House Extends Bush Era Tax Cuts for Middle Class

Today the House of Representatives passed a measure to extend the George W. Bush era tax cuts to the “middle class” or rather families earning $250,000.00 per year or less. As can be expected the vote on the bill was primarily along party lines… I am sure you can guess which party voted which way. The bill is now headed for the Senate. It will be interesting to see the result, as Republicans vowed to prevent the bill from coming to a vote. It sure is fun to watch congress play with our money (please note the sarcasm).

SEARCHING EMPLOYEE EMAIL AND DIGITAL COMMUNICATIONS

By now nearly everyone realizes that digital communication, whether via email, instant message, pager, Twitter, Facebook, or whatever medium the future brings, is here to stay. You would be hard pressed to find a business in today’s society that does not use email, and social networking is an integral part of many people’s personal and work lives.

Because electronic communication has become such a presence in the workplace, employers and employees often struggle to ascertain what is a private communication and what is not. This question becomes even more confusing when one realizes that employees often send highly personal communications through employer owned computers and other electronic devices.

The United States Supreme Court has recently addressed the issue of privacy rights in employee’s personal communications on employer-provided digital devices. The case is City of Ontario v. Quon, and it was the first U.S. Supreme Court case to specifically address this issue. In the Quon case, a SWAT team sergeant named Jeffrey Quon had sued his employer, the City of Ontario police department, for invasion of privacy. The police department provided SWAT members with work email, as well as text-messaging pagers to facilitate the SWAT team’s rapid responses. The department had written employment policies stating that it had the right to monitor email and Internet activity, as well as similar policies regarding text message activity. Quon regularly exceeded his monthly character limit of 25,000 characters, and reimbursed the department for his overage.

Eventually Quon’s commanding officer “got tired of being a bill collector” and asked to review Quon’s text message history to “ensure that Quon was not being required to pay for work-related expenses.” A review of the messages revealed that Quon had sent many sexually explicit messages while on duty, and that the majority of the messages sent while on duty were in fact personal rather than work-related. Quon sued for invasion of privacy, and won at the trial court level. The case eventually made its way to the United States Supreme Court.

The Supreme Court refused to set down a definitive test for when an employee’s privacy in electronic communications has been violated. However, the Court did find that the search of Quon’s text messages was lawful because: (1) it was justified as necessary for a non-investigatory work related purpose; (2) the scope of the search was reasonable because it was an “efficient and expedient” way to determine whether the character limit was sufficient; (3) under all the circumstances Quon “had a limited expectation of privacy” in his text messages sent on a SWAT team pager.

While there is currently no bright line rule for when or how an employer can review or audit employee electronic communications, the Quon case indicates that if an employer has a legitimate work-related reason for the review, and the means taken are efficient, expedient, and not excessively intrusive, such a search will generally be lawful. Regardless, the facts of every situation can be quite different, and employers must always be cognizant of their employees’ right of privacy. Thus, an employer is well advised to seek legal counsel before searching any employee communications that may contain private information. Adoption of well written employment policies regarding electronic communication is also a must, as is consistent and fair enforcement of these policies.

by Derek C. Decker, Radoslovich | Krogh, PC Attorneys

Happy Thanksgiving

From all of us at the Radoslovich Law Corporation… Have a happy and safe Thanksgiving!

Federal Judge Buys Drugs for a Stripper; Plans to Plead Guilty

If nothing else, this blog title should help generate web-traffic to the Radlaw website.

Unfortunately, the title of this post has more truth to it than we would all hope. CNN is reporting that a federal judge in Georgia was arrested for purchasing drugs for a stripper friend. You can view CNN’s article at http://www.cnn.com/2010/CRIME/11/18/georgia.judge.arrested/index.html. Apparently, the federal judge plans to plead guilty to: (1) a felony charge of aiding and abetting a felon’s possession of marijuana and cocaine; (2) a misdemeanor charge of conversion of government property; and (3) a misdemeanor charge possession of roxycodone.

We post about this issue, not because we handle a large amount of criminal matters, but due to the fact we place a substantial amount of trust into our judges. As lawyers, we expect our judges to listen to the arguments, sift through facts and follow the law. Clients, often want judges to do “what is fair” (the “what is fair” idea will be the subject of an entirely different blog post).

Around the greater Sacramento area, most of the judges that we come across are very conscientious and dedicated people. However, this judge’s actions show us that judges can make mistakes, exercise poor judgment and be convicted of felonies. Sadly, there are stories of judges who exhibited worse behavior.

Ultimately, every litigant controls their own case. And at some point during the course of the litigation, they are going to have to ask themselves, regardless of how strong their case is, can they trust the judge and jury to do the right thing. It needs to be part of the cost-benefit analysis that goes into any settlement discussion.

Feel free to contact us regarding any litigation questions.

Facebook Firing

It is popular for employers to check the Facebook and MySpace pages of current employees and/or potential employees. However, the National Labor Relations Board (NLRB) has taken action to limit an employer’s ability to make decisions based on an employee’s social network site posts. Recently, the NLRB charged a company for illegally firing an employee for criticizing her supervisor on her Facebook page. The company, American Medical Response of Connecticut, maintained a policy prohibiting employees from depicting the company “in any way” on social networking sites in which the employee posts pictures of themselves. As a result of the employee’s criticisms of her supervisor on Facebook, her employer terminated her employment.

The NLRB is taking the position that the employee’s criticisms constitute “protected activity.” The NLRB argues that employees have a right to discuss working conditions and form unions under the National Labor Relations Act. Thus, the employee should not have been terminated for discussing her boss on a social networking site. The NLRB argues that her post on Facebook was no different than having a discussion with other employees around the water cooler… if employees can discuss these items in person, why should they be prohibited from doing so on a social networking site.

Ultimately, this matter is far from resolved. It pits the employers’ right to set guidelines and standards for employees against an employee’s right to organize. This matter should be near and dear to the hearts of both employers and employees as it effects the rights of both. Until this matter is decided by the court, employees will need to be careful what they post on social networking sites and employers will need to be careful with the information that they obtain about their employees (and potential employees) from social networking sites.

If you would like to find out more about this case, you can go to www.nlrb.gov.

Feel free to ask us if you have any legal questions regarding Employment Law.

R&D Tax Credits for Your Company

I recently came across an article written by Robert Celaschi for Comstock Magazine that may interest many tax conscious business owners. He writes that many business owners do not seek research and development tax credits due to the fact that the former tax laws made it too difficult to obtain the credit. However, the law changed and eased the requirements for obtaining R&D tax credits. According to Celashi’s article, “as long as a company sets out to improve the performance, reliability or quality of a product or process, it has a good shot at the tax credit.” The limitation… the research and development must be technology based, relying on physical, biological, engineering or computer sciences.

I urge you to check out Celaschi’s article and discuss these items with your tax accountant. You can find Celaschi’s article at http://www.comstocksmag.com/Articles/1110_F_Return-to-Sender.aspx. You never know, you may be missing out on a tax savings.

Feel free to contact us if you would like any legal advice for your business.

Radlaw Completes Two Separate Trials

Our firm just completed a three week fraud trial in the Sacramento Superior Court. Frank Radoslovich and Jason Smith presented our clients’ case before Judge Judy Holzer Hersher. The case involved many aspects of the law, including construction, commercial leases, issues of fiduciary duty and accounting matters. Like many cases, the trial did not necessarily end when the testimony finished. Once the oral testimony was completed, we submitted written briefs to the court arguing our contentions. We expect the court to issue a decision within the next 90 days. We will keep you posted.

Also, during the month of October, Shawn Krogh and John Whidden participated in an unlawful detainer matter trial. In this matter, we represented a landlord who was seeking to evict a tenant from a commercial property. The matter was not just a simple eviction, as it presented property tax issues as well. Ultimately, our clients prevailed and received a decision that will allow them to evict the tenants. What is more, the court awarded our clients $41,132.00 in damages.

Let us know if we can help with your legal issues.