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What articles do YOU want in The Gavel?
We've been publishing The Gavel since 1995.
Sometimes, we get a little stumped about what to write that
interests readers. A client came up with a simple solution:
"Why not ask the readers what kind of articles they would like
to read? What issues would they like to see addressed?"
Ingenious!
Grandparent Visitation
The status of grandparents and what role they are to play
in court ordered child visitation has been in flux for some years. It
appears that the issue of grandparent's rights has finally been
resolved.
For years, Michigan operated under a statute that said a
court could grant grandparents visitation with the (minor)
grandchildren if this would be in the best interest of the child.
However, a similar statute from the State of
Washington was struck down by the US Supreme Court in 2000.
As expected, the Michigan Supreme Court subsequently
ruled that our grandparents' visitation statute was also
unconstitutional, on basically the same grounds as the
Washington decision.
Legislators and advocates worked on filling this void in
Michigan's laws, and the state finally passed a revised
grandparent's visitation statute, one that appears to pass muster
with the Constitution. The new law allows grandparents to seek
visitation with their grandchild when:
(a) someone other than the child's parents has legal custody;
(b) the child's parents have never been married, but paternity has
been established;
(c) the grandparent has provided an established custodial
environment for the child within one year of petitioning for
visitation;
(d) A divorce, separation, or annulment involving the child's parents
is pending (or final); or
(e) the child's parent (who is the child of the grandparent) is
deceased.
However, there is a more difficult standard that has to be
met in order for a court to order grandparent visitation. The new law
mandates the following safeguards:
(1) the presumption that a fit
parent acts in the best interest of the child;
(2) deference to the
parent's decisions regarding grandparent visitation; and
(3) the
burden is now on the grandparent to disprove these presumptions in
a particular case.
Perhaps even more difficult, if two fit parents sign an
affidavit stating their joint opposition to grandparent visitation,
the burden to overcome the presumptions becomes virtually
impossible. All that is left to challenge is whether both parents are
fit, a difficult task indeed.
In summary, while there is a new grandparent visitation law
that will fit some difficult circumstances, in many instances the
grandparents face a tougher challenge than under the old law.
Source: Macomb County Bar Briefs.
Employee Blogging
OK, if you are like many others, your first question may be:
What is blogging? It is creating and maintaining an on-line diary of
sorts (sometimes called a Weblog, hence blog for short). The
blogger posts entries onto their own blog, which is available to
anyone with access to the Internet. Many have daily entries, some
are less frequent. Many blogs also contain pictures or illustrations
to go along with the written entries. The range of topics on blogs is
as wide as one can imagine. From personal observations to customer complaints or praises, to dishing dirt
on another, all of it is out there to be
seen by anyone with internet access.
Though the question of
why? is a fair one, the issue of who?
and what? may be relevant to
employers.
What happens if an employee
uses a blog to engage in online ranting
about their employer? Some bloggers
have caused major embarrassment to
their employers. Reportedly, a flight
attendant for an airline posted
suggestive pictures of herself taken inside one of the airplanes.
Other employees for other companies have posted complaints about
working for the company, operations, etc. Conversely, some
companies have encouraged their employees to include the
company in their blogs, as a form of ‘free' advertising. While
blogging can be a marketer's dream, it can also be nightmare to
others. Trade secrets may be inadvertently (or intentionally) placed
into the public domain.
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There is no defined set of laws that constitutes the ‘law
of blogging'. However, it is reasonable to assume that the
principles and laws forming about e-mails [see discussion in The
Gavel, issue 1-04], along with common law, will form the basis for
a new set of laws. Just as an employer can monitor any electronic
communication (like e-mails) on its internal system, it seems logical
that it could do the same with blogs.
If the employer does not have an existing policy regarding
electronic communications in the workplace, it should adopt a
policy right away. The policy should address who owns electronic
communications, if personal e-mails or blogs can be done on
company time and/or with company equipment, etc. If blogging is
allowed during company time or with company property, the
employer should have the right to monitor, edit or suspend the
blogs.
Other company policies should address e-mails and blogs
within confidentiality agreements, defamation/ disparagement and
anti-harassment policies, as well as the general guidelines regarding
use of the company name, logo, etc.
The trickier question is: What can be done about an
employee who blogs about the company on the employee's own
time on their own computer?
A private blogger will (correctly) assert freedom of
speech. They are free to write or say almost anything they want on
an individual computer, and no one can stop them. True .... but
there can be consequences for utilizing freedom of speech. The
primary consequence is that the blogger is also liable for what is
written. What appears on a blog can be the basis for a defamation
action, loss of employment, etc. Unless an employee has a written
contract or comes under a collective bargaining agreement, each
employee in Michigan is an "at will" employee. As was discussed
in an earlier article [see The Gavel, 2-99], this means that the
employee is free to leave the employer 'at will', and that the
employer can terminate the employee 'at will'. Writing disparaging
things about your employer in a blog seems to be a sure way for
your employer to will that the blogging employee cease being
employed. There are a few specific exceptions to this, such as if
the employee blogging is about wages, hours or union organizing,
the blogger is protected under the NLRA; or if the blog is being
used for whistle blowing purposes.
If an employer is unclear, they should seek legal counsel.
Source: Lawyer's Weekly.
CASE IN POINT: Read the Fine Print
Tom Waits, a singer/songwriter of some renown, is
credited with the phrase "the large print giveth, and the small print
taketh away" (Step Right Up, 1976). That advice could have helped
an unsuccessful litigant when he sued his employer for age
discrimination.
Five months before being hired, Mr. Clark completed an
employment application form. Included on the application was a
provision that if he had any claim or lawsuit against his employer, he
had 6 months in which to bring it. The Plaintiff's signature on the
application was also an acknowledgment that if he was hired, the
application form would become part of his employment record.
In 2001, Mr. Clark 'retired', though apparently against his
own wishes. In 2003, he sued his former employer for age
discrimination under Michigan's civil rights laws. The employer
brought a motion to throw his case out, because the 6 month clause
meant his lawsuit was now time-barred. The motion was granted,
and Mr. Clark appealed.
On appeal, his main argument was that the time limitation
was not reasonable. However, the Michigan Court of Appeals held
(in a 2-1 descision) that since the Michigan Supreme Court had
overruled this reasonableness rule in a different contract case, then
the same idea (reasonableness is not a defense) should also apply to
this contract. So long as the clause was not unconscionable, Mr.
Clark was stuck with what he signed 5 months before he was even
hired.
Moral of this case: it pays to read the fine print, because it
can take away some large rights.
Clark v Daimler-Chrysler Corp.
REFERRALS
If you have been pleased with the service and professionalism
you have received from our office, it would be greatly appreciated if you
passed the good word along. Referrals are always appreciated and
encouraged, and we look forward to the opportunity of being of service
to your associates and friends. If we can not immediately service
their needs, we will be happy to refer them to the appropriate attorney
specializing in their specific area of need.
However, if you have not been pleased, contact
us directly!
David B. Forest, JD, MBA
Attorney and Counselor at Law
(586) 532-6100
www.forestlaw.com
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