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.
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. 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. z
The Basics: Ohio OVI Law
+Operation
+Vehicle
= cause(d) movement
= car, truck, boat, snowmobile, tractor, bicycle,
tricycle
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. z
You are Guilty of OVI if:
+“Under
the influence” = consuming enough to adversely
affect or impair your ability to drive.
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
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. 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
13. z
Test for Arrest = Probable Cause
+Based
on the totality of circumstances
+Miranda
Rights do not apply until you are under arrest
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. 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!
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. 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. 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. z
Thank You!
Rasheeda Khan, Director
Kegler Brown Hill + Ritter
rkhan@keglerbrown.com
keglerbrown.com/khan
614-462-5481
21. z
Social Media + the Workplace
presented by Loriann E. Fuhrer
January 16, 2014
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
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. 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. 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. 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. 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. 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. 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. 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. 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. 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. z
+“You
are what you share.”
• Charles Leadbeater, We Think: The Power of Mass Creativity
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)
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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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)
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.