May It Please The Court
How The Grinch (Almost) Stole Christmas VacationThe Grinch story revisited, a la two sparring lawyers, courtesy of Findlaw, with a post-discovery hat tip to the Professor, via Begging to Differ.
New York Starts Trend Against Insurance CompaniesHere's a quote businesses will be sure to love: the time has come to "acknowledge that freedom of contract is a fiction when applied to insurance policies."
That's straight from the mouth of two justices from the majority decision in the case of Great Canal Realty Corp. v. Seneca Insurance Company, Inc. (subscription may be needed). They said that while New York courts have historically been reluctant to inhibit freedom of contract, the Supreme Court (called the Court of Appeals in NY) wouldn't tolerate the insurance company's "prejudice" claims for late claims.
The whole case (again, subscription may be needed) turns on this word: "immediate." Which is what the insurance companies have demanded in the contract (policy) for notification of a claim. Then, when an insured doesn't tender the claim "immediately," ... well you already know don't you: it's a big stamp.
Not any longer, at least in New York. We'll see if this ruling spreads to other jurisdictions.
I thought trends started in California.
Father / Son Team Blawgs The Legal BlogosphereThis may be a first, although with the internet, you never really know.
My son is going to start blawgging with me here on MIPTC. He's a second-year law student at the University of Iowa, my alma mater.
So, shortly - although the debut date is up in the air - you'll see one-a-week posts from Michel J. Ayer. The writing ticket for this blawg will be a lawyer and a law student, as a father and son team blawgging legal news, each with our own perspective.
The question for you to answer, as our readers, will be whether the apple fell far from the tree. I know my son, and I don't think so. On the other hand, he might tell you otherwise.
The focus of MITPC won't change, and Dad still will retain complete editorial control. Even so, I won't be issuing writing assignments. Michel will cover the legal items he wants to cover and pass along his observations. Does that mean I'll become the dreaded editor?
Nope. More of a proofreader, although that red pen may sneak in from time to time.
In case you are thinking about it, I Googled Michel for you. (Yes, there's no "a" in his name. Don't ask me, ask his mother.) There's not much out there about him. In fact, I could find only one article, and that focused more on his wife, Stacy. So stay tuned: you'll learn more here.
And no, I'm not a grandfather, and have no desire to be one anytime soon. You wouldn't hear that news from me first, anyway.
It's A Wonderful Life: Paul For PostmasterRegular readers know my Mom lives in South Harwich, Massachusetts on Cape Cod. She's a retired church secretary, and I've discovered, where my love of advocacy comes from.
Let me explain.
There's a very small post office near her home; some would even say postage stamp-sized. I've been there. It's so small, three people can't fit in it at the same time. The parking lot holds just a few cars.
It's definitely small-town America, a regular slice of apple pie.
My Mom's post office box (number 38), is on the bottom of the row of boxes. Most of the time, the lock doesn't work because it's so old, and she has a hard time bending down to open it. She's 72 (and she got after me last time I posted her age here, but it's one of those details that's important to the story. Sorry, Mom.) and she has a bad back.
When she walks in the door, the postal worker goes to her box, grabs the mail and hands it to her over the counter. Most of the times she doesn't even bring her key. Like I said, small-town America. And, as you've probably guessed, she's not the only one who gets treated this way. Paul Pimental, the postal worker, treats everyone the same. He even knows me when I come in, just based on seeing my name on the mail I send to my Mom.
If there was a pot-bellied stove and a cracker barrel in there, people would be sitting around talking about town events. Even so, there's almost always a conversation among the patrons while Paul dutifully goes about his work.
Have you got that picture in your mind?
In stark contrast to this idyllic life on the Cape, the big muckey-mucks at the Post Office headquarters decided to make some changes. They're the ones wearing the black hats.
They decided to appoint a new Postmaster. From the big city. They didn't even interview Paul for the position. Yep. Bypassed him. To add insult to injury, there was talk about moving Paul to another post office.
So, Paul said goodbye to my Mom the other day. She was heartbroken. Especially since this made the fourth time in eight years that the big muckey-mucks had installed a new postmaster, bypassing the local South Harwich postal worker again and again.
Side note here: my Mom is a force to be reckoned with.
Not surprisingly, she went home, got on the phone and tracked down the big muckey-muck that made this decision. She waited on hold, intermittently talking to various postal workers and getting transferred for an hour and forty-five minutes. She finally reached Bill Peterson, Manager of Post Office Operations, who she reports is not a big muckey-muck after all, but a very nice person.
She talked to Mr. Peterson for about 20 minutes, extolling Paul's virtues. She related some of the things that Paul does, how much everyone likes him, and how much he would be missed if he left. She also told him what a good job Paul does, and how well he handles the mail. She got Mr. Peterson's address.
Then she returned to the South Harwich Post Office and, you guessed it, posted Mr. Peterson's address and asked patrons to write in, supporting Paul for the Postmaster's position. She stayed around for awhile and talked to a lot of folks about writing to Mr. Peterson. People did, and are still writing in. Everyone really likes Paul.
Apparently, Mr. Peterson then called Paul, and because of the support of the townspeople, he's going to be interviewed for the position of Postmaster. Mr. Peterson commented to Paul about the supportive phone call he had gotten from my Mom.
Paul saw my Mom today and thanked her. He said that evening after receiving Mr. Peterson's call, he went home and in tears described to his wife how he felt about the rush of support from the community. He said, "Now I know how George Bailey felt in It's A Wonderful Life."
Tears welled up in my Mom's eyes, and I could hear it again in her voice when she related the story to me this morning on the telephone.
Oh, yes. Mr. Peterson's address (just in case you want to write in):
Bill Peterson, Manager of Post Office Operations
225 Liberty Street
Brockton, MA 02301
It is a wonderful life. Have a happy holiday season, and remember people like Paul.
You Were Looking For A Meal Ticket? (UPDATE AT END)You're on the edge of your seat? You're sitting down?
OK, now you can read on.
After a request from Governor Arnold Schwarzenegger, the California Division of Labor Standards Enforcement issued an emergency regulation drastically altering the agency's enforcement policy concerning employee meal and rest period requirements under California wage and hour laws. First issued on December 10, 2004, the new regulation became effective on December 20, 2004, after receiving approval of the California Office of Administrative Law.
The new regulation affects existing law three ways. Most significantly, the regulation clarifies that the one hour's pay owed by an employer to an employee who works five or more hours without an off-duty, nonworking meal period of at least 30 minutes is a penalty, not wages. This clarification means that claims for missed meal or break periods must be brought within a year or they will be barred by the statute of limitations.
Second, employees filing Labor Code claims against their employers may not recover attorneys fees, costs, interest or waiting-time penalties. The change, which is retroactive, should significantly reduce the ability of plaintiffs’ lawyers to recover excessive monetary awards in the many employment class actions now pending in California courts. How's that for an ex post facto law?
The new regulation describes how employers can satisfy the meal period requirement.
Count 'em, there are four ways: (1) making the meal period available to the employee; (2) affording the employee the opportunity to take the meal period; (3) posting the applicable order of the Industrial Welfare Commission (i.e., the Wage Order); and, (4) maintaining accurate time records. These options represent a significant change from the DLSE's prior interpretation that imposed a penalty of an hour's pay per day whenever the employee missed a meal period, even when done at the employee’s request.
Under this new regulation, employers can demonstrate compliance with the meal period requirements by having employees sign a notice and acknowledgment of understanding which advises them of their meal period rights.
The third change clarifies that employees scheduled to work longer than five hours may be permitted to take a meal period any time prior to the sixth hour of work without violating the law. This change affords employers and employees greater flexibility to schedule meal periods.
The new regulation will not change the employer's obligation to provide meal periods to its employees, but it provides much-needed guidance and clarifies the penalties for violating the meal period rules.
Ok, that's it in a nutshell. If you want more, consult your lawyer.
I knew you were dying to know.
You knew it was too good to be true.
Due to heavy lobbying by organized labor and plaintiffs'-side employment lawyers, the Schwarzenegger administration withdrew proposed labor rules that critics complained would have made it harder for workers to take lunch breaks and collect back wages. The administration acted just as the rules were about to be put into effect on an emergency basis by the Office of Administrative Law, an agency that vets regulations to ensure that they're needed and correctly drafted.
The rules would have changed the criteria people follow to file complaints with state regulators about being deprived of proper lunch breaks on the job. As it is now, an employer has to give an employee a 30-minute break after the worker has put in five hours. The rules would have in effect stretched that to six hours. The proposed rules also would have eliminated employees' ability to file claims about incidents more than a year old. In addition, it would have become harder for workers to collect the attorneys' fees, costs, interest, waiting time penalties and large monetary awards that all had been bolstered in a law signed by former Governor Gray Davis in 2000.
By moving on an emergency basis, the administration would have had the rules go into effect before public hearings on them were scheduled. Now, hearings will be held in San Francisco, Los Angeles and Fresno over the next 120 days and then the Labor and Workforce Development Agency will decide whether to put the rules on the books.
We'll keep you posted.
New Graphics RefreshedTip-'o-the-day: if you see of photograph of J. Craig over there on the left, hit the refresh button on your browser to see the new graphic we just uploaded.
If you see the new graphic, the refresh button restores the original photo. You can print them out to (as my grandfather would say) "put them up in the basement to scare the rats away."
The Price of Mele Kalikimaka Goes UpThat'll be $200, please.
For a Christmas tree. In Hawaii. While the East Coast prepares for the deep freeze that comes with this time of year, Hawaiians, too are huddled in their blankets as temps drop into the 60's.
It's hard to understand freezing weather here in SoCal while we're getting ready for and enjoying a bluewater Christmas.
But come on, $200 for a tree? Yes, ours went up this weekend, and we could have easily spent $200 on a big tree, but we got by for less than half that, which we thought was expensive. Flocked, no less. It's a first. We've only ever had a regular green tree before.
It's no wonder that Hawaiians are upset with these prices. Previous records show much lower prices, but apparently, retailers in Hawaii underordered. The trees come from Oregon, where prices there range to $84.00.
Tree shopping, if you can even call it that, has changed since I was a kid. My mom bundled us up and my dad took us to the tree farm, where they gave you a saw and you went out into the forest to cut down a tree.
I remember we paid $7.50 that year.
And a haole maka hiki ho to you, too.
Let's See Them Collect This JudgmentSpam is finally under control at our office, thanks in large part to this zippy little add-in called Brightmail.
Works like a charm.
Probably even better than this $1 billion judgment. Here's the deal. A federal judge in Iowa awarded an ISP company a one billion dollar judgment against some 300 spammers for flooding the ISP with 10 million emails a day.
That's a cool 10 bucks per spam email. Not bad for a day's work.
But what do you think of the likelihood of collecting that judgment?
Right. I thought so. Zippo.
Great idea, and maybe it will cause other spammers pause, but hasn't this judge ever heard of bankruptcy? What does he think is going to happen?
The spammers are going to get their checkbooks out?
Ok, enough whining. How about a solution here? I would have tried seizure and forfeiture. Maybe even an injunction or two. But then again, a billion isn't too bad, either.