So I noticed that in last week’s a poll several of you were interested in hearing about the Americans with Disability Act (ADA).  Today’s discussion is for employer-employee situations, and does not discuss accessibility for businesses open to the public.

General Aspects of the ADA

If you are a business with 15 or more employees you are prohibited from discriminating on the basis of disability.   Therefore, a good amount of small business owners are actually affected by this law.    In addition, the ADA requires that employers provide “reasonable accommodation” to qualified workers with disabilities who can perform essential job functions.  The ADA is enforced by the Equal Employment Opportunity Commission (EEOC).

What is a “Disability”?

Many of you working in HR are already familiar with this definition:

a physical or mental impairment that substantially limits one or more of the individual’s major life activities.

However, in 2008 Congress significantly broadened the term “disability” to say that it includes any physical and/or mental impairments’ that substantially limits either:

  1. a major bodily function (such as functions of the immune system, normal cell growth, or digestive, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions); or
  2. an individual’s ability to perform one or more major life functions (such as performing manual tasks, walking, seeing, hearing, speaking, breathing, thinking, interacting with people, learning, working, reading, bending, communicating, eating, sleeping, lifting or standing).

Notice that many health-related issues that were not considered a disability before under the old definition are now under the new one. Be aware that the Final Regulations of the ADA also went into effect on May 24, 2011.  You can read them here.

Who the ADA Protects?

The ADA protects workers under three categories:

  1. a physical or mental impairment that substantially limits one or more major life activities;
  2. a record (or past history) of such an impairment; or
  3. being regarded as having a disability.

If an employee fits under one of these categories you are prohibited from discriminating against them.

Reasonable Accommodation

When the employer has a qualified individual with disabilities that can perform the essential functions of their job they are to provide “reasonable accommodation.” A “reasonable accommodation” may include one of the following:

  1. making existing facilities readily accessible and usable by disabled persons; and
  2.  job restructuring, modification of work schedules, acquisitions or modification of equipment or devices, adjustment or modifications of examinations, acquisition of training materials or adoption of training policies, provision of qualified readers or interpreters, and other similar accommodations.

Final Words

In my experience, a lot of business owners see a change of the law, see similar words and think that the law has not changed, which is inaccurate.  The new definition of “disability” significantly encompasses more situations. Ask yourself or your HR manager these questions:

  1. Is there a detailed job description detailing the essential functions of each job?
  2. Do you have a policy to report to HR when employees state they are not performing or underperforming due to health reasons?
  3. Do you know that when you are given such information you are on NOTICE?
  4. Do you have a procedure to handle the interactive process to determine if they are disabled, and then see if they need a reasonable accommodation?
  5. Do you know that most significant health-related issues are a “disability”? (Even in these situations you have to work with the employee to see if there is a way to keep them employed.)
  6. Did you know that if you engage in a good faith effort to reasonable accommodate a worker that the law forecloses punitive damages as an award? (Therefore, you have an interest in engaging this process rather than being slapped with extra damages in a suit.)

As always, if you need advice in updating your policies and procedures, handbooks, and agreements seek out an attorney.  If you like this post or any of my other series please “Subscribe” to this blawg to receive e-mail updates.  In addition, follow me on Twitter and “Like” me on Facebook.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

Aloha everyone, as I have covered most of the primary topics that I wanted to regarding Social Media in the Law over the past two months I will be transitioning back to Laws in the Brief.  I will be focusing of course on new laws that the Hawaii state government has passed into law this past session.  Of course I will also be bringing you my silly doodles to help small business owners and entrepreneurs grasp legal concepts.
However, as we all know social media does not sleep and the law tries to keep up as best as it can to changes and innovations in society.   Since I find the topic interesting I will strive to share updates and various information when I find something where the two subjects intersect (or collide).  Seeing as I already missed my posting window let’s get to . . .

Social Media and the Law: Miscellany

Mo. Teachers Want More Online Options

In Missouri, the Teachers Association is suing over a new law that restricts teacher interaction between educators and students.  The law is aimed at making sure that a school district that fires employees for sexual misconduct is liable for similar activity if the fired person is rehired in another school district and then engages in similar behavior.  However, the Association feels that the part of the provision would cut of online chat functions between teacher-student due to the fact the interaction must be public.  For more information check out the article, here.

Beer, Facebook and the SEC?

Remember, the Draw the Law that discussed crowdfunding as a way to raise money?  Remember, I also mentioned you need to be careful how you do it or the SEC may feel you are trying to skirt securities laws.  Well, In the matter of Michael Migliozzi II and Brian Willam Flatow, the SEC brought action against the two due to their use of the Internet to purchase a brewing company for $300 million.   They created a website, used Twitter and Facebook to advertise the site and in return promised that participants would receive a “certificate of ownership” as well as an amount of beer equal to the investment money.  The contributions were never collected, but the two involved settled the matter and consented to a cease and desist.

It always seems like beer and Facebook don’t go well for most people whether it is embarrassing photos of them drunk last Friday night or raising funds without an exemption from SEC.

Facebook Changes its Guidelines and May Be You Should To

Finally, for those of you that use Facebook for your Promotions know that the company has changed is Promotion Guidelines.  Before this year, Facebook used to have you seek approval from them for offerings of sweepstakes, contests, etc . . . . and they had a heavily confusing and overly specific legal compliance “manual” due to the amount of varying sate, federal, and foreign laws that regulate promotions.  However, the new Guidelines significantly more streamlined and it talks about how Facebook features and functionality may or may not be used.   One main example is the old Guidelines used to spell everything out with applicable laws making it a text that was too long as it went through every single jurisdiction.  Now the revised Guidelines state that operators of promotion, themselves are:

responsible for the lawful operation of [their promotions], including the official rules, offer terms and eligibility requirements (e.g., age and residency restrictions), and compliance with regulations governing the promotion and all prizes offered in connection with the promotion (e.g., registration and obtaining necessary regulatory approvals).

Check out their Promotions Guidelines

My comment on this is it’s clear that someone at Facebook thought about what they were trying to do and modified their policy with respect to this situation.  Do you think sometimes you could state the functionality and purpose with your web presence with less words than more?  Does it get the point across and is it legally compliant?  Sometimes less is more.

As always if you like this post or any of my other series please “Subscribe” to this blawg to receive e-mail updates.  In addition, follow me on Twitter and “Like” me on Facebook.  If you need to contact me directly, such as for a review of your social policy or a re-drafting, please e-mail me at Ryankhew@hawaiiesquire.com.

*Disclaimer:  This post discusses general legal news and information, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

For this week’s Draw the Law, you all chose Non-Compete Agreements.  This is definitely a topic of interest among employers and lawyers alike.  In addition, small business owners should remember I talked about non-competes in the context of buying a business.

What is a Non-Compete Agreement?

Before getting to what a non-compete agreement, you have to realize as our economy has grown and changed over the years, we now are in a knowledge economy.  Therefore, it is imperative for companies to not only protect their traditional intellectual properties, but the knowhow that gives them a competitive edge.   Through laws and agreements, like the Hawaii Trade Secrets Act and non-competes, companies have sought to enforce their proprietary rights against others.

A non-compete agreement tries to prohibit or limit the degree in which an employee can compete with their former employer.

Problems with Non-Competes

I tell this to many clients who come to me for drafting agreements, “I can put whatever you want in the agreement, but at the end of the day it matters if the court will enforce it.”  So it is the case with  non-competes, many employers want to make it impossible for their former employee to basically work.  This is not going to fly with a court because as a society, we value trade and the ability to make a livelihood for yourself.  Thus, courts will closely scrutinize these agreements because by their inherent nature they restrict trade.

The Law’s Balancing Act

The calculus the court usually enters when trying to decide whether to enforce or strike out the non-compete agreement is as follows:

A vs. B + C, where

(A) is the company’s interests at risk (trade secret, proprietary information, investment in the employee) VS. (B)is the employee’s ability to make a living + (C) is the“public good” (access to goods and services).

Therefore, a court will ignore a company’s non-compete with an employee if the risk is minimal to the company and enforcement would leave the employee unable to earn a living and harm the public.

The Factors

Specifically, a court looks to the following factors when make determinations on the aforementioned balancing equation:

  1. duration of the restriction (is it for six months or till the end of time?)
  2. geographic restriction (is it a part of a district on an island or is it the whole state?)
  3. the scope of the restriction (is it a specific level of job or is it the whole industry?)

What those Factors Mean When Creating a Non-Compete

Therefore, the tricky part of drafting a non-compete is to make sure you do not draft something so broad it prohibits an employee from working on this planet, in the same industry, for as long as he or she lives.  That is overbroad and a court would definitely not enforce it.

On the other hand, if you make the non-compete so small in its restriction (i.e. you can’t work in this building, for a day, as a payroll manager, and the person has HR operational skills learned at your company) then there is no point in creating the agreement because your former employee will just take all the knowledge and experience you invested in them and work for your competitor.

Final Words

Thus you are left with creating a non-compete agreement somewhere in between those extremes.  It always is best to have an attorney work with you on this matter.  Let them see how your business works and what is of value, but also how the employee you want to sign the non-compete will operate within the company.  It will help them craft an agreement that zeroes in on protecting the valuable knowledge, but allowing the former employee to make a living without using that stuff against you should they ever leave.

Finally, a brief word on independent contractors (IC) and the use of non-compete provisions, as stated in the other Draw the Law post on ICs, the issue of control comes up.  If you think about it, a non-compete is controlling the behavior of the IC.  Therefore, too much control (restrictions) on the IC may make them an employee in the IRS’s viewpoint.

Consider using a non-disclosure agreement instead to protect sensitive information when dealing with ICs.

As always if you like this post or any of my other series please “Subscribe” to this blawg to receive e-mail updates.  In addition, follow me on Twitter and “Like” me on Facebook.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

Hey everyone,
There will not be a social media and the law post this week.  However, because you all helped me choose the topic for Draw the Law last week, I will be doing it again.  Seeing as there was great interest in employment law, I will continue on that trend and focus this week’s Draw the Law on the various employment compliance issues a business faces. So please vote this week for the three options.  In addition, I am open to suggestions so please use the Contact Form to let me know if there is anything you want to seen drawn.

[polldaddy poll=5426224]

See you Friday and in the meantime, please check out last week’s Draw the Law, an overview on dealing with employment law compliance.

Thanks.

-RKH

So the option that won from the poll was to do a brief overview of employee legal issues.
As it is a huge topic, I will only really briefly touch upon large aspect of the employer-employee relationship.   To keep this as brief as possible, I am going to focus on just employment of non-unionized employees.  In addition, today’s focus will be about how to think about dealing with employee legal issues with a HR perspective.  I will follow-up with a couple more Draw the Laws that focus on narrower aspects of employment law it will also be poll-based.

The Puzzle that is Employment Law

In general, employment law cares about the interactions of the business with its employees.  Both the state and federal governments have created laws to regulate hiring, workplace conditions, wages, and the like.  Due to our system though we have many laws that overlap, further exceed, or just contradict with each other.   In many times, the HR function of a business is playing puzzle-maker trying to get pieces to fit together that do not quite match.

So there are multiple ways to try and figure out how to be in compliance with employment laws.  Here are some ways to cope with dealing with the law.

Size

If you are a small business, generally the owner-operator is handling the HR function (along with marketing, operations, and everything else).  Due to the fact that you are so tiny, many laws do not affect you, as the have an employee threshold.   You can kind of think of the business as a growing bubble, as you add employees the more laws the bubble comes in contact with and must comply with.  For example, most of the federal anti-discrimination laws cover employers of fifteen or more, whereas Consolidated Omnibus Budget Reconciliation Act (COBRA) is 20 or more, and something like Family Medical Leave Act is 50 or more.

Other times a law will cover an employer based on its gross annual volume of business, such as Fair Labor Standards Act (FLSA), Equal Pay Act (EPA), and the National Labor Relations Act (NLRA).

Finally, there are laws that always affect you no matter how small or big you are like Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and Occupational Safety and Health Act (OSHA).

Timing/Process

Where are you in the process of dealing with the employee?  Are you hiring a new employee?  Did you hire the employee and are now training them?  Is this an older employee that has been with the company for a while?  Or is this an employee you may want to terminate?

Certain laws come into play depending on what stage of the process you are in.  In this case, you can kind of think of the laws interaction with your business in stages with on and off switches representing what you can and cannot do at certain stages of the process.

Never Enough Time

I have barely scratched the surface of employment law, but I hope today’s Draw the Law has helped give you a couple ways to think about them.  In general, it does seem there is never enough time for dealing with this type of law.  However, there are some great resources on the web, and I have some links on my site to help out.

Plan Ahead: Policies, Procedures, and Handbooks

A business’s best tool when dealing with employment laws is plan ahead.  It will save you some stress and worry later.  For me (as seen by these Draw the Law) I like to diagram and sketch things out, as it gives you a kind of map to navigate the issues. If you feel you do not have the energy or skills it is best to hire someone to help develop strategies for you to deal with your worker issues, as noncompliance can lead to penalties by the government and lawsuits from employees.  Due to the complexity of employment laws an attorney can advise and help draft your handbooks on polices and procedures.

As always if you like this post or any of my other series please “Subscribe” to this blawg to receive e-mail updates.  In addition, follow me on Twitter and “Like” me on Facebook.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

Business Owners: Document Management and Retention Policy

It is clear from the prior posts that lawyers are aware that there is a lot of evidence to be discovered from social media.  However, what does this mean the operations of a business?  In terms of the bottom line discovery will only complicate your day-to-day operations as you search for some blog post you put up two years ago.  Your social media should be added to the document management and retention policy, but it should be done efficiently as to minimize any future compliance or litigation action.

Consider this, that in 2010 FINRA issued guidance for blogs and social networking sites, and set forth the record keeping responsibilities in the financial broker-dealer business.

Every firm that intends to communicate, or permit its associated persons to communicate, through social media sites must first ensure that it can retain records of those communications as required by Rules 17a-3 ad 17a-4 under the Securities Exchange Act of 1934 and NASD Rule 3110.

Why Have a Document Management and Retention Policy?

In general, you should always have a way of finding your files.  It will not only help comply with discovery requests, but for yourself it will help you find things for things such as regulator and tax requirements.  Not only will lawyers be grateful you can find your own files, but accountants and various consultants find it helpful as well.

Therefore, your business records policy should be aimed at three goals:

  1. Preserving until end of usefulness (both for legal and business reasons);
  2. A systematic approach to destruction, which explains why documents no longer exist;
  3. Limiting the number of areas that a discovery request will force you to search.

So basically, in your policy you have defined time, space, and existence.  It’s like having your own document universe where you get to control the rules.  In terms of legal considerations, and an attorney can help you with this part of the policy, but consider the following:

  1. litigation hold procedure if you anticipate any litigation or government investigation;
  2. how to handle the portability and backing up of data; and
  3. how to control non-company devices that access and use company data.

Incorporating Social Media

Now factoring in social media, you can kind of thing of it as it’s own galaxy in your document retention universe.  Due to its nature, and people’s perception of it you will have to a) think about how you want to archive it and b) train people to get used to organizing it.

As mentioned in the prior post you can download your Facebook data and get all your tweets in excel format.  For blog posts it depends on what service you are using, but some give you the option of backing up your blog.  You should also consider if you write in MS Word to draft the posts before hand of saving it in that format as well.

Finally, for your own sake and your lawyer’s sake be sure to digitally timestamp and signature the files.  This goes to authenticity of the evidence for a trial.  In addition, be sure to try and keep social media preserved in their native format.  Thus things like video or Flash files should be kept safe an the ability to replay is crucial because some regulatory situations will NOT accept screenshots.  Basically, you need to prove the exact contents and the manner it interacts with a user on any given date.

Training and Responding

Watch how people connected you talk about your products and services. Make sure employees and paid bloggers disclose anything you gave them in connection with touting your business's products and services.

Once you have set-up a document management and retention policy, concerning social media.  You have to train your employees to follow it.  It will give weight and credibility to why certain documents exist and others do not.  In terms of social media, when people use it they kind of think that what they post will not remain there and is only a flight of fancy.  So you are going to have to train against that mentality, as well as that social media posts are for company purposes and are a part of the company.  Followed by the fact that you will have to archive it like a library and you can see that training on social media retention is a little bit more complex.

If litigation does come knocking on your door, an attorney can help you strategize with a proper response.  Now that you have an efficient and searchable document management system it will be less of a nightmare.

Final Points: Centralize and Use Software

With social media and document retention centrality of the data/documents becomes a key issue.  Archiving and housing the data in all different manners and places is a real headache to sort later.  Put in the effort to centralize and organize in the beginning.  Lastly, while your business is small consider scalability of your document management system as it grows.   You may want to consider the use of specialized software.

As always if you like this post or any of my other series please Subscribe to this blawg to receive e-mail updates.  In addition, follow me on Twitter and “Like” me on Facebook.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com or leave a message at 808-944-8400.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

So earlier today I posted my Draw the Law on independent contractor status.  In that post I said I would do something different in regards to the next Draw the Law.  Well, here it is, you get to choose the topic based on the below poll.  It is my way with interacting with the readers of this blawg and giving you some more control because as we all know life as a small business owner is crazy!
The three options are between discussing independent contractor in regards to factors other than control, a brief overview of the laws that affect employees, and finally worker agreements, like nondisclosure agreements.  So please vote in the poll below and next week I will focus on the topic that gets the most votes.

[polldaddy poll=5351610]

*I will select the topic by Wednesday evening of next week (8/10/11).  So whatever topic that gets the most votes by that deadline will be talked about.

Have a good Aloha Friday!

-RKH

Let’s say you started your business and have a great location.  Well, now comes the fun part.  You need customers and clients to bring in the money, but you probably need a little help as well.  While, many industries lend themselves to being solopreneur endeavors (like the law) you will still eventually want to get help.
Today’s post will focus on independent contractors (ICs) and employee classification and how the factor of control plays a role in this classification.

Why Should I Care?

As cash flow is uneven in the beginning anything to lower costs is helpful, so many start-ups like to outsource some operations and have an independent contractor work on them instead of hiring an employee.  However, many times the business owner has overlooked some things and actually created an employee.  This has huge implications.  Namely, the IRS is going to redefine your ICs as employees, and slap you with back taxes and fines.   Those costs could include years of unpaid federal, state and local income tax withholdings, as well as Social Security, Medicare, workers’ compensation, unemployment insurance, and even overtime compensation costs.  Basically, everything associated to hiring an actual employee.

The misclassified ICs can also bring an action to claim employee benefits that were denied to them due to their misclassification.  In the 1990s one of the biggest cases of this situation was between Microsoft and its long-term temp workers.  They sued Microsoft for the stock purchase plan denied to them due to their misclassified status.  Microsoft ended settling this suit for $97 million, but that was in addition to the payments to the IRS.

This case is an extreme example, but it highlights that the burden is on the business owner to properly classify all workers.

The Biggest Factor: Control

One of the strongest factors in determining if a worker is an IC or employee is the factor of control.  In the case of an employee, the employer can dictate the hours they work, what tools and equipment they use, their job title and status, and a variety of other things.  However, employees can be incredibly expensive due to all the compliance issues associated with them.  On the other side, you lose control of an independent contractor, but do not have to worry about the associated costs of an employee.   Indeed, from a purely business cost-benefit analysis side you can view the situation as control versus cost.

However, recognize that control only one of many factors that the various agencies and courts will analyze your relationship with your workers.  It is possible to have a worker be classified as IC in one situation and as an employee in another.  What is a constant element though in many of these tests is the issue of control.   The more control you exert over the manner in the way the work is done, the more likely the

Factors are like Strings

The variety of tests and the factors they use are a bit daunting, and too long to cover in one Draw the Law posts (indeed, I am trying something different today with a poll to see if you want more on ICs or move on!).

However, let me use a popular analogy about how to view your worker relationship in this context.  Think of the worker as a puppet with strings, and each string represents a factor.  These other factors include things like do use of company equipment to accomplish the job, does the job have set hours, is pay based on those hours, how integral is the job/task assigned to the business, etc . . .

Basically, to avoid employee classification (or imagine a marionette) you want to have as few factors (strings) against you as possible.  If you truly want to have the benefits of an IC than in a lot of cases it is going to have to be “no strings attached.”

Independent Contractor Agreements

One of the best ways to get a handle on this situation is to have an independent contractor agreement.  This serves to define the relationship upfront and provides a possible piece of evidence that you intended the relationship to be an IC and not employee.  However, it is best to have an attorney at least review your business operations and your IC agreement to help point out potential pitfalls with drafting language and the relationship to avoid being reclassified.

As always if you like this post or any of my other series please Subscribe to this blawg to receive e-mail updates.  In addition, follow me on Twitter and “Like” me on Facebook.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.  No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.  Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

Ethics and the Collecting of Social Media Evidence

Sorry, non-lawyers, today’s post is another legalese fest.  Tune in next week, and I should have some general thoughts for you on what social media as evidence means to you in the grand scheme of things of policies and procedures.

So from the previous post, it is clear that there is a lot possible uses for social media data to use against your opponent.   However, how do you get to it?  Before I discuss any collection of the data I would like to briefly mention legal ethics.

Ethics and Rules

You probably already know all about the Hawaii Rules of Professional Conduct, so I am not going to take up your precious blog reading time with going over them.  Just consider these rules when trying to investigate (pre-litigation and discovery phase) another party’s social media prescence.

Some HRPC Rules to Think about in the Realm of Social Media as Evidence:

  • Rule 8.4 (c ) – engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
  • Rule 4.1(a) – make a false statement of material fact or law to a third person; or  (so no posing as a fake person to friend someone on Facebook)
  • Rule 5.3(b) – A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyers; and
  • (c) A lawyer shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved[.] (therefore, no lawyer’s employee masking as another person to friend an opponent via Facebook).

The New York State Bar has a good opinion letter summarizing the situation.  You can read it here.  Just remember that Rules of Professional Conduct have variations from state-to-state.

Trying to Get to the Evidence

Once you figure out what you want it may be difficult to get at.  Subpoenaing the corporate entities that provide the social media sergice is unlikely to yield results.  There is already case law that states the private-message function of Facebook is no different than e-mail and that the sites do not have to produce the messages.  In addition, the Stored Communications Act may prohibit such action.

So this means you will have to go the discovery route and get the opponent to produce it through the process.  In terms of Facebook, it is really simple to do.  There is currently an option where the user can download all their data onto their hard drive.  If you go to “Account Settings” there is a small option link that says “Download a copy of your Facebook data.”  Just follow the instructions and you have your data.  The simplicity of it all negates any response that the act would be overly burdensome.  Twitter is not as convenient, but there is a way to get all your updates in a file and then presented in an Excel spreadsheet.  If you want know more about that visit this link.

Consider using a social media release document (like the way doctor’s use a medical release form).   You can then take that signed release and present it to the social media giants, but the response is dependent on the turnaround time of large corporate entities.  If that does not seemed to be a good option there is finally the time-consuming processes of screen capping, pdfing, printing, and/or videoing the data.

Finally, remember if your opponent’s social media information is discoverable that means so is your client’s stuff.  So take the time and counsel your client about the matters to avoid spoliation claims.

Anyway, that’s it for today, and in general for social media as evidence.  I will touch upon from the business owner’s/client’s perspective about what this means for their social media and electronic document retention policies and procedures.

As always if you like this post or any of my other series please Subscribe to this blawg to receive updates to your e-mail.  In addition, follow me on Twitter @Rkhewesq and Like Me on Facebook under Ryan K. Hew.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.   No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.   Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

Zoning

Hi everyone, on the last post I briefly touched upon using your home as the location of your business.  Today’s post will focus on zoning and all the complexities that brings to setting up your business.

Similar, to how neighborhood associations or condo groups want a certain look, so they enforce covenants against members the government also wants to shape and control how the land is used.  This is accomplished through zoning laws.

All land in Hawaii (except for federal land) is one of four categories: (1) conservation; (2) agricultural; (3) rural; and (4) urban).  The four designation were created by the State Land Use Commission.   The Zoning Code lists what are the permitted uses within each zone.  It also lists the required setbacks, height limits, parking areas for commercial developments, and other such types of requirements.

Every zone has a list of what is a “permitted” use without need of further approvals. It’s the reason you see gas stations and strip malls where you do, and away from your houses.

In general, when looking at a location you want to make sure your business will be able to meet the requirements.  If you are set-up shop in one area and violate the zoning requirements it could be very costly and be so severe as to drive you out of business.  In addition to the land use, construction of buildings need plan approvals from the Planning Department as well as the building itself needs a building permit, which ensures that the building is for the permitted use and has proper set backs.

In some occasions you can get a variance to allow for some type of use not allowed in the zone, such as the shape of the lot allows you a different setback.  It is also possible to get a Land Use Approval for others kinds of use.  However, in general to get a variance or Land Use Approval it can be a long process.

For more information on the matter (for Oahu) visit the City and County of Honolulu’s Department of Planning and Permitting page.  In addition, when dealing with zoning laws it is best to seek an attorney and other land use professionals to help best explain the complex system.

Licensing and Permitting

Before I end out this Draw the Law, I’d like to make brief mention with licensing and permitting, which dovetails nicely with zoning.  I already made mention of building permits above, but suppose you say you start your business and you have structures you want to alter or demolish.  You will need a building permit for such actions.  There is even a sign permit if you want to install, construct, alter or move any sign on the property!

Certain businesses also require a license to be operational for business.  The best example of this is the liquor license.  A bar cannot operate even though it meets all the other zoning requirement without a liquor license.  For example, let’s say it is the right-sized building for bar operation on a lot in Waikiki or Downtown that allows bars, but the owner fails to obtain the proper liquor license to sell drinks.  He would not be able to open his bar and sell drinks until he gets approval from the Liquor Commission via a license.

Therefore, the need of having all your ducks lined up when opening certain businesses is paramount.  It takes a lot of time, paperwork, review, and discussion with the government.

As always if you like this post or any of my other series please Subscribe to this blawg to receive updates to your e-mail.  In addition, follow me on Twitter @Rkhewesq and Like Me on Facebook under Ryan K. Hew.  If you need to contact me directly, please e-mail me at Ryankhew@hawaiiesquire.com.

See you on the next Draw the Law!

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.   No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.   Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.