Important note: this is a general post that can not be relied upon for your individual cirumstances. If you need legal advice contact a lawyer. If you contact me I will try to help or put you in touch with someone who can.
Ice
With the harshest winter for many years, it is worth bearing in mind the statutory duty on Highway Authorities 'to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice' (section 41(1A) of the Highways Act 1980 inserted in 2003 to reverse a Court decision to the contrary effect).
If you have suffered personal injury or damage to your bike after a fall on ice on the road then, self-evidently, your safe passage has been endangered and it is then for the Authority to demonstrate it has done what is reasonably practicable to remove the ice before you fell. In the event of serious injury or damage it may be worth enquiring of the Authority whether they had an appropriate salting policy and whether they complied with it. My suspicion is that many Highway Authorities would be able to demonstrate that despite their best efforts they were overwhelmed with the unusual weather conditions and constrained by central government advice to restrict salting to major routes.
I shall not therefore be looking into suing the Highway Authority charged with the responsibility of clearing ice from the road in Flackwell Heath, Bucks early one Sunday morning where I came a cropper.
Potholes
The freezing, thawing and refreezing of the roads has left many of them in an appalling state of repair. The Highway Authorities have a similar duty to deal with potholes. Section 58 provides a defence if the Authority can show that it has taken such care as was in all the circumstances reasonably required to ensure that the road was safe for traffic. Relevant to this is s.58(d) "whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway".
For that reason it is very important to let Highway Authorities know about dangerous potholes, whether by using the useful CTC website fill that hole or otherwise.
And, yes, notwithstanding the views of the petrolheads, bicycles are traffic.
In the Courts
Two promising signs that the car culture does not always prevail. The successful prosecution of Katie Hart for causing the death of Major Gareth Rhys-Evans by dangerous driving shows that the police and CPS will not always accept the running down of a cyclist with equanimity. One disappointment (since this could and should serve as a useful deterrent) is that the case has not received more publicity. It is to my mind telling that we have heard so much more about the report from the 'Road Safety Foundation' which says nothing at all about cyclists and appears to believe that shielding motorists who have run off the roads from things like trees is a sensible use of finite resources. They clearly know nothing of risk compensation and it is, to my mind, more important that motorists stop hitting cyclists than that they stop hitting trees.
In a separate case, Osei-Antwi v South East London & Kent Bus Co Ltd (2010), the Court of Appeal have reversed a trial judge's finding of contributory negligence against a pedestrian who was standing on the pavement (a space reserved for pedestrians) when struck by a turning bus. The only real surprise is that the trial judge thought it appropriate to impose the obligation on the pedestrian to jump out of the way of a bus which had no business being on the pavement.
Meanwhile in the Westminster Coroner's Court, deputy Coroner Dr Shirley Radcliiffe, returned a verdict of accidental death after enquiring into the death of Eilidh Cairns, one of an alarming number of young women killed in London by HGV vehicles last year. The HGV driver faces charges of driving with defective vision. I hope to bring more on this case in the near future.
In Chester Crown Court the Crown Prosecution Service announced that it would not be persuing charges against Tracey Johnson who had run into Sharon Corless killing her and seriously injuring her husband. She lost control of her unusually heavy 4x4 Range Rover vehicle. Medical evidence indicated that she may have suffered a sudden feint, so it was presumably thought that the chances of a conviction were not good. An earlier line of legal authorities (see Attorney General's Reference No 2 of 1992) have made it clear that a driver cannot lay claim to the defence that he was acting in an unconscious state unless he has taken proper precautions to stop that state from coming upon him. It may be thought that this horrific accident coupled with such an extraordinary explanation could sensibly be left to the judgment of a jury. Nobody should be behind the wheel of any car, let alone a heavy 4x4, without complete confidence that they can control it.
Jackson
Lord Justice Rupert Jackson has completed his final Review of Civil Litigation Costs. This is causing consternation amongst lawyers and will require legislation to implement its recommendations. What every cyclist needs to know is that the days when you could enter a 'no win, no fee' agreement secure in the knowledge that if you won the other side would pay all your lawyer's bills may be numbered. Success fees paid to your lawyer for the risk of not winning, and insurance premiums required to meet the other side's costs should you lose, may in the future come out of your damages. The best advice is to ensure you have insurance before your accident. Fortunately with membsership of BCF and CTC and no doubt some other organisations such cover comes as standard.
Etape preparation - January 2010. Six months to go.
Really struggling to get off the ground this year. My plan for doing the Team Quest Reliability Ride today was upset by the weather. With a very sharp frost and some ice on the roads I did not want to risk a repetition of my fall two weeks ago. I did, however, venture out for my 3rd Thames Velo Club Run of the month instead. The 5 Imperial Winter Series races I have done this month at Hillingdon should help with the top end stuff. Add in a very little bit of commuting to London and I have managed just over 500 miles this month in 30.75 hours on the bike. Should be easy to build up from that when the thaw comes and as I continue to recover from that spill. For next month, I hope to get a couple of reliability rides in and, of course, the last two races of the winter series, before 5 days of bliss in Spain.
Imperial Winter Series Race 10 Saturday 30th January
had gone by and I found it safe to stop. A little run across Minet Park back to the finish hut where I swapped my rear wheel for a circuit spare and reentered the race. My aim was simply to finish comfortably in the bunch and I even started to move up in the penultimate lap before another major collision just ahead caused some sharp braking and loss of contact with the bunch. I sprinted after them but to no avail. I do hope those that came down are ok: hurts like hell for a while but at least it is slightly more heroic to come down in a race than on sheet ice.
Av Speed: I cannot say because of the puncture but the 3rd cats did not catch us this week. [Postscript 24.3mph, source Lance Woodman]
Art and Dance at the Falls
If you are near the southeastern part of New Hampshire on February 4 from 6 to 9 pm, make sure you check out First Thursday at the Falls, a vibrant collection of the arts to make you dance and stir your soul. See them at firstthursdayatthefalls.com or by going to Rollinsford, NH at the Lower Mill at Salmon Falls and on Front Street.
Correspondence with Department for Transport
Here is a copy of an email I sent to the Department for Transport on 28th April 2009, 5 days before Major Rhys-Evans's tragic death and (above it) a copy of the response I received on 7th May (4 days after the tragedy). Note that the Department focuses its resources on advice to child and teenage cyclists rather than to the vehicle drivers who present the danger. The car culture runs deep.
Thu 07/05/2009 11:36
FW: Campaign for cyclists?
Dear Mr Porter,
Thank you for your email and your interest in road safety, and my apologies for the delay in responding to your enquiry.
Firstly, let me highlight to you some of the information we already provide which is relevant to your concern about cycle safety and motorists awareness of cyclists. We provide, via the THINK! Education programme, a range of advice, resources and activities to encourage children and teenagers to cycle safely. This includes resources for teachers and parents to encourage them to teach these messages. You can see some examples of this work here - http://www.dft.gov.uk/think/education/early-years-and-primary/. In addition to this the main THINK! website provides guidance and advice on cycle safety (http://www.dft.gov.uk/think/focusareas/cycling?whoareyou_id=&page=Overview) and on the various issues for drivers themselves (http://www.dft.gov.uk/think/focusareas/driving/?whoareyou_id=&page=Overview).
The DfT's THINK! campaigns are developed in consultation with stakeholders and creative advertising agencies. As you can imagine, we have a limited budget available and our priorities are decided by the issues which cause the greatest levels of deaths and serious injuries on our roads, as ultimately our target is to reduce these numbers. This means that a majority of our budget goes on campaigns to reach adults on issues such as drink-driving, speeding, use of mobile phones and wearing seatbelts, as well as campaigns to reach children and teenagers to teach them good road safety behaviour.
Our approach is informed by research into driver attitudes and behaviour which comprises monthly tracking research to measure effectiveness and also creative research with representative samples of our audiences to ensure creative approaches have salience. Therefore we don't accept ideas not developed through our rigorous campaign development process.
With regard to your suggestion for a “share the road” campaign, therefore, I hope some of the above information explains why we are not able to take forward this idea, and also why our campaigns are focused on issues which ultimately have a greater impact in terms of deaths and injuries.
Kind regards,
Dan
Dan Jones
Marketing Unit
Department for Transport
Great Minster House
76 Marsham Street
London SW1P 4DR
www.dft.gov.uk/think
--------------------------------
From: Martin Porter QC
Sent: 28 April 2009 16:47
To: ROAD SAFETY
Subject: Campaign for cyclists?
Dear Sirs,
I write to ask that consideration be given to a publicity campaign directed at motorists to give adequate room to cyclists. I know that you have launched a high profile campaign aimed at motorists to look for motorcyclists. I believe a campaign in relation to the safety of cyclists would also be beneficial.
There are two respects in which many motorists need educating. The first is that the Highway Code requires (rule 163) that at least as much space be given to cyclists as to cars. The second linked factor is that a cyclist is entitled to occupy the lane that he or she is in. The two are closely linked because the motorist who believes that it is safe to pass a bicycle with inches to spare, will also feel that a cyclist adopting the primary riding position, occupying the lane, is holding him up by forcing him to change lane (something which in reality he needs to do to give adequate space in any event.)
The benefits of such a campaign would be not only greater safety for cyclists (both because passing margins would increase but also because aggression from motorists who are better informed would decrease) but also a reduction in the most powerful disincentive to cycling, a perception (often greater than the reality) that cycling is dangerous. Although in reality the greater risk to cyclists may be at junctions, it is the close passing motorist that most intimidates cyclists, often leading to riding on pavements with greater risks to cyclists and pedestrians or leading to riding too close to the kerb.
In my professional role I have acted at an inquest for the family of a cyclist who died when a motorist passed too close on a major road leaving insufficient room when she misjudged the intended path of the deceased.
In a personal capacity I am often passed far too closely, in particular on a dual-carriageway where many motorists are reluctant to cross to the offside lane to pass notwithstanding that the offside carriageway is clear. I recently experienced aggression from an HGV driver who deliberately forced me into the side of the road.
A ‘share the road’ campaign emphasising the cyclist’s right to use the carriageway and the motorist’s obligation to pass wide, very wide, is urgently required in order to save lives and to encourage cycling.
I hope this will receive serious consideration and I look forward to your response.
Yours sincerely,
Martin Porter
Thu 07/05/2009 11:36
FW: Campaign for cyclists?
Dear Mr Porter,
Thank you for your email and your interest in road safety, and my apologies for the delay in responding to your enquiry.
Firstly, let me highlight to you some of the information we already provide which is relevant to your concern about cycle safety and motorists awareness of cyclists. We provide, via the THINK! Education programme, a range of advice, resources and activities to encourage children and teenagers to cycle safely. This includes resources for teachers and parents to encourage them to teach these messages. You can see some examples of this work here - http://www.dft.gov.uk/think/education/early-years-and-primary/. In addition to this the main THINK! website provides guidance and advice on cycle safety (http://www.dft.gov.uk/think/focusareas/cycling?whoareyou_id=&page=Overview) and on the various issues for drivers themselves (http://www.dft.gov.uk/think/focusareas/driving/?whoareyou_id=&page=Overview).
The DfT's THINK! campaigns are developed in consultation with stakeholders and creative advertising agencies. As you can imagine, we have a limited budget available and our priorities are decided by the issues which cause the greatest levels of deaths and serious injuries on our roads, as ultimately our target is to reduce these numbers. This means that a majority of our budget goes on campaigns to reach adults on issues such as drink-driving, speeding, use of mobile phones and wearing seatbelts, as well as campaigns to reach children and teenagers to teach them good road safety behaviour.
Our approach is informed by research into driver attitudes and behaviour which comprises monthly tracking research to measure effectiveness and also creative research with representative samples of our audiences to ensure creative approaches have salience. Therefore we don't accept ideas not developed through our rigorous campaign development process.
With regard to your suggestion for a “share the road” campaign, therefore, I hope some of the above information explains why we are not able to take forward this idea, and also why our campaigns are focused on issues which ultimately have a greater impact in terms of deaths and injuries.
Kind regards,
Dan
Dan Jones
Marketing Unit
Department for Transport
Great Minster House
76 Marsham Street
London SW1P 4DR
www.dft.gov.uk/think
--------------------------------
From: Martin Porter QC
Sent: 28 April 2009 16:47
To: ROAD SAFETY
Subject: Campaign for cyclists?
Dear Sirs,
I write to ask that consideration be given to a publicity campaign directed at motorists to give adequate room to cyclists. I know that you have launched a high profile campaign aimed at motorists to look for motorcyclists. I believe a campaign in relation to the safety of cyclists would also be beneficial.
There are two respects in which many motorists need educating. The first is that the Highway Code requires (rule 163) that at least as much space be given to cyclists as to cars. The second linked factor is that a cyclist is entitled to occupy the lane that he or she is in. The two are closely linked because the motorist who believes that it is safe to pass a bicycle with inches to spare, will also feel that a cyclist adopting the primary riding position, occupying the lane, is holding him up by forcing him to change lane (something which in reality he needs to do to give adequate space in any event.)
The benefits of such a campaign would be not only greater safety for cyclists (both because passing margins would increase but also because aggression from motorists who are better informed would decrease) but also a reduction in the most powerful disincentive to cycling, a perception (often greater than the reality) that cycling is dangerous. Although in reality the greater risk to cyclists may be at junctions, it is the close passing motorist that most intimidates cyclists, often leading to riding on pavements with greater risks to cyclists and pedestrians or leading to riding too close to the kerb.
In my professional role I have acted at an inquest for the family of a cyclist who died when a motorist passed too close on a major road leaving insufficient room when she misjudged the intended path of the deceased.
In a personal capacity I am often passed far too closely, in particular on a dual-carriageway where many motorists are reluctant to cross to the offside lane to pass notwithstanding that the offside carriageway is clear. I recently experienced aggression from an HGV driver who deliberately forced me into the side of the road.
A ‘share the road’ campaign emphasising the cyclist’s right to use the carriageway and the motorist’s obligation to pass wide, very wide, is urgently required in order to save lives and to encourage cycling.
I hope this will receive serious consideration and I look forward to your response.
Yours sincerely,
Martin Porter
Riding on dual carriageways
Riding on dual carriageways is not always easy. My own technique is to travel well out into the nearside carriageway so that you are well within the area that motorists scan long before they reach you. Most motor traffic will pull out into the offside (or next) lane. However you do need to look back at every vehicle as it approaches, though at night there is the additional visual cue of your shadow in the nearside headlight. Once in a while a motorist who has not looked ahead will come up behind; you then need to check that the vehicle has slowed and is indicating. If not (and this happens maybe once in 100 vehicles or so) you need to move smartly to the offside just before the overtaking vehicle reaches you so that the one foot they have allowed you becomes 5 feet. (I then have been known to have a word with them at the next lights and on one occasion, earlier this week, the elderly motorist concerned really did mend his ways and earn a wave of thanks when he then did a textbook pass; of course on other occasions they drive straight at me more determinedly than ever after I have challenged them). My experience is that HGV drivers almost always move early into the other lane; on the thankfully rare occasions they don't (happened yesterday) I have to move over and brake because they will cut in early.
This may not be for everyone and I can appreciate it cannot be done whilst time trialling but it works for me so I thought I would pass it on. Remember folks; never ride in the gutter.
This may not be for everyone and I can appreciate it cannot be done whilst time trialling but it works for me so I thought I would pass it on. Remember folks; never ride in the gutter.
Dear Chief Crown Prosecutor - An open letter
Dear Mr Crowley,
R v Hart Peterborough Crown Court 27th January 2010
I write as a keen cyclist with a particular interest in the law as it relates to cyclists.
I have learnt of the conviction of Ms Katie Hart of the offence of causing death by dangerous driving on the A1 near St Neots last May 3rd when she ran down Major Rhys-Evans.
As a consequence I want to thank your office, the relevant crown prosecutor and the police concerned for the attention that has been given to this case. I particularly congratulate you for the principled and, as the jury have now demonstrated, correct decision not to accept a plea to the lesser offence of causing death by careless driving. This is a significant step towards increasing the safety of cyclists on the roads.
I am particularly anxious to give credit where it is due as I have been critical of decisions taken by other offices of the CPS not to prosecute drivers who have killed cyclists; particularly in the cases of Marie Vesco in Sussex and Anthony Maynard in Oxfordshire, both killed in summer 2008. It would, I suggest, be useful if you were able to disseminate your experiences from the Hart case to your colleagues throughout the country. The reassuring truth is that juries can and do recognise bad driving when the evidence is put before them. All too often, it appears, the evidence has not, in past cases, been put before a jury because of an unwarranted fear that they will not convict.
Yours sincerely,
R v Hart Peterborough Crown Court 27th January 2010
I write as a keen cyclist with a particular interest in the law as it relates to cyclists.
I have learnt of the conviction of Ms Katie Hart of the offence of causing death by dangerous driving on the A1 near St Neots last May 3rd when she ran down Major Rhys-Evans.
As a consequence I want to thank your office, the relevant crown prosecutor and the police concerned for the attention that has been given to this case. I particularly congratulate you for the principled and, as the jury have now demonstrated, correct decision not to accept a plea to the lesser offence of causing death by careless driving. This is a significant step towards increasing the safety of cyclists on the roads.
I am particularly anxious to give credit where it is due as I have been critical of decisions taken by other offices of the CPS not to prosecute drivers who have killed cyclists; particularly in the cases of Marie Vesco in Sussex and Anthony Maynard in Oxfordshire, both killed in summer 2008. It would, I suggest, be useful if you were able to disseminate your experiences from the Hart case to your colleagues throughout the country. The reassuring truth is that juries can and do recognise bad driving when the evidence is put before them. All too often, it appears, the evidence has not, in past cases, been put before a jury because of an unwarranted fear that they will not convict.
Yours sincerely,
The car culture - a step in the right direction
This afternoon a jury at Peterborough Crown Court has found Katie Hart guilty of causing death by dangerous driving. The death was that of Major Gareth Rhys-Evans, a keen cyclist who was, at the time of the tragic accident at 0835 on Sunday 3rd May, taking part in a 25 mile Time Trial on the southbound A1 where it by-passes St Neots, Cambridgeshire. Weather conditions were good yet Ms Hart claimed not to see Major Rhys-Evans until she ran into him. She also claimed not to have seen the competitor behind, whom she had just past with leeway of around one foot.
Hart had admitted the offence of causing death by careless driving. In the aftermath of the collision she is reported as having said to the police that “it was just one of those things” to which she added the statement, in defiance of all known laws of physics, that he “came out of nowhere”. To their credit the police and the CPS were not (on this occasion) content to treat the collision as “just one of those things” and, to its further credit, the CPS refused to accept Hart’s plea to a lesser charge and pursued the more serious offence of causing death by dangerous driving.
Following the conviction His Honour Judge Nicholas Coleman (adjourning sentence for a pre-sentence report, as the law requires) warned Hart: "You face a prison sentence. The only question is how long."
Whilst acknowledging that Ms Hart did show some signs of shock and concern when it was all too late, and without wishing to be vindictive for its own sake, it is appropriate to give the authorities (whom I have lambasted in my earlier post 'Cycling against the car culture' in relation to other tragedies) credit for a job well done. Ms Hart will have significant time to dwell upon how unlucky she has been in that if she had missed Major Rhys-Evans (as she did the other competitor) by one foot her lethal lack of attention and/or nonchalance may have gone unpunished. However her misfortune is nothing compared to that of the Rhys-Evans family and there is hope that the message will go out that cyclists are to be passed with care (or else) and that riding on dual carriageways in particular may become a less hair-raising experience.
Ms Hart is only 19 years old and has therefore only recently passed a driving test. Perhaps some thought as to whether the test is sufficiently rigorous on the safe passing of cyclists is in order.
I will post the open letter I intend to write to the Chief Crown Prosecutor in Cambridgeshire.
Hart had admitted the offence of causing death by careless driving. In the aftermath of the collision she is reported as having said to the police that “it was just one of those things” to which she added the statement, in defiance of all known laws of physics, that he “came out of nowhere”. To their credit the police and the CPS were not (on this occasion) content to treat the collision as “just one of those things” and, to its further credit, the CPS refused to accept Hart’s plea to a lesser charge and pursued the more serious offence of causing death by dangerous driving.
Following the conviction His Honour Judge Nicholas Coleman (adjourning sentence for a pre-sentence report, as the law requires) warned Hart: "You face a prison sentence. The only question is how long."
Whilst acknowledging that Ms Hart did show some signs of shock and concern when it was all too late, and without wishing to be vindictive for its own sake, it is appropriate to give the authorities (whom I have lambasted in my earlier post 'Cycling against the car culture' in relation to other tragedies) credit for a job well done. Ms Hart will have significant time to dwell upon how unlucky she has been in that if she had missed Major Rhys-Evans (as she did the other competitor) by one foot her lethal lack of attention and/or nonchalance may have gone unpunished. However her misfortune is nothing compared to that of the Rhys-Evans family and there is hope that the message will go out that cyclists are to be passed with care (or else) and that riding on dual carriageways in particular may become a less hair-raising experience.
Ms Hart is only 19 years old and has therefore only recently passed a driving test. Perhaps some thought as to whether the test is sufficiently rigorous on the safe passing of cyclists is in order.
I will post the open letter I intend to write to the Chief Crown Prosecutor in Cambridgeshire.
Antiquities traffickers deal with ancient coins
There is much controversy today about the inclusion of ancient coins under the auspices of laws that protect archaeological objects. Some say the laws should not regulate ancient coins at all. Consider two items in the news, nevertheless, that show how ancient coins are part of the traffickers' loot.
Yahoo! News reported today via the Associate Press that Cypriot authorities rounded up antiquities traffickers in the largest case of its kind in terms of the amount. The traffickers apparently had an undisclosed buyer and planned to move the pieces for %15.5 million (US) dollars--which means the items together were likely worth even more. Among the urns, gold, and other cultural objects were ancient coins.
See news.yahoo.com/s/ap/20100125/ap_on_re_eu/eu_cyprus_antiquities_theft
In another unrelated story, ancient coins were discovered when a man was arrested in the United Kingdom. UKPA reported that a "large volume of items of 'considerable antiquity' were seized at a house by officers who executed a search warrant in Barnham, near Chichester, West Sussex. Police said some of the artefacts were suspected of being stolen by "nighthawking" from an undisclosed site in the Chichester area and elsewhere recently. The items found so far include medieval and Roman coins, ivory and silver, and one gold Iron Age coin, brooches, buttons and horse equipment of similar ages."
See www.google.com/hostednews/ukpress/article/ALeqM5hNTZxAlDE31CnLZq_488cVR_XO2w
In the same way that drug traffickers deal with quanities of of a variety of illegal drugs, antiquities traffickers deal with a variety of looted archaeological objects--including coins.
Yahoo! News reported today via the Associate Press that Cypriot authorities rounded up antiquities traffickers in the largest case of its kind in terms of the amount. The traffickers apparently had an undisclosed buyer and planned to move the pieces for %15.5 million (US) dollars--which means the items together were likely worth even more. Among the urns, gold, and other cultural objects were ancient coins.
See news.yahoo.com/s/ap/20100125/ap_on_re_eu/eu_cyprus_antiquities_theft
In another unrelated story, ancient coins were discovered when a man was arrested in the United Kingdom. UKPA reported that a "large volume of items of 'considerable antiquity' were seized at a house by officers who executed a search warrant in Barnham, near Chichester, West Sussex. Police said some of the artefacts were suspected of being stolen by "nighthawking" from an undisclosed site in the Chichester area and elsewhere recently. The items found so far include medieval and Roman coins, ivory and silver, and one gold Iron Age coin, brooches, buttons and horse equipment of similar ages."
See www.google.com/hostednews/ukpress/article/ALeqM5hNTZxAlDE31CnLZq_488cVR_XO2w
In the same way that drug traffickers deal with quanities of of a variety of illegal drugs, antiquities traffickers deal with a variety of looted archaeological objects--including coins.
The Aftermath of a Supreme Court Decision: Another MDV
Cases that make it to the Supreme Court are important for the precedent they set and for most of us that's what we got in last January's decision in Crawford v. Metropolitan Government of Nashville. In fact, I said at the time, "certainly not the hardest case for the Supreme Court to decide, nor was the decision unexpected." Supreme Court Unaminous in Retaliation Case.
But there are also parties to Supreme Court cases that have a much more personal interest. When the Supreme Court reversed the 6th Circuit's decision affirmation of summary judgment against Vicky Crawford's retaliation claim, she no doubt was looking forward to her day in court.
She got it last week and today, the jury made it two January's in a row that were good for Crawford. Federal jury awards former Tenn. schools employee $1.5M for wrongful termination.
The Tennessean had some more information last Friday as the case was sent to the jury. Former Nashville worker's termination lawsuit go suit to jury. Crawford claimed that she was terminated for participating in a sexual harassment investigation, the employer said she was "once a good employee but her job performance had been slipping for some time and she was fired for poor performance."
The investigation was of the Employee Relations Director and according to court documents, Crawford after being assured that nothing would happen to her, told investigators the Director "would ask to see her breasts, grab his crotch saying, "You know what's up," and on one occasion pulled her head to his crotch."
One item reported in the earlier story is the sort of thing that you know can be problematic for an employer. The same HR office who assured Crawford of no retaliation. on the same day that she turned in her report on the investigation (finding there were no witnesses to the alleged harasser's behavior), also sent a letter to the company's internal audit department informing them of problems in the payroll department run by Crawford.
However, the employer had some powerful arguments as well. It was two months later that Crawford was put on administrative leave and she was not terminated until after an outside audit found serious problems, including 25 uncashed checks lying around her department.
And that's just what is available from the necessarily brief and abbreviated newspaper reports. If anyone needs a New Year's reminder that when a case goes to a jury anything can happen, consider it sent.
And, of course, Ms. Crawford whose termination was way back in 2003, may find that there is a difference between a verdict and a judgment, and of course there is always the possibility that the case is headed back on appeal.
But there are also parties to Supreme Court cases that have a much more personal interest. When the Supreme Court reversed the 6th Circuit's decision affirmation of summary judgment against Vicky Crawford's retaliation claim, she no doubt was looking forward to her day in court.
She got it last week and today, the jury made it two January's in a row that were good for Crawford. Federal jury awards former Tenn. schools employee $1.5M for wrongful termination.
The Tennessean had some more information last Friday as the case was sent to the jury. Former Nashville worker's termination lawsuit go suit to jury. Crawford claimed that she was terminated for participating in a sexual harassment investigation, the employer said she was "once a good employee but her job performance had been slipping for some time and she was fired for poor performance."
The investigation was of the Employee Relations Director and according to court documents, Crawford after being assured that nothing would happen to her, told investigators the Director "would ask to see her breasts, grab his crotch saying, "You know what's up," and on one occasion pulled her head to his crotch."
One item reported in the earlier story is the sort of thing that you know can be problematic for an employer. The same HR office who assured Crawford of no retaliation. on the same day that she turned in her report on the investigation (finding there were no witnesses to the alleged harasser's behavior), also sent a letter to the company's internal audit department informing them of problems in the payroll department run by Crawford.
However, the employer had some powerful arguments as well. It was two months later that Crawford was put on administrative leave and she was not terminated until after an outside audit found serious problems, including 25 uncashed checks lying around her department.
And that's just what is available from the necessarily brief and abbreviated newspaper reports. If anyone needs a New Year's reminder that when a case goes to a jury anything can happen, consider it sent.
And, of course, Ms. Crawford whose termination was way back in 2003, may find that there is a difference between a verdict and a judgment, and of course there is always the possibility that the case is headed back on appeal.
Imperial Winter Series Race 9 Saturday 23rd January
I look in some pain! Lucy Collins's photos
Still feeling a bit battered after Sunday's spill, but I have been aiming to do all of this winter's races so turned up anyway. Temperature above freezing and dry which made a pleasant change. I spent too much of the race at or near the back and on the last lap the bunch was flying and was starting to pull away from me anyway, when some incident occurred on the sharp bend which forced me to brake and slow losing contact with the peleton for the last 3/4 of the lap.Average speed 23.5 mph.
Old Masters Week at Sotheby's NY
Old Masters Week is currently going on at Sotheby's in New York. You can see the events going on at
http://www.sothebys.com/minisite/omp/2010/newyork/winter/event.html
http://www.sothebys.com/minisite/omp/2010/newyork/winter/event.html
That Bum Facebook Friend of Yours? Could Cost You a Loan ...
At least that's the headline, Creditworthy? Lenders delve into your social networks. The actual story is more about the possibility than the actuality of it happening. However, knowing that there is a business devoted to perusing social media to prepare "social graphs of your likes, dislikes, strengths and weaknesses" does give one pause.
Rapleaf's web site, the company discussed in the article, emphasizes that it is a marketing company, which is what the article really says about it, notwithstanding the headline.
And of course before an employer could utilize a "social graph of your likes, dislikes, strengths and weaknesses," at least if prepared by a third party, they would do well to check on the requirements of the Fair Credit Reporting Act.
In particular they need to remember that using a consumer report for any employment decision must be preceded by obtaining permission in a very specific way and then following up with very specific notice procedures.
And that a "social graph" seems pretty likely to fit within the definition of a a consumer report which is defined as:
Rapleaf's web site, the company discussed in the article, emphasizes that it is a marketing company, which is what the article really says about it, notwithstanding the headline.
And of course before an employer could utilize a "social graph of your likes, dislikes, strengths and weaknesses," at least if prepared by a third party, they would do well to check on the requirements of the Fair Credit Reporting Act.
In particular they need to remember that using a consumer report for any employment decision must be preceded by obtaining permission in a very specific way and then following up with very specific notice procedures.
And that a "social graph" seems pretty likely to fit within the definition of a a consumer report which is defined as:
any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for (A) credit or insurance to be used primarily for personal, family, or household purposes; (B) employment purposes; or (C) any other purpose authorized under section 604 [§ 1681b].
Becker Nomination Back in Senate's Hands
As had been widely reported would happen, the President has re-nominated Craig Becker to be a member of the National Labor Relations Board. Presidential Nominations Sent to the Senate | The White House In light of Tuesday's election results it will be interesting to see what happens.
Although getting a controversial nominee through Congress is not easy, and Becker is clearly controversial, it still remains easier than passing legislation such as EFCA or health care. I would not be surprised to see the White House looking harder at ways to accomplish their goals that do not require Congressional action, such as regulations and executive orders. Although they have to get their nominees confirmed for regulations to occur, it may well be they begin using some of their political capital on the confirmation process rather than new legislation.
Hat tip to Jeff Hirsch at Workplace Prof Blog who somehow managed to take time away from the other UT's athletic turmoil to keep us informed of this development, Becker Renominated. (and he hat tipped Justin Keith).
As Professor Hirsch correctly points out: "Let the fun begin ... again.
Although getting a controversial nominee through Congress is not easy, and Becker is clearly controversial, it still remains easier than passing legislation such as EFCA or health care. I would not be surprised to see the White House looking harder at ways to accomplish their goals that do not require Congressional action, such as regulations and executive orders. Although they have to get their nominees confirmed for regulations to occur, it may well be they begin using some of their political capital on the confirmation process rather than new legislation.
Hat tip to Jeff Hirsch at Workplace Prof Blog who somehow managed to take time away from the other UT's athletic turmoil to keep us informed of this development, Becker Renominated. (and he hat tipped Justin Keith).
As Professor Hirsch correctly points out: "Let the fun begin ... again.
It's Not Only the Formula to Coke ...
For years any speech I have heard on trade secrets inevitably talks about the formula for coke. For those wanting to show a little variety, try Thomas English Muffins. According to a lawsuit that has been filed in district court in Pennsylvania, Chris Botticella is one of the fewer than 10 people in the world "with full knowledge of how to produce them." He does know the recipe, but not clear that is such an exclusive club. The artful wording that I quoted makes me think that number could be a little larger. You can see a copy of the complaint here. Bimbo Bakeries Trade Secret Complaint and TRO Request.
When Botticella was just retiring it was one thing, but when it was learned he was going to Bimbo's competitor, Hostess, that's when the complaint was filed.
Besides perhaps helping change the example used in CLE speeches, it might also be a very good case to test the contours of the inevitable disclosure doctrine. That doctrine has not fared well in all courts. I don't know what Pennsylvania or 3rd Circuit law is on that particular issue, but my guess is -- quite favorable.
Hat tip to the folks at Employment Law 360, English Muffin Maker Slaps VP With Trade Secrets Suit ($).
When Botticella was just retiring it was one thing, but when it was learned he was going to Bimbo's competitor, Hostess, that's when the complaint was filed.
Besides perhaps helping change the example used in CLE speeches, it might also be a very good case to test the contours of the inevitable disclosure doctrine. That doctrine has not fared well in all courts. I don't know what Pennsylvania or 3rd Circuit law is on that particular issue, but my guess is -- quite favorable.
Hat tip to the folks at Employment Law 360, English Muffin Maker Slaps VP With Trade Secrets Suit ($).
Fakes on the Market, Looting on the Decline...
MSN posted an insightful piece of interest to collectors, dealers, and archaeologists. It is reported that the production of fakes is easier than looting authentic archaeoligical objects, thereby reducing looting from archaeological sites.
Tuesday, January 19, 2010
Ebay & Looting
Peruvian archaeology has found an unusual ally in the battle against looting in the internet and websites such as eBay. This is according to Charles Stanish, a UCLA archaeologist, writing in the June 2009 issue of Archaeology. Stanish has excavated for 25 years at fragile archaeological sites in Peru. It was feared that online auction sites would increase looting as the looter could sell directly to the buyer eliminating costly middlemen. In fact, online auction websites have actually helped reduce looting as the average looter or craftsman can now make more money selling cheap fakes online rather than spend weeks digging for the real thing and running the risk of not finding anything. It is less costly to transport a fake and the risk of arrest is removed. Moreover, workshops churning out cheap fakes and replicas can also produce elaborately detailed fakes which can be so authentic even experts are deceived. Locals can use original ancient moulds, often found during excavations but of no real value themselves, to create exact replicas using clay from original sources and local minerals to make paint fordecorating the pottery. The only way to know for sure if a piece is genuine is through thermo-luminescence dating which calculates when the pottery has been fired. But this is expensive for the buyer and many sellers will not offer refunds on pottery that has undergone “destructive” analysis. Ten years ago the ratio of real to fake Peruvian artefacts for sale online was roughly 50:50. It is now thought that only 5% of items are authentic, 30% are fakes and the rest are too difficult to judge from online photographs. This turnaround emphasises how paradoxically online auction sites have helped to combat the trade in illicit antiquities. Also, its not just Peruvian fakes that are flooding the illicit antiquities online market; Chinese, Bulgarian, Egyptian and Mexican workshops are also producing fakes at a frenetic pace.
Tuesday, January 19, 2010
Ebay & Looting
Peruvian archaeology has found an unusual ally in the battle against looting in the internet and websites such as eBay. This is according to Charles Stanish, a UCLA archaeologist, writing in the June 2009 issue of Archaeology. Stanish has excavated for 25 years at fragile archaeological sites in Peru. It was feared that online auction sites would increase looting as the looter could sell directly to the buyer eliminating costly middlemen. In fact, online auction websites have actually helped reduce looting as the average looter or craftsman can now make more money selling cheap fakes online rather than spend weeks digging for the real thing and running the risk of not finding anything. It is less costly to transport a fake and the risk of arrest is removed. Moreover, workshops churning out cheap fakes and replicas can also produce elaborately detailed fakes which can be so authentic even experts are deceived. Locals can use original ancient moulds, often found during excavations but of no real value themselves, to create exact replicas using clay from original sources and local minerals to make paint fordecorating the pottery. The only way to know for sure if a piece is genuine is through thermo-luminescence dating which calculates when the pottery has been fired. But this is expensive for the buyer and many sellers will not offer refunds on pottery that has undergone “destructive” analysis. Ten years ago the ratio of real to fake Peruvian artefacts for sale online was roughly 50:50. It is now thought that only 5% of items are authentic, 30% are fakes and the rest are too difficult to judge from online photographs. This turnaround emphasises how paradoxically online auction sites have helped to combat the trade in illicit antiquities. Also, its not just Peruvian fakes that are flooding the illicit antiquities online market; Chinese, Bulgarian, Egyptian and Mexican workshops are also producing fakes at a frenetic pace.
Blue Shield Statement on Haiti
The Blue Shield has posted a statement concerning the tragedy in Haiti
Haiti. Blue Shield Statement. 14th January 2010
The Blue Shield expresses its sorrow and solidarity with the population of Haiti for the loss of lives and the destructions caused by the earthquake which occurred on 12th January. Culture is a basic need, and cultural heritage a symbolic necessity that gives meaning to human lives connecting past, present and future. Cultural heritage is a reference full of values helping to restore a sense of normality and enabling people to move forward. Cultural Heritage is fundamental in rebuilding the identity, the dignity and the hope of the communities after a catastrophe. The Blue Shield Mission is “to work to protect the world’s cultural heritage threatened by armed conflict, natural and man‐made disasters”. While it appreciates that the immediate priority is to find the missing, and to help the injured and homeless, it places the expertise and network of its member organisations at the disposal of their Haitian colleagues to support their work in assessing the damage to th
e cultural heritage of their countries including libraries, archives, museums and monuments and sites, and subsequent recovery, restoration and repair measures.
The Blue Shield calls on the international community, responsible authorities and local population to give the fullest possible support to the efforts, official and voluntary, underway to protect/rescue the rich and unique heritage of Haiti. The member organisations of the Blue Shield are currently liaising with Haitian colleagues, to obtain further information on both the situation in the area and on the possible needs and types of help required so as to mobilise our networks accordingly. A more complete report on damages, needs and actions will be published subsequently, to facilitate coordination.
The Blue Shield
The Blue Shield is the protective emblem of the 1954 Hague Convention which is the basic international treaty formulating rules to protect cultural heritage during armed conflicts. The Blue Shield network consists of organisations dealing with museums, archives, audiovisual supports, libraries, monuments and sites. The International Committee of the Blue Shield (ICBS), founded in 1996, comprises representatives of the five Non‐Governmental Organisations (NGOs) working in this field:
- The International Council on Archives (www.ica.org),
- The International Council of Museums (www.icom.museum),
- The International Council on Monuments and Sites (www.icomos.org), and
- The International Federation of Library Associations and Institutions (www.ifla.org)
- The Co‐ordinating Council of Audiovisual Archives Associations (www.ccaaa.org)
National Blue Shield Committees have been founded in a number of countries (18 established and 18 under construction). The Association of National Committees of the Blue Shield (ANCBS), founded in December 2008, will coordinate and strengthen international efforts to protect cultural property at risk of destruction in armed conflicts or natural disasters. The ANCBS has its headquarters in The Hague. Contact Information: secretariat.ICBS@blueshield.museum
Haiti. Blue Shield Statement. 14th January 2010
The Blue Shield expresses its sorrow and solidarity with the population of Haiti for the loss of lives and the destructions caused by the earthquake which occurred on 12th January. Culture is a basic need, and cultural heritage a symbolic necessity that gives meaning to human lives connecting past, present and future. Cultural heritage is a reference full of values helping to restore a sense of normality and enabling people to move forward. Cultural Heritage is fundamental in rebuilding the identity, the dignity and the hope of the communities after a catastrophe. The Blue Shield Mission is “to work to protect the world’s cultural heritage threatened by armed conflict, natural and man‐made disasters”. While it appreciates that the immediate priority is to find the missing, and to help the injured and homeless, it places the expertise and network of its member organisations at the disposal of their Haitian colleagues to support their work in assessing the damage to th
e cultural heritage of their countries including libraries, archives, museums and monuments and sites, and subsequent recovery, restoration and repair measures.
The Blue Shield calls on the international community, responsible authorities and local population to give the fullest possible support to the efforts, official and voluntary, underway to protect/rescue the rich and unique heritage of Haiti. The member organisations of the Blue Shield are currently liaising with Haitian colleagues, to obtain further information on both the situation in the area and on the possible needs and types of help required so as to mobilise our networks accordingly. A more complete report on damages, needs and actions will be published subsequently, to facilitate coordination.
The Blue Shield
The Blue Shield is the protective emblem of the 1954 Hague Convention which is the basic international treaty formulating rules to protect cultural heritage during armed conflicts. The Blue Shield network consists of organisations dealing with museums, archives, audiovisual supports, libraries, monuments and sites. The International Committee of the Blue Shield (ICBS), founded in 1996, comprises representatives of the five Non‐Governmental Organisations (NGOs) working in this field:
- The International Council on Archives (www.ica.org),
- The International Council of Museums (www.icom.museum),
- The International Council on Monuments and Sites (www.icomos.org), and
- The International Federation of Library Associations and Institutions (www.ifla.org)
- The Co‐ordinating Council of Audiovisual Archives Associations (www.ccaaa.org)
National Blue Shield Committees have been founded in a number of countries (18 established and 18 under construction). The Association of National Committees of the Blue Shield (ANCBS), founded in December 2008, will coordinate and strengthen international efforts to protect cultural property at risk of destruction in armed conflicts or natural disasters. The ANCBS has its headquarters in The Hague. Contact Information: secretariat.ICBS@blueshield.museum
The Lender Collector
NPR has an insightful story on a recent trend: lending an art collection.
http://www.npr.org/templates/story/story.php?storyId=122619567
http://www.npr.org/templates/story/story.php?storyId=122619567
Art thief sentenced for stealing works by Chagall and Picasso
Last week a federal district court sentenced Marcus Patmon, 38, to 23 months in prison after he pled guilty to mail fraud, attempted wire fraud, and the interstate transport of stolen goods. See http://www.delawareonline.com/article/20100114/NEWS01/1140346/1006/NEWS for details.
Patmon stole a Chagall lithograph and a Picasso etching from Galerie Lareuse in Washington, DC in 2007. He sold them for approximately $63,000. He also stole two other Picasso etchings from Gallery Biba in Palm Beach, FL in 2008. State authorities prosecuted Patmon for the Florida theft.
Patmon stole a Chagall lithograph and a Picasso etching from Galerie Lareuse in Washington, DC in 2007. He sold them for approximately $63,000. He also stole two other Picasso etchings from Gallery Biba in Palm Beach, FL in 2008. State authorities prosecuted Patmon for the Florida theft.
Etape preparation
It is the Tourmalet for this year's etape and since I enjoyed it so much in 2008, I cannot resist doing it again on the 100th anniversary of its first inclusion in the Tour de France (when mountain roads were tracks, cyclists were superheroes and organisers were "assasins").
Time to begin some preparation then, which I shall sporadically chart on these pages.
The Entry Form.
This is one of the trickiest aspects of the etape. The etape rules require a medical certificate stipulating that competitors are "fit to take part in cycling races". Until recently production of a BC racing licence was an acceptable alternative, but the organisers have wised up to the fact that anybody can obtain such a licence and have become fed up with their ambulances, laid on for accidents, being increasingly filled with those whose cardiovascular systems were never likely to see them through a mountain stage. A quick call to my GP surgery was met with news of a £100 fee to stamp my medical certificate. This seems to me to be a little steep. If I were unfit, unwell and a frequent attender at my GP, he would provide me with Med3 certificates indicating what I cannot do, all as part of the service. Prevention is a lot better than cure. Wouldn't it be great if certification of what we are fit to do was provided as part of the service constituting a small encouragement towards an active lifestyle steering us away from obesity, diabetes, heart disease and numerous other conditions that it would cost the NHS dear to treat?
Rides
The easy part then should be getting the miles in. I was to start yesterday in a modest way with the Wycombe flat 50 reliability ride. However for those of us who thought the thaw had arrived with the heavy rain on Saturday a real shock awaited. The roads around Wycombe had indeed got very wet but then had frozen overnight. I was one of many riders to come a cropper on the black ice and as I type I still have paraesthesia from elbow to finger tips and a square inch of skin missing from my hip. The event has been postponed for a week as have my plans to get in some miles.
On the positive side, the Thames Velo team of 11 including me have had our entries accepted for the Fred Whitton Challenge in May and I have been using snowbound time to organise the club's Spanish Training trip in February.
Imperial Winter Series Hillingdon Race 8 Saturday 16th January
This week I was much too busy moving my glasses from the bridge of my nose to the end or somewhere in between, so that I could see something, to think about remaining near the front. The pace for most of the race was fairly conversational with the odd acceleration when someone way up at the front was presumably being chased back but I was far too misted up to be able to relay any detail.
After about 30 minutes the 3rds caught us - the relatively small fields in both races helped them to go by without too much trouble. Then we slowed right down on the command of a cold wet sprinter who didn't want to go 'round and round' for longer than strictly necessary. Sure enough there was soon sufficient gap between the two races for the 5 to go lap board to be put out and the pace quickened and I found myself at the back again. After the bell there was a surge down the back straight which left me struggling to remain in contact. I only succeeded in keeping up with a wheel ahead that was itself struggling to remain in contact. So I came in a few seconds after the bunch today, but hopefully this time before Doug turned the camera off.
Average Speed 23.0mph
It Is New Jersey, But Business to Business Sex Harassment?
Although my NJ friends who do the same thing I do have been claiming for some time that the Garden State has surpassed California as the most employer hostile environment, I was still surprised to see this headline, Business-to-Business Sex Harassment? N.J. Court Says It's Real.
Actually, as is often true behind surprising cases, there was a healthy dose of creative lawyering. When the owner of J.T.'s Tire Service, Eileen Totorello felt she was losing a $29,000 a month account because she would not have a sexual relationship with the customer's manager, her lawyer, Elizabeth Zuckerman, brought a quid pro quo, sexual harassment suit under the section of the NJ Law Against Discrimination which makes it illegal to "refuse to buy from, sell to, lease from or to, license, contract with, or trade with, provide goods, services or information to, or otherwise do business with any other person" on the basis of gender or other LAD-protected categories.
After the trial court dismissed the claim, J.T. Tires appealed. Among the defendant's arguments to the three judge panel was that female business owners did not need protection against sexual harassment, and that such a claim was viable only under the employment provision of the LAD, not the section prohibiting gender discrimination in business transactions.
Not so, according to Judge Susan Reisner, one of the two women on the three judge panel. The decision can be found here.
Not surprisingly, the defendant is considering an appeal. While I don't know much about the NJ Supreme Court, what little I do know, does not make me think it is highly likely that it will turn out differently.
Actually, as is often true behind surprising cases, there was a healthy dose of creative lawyering. When the owner of J.T.'s Tire Service, Eileen Totorello felt she was losing a $29,000 a month account because she would not have a sexual relationship with the customer's manager, her lawyer, Elizabeth Zuckerman, brought a quid pro quo, sexual harassment suit under the section of the NJ Law Against Discrimination which makes it illegal to "refuse to buy from, sell to, lease from or to, license, contract with, or trade with, provide goods, services or information to, or otherwise do business with any other person" on the basis of gender or other LAD-protected categories.
After the trial court dismissed the claim, J.T. Tires appealed. Among the defendant's arguments to the three judge panel was that female business owners did not need protection against sexual harassment, and that such a claim was viable only under the employment provision of the LAD, not the section prohibiting gender discrimination in business transactions.
Not so, according to Judge Susan Reisner, one of the two women on the three judge panel. The decision can be found here.
Not surprisingly, the defendant is considering an appeal. While I don't know much about the NJ Supreme Court, what little I do know, does not make me think it is highly likely that it will turn out differently.
Less Than 15 Employees? There's Always Immigration Discrimination
Hat tip to Professor Rick Bales at Workplace Prof Blog for picking up the DOJ's announcement of a new video for employers about their responsibilities and the rights of employees under the anti-discrimination provision of the Immigration and Nationality Act, DOJ Releases Video About Immigration-Related Workplace Discrimination.
As you can see, rather than being enforced by the EEOC or a state agency, it is enforced by the Office of Special Counsel for Immigration-Related Unfair Employment Practices of the Department of Justice. From the FAQ Page for OSC, here's what the Act prohibits, which also includes national origin discrimination for employers not covered by Title VII and retaliation against those who participate in the OSC process:
Particularly for those small employers who don't normally have to worry about discrimination.
As you can see, rather than being enforced by the EEOC or a state agency, it is enforced by the Office of Special Counsel for Immigration-Related Unfair Employment Practices of the Department of Justice. From the FAQ Page for OSC, here's what the Act prohibits, which also includes national origin discrimination for employers not covered by Title VII and retaliation against those who participate in the OSC process:
*Citizenship or immigration status discrimination with respect to hiring, firing, and recruitment or referral for a fee, by employers with four or more employees, subject to certain exceptions. Employers may not treat individuals differently because they are, or are not, U.S. citizens or work authorized individuals. U. S. citizens, recent permanent residents, temporary residents, asylees, and refugees are protected from citizenship status discrimination. Exceptions: permanent residents who do not apply for naturalization within six months of eligibility are not protected from citizenship status discrimination. Citizenship status discrimination which is otherwise required to comply with law, regulation, executive order, or government contract is permissible by law.My recollection is that the OSC has been around since the mid-1980's without a lot of impact, but when immigration heats up again as it inevitability will, it's good to be aware of its existence.
* National origin discrimination with respect to hiring, firing, and recruitment or referral for a fee, by employers with more than three and fewer than 15 employees. Employers may not treat individuals differently because of their place of birth, country of origin, ancestry, native language, accent or because they are perceived as looking or sounding "foreign." U.S. citizens and all work authorized individuals are protected from national origin discrimination. The Equal Employment Opportunity Commission has national origin jurisdiction over employers with 15 or more employees.
* Unfair documentary practices related to verifying the employment eligibility of employees. Employers may not, on the basis of citizenship status or national origin, request more or different documents than are required to verify employment eligibility and identity reject reasonably genuine-looking documents or specify certain documents over others. U.S. citizens and all work authorized immigrants are protected from document abuse.
* Retaliation. Individuals who file charges with OSC, who cooperate with an OSC investigation, who contest action that may constitute unfair documentary practices or discrimination based upon citizenship status or national origin, or who otherwise assert their rights under the INA's anti-discrimination provision are protected from retaliation.
Particularly for those small employers who don't normally have to worry about discrimination.
A Workplace Spin on the Leno - Conan O'Brien Imbroglio
One day it's Indian treaties, the next it's late night television, but it seems as if there is a workplace angle to just about anything these days. For example, the differences between various generational strata of today's workforce has received a fair amount of attention in the last couple of years.
Actually, I have not paid a lot of attention to the articles and speeches on the topic, but Chris Penttila, who has the semi-eponymous blog, the Workplace Diva, has a post that puts at least one aspect of that divide in concrete terms, Thoughts on the Conan O'Brien Debacle.
Read the post (and check out Chris's blog), but here's a short hand summary. Members of Generation X are waiting, not all that patiently for the Baby Boomers to retire and get out of the way so that they can move up to the bigger jobs. And they see Leno (Baby Boomer) shoving O'Brien (an aging Gen X'er) back down, and they don't like it.
Of course, it's not like O'Brien is making it easy. I am sitting in the airport and just saw a re-run of his latest comment - that if NBC wants to make sure he is not seen on TV for three years, they should just leave him on NBC.
If in fact there's something to what Chris says, and I must admit it does have a ring of truth, it no doubt will manifest itself in ways that will end up on employment lawyers' desks all across the country, where unfortunately it won't be all that funny.
Actually, I have not paid a lot of attention to the articles and speeches on the topic, but Chris Penttila, who has the semi-eponymous blog, the Workplace Diva, has a post that puts at least one aspect of that divide in concrete terms, Thoughts on the Conan O'Brien Debacle.
Read the post (and check out Chris's blog), but here's a short hand summary. Members of Generation X are waiting, not all that patiently for the Baby Boomers to retire and get out of the way so that they can move up to the bigger jobs. And they see Leno (Baby Boomer) shoving O'Brien (an aging Gen X'er) back down, and they don't like it.
Of course, it's not like O'Brien is making it easy. I am sitting in the airport and just saw a re-run of his latest comment - that if NBC wants to make sure he is not seen on TV for three years, they should just leave him on NBC.
If in fact there's something to what Chris says, and I must admit it does have a ring of truth, it no doubt will manifest itself in ways that will end up on employment lawyers' desks all across the country, where unfortunately it won't be all that funny.
Fakes and Forgeries
The Associated Press reported in today's NY Times that Italian authorities last year recovered thousands of looted art and antiquities valued at close to $240 million US dollars. The story said: "Police figures show the number of illegal archaeological excavations discovered in 2009 decreased dramatically, from 238 in 2008 to just 58 in 2009. But at the same time, the number of people charged with falsifying artwork rose more than 400 percent."
The fact is that forged art exists in the marketplace, and this newspaper report serves as a caution to stay alert. Authenticating artwork is an essential component to ethical collecting. One should take time to ensure that a piece is not just looted or illegally exported, but that it is genuine.
The fact is that forged art exists in the marketplace, and this newspaper report serves as a caution to stay alert. Authenticating artwork is an essential component to ethical collecting. One should take time to ensure that a piece is not just looted or illegally exported, but that it is genuine.
Legal Tools for Artists
The Carving Studio in Vermont is holding a workshop in July. It is titled Legal Tools for Artists. Go to the link at carvingstudio.org/workshops/courses.asp
Employment Law Comes From Many Places
One of the more unusual sources for an employment law case has to be the Fort Laramie Treaty of April 29, 1868 which requires the U.S. Government to reimburse Sioux tribe members who are injured by "bad men among the whites, or among other people subject to the authority of the United States." See the report on the settlement of such a case from the Native American Times, $650,000 settlement in lawsuit based on 1868 treaty.
The facts that led to the settlement involved Lavetta Elk a member of the Oglala Sioux tribe who was sexually assaulted by a military recruiter when he was driving her to a military induction center. The actual story is a little more involved and is set out in considerable more detail in the opinion in Lavetta Elk v. United States, No. 05-186L (U.S. Ct. of Federal Claims 4/28/09) [pdf] .
The decision was appealed, but last week's settlement moots the appeal. It marks the first time that emotional stress had been awarded under the Treaty.
The opening quotation in the opinion is from Chief Swift Bear, Council with the Brule Sioux at Fort Laramie, who the day before the treaty was signed said:
The facts that led to the settlement involved Lavetta Elk a member of the Oglala Sioux tribe who was sexually assaulted by a military recruiter when he was driving her to a military induction center. The actual story is a little more involved and is set out in considerable more detail in the opinion in Lavetta Elk v. United States, No. 05-186L (U.S. Ct. of Federal Claims 4/28/09) [pdf] .
The decision was appealed, but last week's settlement moots the appeal. It marks the first time that emotional stress had been awarded under the Treaty.
The opening quotation in the opinion is from Chief Swift Bear, Council with the Brule Sioux at Fort Laramie, who the day before the treaty was signed said:
Not bad advice for employers to remember on a daily basis.“The best thing a man can do is when he makes a promise to stick to it.”
Board Member Becker? 2nd Time Around
According to the New York Times, President Obama is going to renominate a number of individuals that the Senate returned to the White House at the end of the first session of this Congress. Included in that group is Craig Becker to the NLRB. President Is Said to Decide to Renominate Six Choices.
Hat tip to a tweet from Ross Runkel, who nailed it, when he said at a minimum this means a delay in getting a full Board.
One the "can 2 members act" question, the Court has set that case for oral argument on March 23rd. Supreme Court to Hear Oral Arguments in New Process Steel on March 23.
Even if the Board gets the go ahead from the Supreme Court, that does not mean that the Board will really be able to function in any but a very limited way. Although for employers who are not looking forward to some of the rulings likely to come from an Obama Board it may be a good thing in the short term, in the long run, it seems to me that the way the Board has become just another vehicle for partisan fighting (and this goes back long enough to catch administrations and Congresses of all political persuasions) is not a good thing. There should be a better way.
Hat tip to a tweet from Ross Runkel, who nailed it, when he said at a minimum this means a delay in getting a full Board.
One the "can 2 members act" question, the Court has set that case for oral argument on March 23rd. Supreme Court to Hear Oral Arguments in New Process Steel on March 23.
Even if the Board gets the go ahead from the Supreme Court, that does not mean that the Board will really be able to function in any but a very limited way. Although for employers who are not looking forward to some of the rulings likely to come from an Obama Board it may be a good thing in the short term, in the long run, it seems to me that the way the Board has become just another vehicle for partisan fighting (and this goes back long enough to catch administrations and Congresses of all political persuasions) is not a good thing. There should be a better way.
Closing a Business in the Granite State? New State WARN Act
Hopefully this decade will be more about expansions than closings. But it is always important to remember that if you are forced to close a plant, it's important to make sure that in addition to the federal WARN Act you have complied with any state requirements. As of today, New Hampshire joins a number of other states that have their own. Big NH Businesses Now Must Warn Before Closing.
The reason according to State Labor Commissioner George Copadis, "There's no teeth to the federal WARN Act." Gives you a hint of the direction the statute takes.
The reason according to State Labor Commissioner George Copadis, "There's no teeth to the federal WARN Act." Gives you a hint of the direction the statute takes.
Imperial Winter Series Race 6/12
Cold but a lot less wind today as around 40 lined up for the start. The absence of a strong headwind made it more promising for break aways and a few tried it. The best effort from my vantage point was from Gavin Percy of DNA Cycles who accelerated away from the pack half way through the race as though he really meant it. He was joined by two more. Another with me on his wheel tried to make it 5 but the bunch were closing fast so the orginal 3 sat up. The 3rd cats did catch us today; again it took a while for them to squeeze by and we then coasted around for a couple of laps to create enough space for us to sprint into and while the few who had sailed into the 3rd cat bunch were ordered back. There were perhaps as a result too many fresh legs for the sprint. On the last lap at the back straight two riders were forced off the track onto the grass bank but demonstrated sufficient bike handling skills to remain upright. Further trouble came in the closing sprint with a pile up towards the rear of the bunch just in front of me. There was talk of a tyre burst but I heard the loud crack or bang during the pile up not just before it.
Frighteningly we are now already half way through the series. I hope to do them all this year.
Average speed 23.3mph today but this includes the neutralised period to create the gap between the races. Proper racing was 21.6m in 54m22s, equivalent to 23.8mph.
Frighteningly we are now already half way through the series. I hope to do them all this year.
Average speed 23.3mph today but this includes the neutralised period to create the gap between the races. Proper racing was 21.6m in 54m22s, equivalent to 23.8mph.
Imperial Series New Year's Day
Another cold day with a wind; this time from the North giving a stiff headwind on the home straight. Around 30 on the start line. This time very stop/start pace with the speed sometimes reducing to that of a club run (with riders freewheeling down the straights!) but winding up greatly whenever I (or anyone else) tried to get away. This time a rider did come with me and urged me onto his wheel but I was incapable of maintaining his speed. (New Year's Resolution: I really must work on short efforts). The headwind led to a bunching on the final straight so with loads boxed in and shouting I simply follwed a wheel at the rear and probably came in 20-somethingth.
Average Speed 23mph.
Average Speed 23mph.
Subscribe to:
Posts (Atom)