everything you blog is protected by copyright. Your text, your images, your graphics, your videos – everything. All online content is copyrighted the second it is published. That makes you, or the author, the copyright owner. If someone uses your content without permission, you may ask them to take it down. If someone uses your content commercially (i.e. makes money from an image you published), you have a right to sue for compensation. However, every image and text and video that you pull off the Internet is copyrighted. This means, for example, if you use a Google image without permission of the author, you may be infringing on a copyright. Even if you link a source back to the author, it could still be copyright infringement. Removing copyrighted content will not remove legal liability. So: ask before taking and protect your own work. Links To date, courts have found that permalinks - links that lead readers to an internal page on a website - to web pages constitute neither copyright infringement nor trespass. To be clear, these are NOT source links. No court has enforced a site's terms of use that ban permalinking, so you are safe to use them. Comments Bloggers typically retain the discretion to publish comments on their site. When a person comments on a post, in most instances the commenter gives an implied license for the public display of that comment. This license also covers any subsequent copying of the comment. So: don’t write anything as a comment that you don’t want the whole world to see {and remember, commenting anonymously is not actually anonymous}. Images As I said above, all images online are subject to copyright unless they fall into a category called “Fair Use” in The Copyright Act (see 17 USC § 107). You may or may not be aware of the legal issues for which Pinterest has come under fire; this is why. Images online are, typically, not in the public domain, and believe it or not, you don’t have the right to use any of them without permission. Public domain includes works and documents produced by the federal government or a governmental agency, legal cases, state and federal statutes, quotations from existing works, and facts or ideas from existing works. So: before you use an image that you have not taken or created yourself, ask the copyright owner. Advertising Many blogs involve advertising; ads for companies, other blogs or sites, products, and more. Some blogs offer advertisements for the blog itself. Ads must comply with advertising laws set out by the Federal Trade Commission. The Policy Statement issued by the FTC states that you must have a reasonable basis for your objective claims before you initially disseminate them. Warning: the FTC vigorously enforces the requirement that advertisers must substantiate their express and implied claims, so advertise with caution. Giveaways Tons of bloggers use giveaways to reward their readers and increase traffic flow and followers. Most bloggers don’t realize that giveaways can be classified as an illegal lottery. The Federal Communications Commission (FCC) defines a lottery as “any game, contest or promotion that combines the elements of prize, chance and consideration.” In laymen’s terms, if your blog giveaway has a prize which will be won, winner(s) which will be randomly chosen, and a legal contract element known as “consideration” (paying, tweeting, “liking”, or following to enter the giveaway would qualify), then you are successfully running a lottery which is highly regulated at the federal and state level! Not all lotteries are illegal, but lotteries do come with strict rules, guidelines, and penalties. To avoid being heavily fined by the government, ensure that the giveaway guidelines clearly specify: who can enter, the duration of the giveaway, how the winner will be RANDOMLY chosen, consideration required for entry, and the prize. By Elspeth Crawford Spiders, bots and crawlers: Oh MY! Most everyone who has a website or online social media profile is victim of web scraping, whether they know it or not. What is web scraping? Web scraping is a technique used by web crawlers, or bots, to extract information from websites. Collected information is transformed into structured data that can be stored and analyzed, typically in a database or spreadsheet. This technology drives a substantial amount of business, and many companies’ viability relies on it. However, controversy can arise when commercial companies use scraping software to collect substantial amounts of data from websites for their own profit. When does web scraping violate website’s terms of use? Web scraping is used for many reasons, including price comparisons and targeted advertising. Often websites prohibit scraping through their terms of use. There are two types of terms of use online: clickwrap and browsewrap. Clickwrap terms require the user to click in agreement with the terms of use. Browsewrap terms are simply listed on the website, without requiring any action. Consequently, if the user never saw the terms of use, there was no contract formed because there was no ‘meeting of the minds’. What are legal risks for businesses that use web scraping? Companies using web scraping can be subject to legal risks, but under current law, it is unclear what crawlers can and cannot do. A large risk at issue with web crawlers is the unanswered question behind breaking terms and conditions of websites when scraping information. The law is unclear as to whether that activity amounts to trespass to chattels or breach of contract. Some website owners’ claims have been viable in these situations, so there is a risk. When the scraper uses the scraped information commercially, they will likely be subject to more liability. Additionally, if the scraper collects copyrighted information, its operators could be liable for infringement. Can web scraping give rise to a trespass to chattels action? Trespass to chattels is a tort claim arising when a party has intentionally interfered with another person's lawful possession of movable personal property. Because, traditionally, trespass to chattels has included dispossession of the property by taking it, destroying it, or barring the owner's access to it, it has been argued in the digital age that websites are considered as chattels. In eBay v. Bidder’s Edge, a notable claim involving scraping as “illegal data mining," a California court held that the thousands of queries a day, electronic signals retrieving information from eBay’s system, by Bidder’s Edge were sufficiently tangible to constitute a trespass action. However, eBay had not actually suffered any injury or harm from the trespass. While the court acknowledged this, they stated that eBay was not required to wait until they suffered harm before they sought an injunction. The Supreme Court of California interpreted the eBay decision further in Intel v. Hamidi, stating that showing a risk of future harm substantiated claims of Internet trespass to chattels. Accordingly, to determine if there is a substantial likelihood of future harm, a court should look to the volume or frequency of interferences. Subsequent courts in other jurisdictions have applied this analysis, requiring that the plaintiff demonstrate damage, or substantial risk of future damage, to their computer system. Thus, the degree of protection for online content is not settled, and will depend on the type of access made by the scraper, the amount of information accessed and copied, the degree to which the access adversely affects the site owner’s system, and the types and manner of prohibitions on such activity. Can web scraping give rise to a breach of contract action? In regard to breach of contract claims for violating a site’s terms of service, the United States Court of Appeals for the Second Circuit held in Specht v. Netscape Communications Corp. that terms of use are not enforceable if there is not reasonable notice of the existence of the terms and unambiguous consent to that license. Merely clicking on a button does not show assent to license terms if those terms were not obvious and if it was not explicit to the consumer that clicking meant agreeing to the license. California courts went on to determine in Ticketmaster Corp v. Tickets.com, Inc. that a hyperlink to the terms of use placed in the footer of a web page does not constitute prominent notice of those terms. However, if the terms are prominent, then a user will be held to the terms on inquiry notice. Clickwrap agreements seem to carry more weight, as a Texas state court found grounds of trespass to chattels and breach of contract in American Airlines, Inc. v. Farechase, Inc. The court enforced an 'if you use this site, you agree' terms of service statement on American Airlines websites, and enjoined software company Farechase from accessing and scraping data to redistribute and sell it to travel agents and online travel systems. Can web scraping give rise to a copyright infringement action? Scraping, generally, raises some copyright law issues. Visiting a copyrighted website temporarily for the purpose of extracting factual information and reproducing it does not violate website owner’s copyright. Any factual information that is extracted is protected under fair use in The Copyright Act. However, if the extracted information is a copyrighted work, the scraper may be subject to copyright liability. The Digital Millennium Copyright Act of 1998 was enacted to control and regulate copyright issues in a technological world. Section 1201(a)(1) of the DMCA states “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” This provision speaks to web scraping, particularly when bots avoid measures that website owners make to protect their content. What types of damages have been awarded in previous web scraping cases? Typically, injunctions are the only remedies sought. A plaintiff in a case against a scraper must show substantial harm in order to receive damages. Courts have generally not awarded damages, only injunctions, in cases involving web scraping. It seems that the design and nature of the crawled web sites determines the legal liability, versus the actual activity of the crawler itself. If your business operates scraping technology, be wary of what you crawl! If you operate a website, check out these tips to create an effective user policy. By Elspeth Crawford No one likes it when people spread lies behind their back. If someone has done this to you, you may be entitled to sue that person under the law of defamation. Defamation occurs when someone else says or tells another person a false statement about you that damages your reputation or good name. Defamation comes in a couple of different varieties. Defamation through writing is called “libel.” Spoken defamation is called "slander." Libel Libel is written defamation. It can come in many forms: through a blurb in a newspaper article, a memo circulated around an office, an e-mail, and more. In order to recover against someone who has committed a libel against you, you must show that the written statement was:
Also know that libel is not limited to written statements. Libel also encompasses offensive pictures, caricatures, statutes, and effigies that meet the above requirements. Keep that in mind the next time you make an offensive wood carving. Slander Unlike libel, slander is spoken rather than written. If someone says something offensive and untrue about you to another person and it damages your reputation, you may be able to sue for slander. Slander has the same basic requirements as libel, that is the statement must be defamatory, must be published to at least one other person, and must be said with some degree of fault. In fact, some states don’t have separate laws for libel and slander but treat both the same. Still, there are a few wrinkles that make slander unique.
Defenses If you’re sued for defamation, know that there are some situations in which you are not liable. These situations include:
If you are ever sued for defamation, the best course of action is to consult an attorney, as there are subtleties to using any of these defenses which a lawyer will more readily understand. Damages If you've been defamed, you may be entitled to receive a monetary award to compensate for your damaged reputation or lost business. The process of proving the amount of the award can be difficult and could require extensive negotiations or a trial. If the defamation was particularly reprehensible, you might also collect "punitive damages," which exist to punish people beyond the amount it would take to merely compensate a defamed person for their losses. |
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