Before anyone blames California, it should be understood that it is a very common employment law practice area to sue a former employer to limit the scope of a noncompete to something more "reasonable." The judge can always "blue pencil" any overly restrictive contract, and it just happens to come up in this area. There tends to be a well-established body of law on what is "reasonable" in this context, but like anything else that's always evolving.
Many states have laws that make noncompete agreements unenforceable beyond a specific time period. In Massachusetts, for example, I'm pretty sure that any covenant not to compete extending for longer than two years is simply not enforceable.
Without doing any research, I wonder out loud if California got sick of clogging the courts with these "blue pencil" cases and passed a law doing away with the need for them. Or, maybe they decided as a matter of policy that the need for tech companies and their employees to move about freely without fear of litigation was a more effective way to foster innovation than to stifle employees' options by overbroad covenants.
Either way, it's not that California doesn't think much of the concept of freedom of contract, but that these noncompetes are frequently just too overbroad, and California has a large concentration of tech jobs.
Also, I don't know what Google's strategy is, but maybe there's some choice of law provision in the noncompete selecting CA as the forum state. Or maybe they have some incredible precedent to rely on that I dont know about. Or maybe they don't have a prayer so they just had to come up with something so crazy that it might just work.
FDCPA DOESN'T apply to third party lenders. i.e.- Your auto finance company.
Great. But lenders != collectors. The law explicitly applies to third-party collectors, which is exactly what I said.
From the above link: "In-house collection agents are not ordinarily covered by the Act. For example, if you have a store credit card, and the store's own collection department contacts you, the FDCPA does not apply. However if the same store uses an outside collection agency to contact you in relation to that same debt, the outside agency's conduct is restricted by the FDCPA. Similarly, if the same store uses an in-house collection agent, but suggests to you that the collection is being performed by a third party, the FDCPA may apply to them as a result of that representation."
The point I was trying to make is that there is a lot of misinformation out there as to what you can and can't get away with when collection agencies are after you, and you shouldn't turn to slashdot for advice.
...and I know just enough about debt collection law to know that I don't know enough to comment much on this. Oh, and that you certainly shouldn't accept legal advice from ANYONE on slashdot. Including me.
The FDCPA, however, generally applies to third-party debt collectors. If I recall correctly, most people simply run afoul of the Act when they fail to include the required "This communication is an attempt to collect a debt. Any information obtained will be used for that purpose blah blah blah" language on the letter. Usually it's because companies/lawyers don't realize the law applies to them and they end up owing a $1000 fine per occurrence.
The FCRA is also a useful tool for consumers to make sure big companies don't bully them around, but at this hour I can't remember enough about it to really post anything resembling an educated comment. However, it's more complicated than the original poster suggests.
However, another very important set of resources available to consumers are state consumer protection laws. Generally you can find these on your state Attorney General's homepage, and there are detailed instructions for nonlawyers about your rights, the notice and filing requirements and deadlines, and pros and cons of filing a complaint with the AG versus filing on your own. Frequently they follow a similar model, and often involve a requirement that before filing suit for consumer protection violations, you provide a demand letter with 30 days' written notice and an opportunity to settle the claim without going to court.
If the question is not "someone says I owe them money and I don't think I do," but rather that "a magazine renewed my subscription without my consent and then attempted to bill me for it," it seems to me that your state AG's webpage would be a good place to start. Usually there are brochures. With pretty pictures.
[ And now for the standard disclaimer: Legal advice is given by an attorney duly admitted to practice law after confidentially and candidly hearing your version of the facts and applying a specialized analysis of the facts and relevant law. This, however, is a silly post on the Internets, and not legal advice. No attorney-client privilege is created with anyone as a result of this post. Do not taunt Happy Fun Ball. If legal advice is what you want, go hire a competent lawyer. Don't ask slashdot. ]
I guess all those sleepless nights about being nuked by a Russian sub were all for naught.
I mean, if they can't even make a simple booster rocket on a modified SLBM fire correctly, how are they supposed to get MIRVs up to a height to fall (albeit haphazardly) on US soil?
Well, NALITPONE (Not a Lawyer in That Part of New England);)
Also, I don't know where the case was filed or if that court even has proper jurisdiction... I just threw NH out there because (I think) that's where the company was based. The article didn't say where it was filed. It's possible that if it was filed in another jurisdiction there might be hope for an anti-SLAPP motion.
Motion to Dismiss: Anti-SLAPP, not CAN SPAM
on
Spammers Sue Spamee
·
· Score: 4, Informative
I am not admitted to practice in New Hampshire (I don't even know where the suit was filed), and none of this is legal advice - that said...
"SLAPP" is an acronym for Strategic Lawsuits Against Public Participation. It basically means all of the lawsuits that big companies file against "the little guy" when "the little guy" exercises his First Amendment rights to protest in a "matter of public concern." A really good run-down of the reasoning behind Massachusetts' anti-SLAPP statute (only because that's the one I'm most familiar with) is here. Historically, these suits will often present as claims for defamation or "interference with contractual relations" for the statements made by the defendant.
There are certain legal tests that one must meet in order to have their "petitioning activity" qualify as being "protected" under the statute. Without more facts and knowledge of the analagous statute in NH (if there even is one), I wouldn't hazard a guess as to whether or not "contacting SpamHaus with information about a spammer" would fit. Might be a good case to bump up the appellate process and make new law in the jurisdiction, though.;)
The advantage of filing a Special Motion to Dismiss under these Anti-SLAPP statutes is that frequently, they allow for an immediate award of costs and attorney's fees, effectively stopping the frivolous lawsuit in its tracks and strongly discouraging companies from filing such suits in the future.
This guy should find a lawyer, explain ALL of the facts of the suit, and ask her to consider if this could be seen as a SLAPP suit, and how to proceed. Like I've said in other posts, most bar associations have lawyer referral services (LRS) that require member attorneys to give a free or cheap initial consultation. It sounds like this would be a great case for someone to take on.
Not all lawyers are bloodsucking bottom-feeders. Some are, and they give the rest of us a bad name. Just keep an open mind when you want a lawyer.;)
You can assert the fifth amendment in any tribunal you like if there's a reasonable likelihood that such testimony, if elicited, could result in a response that tends to incriminate you for a criminal offense.
Answering a question that only happens to prove that you have civil liability for some event (absent a criminal component to the same set of facts) does not grant you any privilege alone.
For example: if you're criminally accused of murder and the family of the decedent files a wrongful death suit against you - in the suit by the family to prove your civil liability, you can assert the privilege against any questions that might tend to show that you are criminally responsible for any offenses. However, you probably can't refuse to testify altogether unless you can prove to a judge that any testimony would be so prejudicial to your CIVIL case (because you'd be invoking the privilege all the time) that it would be unfair to even put you on the stand.
More likely than not, however, any of these issues would be dealt with during pretrial motion practice to narrow the scope of the defendant's testimony. They would probably wait to sue until after the criminal trial anyway, after which jeopardy will have attached, making an argument to invoke the fifth amendment privilege more difficult (but not moot or impossible by any means). An example for the converse would be if you were driving along and purely accidentally hit a nun crossing the street. The nun could sue you for negligence, but unless you may have also committed some criminal offense, you could be compelled to give testimony that might be against your interest (note that self interest is NOT the same as criminal culpability).
In a criminal case, the prosecution has the burden of proving beyond a reasonable doubt each of the elements of the criminal offense, which may include intent (mens rea), and various components of criminal acts (actus reus). In the U.S., the criminal defendant has a fundamental right to a jury trial (but can choose to waive that right).
In a civil case, the plaintiff is the master of her claim. If the plaintiff demands a jury trial on all issues, it's not like the defendant can waive the jury demand that the plaintiff has made. If all of the facts are agreed by both parties, and the facts as agreed constitute civil liability, the plaintiff will likely move for summary judgment - which basically tells the judge "look - we don't have to go to the jury, because according to these facts, we've satisfied our burden of proving that he did what we said he did, and nothing that the defendant could show would make any difference."
There is no jury nullification or "nice guy" exception or "oops, I didn't MEAN to do it" way out in strict liability.
Adding to my earlier post, because he could be liable for criminal copyright violations or possibly other criminal sanctions, he probably does have a fifth amendment privilege with respect to what he's done. He needs to get a competent lawyer.
The parent here is somewhat correct, but I feel like I should clarify:
The fifth amendment prohibition against compelled testimony only applies to criminal liability, and only applies to "persons."
If an elicited response in a civil case might tend to incriminate you in a criminal action, a witness can invoke the privilege against self-incrimination and refuse to answer that question. Remember, though, that if you waive the privilege, it is lost forever - so if you're not sure, SHUT YOUR MOUTH and find a way to consult with a lawyer. If you're at a loss for how to get an attorney, many state and local bar associations have lawyer referral services that are free to the public, usually with a free or cheap 30-minute interview or something.
In a civil case, just because a statement may tend to make you more liable for money damages in a civil action doesn't mean that you can make a blanket refusal to testify if called as a witness by the opposing party. To do so would not only nullify your defense and force the court to take your opponent's views at face value, but would also mean that individuals could escape liability in most cases by simply refusing to acknowledge it.
Also important is that civil liability has varying degrees of standards of proof, with ultimate responsibility generally relying on a preponderance of the evidence - both sides have an obligation to plead their cases, and the factfinder decides what "truth" is. Criminal liability, however, requires that the prosecution prove its case beyond a reasonable doubt. The criminal defendant can remain silent and the burden for the prosecution remains unchanged.
However, even in a criminal case, you can't use the defendant's silence as both a sword and a shield; once the defendant has chosen to take the stand and testify, they can't choose to only answer questions that would tend to prove their innocence.
I know I went a little overboard, but I always see people confusing the fifth amendment privilege and thinking that they can apply it where they can't. Just wanted to clarify.
I know that there are/. readers in all different countries out there. I noted twice in my comment that the NLRB only has jurisdiction in the US, so that readers saw what happened in Canada and wouldn't think that the same result would happen in the US.
That is a logical extension of the conversation of the original post: comparing different legal results based on which jurisdiction you're in.
It's entirely possible that the overall body of labor law is such that there's an analagous agency in Canada just like the NLRB - in either case, it's completely relevant to talk about the result of the same set of facts in different countries.
Your post is like saying that because the Red Sox won the World Series, to talk about the Cubs is irrelevant.
If you're acting with others for the mutual aid and protection of yourself and other coworkers, in the US you're protected by Section 7 of the National Labor Relations Act. A somewhat recent case highlights the NLRB's deference to email as well as other forms of communication:
In one case, the NLRB held that email communication may qualify as "protected concerted activity" under the NLRA. In
Timekeeping Systems, Inc., 323 NLRB 244 (1997), the NLRB reversed the discharge of an Ohio computer programmer who criticized a new company vacation policy via e-mail. The NLRB concluded that because the employee's email message primarily sought the assistance of other employees in getting the old vacation policy reinstated, it qualified as a form of concerted activity.
The NLRB agreed that the tenor of the employee's message was derisive, but it did not feel the message was offensive enough to lose the protection of the NLRA.
I don't think "hey, let's blow this popsicle stand and take all of its business with it" qualifies as "protected concerted activity" under the act, even if it had occurred within the US NLRB's jurisdiction.
However, don't let this dissuade you from working together to improve your workplace under the protections of Section 7. You should, however, try to avoid using company-owned computer systems for obvious reasons. (They own them, they can read whatever they want on them, you have no expectation of privacy on them.)
...usually mistakes on their own have a well-established safety net of anti-malpractice rules, pathways and guidelines to keep mistakes from reaching the patient. Often, when people take shortcuts, that's when malpractice occurs that results in real harm and injury to the patient.
My point is that when people get lazy and take shortcuts, the punitive effects of med-mal suits force them (and other hospitals) to put procedures in place to make sure that shortcut will never be abused again.
As someone downthread posted, my comment was more directed toward online medical control than the quick radio reports we make to say "here we come!"
I'm in complete agreement, and unless we had bizarre radio failure or a less-than-a-minute transport time with weird circumstances, I think it's always appropriate to give the "heads up" call to the ED.
I would just say that when possible, I try to avoid bothering a physician for routine medical treatment, ALS or BLS, that won't require any immediate specialized personnel or equipment when we land at the ED. When I was working in one system, we actually had a computer system that would relay our incoming patients (in text format) to a computer in the ED after we gave a VERY brief report to our own dispatcher (e.g. 27 Female, ankle injury, BLS).
If we had something that wasn't simple and routine, we called it in as a lengthy radio report, including treatment rendered, additional orders requested, and additional resources required upon arrival. I never meant to imply that the ED liked surprises. Sorry for confusing the issue;)
Before anyone screams that we need damage caps on medical malpractice awards, we should remember cases like this. You can be sure that as soon as Ambulance Company X or Hospital Y had to pay out a $5 Million pain and suffering award, they changed their pathways and policies to be sure that it would never happen again.
For some time in the late 1990s and even into 2001 or so (and there are occasional rumblings even today) a segment of the EMS field pushed for a higher level of paramedic care that would do just that - "treat and street" as someone posted in this thread.
The biggest problem was the way that Medicare treats ambulance service. Except in very limited circumstances under the "paramedic intercept" code, in order to bill Medicare for an ambulance call, you have to actually transport the patient in your ambulance. If the wheels don't turn on your ambulance with a patient in the back, you can't submit a claim for it.
While private insurers and HMOs aren't bound by Medicare's decisions, they certainly do follow suit a high percentage of the time.
The reason that this doesn't work philosophically is that paramedics are trained from day one how to spot immediate life threats and intervene while on their way to the hospital. They don't think about horses and zebras, they think in terms of ABCs, trauma care, defibrillation, and early ACLS.
Besides, the nursing lobby is too strong to allow the laws to change in "favor" of paramedics anyway. I've criticized many in the industry for heading down this path before, and have felt for a long time that we should improve on what we're doing (emergency care and transportation of the sick and injured), not try to break out in a whole new area (definitive care).
If you want to treat patients, go to med school. Personally, I'd rather sleep in my ambulance at my assigned intersection until you call me for your stubbed toe at 2am.
Like I said in my earlier comment, this is nothing new. Paramedics can give nitrates for chest pain, draw bloods for analysis at the hospital, administer oxygen, perform endotracheal intubation, interpret life-threatening heart rhythms, etc. In most cases, we can already do this without calling a physician and asking permission.
This is basically "offline medical control" in the form of standing orders. Physicians get together, decide what's best for the patient and a particular geographic area, and allow paramedics to practice under their indirect supervision.
Sometimes, a patient doesn't meet the right criteria for treatment, or a patient needs an intervention that needs a direct physician order (like morphine for chest pain/congestive heart failure) - in these cases, paramedics are very skilled at and comfortable with giving a very fast rundown of what's going on with the patient and asking the physician's permission to give a particular intervention.
That's in place now, it works, and it can be improved by improving the radio/communication system. I'm all for trying new things out, but I fail to see how putting expensive equipment in the back of an ambulance is going to make a difference or improve care from what could be administered by a properly-trained paramedic.
I think I agree that telemedicine in the field is a great idea for certain things (especially weird ALS interfacility transfers between hospitals), but the whole point of "prehospital medicine" is to get the patient to definitive care in one piece, correcting life-threatening problems as they go, preferably in better shape than when they found the patient. EMS is there to "fix big problems that can't wait," according to pre-established patient care protocols. Also, just for purposes of clarity, EMT != paramedic.
If you look at the article, it talks about geographical considerations in the rural area around Pittsburgh that prevent them from making contact with physicians with conventional radio and cellular methods. Paramedics routinely call physicians at hospitals and say "this is what the patient looks like, these are the vital signs, this is the treatment i've rendered so far," etc. Rural EMS presents more of a challenge, but if "communications" is where the system breaks down, fix it with improved communications, not an unproven bazillion dollar system that takes more effort and cost to implement than just treating the patient as well as we do now.
The biggest problem with this (as I've mentioned above) is that this isn't really what paramedics are there for in most cases. Paramedics think in terms of chief complaints, not truly in terms of differential diagnoses. There's a much smaller universe of things you can definitively treat in the field versus starting down a path of treatment as one might in the emergency department. Sometimes there are disease processes (heart attack, stroke, and apparently sepsis) that can benefit greatly from definitive early treatment. However, the appropriate way to address this is by changing treatment protocols to tell paramedics "if you see X, Y and Z, treat THIS way" or "contact medical control" or something. Frequently, when there are new meaningful findings that can result in improved patient outcomes, continuing education and common knowledge will tell us to call for online medical control so we can immediately intervene instead of just treating with O2, IV of normal saline, and an EKG.
The second biggest problem with this is the price tag. No EMS system in its right mind is going to pay $250,000 for something that hasn't demonstrated that it's more effective at reducing morbidity and mortality than "conventional" paramedics with existing equipment and a slightly upgraded communications system.
Generally, paramedics are very good at recognizing patients who present as "yikes, this guy is sick, and I don't know why" and calling a physician. We have plenty of tools at our disposal with fancy whistles and bells to help give us a big picture of what's going on with the patient. And to be honest, physicians don't WANT paramedics bothering them at the emergency department for every incoming patient.
Save your tax dollars and mine. Spend it on more staffed ambulances and better training for paramedics, not cooler toys.
I sympathize with the people who have posted and criticized the "medical establishment" and the inefficiency of HMOs, yada yada. While a valid criticism, and with the caveat that I have not seen him as a patient, I don't think you can defend his behavior by distracting from it (by attacking the healthcare system in the US).
In life, I have learned that the most important things are to:
1.) Know what you know,
2.) Know what you don't know, and
3.) Know the difference.
I think farther down the thread, someone posted a comment that intelligence in one area does not translate into experience in another, but that frequently, confidence remains high and people will refuse to second-guess themselves if they're convinced they're right.
Frankly, I think that's what's going on here.
Mr. V is convinced that he has some horrible no-name disease that tons of MDs haven't been able to figure out. He hangs on the details of all sorts of medical tests and lab results, searching for something that might not be within normal limits. He might have mitral valve issues or something, but obviously nothing too serious or they would have put him through a cardiac catheterization.
I am not a physician. However, in working in the medical field, I have seen TONS of coworkers self-diagnose, self-medicate, and overtreat symptoms of one thing because they felt they knew best and would just save themselves a trip to the doctor. One thing I have learned in both "having medical knowledge" and "not being a physician" is that when it comes to my own care, sticking with one primary care doc is the best plan. Doc-shopping for one who will treat your symptoms the way you want them to SCREAMS that you are a hypochondriac.
Indeed, the fact that he's had lots of people do blood tests while nobody has done truly invasive tests (or, as the MD here noted, put in a chest tube or anything) indicates that Mr. V, while a talented programmer and software maintainer, is NOT a physician and should stop jumping from MD to MD, trying to find one to tell him "Yes! Yes! You have a bizarre disease that I can treat with THIS DRUG."
Patrick Volkerding sounds like the kind of patient I've dealt with who insists that they're having an asthma attack. When you listen to their lungs, they are clear as a bell and have no wheezes, and their SpO2 is 99-100%. However, give them a little albuterol and oxygen through a nebulizer and suddenly they claim to be cured. CURED!
Don't take this as flamebait, but Mr. Volkerding does not need another infectious disease specialist. He needs to be evaluated by a psychiatrist. Until he can demonstrate that he's been to one, I would encourage the slashdot editors to stop posting stories about him because YOU ARE ONLY ENCOURAGING AND ENABLING HIS HYPOCHONDRIAC BEHAVIOR.
Yeah, I'm horrible at figuring out my own taxes. The problem is that so is just about everyone else. And while I misspoke by characterizing the 40% as the self-employment tax, it's no exaggeration to say that if you're a simple IC, you really have to put about 40% aside to cover the quarterly payments to the IRS and to make sure you don't risk penalties later.
My argument against working as an IC if at all possible (in most situations) aren't about the numbers themselves, but more about how employers love to dangle this golden carrot out in front of you and tell you "You'll take home more money as an independent contractor!" and "Independent contractors get hot women!"
I don' t know of anyone personally who has left an employer and then filed an SS-8, but I heard from a coworker that someone had done it once to one of my former bosses. He (former boss) was reeeeeally pissed about it. Come to think of it... it hasn't been three years yet, and I have the day off today. Maybe it's time to file.:)
It's no secret that lots of businesses like to unfairly take advantage of employees by calling them "independent contractors." I've worked for several bosses who have done just that.
The problem is that unless you're a principal or spend ridiculous amounts of money on work expenses, it's almost impossible to ever come up with enough dough to cover the 40% of your salary that you're going to lose in self-employment tax, let alone surpass the standard deduction.
Also, take a look at this PDF form from the IRS. It has the same series of questions, and can be filed with the IRS for a determination (even after the fact) if you should have been counted as an IC or employee for tax purposes. They can then demand that an employer pay the proper amount of your taxes, and give you a refund for what you've (improperly) paid.
There's a three year statute of limitations on filing the SS-8 form with the IRS, though, so just be aware. It's all on the 4th and 5th pages of the form.
Disclaimer: None of this is legal advice. Tax laws are weird and very fact-specific. If you need a solid answer, ask a qualified attorney or accountant or something. You could even ask Dave Barry. He has a blog.
Not even all that long ago - I think the last semester they did it was Fall 1997 before they started using the web-based SIS and "time tickets."
You would bubble in your scantron sheet with the codes for the classes you wanted, and they'd zip it through the machine, then tell you "oh, that class is full." Or maybe the printout they handed you told you that - I forget.
SIS used to be the app you would run from the command line on RCS to do everything from degree progress reports to bursar accounts (i think)... It was a while ago.
I don't know what it was like when my dad was there but I can only imagine that it was worse.
No, no. RPI needs online registration like no other.
It's just not evident unless you've waited in line at the Playhouse to stick your bubble sheet in the right scantron machine. Thankfully, this doesn't happen anymore.
We had a trial practice class when I was in law school, and this guy came in with some snazzy graphics he'd done for a DA's office somewhere... the problem with some of the use of courtroom technology is that juries are likely to believe "oh, this is how it happened" instead of "oh, this is how it could have happened" because they can see it played out for them on the screen.
I am part of what I hope is a growing number of people who think that "Powerpoint and Technology In the Courtroom" is actually a great leap backwards, and not a step forwards.
When prosecutors can out-spend a defendant and get super computer graphics to snow the jury into snuffing reasonable doubt, where's the justice in that?
Well, if she's a union member, that's likely true - an association you join voluntarily would probably have the presumed permission of its members to spend their dues however its leadership sees fit.
However - if your wife resigns from the union and becomes an agency shop member, she would be able to not only demand the "political" percentage of her money back, but also the proportion of her dues spent on organizing other employees into new union shops.
It is illegal (even in a "closed shop" bargaining unit) to force people to join the union or coerce those who choose not to do so. A "happy medium" is what many refer to as the "fair share" employee, who pays for the cost of collective bargaining and grievance representation but not union organization and political campaigns. A quick google search revealed this FAQ that looks pretty succinct but correct.
Also, remember that you don't have to be a unionized employee to gain protection under the Section 7 of the National Labor Relations Act. Any employee acting in concert with another (or others - called "concerted activity") for the mutual aid and protection of employees is protected from unlawful interference in their choices to act collectively.
I remember some time ago seeing a documentary by James Burke written as a retrospective (in 2050) on global warming. A pretty good (and very critical) synopsis of the show is here.
I recall him mentioning something about how the polar ice would melt, diluting some kind of salt/mineral/whatever transport stream in the atlantic, and effectively killing off the ability of the oceans to simultaneously absorb CO2 and somehow effect some atmospheric flow (the jet stream, perhaps?)
As the above critique points out, though, even that was perceived to be approximately a 70 year cycle and couldn't explain global ice ages or anything really apocalyptic.
Perhaps we should start digging tunnels now to prevent any mine shaft gap.
Slashdot Mirror
Before anyone blames California, it should be understood that it is a very common employment law practice area to sue a former employer to limit the scope of a noncompete to something more "reasonable." The judge can always "blue pencil" any overly restrictive contract, and it just happens to come up in this area. There tends to be a well-established body of law on what is "reasonable" in this context, but like anything else that's always evolving.
Many states have laws that make noncompete agreements unenforceable beyond a specific time period. In Massachusetts, for example, I'm pretty sure that any covenant not to compete extending for longer than two years is simply not enforceable.
Without doing any research, I wonder out loud if California got sick of clogging the courts with these "blue pencil" cases and passed a law doing away with the need for them. Or, maybe they decided as a matter of policy that the need for tech companies and their employees to move about freely without fear of litigation was a more effective way to foster innovation than to stifle employees' options by overbroad covenants.
Either way, it's not that California doesn't think much of the concept of freedom of contract, but that these noncompetes are frequently just too overbroad, and California has a large concentration of tech jobs.
Also, I don't know what Google's strategy is, but maybe there's some choice of law provision in the noncompete selecting CA as the forum state. Or maybe they have some incredible precedent to rely on that I dont know about. Or maybe they don't have a prayer so they just had to come up with something so crazy that it might just work.
From the above link: "In-house collection agents are not ordinarily covered by the Act. For example, if you have a store credit card, and the store's own collection department contacts you, the FDCPA does not apply. However if the same store uses an outside collection agency to contact you in relation to that same debt, the outside agency's conduct is restricted by the FDCPA. Similarly, if the same store uses an in-house collection agent, but suggests to you that the collection is being performed by a third party, the FDCPA may apply to them as a result of that representation."
The point I was trying to make is that there is a lot of misinformation out there as to what you can and can't get away with when collection agencies are after you, and you shouldn't turn to slashdot for advice.
...and I know just enough about debt collection law to know that I don't know enough to comment much on this. Oh, and that you certainly shouldn't accept legal advice from ANYONE on slashdot. Including me.
The FDCPA, however, generally applies to third-party debt collectors. If I recall correctly, most people simply run afoul of the Act when they fail to include the required "This communication is an attempt to collect a debt. Any information obtained will be used for that purpose blah blah blah" language on the letter. Usually it's because companies/lawyers don't realize the law applies to them and they end up owing a $1000 fine per occurrence.
The FCRA is also a useful tool for consumers to make sure big companies don't bully them around, but at this hour I can't remember enough about it to really post anything resembling an educated comment. However, it's more complicated than the original poster suggests.
However, another very important set of resources available to consumers are state consumer protection laws. Generally you can find these on your state Attorney General's homepage, and there are detailed instructions for nonlawyers about your rights, the notice and filing requirements and deadlines, and pros and cons of filing a complaint with the AG versus filing on your own. Frequently they follow a similar model, and often involve a requirement that before filing suit for consumer protection violations, you provide a demand letter with 30 days' written notice and an opportunity to settle the claim without going to court.
If the question is not "someone says I owe them money and I don't think I do," but rather that "a magazine renewed my subscription without my consent and then attempted to bill me for it," it seems to me that your state AG's webpage would be a good place to start. Usually there are brochures. With pretty pictures.
[ And now for the standard disclaimer: Legal advice is given by an attorney duly admitted to practice law after confidentially and candidly hearing your version of the facts and applying a specialized analysis of the facts and relevant law. This, however, is a silly post on the Internets, and not legal advice. No attorney-client privilege is created with anyone as a result of this post. Do not taunt Happy Fun Ball. If legal advice is what you want, go hire a competent lawyer. Don't ask slashdot. ]
I guess all those sleepless nights about being nuked by a Russian sub were all for naught.
I mean, if they can't even make a simple booster rocket on a modified SLBM fire correctly, how are they supposed to get MIRVs up to a height to fall (albeit haphazardly) on US soil?
Well, NALITPONE (Not a Lawyer in That Part of New England) ;)
Also, I don't know where the case was filed or if that court even has proper jurisdiction... I just threw NH out there because (I think) that's where the company was based. The article didn't say where it was filed. It's possible that if it was filed in another jurisdiction there might be hope for an anti-SLAPP motion.
I am not admitted to practice in New Hampshire (I don't even know where the suit was filed), and none of this is legal advice - that said...
;)
;)
"SLAPP" is an acronym for Strategic Lawsuits Against Public Participation. It basically means all of the lawsuits that big companies file against "the little guy" when "the little guy" exercises his First Amendment rights to protest in a "matter of public concern." A really good run-down of the reasoning behind Massachusetts' anti-SLAPP statute (only because that's the one I'm most familiar with) is here. Historically, these suits will often present as claims for defamation or "interference with contractual relations" for the statements made by the defendant.
There are certain legal tests that one must meet in order to have their "petitioning activity" qualify as being "protected" under the statute. Without more facts and knowledge of the analagous statute in NH (if there even is one), I wouldn't hazard a guess as to whether or not "contacting SpamHaus with information about a spammer" would fit. Might be a good case to bump up the appellate process and make new law in the jurisdiction, though.
The advantage of filing a Special Motion to Dismiss under these Anti-SLAPP statutes is that frequently, they allow for an immediate award of costs and attorney's fees, effectively stopping the frivolous lawsuit in its tracks and strongly discouraging companies from filing such suits in the future.
This guy should find a lawyer, explain ALL of the facts of the suit, and ask her to consider if this could be seen as a SLAPP suit, and how to proceed. Like I've said in other posts, most bar associations have lawyer referral services (LRS) that require member attorneys to give a free or cheap initial consultation. It sounds like this would be a great case for someone to take on.
Not all lawyers are bloodsucking bottom-feeders. Some are, and they give the rest of us a bad name. Just keep an open mind when you want a lawyer.
You can assert the fifth amendment in any tribunal you like if there's a reasonable likelihood that such testimony, if elicited, could result in a response that tends to incriminate you for a criminal offense.
Answering a question that only happens to prove that you have civil liability for some event (absent a criminal component to the same set of facts) does not grant you any privilege alone.
For example: if you're criminally accused of murder and the family of the decedent files a wrongful death suit against you - in the suit by the family to prove your civil liability, you can assert the privilege against any questions that might tend to show that you are criminally responsible for any offenses. However, you probably can't refuse to testify altogether unless you can prove to a judge that any testimony would be so prejudicial to your CIVIL case (because you'd be invoking the privilege all the time) that it would be unfair to even put you on the stand.
More likely than not, however, any of these issues would be dealt with during pretrial motion practice to narrow the scope of the defendant's testimony. They would probably wait to sue until after the criminal trial anyway, after which jeopardy will have attached, making an argument to invoke the fifth amendment privilege more difficult (but not moot or impossible by any means).
An example for the converse would be if you were driving along and purely accidentally hit a nun crossing the street. The nun could sue you for negligence, but unless you may have also committed some criminal offense, you could be compelled to give testimony that might be against your interest (note that self interest is NOT the same as criminal culpability).
In a criminal case, the prosecution has the burden of proving beyond a reasonable doubt each of the elements of the criminal offense, which may include intent (mens rea), and various components of criminal acts (actus reus). In the U.S., the criminal defendant has a fundamental right to a jury trial (but can choose to waive that right).
In a civil case, the plaintiff is the master of her claim. If the plaintiff demands a jury trial on all issues, it's not like the defendant can waive the jury demand that the plaintiff has made. If all of the facts are agreed by both parties, and the facts as agreed constitute civil liability, the plaintiff will likely move for summary judgment - which basically tells the judge "look - we don't have to go to the jury, because according to these facts, we've satisfied our burden of proving that he did what we said he did, and nothing that the defendant could show would make any difference."
There is no jury nullification or "nice guy" exception or "oops, I didn't MEAN to do it" way out in strict liability.
Adding to my earlier post, because he could be liable for criminal copyright violations or possibly other criminal sanctions, he probably does have a fifth amendment privilege with respect to what he's done. He needs to get a competent lawyer.
The parent here is somewhat correct, but I feel like I should clarify:
The fifth amendment prohibition against compelled testimony only applies to criminal liability, and only applies to "persons."
If an elicited response in a civil case might tend to incriminate you in a criminal action, a witness can invoke the privilege against self-incrimination and refuse to answer that question. Remember, though, that if you waive the privilege, it is lost forever - so if you're not sure, SHUT YOUR MOUTH and find a way to consult with a lawyer. If you're at a loss for how to get an attorney, many state and local bar associations have lawyer referral services that are free to the public, usually with a free or cheap 30-minute interview or something.
In a civil case, just because a statement may tend to make you more liable for money damages in a civil action doesn't mean that you can make a blanket refusal to testify if called as a witness by the opposing party. To do so would not only nullify your defense and force the court to take your opponent's views at face value, but would also mean that individuals could escape liability in most cases by simply refusing to acknowledge it.
Also important is that civil liability has varying degrees of standards of proof, with ultimate responsibility generally relying on a preponderance of the evidence - both sides have an obligation to plead their cases, and the factfinder decides what "truth" is. Criminal liability, however, requires that the prosecution prove its case beyond a reasonable doubt. The criminal defendant can remain silent and the burden for the prosecution remains unchanged.
However, even in a criminal case, you can't use the defendant's silence as both a sword and a shield; once the defendant has chosen to take the stand and testify, they can't choose to only answer questions that would tend to prove their innocence.
I know I went a little overboard, but I always see people confusing the fifth amendment privilege and thinking that they can apply it where they can't. Just wanted to clarify.
I know that there are /. readers in all different countries out there. I noted twice in my comment that the NLRB only has jurisdiction in the US, so that readers saw what happened in Canada and wouldn't think that the same result would happen in the US.
That is a logical extension of the conversation of the original post: comparing different legal results based on which jurisdiction you're in.
It's entirely possible that the overall body of labor law is such that there's an analagous agency in Canada just like the NLRB - in either case, it's completely relevant to talk about the result of the same set of facts in different countries.
Your post is like saying that because the Red Sox won the World Series, to talk about the Cubs is irrelevant.
Oh, wait...
I don't think "hey, let's blow this popsicle stand and take all of its business with it" qualifies as "protected concerted activity" under the act, even if it had occurred within the US NLRB's jurisdiction.
However, don't let this dissuade you from working together to improve your workplace under the protections of Section 7. You should, however, try to avoid using company-owned computer systems for obvious reasons. (They own them, they can read whatever they want on them, you have no expectation of privacy on them.)
...usually mistakes on their own have a well-established safety net of anti-malpractice rules, pathways and guidelines to keep mistakes from reaching the patient. Often, when people take shortcuts, that's when malpractice occurs that results in real harm and injury to the patient.
My point is that when people get lazy and take shortcuts, the punitive effects of med-mal suits force them (and other hospitals) to put procedures in place to make sure that shortcut will never be abused again.
As someone downthread posted, my comment was more directed toward online medical control than the quick radio reports we make to say "here we come!"
;)
I'm in complete agreement, and unless we had bizarre radio failure or a less-than-a-minute transport time with weird circumstances, I think it's always appropriate to give the "heads up" call to the ED.
I would just say that when possible, I try to avoid bothering a physician for routine medical treatment, ALS or BLS, that won't require any immediate specialized personnel or equipment when we land at the ED. When I was working in one system, we actually had a computer system that would relay our incoming patients (in text format) to a computer in the ED after we gave a VERY brief report to our own dispatcher (e.g. 27 Female, ankle injury, BLS).
If we had something that wasn't simple and routine, we called it in as a lengthy radio report, including treatment rendered, additional orders requested, and additional resources required upon arrival. I never meant to imply that the ED liked surprises. Sorry for confusing the issue
Before anyone screams that we need damage caps on medical malpractice awards, we should remember cases like this. You can be sure that as soon as Ambulance Company X or Hospital Y had to pay out a $5 Million pain and suffering award, they changed their pathways and policies to be sure that it would never happen again.
For some time in the late 1990s and even into 2001 or so (and there are occasional rumblings even today) a segment of the EMS field pushed for a higher level of paramedic care that would do just that - "treat and street" as someone posted in this thread.
The biggest problem was the way that Medicare treats ambulance service. Except in very limited circumstances under the "paramedic intercept" code, in order to bill Medicare for an ambulance call, you have to actually transport the patient in your ambulance. If the wheels don't turn on your ambulance with a patient in the back, you can't submit a claim for it.
While private insurers and HMOs aren't bound by Medicare's decisions, they certainly do follow suit a high percentage of the time.
The reason that this doesn't work philosophically is that paramedics are trained from day one how to spot immediate life threats and intervene while on their way to the hospital. They don't think about horses and zebras, they think in terms of ABCs, trauma care, defibrillation, and early ACLS.
Besides, the nursing lobby is too strong to allow the laws to change in "favor" of paramedics anyway. I've criticized many in the industry for heading down this path before, and have felt for a long time that we should improve on what we're doing (emergency care and transportation of the sick and injured), not try to break out in a whole new area (definitive care).
If you want to treat patients, go to med school. Personally, I'd rather sleep in my ambulance at my assigned intersection until you call me for your stubbed toe at 2am.
Like I said in my earlier comment, this is nothing new. Paramedics can give nitrates for chest pain, draw bloods for analysis at the hospital, administer oxygen, perform endotracheal intubation, interpret life-threatening heart rhythms, etc. In most cases, we can already do this without calling a physician and asking permission.
This is basically "offline medical control" in the form of standing orders. Physicians get together, decide what's best for the patient and a particular geographic area, and allow paramedics to practice under their indirect supervision.
Sometimes, a patient doesn't meet the right criteria for treatment, or a patient needs an intervention that needs a direct physician order (like morphine for chest pain/congestive heart failure) - in these cases, paramedics are very skilled at and comfortable with giving a very fast rundown of what's going on with the patient and asking the physician's permission to give a particular intervention.
That's in place now, it works, and it can be improved by improving the radio/communication system. I'm all for trying new things out, but I fail to see how putting expensive equipment in the back of an ambulance is going to make a difference or improve care from what could be administered by a properly-trained paramedic.
I think I agree that telemedicine in the field is a great idea for certain things (especially weird ALS interfacility transfers between hospitals), but the whole point of "prehospital medicine" is to get the patient to definitive care in one piece, correcting life-threatening problems as they go, preferably in better shape than when they found the patient. EMS is there to "fix big problems that can't wait," according to pre-established patient care protocols. Also, just for purposes of clarity, EMT != paramedic.
If you look at the article, it talks about geographical considerations in the rural area around Pittsburgh that prevent them from making contact with physicians with conventional radio and cellular methods. Paramedics routinely call physicians at hospitals and say "this is what the patient looks like, these are the vital signs, this is the treatment i've rendered so far," etc. Rural EMS presents more of a challenge, but if "communications" is where the system breaks down, fix it with improved communications, not an unproven bazillion dollar system that takes more effort and cost to implement than just treating the patient as well as we do now.
The biggest problem with this (as I've mentioned above) is that this isn't really what paramedics are there for in most cases. Paramedics think in terms of chief complaints, not truly in terms of differential diagnoses. There's a much smaller universe of things you can definitively treat in the field versus starting down a path of treatment as one might in the emergency department. Sometimes there are disease processes (heart attack, stroke, and apparently sepsis) that can benefit greatly from definitive early treatment. However, the appropriate way to address this is by changing treatment protocols to tell paramedics "if you see X, Y and Z, treat THIS way" or "contact medical control" or something. Frequently, when there are new meaningful findings that can result in improved patient outcomes, continuing education and common knowledge will tell us to call for online medical control so we can immediately intervene instead of just treating with O2, IV of normal saline, and an EKG.
The second biggest problem with this is the price tag. No EMS system in its right mind is going to pay $250,000 for something that hasn't demonstrated that it's more effective at reducing morbidity and mortality than "conventional" paramedics with existing equipment and a slightly upgraded communications system.
Generally, paramedics are very good at recognizing patients who present as "yikes, this guy is sick, and I don't know why" and calling a physician. We have plenty of tools at our disposal with fancy whistles and bells to help give us a big picture of what's going on with the patient. And to be honest, physicians don't WANT paramedics bothering them at the emergency department for every incoming patient.
Save your tax dollars and mine. Spend it on more staffed ambulances and better training for paramedics, not cooler toys.
I sympathize with the people who have posted and criticized the "medical establishment" and the inefficiency of HMOs, yada yada. While a valid criticism, and with the caveat that I have not seen him as a patient, I don't think you can defend his behavior by distracting from it (by attacking the healthcare system in the US).
In life, I have learned that the most important things are to:
1.) Know what you know,
2.) Know what you don't know, and
3.) Know the difference.
I think farther down the thread, someone posted a comment that intelligence in one area does not translate into experience in another, but that frequently, confidence remains high and people will refuse to second-guess themselves if they're convinced they're right.
Frankly, I think that's what's going on here.
Mr. V is convinced that he has some horrible no-name disease that tons of MDs haven't been able to figure out. He hangs on the details of all sorts of medical tests and lab results, searching for something that might not be within normal limits. He might have mitral valve issues or something, but obviously nothing too serious or they would have put him through a cardiac catheterization.
I am not a physician. However, in working in the medical field, I have seen TONS of coworkers self-diagnose, self-medicate, and overtreat symptoms of one thing because they felt they knew best and would just save themselves a trip to the doctor. One thing I have learned in both "having medical knowledge" and "not being a physician" is that when it comes to my own care, sticking with one primary care doc is the best plan. Doc-shopping for one who will treat your symptoms the way you want them to SCREAMS that you are a hypochondriac.
Indeed, the fact that he's had lots of people do blood tests while nobody has done truly invasive tests (or, as the MD here noted, put in a chest tube or anything) indicates that Mr. V, while a talented programmer and software maintainer, is NOT a physician and should stop jumping from MD to MD, trying to find one to tell him "Yes! Yes! You have a bizarre disease that I can treat with THIS DRUG."
Patrick Volkerding sounds like the kind of patient I've dealt with who insists that they're having an asthma attack. When you listen to their lungs, they are clear as a bell and have no wheezes, and their SpO2 is 99-100%. However, give them a little albuterol and oxygen through a nebulizer and suddenly they claim to be cured. CURED!
Don't take this as flamebait, but Mr. Volkerding does not need another infectious disease specialist. He needs to be evaluated by a psychiatrist. Until he can demonstrate that he's been to one, I would encourage the slashdot editors to stop posting stories about him because YOU ARE ONLY ENCOURAGING AND ENABLING HIS HYPOCHONDRIAC BEHAVIOR.
Yeah, I'm horrible at figuring out my own taxes. The problem is that so is just about everyone else. And while I misspoke by characterizing the 40% as the self-employment tax, it's no exaggeration to say that if you're a simple IC, you really have to put about 40% aside to cover the quarterly payments to the IRS and to make sure you don't risk penalties later.
:)
My argument against working as an IC if at all possible (in most situations) aren't about the numbers themselves, but more about how employers love to dangle this golden carrot out in front of you and tell you "You'll take home more money as an independent contractor!" and "Independent contractors get hot women!"
I don' t know of anyone personally who has left an employer and then filed an SS-8, but I heard from a coworker that someone had done it once to one of my former bosses. He (former boss) was reeeeeally pissed about it. Come to think of it... it hasn't been three years yet, and I have the day off today. Maybe it's time to file.
It's no secret that lots of businesses like to unfairly take advantage of employees by calling them "independent contractors." I've worked for several bosses who have done just that.
The problem is that unless you're a principal or spend ridiculous amounts of money on work expenses, it's almost impossible to ever come up with enough dough to cover the 40% of your salary that you're going to lose in self-employment tax, let alone surpass the standard deduction.
The IRS has a pretty good outline of how to properly differentiate between employees and contractors (under the IRC) here.
Also, take a look at this PDF form from the IRS. It has the same series of questions, and can be filed with the IRS for a determination (even after the fact) if you should have been counted as an IC or employee for tax purposes. They can then demand that an employer pay the proper amount of your taxes, and give you a refund for what you've (improperly) paid.
There's a three year statute of limitations on filing the SS-8 form with the IRS, though, so just be aware. It's all on the 4th and 5th pages of the form.
Disclaimer: None of this is legal advice. Tax laws are weird and very fact-specific. If you need a solid answer, ask a qualified attorney or accountant or something. You could even ask Dave Barry. He has a blog.
Not even all that long ago - I think the last semester they did it was Fall 1997 before they started using the web-based SIS and "time tickets."
You would bubble in your scantron sheet with the codes for the classes you wanted, and they'd zip it through the machine, then tell you "oh, that class is full." Or maybe the printout they handed you told you that - I forget.
SIS used to be the app you would run from the command line on RCS to do everything from degree progress reports to bursar accounts (i think)... It was a while ago.
I don't know what it was like when my dad was there but I can only imagine that it was worse.
No, no. RPI needs online registration like no other.
It's just not evident unless you've waited in line at the Playhouse to stick your bubble sheet in the right scantron machine. Thankfully, this doesn't happen anymore.
We had a trial practice class when I was in law school, and this guy came in with some snazzy graphics he'd done for a DA's office somewhere... the problem with some of the use of courtroom technology is that juries are likely to believe "oh, this is how it happened" instead of "oh, this is how it could have happened" because they can see it played out for them on the screen.
I am part of what I hope is a growing number of people who think that "Powerpoint and Technology In the Courtroom" is actually a great leap backwards, and not a step forwards.
When prosecutors can out-spend a defendant and get super computer graphics to snow the jury into snuffing reasonable doubt, where's the justice in that?
Well, if she's a union member, that's likely true - an association you join voluntarily would probably have the presumed permission of its members to spend their dues however its leadership sees fit.
However - if your wife resigns from the union and becomes an agency shop member, she would be able to not only demand the "political" percentage of her money back, but also the proportion of her dues spent on organizing other employees into new union shops.
It is illegal (even in a "closed shop" bargaining unit) to force people to join the union or coerce those who choose not to do so. A "happy medium" is what many refer to as the "fair share" employee, who pays for the cost of collective bargaining and grievance representation but not union organization and political campaigns. A quick google search revealed this FAQ that looks pretty succinct but correct.
For more on your rights NOT to join or support a union any more than necessary, check out the National Right to Work Foundation. The National Labor Relations Board also has lots of great material available online.
Also, remember that you don't have to be a unionized employee to gain protection under the Section 7 of the National Labor Relations Act. Any employee acting in concert with another (or others - called "concerted activity") for the mutual aid and protection of employees is protected from unlawful interference in their choices to act collectively.
I remember some time ago seeing a documentary by James Burke written as a retrospective (in 2050) on global warming. A pretty good (and very critical) synopsis of the show is here.
I recall him mentioning something about how the polar ice would melt, diluting some kind of salt/mineral/whatever transport stream in the atlantic, and effectively killing off the ability of the oceans to simultaneously absorb CO2 and somehow effect some atmospheric flow (the jet stream, perhaps?)
As the above critique points out, though, even that was perceived to be approximately a 70 year cycle and couldn't explain global ice ages or anything really apocalyptic.
Perhaps we should start digging tunnels now to prevent any mine shaft gap.