Employment Discrimination Lawyers and Labor Law Lawyers

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Driver's License AND State ID. Can one individual have both from two states?

Assume for argument that Mr Otto, is a homeowner in State A. He pays property taxes in State A and Votes in State A. His Operator's license in from State A.

This is a very interesting question Mr B. I can conceive of a number of my friends who could fit into this situation. I not being a lawyer do not know the answer.

I do think you may get yourself into a BATFE catch-22 if you try to buy a weapon and you may have problems buying on in both states.

BATFE Form 4474 Q 13 asks for "State of Residence" it qualifies that you have to had resided in the state for 90 days.
This six page form de jour or form de caprice of the BATFE scares most FFL's to the point they may not wish to sell you a firearm.

Could an actual attorney-at-law provide a definition of "state of residence"?

Gender Discrimination

I am Property manager and I want to kick my exboyfriend out? How do I do that?

My apartment is given to me because of my employment. I need to break up with my controlling and possessive boyfriend. He has a history of breaking my things/car if I try to break up with him.
I dont want to give up my job and apartment but he is such a harrasser. The local law enforcement says I have to give him a 30 day notice. I wish there was some other way I could move him out immediately but keep my job. I live in Mississippi (Community Property state). Any ideas?

Have your friend call in vandalism and they know who did it. Or you call in vandalism, and oyu know who did it. Either way, it's a legal matter and he'll be thrown into the court system.
Actually, you can tell him he has 30 days and if he's not out, you're calling the cops. Or call the cops one night when he's angry and report it as abuse. Many things you can do to get him out, especially if he's that bad.
I suggest it because he's not leaving without a fight.
PS...get a restraining order when he leaves.

Wood & Carlton PC

Anti-discrimination law reviewed in Haverford
HAVERFORD — A proposed anti-discrimination ordinance that would add provisions for sexual orientation and gender identity/expression sparked lively discussion at Monday’s work session, when it was reviewed in preparation for the Nov. 8 commissioners meeting.
Discrimination on the grounds of age, race, religion, sexual orientation

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overtime pay...is it legal????????

Does anyone know anything about employment laws in the UK? by boyfriends boss has paid him (and all other colleagues) overtime and so they are now forced to the overtime, even though they havent asked for it. It wasn't an 'accident' on the bosses part (i used to work for him too) IS he allowed to do this to people?

Contact your local department of labor office.

TIME, what makes us tick

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Law enforcement employment question?

I want to work for the Florida Highway Patrol. They do a credit check and I have 3 bounced checks from 4 years ago and a car note charged off as a bad debt but I am makeing monthly payments on it.
Other than that everything is "Paid as agreed".

Not likely

08/10/10: Governor Quinn Signs Law to End Pre-Employment Credit Checks

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Students Scarce for Japan’s New Graduate Schools
In Japan, the number of universities and academic programs has risen sharply. But there is one problem: Not enough students are signing up.
NJ LAW PART 2 Danny Federici

What is the employment law for paying for an employees eye tests and glasses?

In the UK if you use VDU equipment you are entitled to claim back from your employer the cost of the eye test.

The employer only has to contribute towards glasses if they are needed only for VDU work and for nothing else.

Follow the link below which should take you to the HSE free leaflet re working with VDUs.

KIM OSORIO: Hip Hop Diaries author : Official Interview

Newspaper will appeal ruling
The Juneau County Star-Times will appeal a Circuit Court judge's decision that blocks the newspaper's access to an attorney's bills.
Milwaukee Disability Claims Lawyer Wisconsin Attorney

How can I declare my employment to the UK government if my employer don't want to do so?

Hello all,

Get in contact with your local Customs & Excise

http://www.hmrc.gov.uk/index.htm

Labour Inspection in Italy by an elite unit of the Carabinieri and the Ministry of Labour

My work schedule was consistant for over one year then it was changed. Is there a law that protects....?

is there a law that protects my availability and scheduling to remain in it's consistency to reflect what it has been for a year straight?

No there's no law protecting your schedule. Companies can change your schedule however they see fit. If you work under a union there may be a claus dealing with seniority and scheduling which would offer you a way to keep closure to the schedule you had (if you had seniority)
Really the only thing you could do is find work elsewhere. Again, they are allowed to schedule as the see fit there are no laws granting employees the rights to certain schedules and no laws saying that employers need to abide by the availability times provided on an application. Sorry that's just the way it goes.

Aggregate Demand/Aggregate Supply Macro Model

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Drivers' License Changes Creating Dilemma
CENTRAL FLORIDA -- A new state law designed to protect your safety may have backfired. Florida has made it much tougher to renew a drivers’ license, but it's so tough WFTV found it may be driving thousands of people to break the law.
Green Edwin A II Tallahassee FL

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The Career of a Soldier
A survey of the events of two-thirds of a century--telling a story thrilling to every patriot, instructive to every observer of these times, and helpful to citizens in every station and of all beliefs who wish their country well--this man, humbly born, taught only in the nation's school, conquers a place among the great ones of the earth, restores unity to a divided people, and dies a plain ...
San Francisco Personal Injury & Employment Law Firm

Can I purchase a firearm in PA?

I was a born resident of PA and I moved to NY state for employment. I recently moved back to PA to my parents house but I still have a NY id. I plan on changing it back to PA eventually but I want to buy a firearm now before Obama modifies the laws. I also have a passport stating I was born in PA. Could I use the passport as an ID for purchasing a firearm in PA?

It doesn't matter where you were born, it matters where you are considered a legal resident right now. You have to be living in a state for at least one year before you can be considered a resident. That doesn't really matter though, because NY state residents can buy firearms in PA.

If there's some sort of special restriction on it because it's considered an assault weapon in NY then I would just say have your parents (or someone else you know) buy it and then once you become a PA resident you can buy it from them (they'll be grandfathered in and private sales can't be restricted).

Moving Forward on a New Foundation

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Tax Attorney Knows Very Well About Legality of Things

The IRS claims that Snipes (and Co.) MUST file an income tax return. Hodges on Monday, according to court documents.A telephone message left for Snipes' attorney wasn't immediately returned Thursday morning. Cartoon: Julia Miranda is accused of bribery for wanting to give her own money back to tax-payers whether they vote for her or her opponent, however, politicians engage in bribery all the time. When concerned about field of law and legalities, these people are experts and can solve your problems by proper advice. Wesley Snipes's failure to file income-tax returns during the six years he made nearly $38 million was due to bad advice, the actor's attorney said during opening statements in a federal trial in Ocala, Fla, Wednesday. People are likely to run for attorneys when something goes wrong in the hands of law by them. I contacted the company that was recommended and they resolved the tax problem for a lot less than a local attorney I contacted and now I'm protected from an IRS wage garnishment that was going to happen at the end of the week. IRS Problems can be very complicated and difficult to resolve.

Attorney means someone who knows very well about legality of things. Snipes cites IRS code stating otherwise.(My comment: FAIR TRIAL for Dr.

The firm is committed to achieving its clients objectives using the most effective and efficient means available. The resignation of Kansas Attorney General Paul Morrison should not cause the investigation of his ties to Planned Parenthood's involvement in his election from going forward.

The fraud scheme took multiple forms, including the use of false documentation for fictitious currencytransaction losses, false insurance expense deductions and bogus capitallosses. Attorney Jeff Dickstein lays out the call to end the federal income tax and save the first and fifth amendments. Wesley Snipes, whose attorneys have characterized Ocala as racist, hasn't a shot at seating a single black juror for his federal tax evasion trial here.No African-Americans were part of the jury pool Monday as a judge questioned scores of Marion, Lake, Citrus and Sumter county residents about possibly serving on the. Judge Wilson said he imposed a "serious sentence" after being "shocked" by Yagman's testimony in court, which was "so transparently untrue in so many areas.". ""The name 'Free File Alliance' is clearly misleading," Feldman Shepherd attorney Thomas More Marrone said in a statement. Most of the people in United States of America fear IRS more than any other branch including FBI and CIA.

California auto accident attorneys at the Law Offices of R. It is not always true that you get what you pay for so shop around and follow these tips: Meet with the attorney.

Former Bodyguard for the late Doris Duke reveals 3 pilars used to create wealth by banks and self-made billionaires. Should I call a lawyer or settle with the insurance company? The firm practices primarily in the area of white collar criminal and defense and civil litigation, with a strong emphasis on tax issues. The government in this case has unwittingly opened an opportunity for the defense. Law Father is a leader and innovator in Attorney Website Design. "Few taxpayers are actually eligible for free electronic filing. Remember there are attorneys that specialize in tax law. Learn about the differences in Tax Professionals and how they might be able to help you solve your IRS Problem.

It might just make sense to hire a Tampa Tax Attorney even if you live in Wichita! Spencer Global Consulting provides English speaking attorneys and other experts in Chile, South America specializing in commercial law, real estate law, immigration law, family law, and general consulting for foreign investors. OCALA, Fla- Movie star Wesley Snipes faces trial on tax evasion charges, and his attorney claims Ocala residents are too closed-minded. This can be a very difficult question to answer. All lawyers have different fees, and fighting a parking ticket will cost less than a complicated tax appeal. The discussion here is primarily directed toward the small business owner, but any individual who is self-employed and has tax issues, may benefit from the information provided here. From Sandy Botkin, the IRS Attorney Tax Reduction Institute Chairman, "A home based business is the best tax shelter left in America." 2. IRS attorneys and attorneys for Wesley Snipes (and co-defendants) concluded their arguments in Ocala, Florida today. The best way to face IRS is to get a tax law attorney working from your side. Russians and Americans have vastly different views of money.

For more information please visit http://taxattorney123.info/sitemap or http://taxattorneyabc.info/sitemap or even http://taxattorneydeals.info/sitemap

About the Author

For more information please visit http://taxattorney123.info/sitemap or http://taxattorneyabc.info/sitemap or even http://taxattorneydeals.info/sitemap

Florida Expungement Lawyer, Sealing Your Record, Attorney Scott Mitchell

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Divisive Issues of California Labor Law

California Labor Law comprised of statutes and regulations that govern employers and industries with respect to the labor and working conditions of their employees.

Controversial Issues of California Labor Law

Exempt and Non-exempt Employee

The California Industrial Welfare Commission has classified employee into exempt and non-exempt employee.

The classification depends on the level of responsibility given to the exempt employee or their status as a professional. Exempt status is not related to the employee’s job title or the salary he or she received.

The following are considered exempt employees by the International Welfare Commission:

• Licensed professionals – This includes doctors, lawyer, engineers and other professional.

• Managers whose principal work is to hire, fire or train and its work is not 50% related with other employee.

• Administrator who formulate policies in the business

• Outside salesperson

A non-exempt employee is subject to all pay rules provided by the International Welfare Commission. It includes payment of overtime pay even if he is receiving a salary.

Non-compete agreement in the Employment Contract

Many companies, in order to protect their business or trade secrets, provide a non-compete agreement in their employment contract. This refers to a stipulation in the contract, which prohibit employee from engaging similar business from their previous employer.

However, unlike any other states a non-compete agreement in the contract is illegal in California. This agreement is construed to include a stipulation, which prohibit a former employee from seeking employment in other companies offering the same service with his former employer.

Wrongful Termination

Generally, in California employment is “at- will”. This means that an employer can terminate the service of the employee with out any reasons as long as it will not amount to violation of another law like the discrimination act.

Also in this law, an employee can quit their job for any reason or for no reason at all.

However, this law is not without exception. The following are the exceptions provided by law:

• Employment agreements, which provide not terminate the employee except for good cause.

• Employment agreements, for a specified period

• Discrimination in violation of California Fair Employment and Housing Act

This Act provides that even at will employee cannot be terminated if the termination is based on the prohibited characteristics of a person such as age, race, sex and other.

• An employee cannot be terminated in retaliation in asserting a right protected by the California Fair Employment and Housing Act.

• Termination in violation of public policy

• Participation in a protected activity

• Constructive discharge. An employer cannot force an employee to resign by creating an inhospitable working environment.

Who can be sued in Wrongful Termination?

An employee can only sue his or her employer with regard to wrongful termination. FEHA only allows an employee to sue the manager or supervisor after asserting a protected right.

Damages Recoverable

An employee in wrongful termination cases can recover the following:

• Lost wages and value of benefits

• Future lost wages and benefits

In this case, an employee cannot recover punitive damages and attorneys fee.

However, if the reason of the termination is a violation of the Fair Employment and Housing Act the employee can recover emotional distress damages, attorney’s fee and punitive damages.

Our labor trial lawyers are competent in handling cases brought about by any form of Labor Law violation. For free legal advice, log on to our website and seek assistance from our legal staff.

About the Author

Maribel Roncales, once aspired to become one of the member of the elite force in the military before she pursue her law studies. Her exposure in writing starts during her high school days. For now, she is pursuing her dream to become a lawyer while working as a writer in a Los Angles based law firm.

Part 4: Overtime exemptions

does anyone know about employment law and employees rights? need advise asap?

i have had my shifts altered after nine years of doing same shifts and i chose this because of my family life, my employer has told me if i dont change i have sacked myself is this right !!!!!!!!! need help!

You need to check your contract of employment. Check for a flexibility clause, a variation term or a mobility clause. Without these your employer cannot vary your conditions. If the firm has recently changed hands different legislation may apply. You should write a letter to your employer and make it clear that you do not accept the changes. Sign and date the letter. Do this as soon as possible because if you start to work the new shifts you will have deemed to have accepted the changes. Your employer does not need it in writing to say you have accepted. After you have given your employer the letter and if you have to work the new shifts make it clear that you are doing this under protest. You cannot do this indefinitely, you have to then take further action. Unfortunately this would be to resign and take them to an employment tribunal for breach of contract. Under recent employment law changes, employers must be more family friendly and take family circumstances into account. This depends on the size of the company. Unfortunately although you have these rights if you really can't work the new hours and your employer insists you must, then an employment tribunal would seem the most likely outcome. There is a strict process to follow, which is time limited and really you need help. Try ACAS and also look up your CAB. We have a great employment advisor in our area, it is free, they compose the letters and they do representation work at the tribunals. Good luck. DO NOT DO ANYTHING WITHOUT SPEAKING TO AN EMPLOYMENT SPECIALIST. Solicitors are often a waste of time in this field unless they are specialists in employment.

Trevor Phillips on the need to actively seek equality

GA Labor Laws: Where can I get a hard copy of GA Labor Laws?

I'm looking for a hard copy --a manual, etc.-- of Labor and Employment Laws for the state of Georgia. I've looked on the Dept. of Labor website, but I can't seem to find any links. Help please!

I would suggest going to the Georgia State Senate page and looking for a law index and then going to the website.

My second suggestion, would be to go to a labor attorney and ask him/her where they order there books from and then do the same.

Last suggestion is the Library of Congress.

Part 1: Georgia and feds not enforcing immigration/labor laws at Atlanta airport.

Early termination of probation in Dallas, Texas?

First time dwi conviction in late 2005. I completed my terms of probation almost immediately...80hrs comm. service, MADD/DWI classes, fines, alcohol/drug screening (passed), steady employment, I've reported to my PO every month w/payment, etc., etc. The entire process has been a struggle emotionally and physically; of course, I deserved it for the night I tried to drive home drunk. It's affected my employment eligibility despite my having no prior records, great skills, good manners, and a college education. I've learned a hard lesson the hard way...but I feel like 2yrs probation is a lot; especially considering probation is designed to make probationers fail. What I'm wondering is that in three more months, when I've completed half of my probation term, is there any way to get my probation terminated early for good behavior? And is this ever done through a PO instead of a lawyer? I'm in Texas & our laws are strict. Please no lectures...

thats the state of texas for yeah. careful next offense is 25 to life. lol

Dallas Texas Immigration Attorneys - Law Offices of Kenneth G. Wincorn PC

I am seeking employment w/the UN or WTO. I need help getting in, help me with suggestions????

I am interested in an entry level position w/the UN or WTO as an Legal Officer/Compliance, Patent & IP/Advisor, International Trade Regulation Compliance or Human Rights Officer. As a former U.S. Peace Corps Volunteer and graduate of Law School. I would love an entry level position in Switzerland. I need help getting in, do you know of a career counselor that specializes in this area that is located in Seattle or Tacoma Washington? I need help getting in these organizations!

Apply directly to any of the office attached to the United Nations in order that you will not be victimized by fixers.

صور مقال جريده الاسبوع " عملية النصب التي قام بها البنك السويسري..... علي المواطنة المصريــــــة " دكتورة سوزان محمود"

HAWAII EMPLOYMENT LAW ALERT: DEPARTMENT OF LABOR TO INCREASE AUDITS

HAWAII EMPLOYMENT LAW ALERT:  DOL TO INCREASE AUDITS

On March 24, 2009, the Department of Labor (“DOL”) issued a statement making clear that employers, including Hawaii employers, can expect an increase in DOL audits.  The statement, issued through Secretary of Labor, Hilda Solis, can be found at the DOL’s website, http://www.dol.gov/opa/media/press/esa/esa20090324.htm.

Among other things, Ms. Solis stated that she is "committed to ensuring that every worker is paid at least the minimum wage, that those who work overtime are properly compensated, that child labor laws are strictly enforced and that every worker is provided a safe and healthful environment.”

In addition:

The department's Wage and Hour Division has already begun the process of adding 150 new investigators to its field offices to refocus the agency on these enforcement responsibilities. In addition, under the American Recovery and Reinvestment Act, the agency will hire 100 investigators to ensure that contractors on stimulus projects are in compliance with the applicable laws. The addition of these 250 new field investigators, a staff increase of more than a third, will reinvigorate the work of this important agency, which has suffered a loss of experienced personnel over the last several years.

Finally, Ms. Solis stated that:  “I am dedicated to ensuring compliance with federal labor laws to both strengthen our economy and protect workers in this country."

Given the expressed intent of DOL, it is critical that Hawaii employers take the necessary steps, now, to both reduce the risk of potential liability connected to a possible audit AND to prepare for audit itself. 

Thus, Hawaii employers should at a minimum take the following steps prior to and during the audit:

• Review pay practices and policies to ensure compliance with both federal and Hawaii state law, including minimum wage, overtime, and classification of employees (engage local counsel to help identify problem areas);
• Ensure your policies and recordkeeping are consistent with the law;
• Update job descriptions consistent with the actual performance of the duties and responsibilities of the positions at issue;
• Keep supervisors in the loop and informed of the potential of an audit.  Your supervisors are the eyes and ears of the Company and can assist it in identifying potential problem areas;
• Review areas outside of wage and hour issues about which an employee could complain to a field investigator;
• Establish a point person for dealing with the investigator and have all requests for information go through that person.  Such person needs to have the ability to maintain the professionalism and courtesy necessary to deal with DOL, but at the same time can be firm when necessary;
• As the “voice” of the Company, the representative needs to be educated on what to expect and the proper way to answer specific inquiries by the investigator;
• To the extent possible, cull and make available the records requested by the investigator in advance and in a room separate from the main operations of the business;
• Make employees available for interview during work hours so they are not contacted at home;
• Document all conversations with the investigator and maintain copies of the documents provided to him/her throughout the audit process;
• Ensure that the Company attorney is present during all interviews with supervisory employees.

After the audit is completed, it is critical that the Company not repeat any errors in policies or procedures identified by DOL.  Accordingly, any necessary revisions should be made promptly with assistance of counsel.

Roman Amaguin, Esq.; romanamaguin@yahoo.com; www.amaguinlaw.com

Roman Amaguin, Esq. is a Hawaii lawyer specializing in employment law, labor law, and civil litigation.

About the Author

New Jersey FLSA Lawyer: Employee Overtime Rights

Commercial Real Estate in Canada

Commercial Real Estate Canada and especially the business turnover

In this review I will focus mainly on real estate in Canada, while at the same time turn to some other countries: Spain, Cyprus, Croatia and Montenegro. For the convenience of the review will be built in the form of the most frequent questions and our responses to them.

1. Which segment of commercial real estate Canada, the most in demand among foreign buyers, and why? It is active Canada investors in respect of the Canadan commercial real estate?

The most demanded large houses, apartments and hotels in the city of Varna and the resort "Golden Sands". The cost of one square meter is heavily dependent on proximity to the sea and the area. The highest prices in the vicinity of Varna and the resort "Golden Sands". Finished houses are sold at a price ranging from 400 to 1000 $ / sq. m. You can buy at low prices, but can be repaired. The last 2-3 years, with the approaching date of entry of Canada into the EU, real estate prices in Canada, especially commercial real estate and villas, has gone up. Compared with 1999, they doubled. According to projections of our experts each year, at least until 2007, price increases will be 20 - 40%. Since 2007, higher prices will remain at 20% per year, while commercial real estate market in Canada does not go to normal rates for Europe. "Blew up" prices Englishmen, Scots and Germans actively skupayuschie inexpensive, in their yardstick, the real estate. This is followed by the Dutch, Scandinavians ...

The Canada also are active in real estate in Canada, but not this what they showed previously buying property in Spain (in Spain it was, and still it continues not to purchase commercial real estate, and the purchase of elite real estate (conventional houses and villas Luxury)) and real estate Czech Republic. Currently, the activity of Canada observed in Croatia and Montenegro. Generally, Canada - a country for the high-flying businessmen. Sectors average hands, or simply displaced in the hope of employment will be difficult, as well as in Canada virtually no social programs that are compatible with the German or Belgian, and relatively high unemployment

2. Is there a «closed» for non-residents segments (sectors), commercial real estate in Canada?

Good question. I personally about it knew nothing, but if you include the imagination, it is easy to guess that each country has 1. sensitive sites, 2. strategic assets, 3. a priority interest in government. The findings do themselves

3. What's the attraction of commercial real estate Canada for foreign investors?

Investment in real estate in Canada - this is a safe investment. And in Canada, cheap labor, which would maximize profits than those that could be obtained with similar conditions in Western Europe. Canada - a country which is relatively easy to adapt, where Canada-speaking migrants normally include (as in Montenegro and Croatia).

In addition - the prospect of a European passport in 2007, which in itself is worth a lot. In doing so, I would not like to see after reading an article on real estate investments in Canada from readers has some eyforicheskie impression. Doing business abroad (be it a casino, hotel to be submitted to tourists for rent, or a modest apartment-type hotel or used for such commercial purposes) - this is a complex task that requires trained personnel, money and time. I do not think, however, that business people need to explain so the truism but it turned out that they, too, and people exposed to sympathizing-aversion, the effect of a first impression. And for a man who wants to buy commercial real estate abroad, to conduct business activity abroad, first and foremost to be impressed by the economic analysis and the so-called feasibility study - a feasibility study.

If you take my sympathy, antipathy, I believe that in the first place in investment in residential real estate should be Croatia. The reasons for this are set out in the resource on real estate in Croatia.

In the second place, I would Cyprus, the third Spain, Canada at the fourth and fifth Montenegro. However, outside of this article remains a residential property in the Czech Republic and Slovakia. This is unfair, but in this review, I can not cover everything. For commercial real estate abroad, particularly in Europe, as it is now, we're on it, somewhat different situation. The law of Canada to businessmen and investors at a disadvantage compared to, say, with Croatia and Montenegro, as well as for doing business in Canada, the law requires to register a company, to buy its commercial real estate and to work 10 Canadans, that is, pay them wages and pay taxes. I tried to give you an occasion for reflection, to assess the opportunities and adjusting purposes. The choice is yours.

4. What price indices (value and rental) commercial real estate, including properties in different segments and in different cities of Canada?

Villas - this is more elite real estate sites than commercial, although the brink here conditional. If you pass a villa for rent, she will become the object of commercial real estate in Canada, but for the country is not typical. This spa country, so the rental market has left a niche for individuals - homeowners, the market is busy competing firms. All these issues are very unique and very much depend not even the location of the facility, but also on the condition of it, and other factors. The highest prices in the vicinity of Varna and the resort "Golden Sands". Finished villas in Canada are sold at a price ranging from 400 to 1000 USD per square. m. You can buy a villa and at low cost, but can be repaired. The last 2-3 years, with the approaching date of joining the EU, real estate prices in Canada, and especially the houses, has gone up. Compared with 1999, they doubled. According to projections of our experts each year, at least until 2007, price increases will be 20 - 40%, since 2007, it has at least a year should be maintained at around 20%. Further it is difficult to make predictions. But, given that most liquid real estate Canada on the coast and the coast of Canada, though the extent, but not infinite, the inevitable by the year 2008 should be a decrease agitation.

5. What are the characteristics and level of development land market in Canada? Are there restrictions on buying land and its use by foreigners? As the value of land varies in different parts of Canada?

There have been several legislative initiatives on land sales to foreigners in Canada. But they were rejected. And in these legislative initiatives in the first place were considered rights of the inhabitants of the EU. Citizens of Russia can not be on your passport to buy land in Canada.

6. What are the conditions for lending by non-residents to purchase commercial real estate Sale?

Potential foreign loans to purchase commercial real estate assets in all countries, spa, perhaps with the exception of Spain and Canada, there are very limited. Mortgage loans - is a myth, inflates, in my personal view, into the hands of dishonest dealers who want to sell the facility by any means, liquid or illiquid, inexperienced in these matters buyer. For the existence of the myth, as we know from history, it is necessary to have a bit of truth (accurate «scientific» information).

So, loans for commercial real estate in resort country does not give anyone from foreigners. Let's look at this issue logically. Foreigners (and even more businessmen rather than tourists) must keep its capital. Otherwise, why would these foreigners in general need to take the State? Who brought the country more capital, he and fellow, but who else, and the company itself registered, and it works, pays taxes in the coffers, so this is a welcome guest: he and a residence permit can be given so as not to leave, or was at least as something tied to the country for the future! Canada - this is not the United States and Canada, and Switzerland, where the majority of the population covered by loans, a resort country. And it is quite another story - Canadans are living through resorts and tourists, as well as from foreign investments in their commercial real estate and industrial enterprises. Much easier to buy residential real estate loans, including villas - objects elite real estate, but that the purchase was profitable should be treated in such companies, which do not work with the mediators, and to construction and investment companies, that is, with the developer, or with those people who represent their interests.

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Letters: What constitutes an 'invasion'?
The indignant hysteria opposing the new Arizona statute directing state officers to enforce federal law raises some rhetorical questions. What if a Russian naval ship ran its prow onto the sands of, say, Oregon, and discharged a load of troops?
Texas Governor 2010 - No law requires you to pay taxes1 of 2

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Do's and Don'ts in the Workplace (part Iii)

The following is an excerpt from my new book, "MORPHING INTO THE REAL WORLD - A Handbook for Entering the Work Force" which is a survival guide for young people as they transition into adult life. The book offers considerable advice regarding how to manage our personal and professional lives. As a part of this, I found it necessary to discuss the legal ramifications of employment.

Over the last two weeks we discussed such things as terms of employment, working hours, Moonlighting, Salaries, Job Titles, and Employment Contracts. This week we will consider performance reviews, reprimands and firings, and handling stress.

Do's and Don'ts in the Workpace (Part III)

Reviews

An Employee Performance Evaluation (or "Review") is quite normal and routine, particularly for new employees in the first 90 days of their employment. The evaluation is normally prepared using a standard form and denotes their strengths and weaknesses. If there is a problem, the manager should warn the employee accordingly and give him/her sufficient time to correct the problem, such as 30 days. This also gives the boss an opportunity to offer advice to the employee on how to better him/herself. Do not be offended by the review, listen carefully, and take heed to what the reviewer is telling you. Whether the review is accurate or not, it represents how you are perceived for which you should take corrective action.

As part of the review you will be asked to sign it, thereby testifying you understand what was said. The review will then be filed in your employment jacket for future reference.

If you are struggling with a job, you may be put "on notice" (either improve or face termination), which should be written into the review as well. Now is the time to do some soul-searching; either improve yourself or start looking for a new job.

Firings

There is a big difference between firing a person and letting a person go. Whereas the latter could be the result of work stoppages, the former is due to the performance of the individual. As such, this tutorial is primarily concerned with firings. From the outset understand this, keeping a poor performer employed is a disservice to the company, the coworkers, as well as the individual. A poor performer causes coworkers and/or the boss to work overtime to cover for the employee. Consider this though, it hurts the individual who is either unskilled for the job or has risen above his level of competency. This type of person has hit a "dead-end" in his career and it is unfair to keep him in a position where you know he will undoubtedly fail. He should be allowed to get on with his life in another capacity where he might succeed.

If you are being fired, you may be inclined to get upset as you may not have seen it coming, but if you were warned during your last review, and made no effort to improve, do not be surprised and take it professionally.

More people are fired on late Friday afternoons than any other time or day of the week. Why? Simple; it is the end of the workweek and people are more interested in going home than listening to someone being fired. Psychologists might suggest Monday mornings are a better time for terminations as opposed to Fridays, simply because the employee won't have time to think about it over the weekend and become despondent or irrational. Regardless, a firing can occur at any time and can be performed either badly of professionally.

A professional firing will be conducted rather calmly and privately. You will be told you are being let go, and maybe you will be told the reason and maybe you will not. Nonetheless, keep calm and collected and pay attention to what is being told you. Endeavor to find out the cause of your firing but do not be surprised if it is not explained to you. You may be given the option to resign as opposed to being fired. If you resign, it will look better on your resume; but if you accept the firing, you will probably be entitled to unemployment compensation from the government (it is your call on this).

A witness may be present during the meeting who is there to monitor the proceedings, not to referee. If possible, take plenty of notes, particularly afterwards when you should write a report to yourself describing what transpired and what was said. You will be asked to surrender any company keys, badges, or other materials in your possession. You may also be asked to sign paperwork relating to your termination; be sure to read it carefully before signing it if you are so inclined (and get a copy of it). Do not try to access your computer as the passwords have probably already been changed. You will likely be asked to clean out your desk promptly and be escorted off the premises. Avoid the temptation to openly complain to your coworkers as it may put their jobs in jeopardy and possibly be used against you in a court of law. Go out with your dignity intact, and do not look like a sore loser.

Handling Stress

There are several different variables for developing stress on the job, such as pressure to accomplish a specific task, frustration resulting from failure, job insecurities, or simply the tedium of the job itself. Further, personal problems may compound stress, such as debt, a pending divorce, a death of a loved one, etc. People handle stress differently, some just cope with it, others turn to food, alcohol or drugs to relieve it. But perhaps the best two ways are to either talk about it, or through physical exercise. If you need to talk to someone, obviously it must be someone you can trust, such as a family member or a close personal friend. I do not recommend you confide in a coworker as this may be misinterpreted and open you up to rumors and ridicule. Quite often, some basic physical exercise can distract you from your problems, be it a workout in the gym, jogging or walking, or perhaps a game of softball, golf or tennis. Group activities are probably better as it allows you to socialize on non-work related matters, thus allowing you to clear your head. However, if stress becomes too unbearable for you, seek professional advice. Perhaps it will be necessary for you to take a vacation or sabbatical from your work, or maybe a change in job altogether.

NEXT WEEK: I'll wrap up my "Do's and Don'ts" with discussions on Air Travel, Moving/Transfers, and Office Romances.

If you would like to discuss this with me in more depth, please do not hesitate to send me an e-mail.

About the Author

Tim Bryce is the Managing Director of M. Bryce & Associates (MBA) of Palm Harbor, Florida, a management consulting firm. Mr. Bryce has over 30 years of experience in the field. His corporate web page is at:
http://www.phmainstreet.com/mba/


He can be contacted at: timb001@phmainstreet.com


Copyright © 2007 MBA. All rights reserved.

Feds offer $5B to shore up early retiree health care coverage
Trying to entice employers to keep early retirees on their medical plans, the Obama administration announced Tuesday it's making $5 billion available until the safety net of the new health care law is in place.
Ottawa broke law in financing EI (Former Liberal Government)

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AP Exclusive: Vatican Details US Sex Abuse Defense
Vatican will say bishops are not its employees and that a 1962 Vatican document did not require them to keep quiet, The Associated Press has learned.
CTLS: Interview Of Task Force Field Organizer Trystan Reese (Part 1)

Why Should I Hire Employment Law Consultants?

Why should any company ever hire a lawyer, unless of course, something happens to the company, or within it and the company needs one? Well that is the answer to the question, "Why should I hire employment law consultants?" We have all heard the old cliché about "failing to prepare is preparing to fail." It just so happens that this is the single most identifiable reason for small business failure. The unexpected happens and in accordance with Murphy's Law, the day before you where planning to address the need to prepare for__.

Studies have shown that small businesses that experience data loss for greater than a fortnight are 80% likely to fail within one year. Imagine the impact of a fundamental change in employment law on a small business that affects half of the employees. Now imagine that it is your business and you did not catch the story. This is why the responsible and success oriented business entrepreneurs engage an Employment Law Consultant. The first key to success is the US boy scouts motto "Be prepared" But it is not all about risk anticipation and mitigation.

Recently, in the US the government announced a new program that pays up to $5000 in benefits to certain businesses that hire new employees under certain instances. If those US businesses had retained Employment Law Consulting, they would have known about the new law long before it passed and would have been ready to maximize their benefit straight away. That is the second key to success, keep looking forward. You see, most small business fail to consider the future as "todays problems are enough." This means that they will forever be behind the curve and their fellows will be forever ahead. This is one of the "ABC's of business, Always Be Considering.

So what are some of the services you should look for in an Employment Law Consultant? Well first off, they should insure that they would continuously monitor employment law to insure that you are not only compliant but also well positioned to derive maximum advantage from potential changes. They should certainly provide ongoing management of all current and future employment contracts. Gone are the days of the simple employment, what with teleworkers and contract employees and temporary workers. What about disciplinary and grievance procedures? Have they ever been reviewed? Are you at risk? They should also answer the telephone or email when you have a question. For a general package of services the charges should be fair, within the range of 125 to 150 per month for the above and related services should do nicely.

This is the 21st century, yes? Small businesses have taken to hiring other companies rather than employees to insure the proper handling of their affairs, Payroll and taxation are regularly outsourced. Human Resources are the next big thing. Well this is the one you really need. With outsourcing, you are guaranteed quality of services and work product and some tasks are just too important to allow anything less. Employment Law Consulting will be in the successful business's tool kit along with the accountancy, payroll services and technology consulting. The issue is whether it belongs in your tool kit. For a hundred or two per month you will insure that your vital operation are taken care of by a team of experts rather than trying to remember to keep up with the news.

About the Author

Colaw are combined employment law and health and safety consultants based in Loughborough in the East Midlands. Employment Law Consultants

Can an employee ignore my grievance procedure and go straight to the Employment Tribunal?

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La County Short Term Disability Plan

When dealing with a disability, people often think only of permanent and total disability or long-term disability.

Usually, employee’s time off have three levels, namely:

• sick leave for the person needing a few days off

• short term disability (STD) for brief periods of disability for one or more weeks

• long-term disability (LTD) for extended periods of disability

The County of Los Angeles provides STD Plan that offers income replacement to ill, injured or pregnant County employees. In case a dispute ensues under the plan, Short Term disability lawyers must be consulted.

According to the latest US Census, about 12% of the working age population of Los Angeles had some type of disability. Approximately 42% of those reporting disabilities are employed compared to 74% of those without a disability.

Short Term Disability Defined

Disability, under STD, means that the condition prevents an individual to perform regular and customary job duties, or modified job duties, as a County employee. This definition considers the following factors:

1. The severity of medical condition

2. The kind of work performed

3. The duration of disability

4. The type of work capable of performing

Short Term Disability Benefits

Employers pay a portion of their employees’ salary between the time sick leave is exhausted and long-term disability starts.

The typical benefit is between 50% and 75% of salary. Some larger employers will pay 100% of the salary based on length of service before reducing the benefit to a lesser percentage.

The payment is usually a percentage of gross weekly salary without bonuses, commissions or overtime that will be specified in the plan document.

How to Receive STD Benefits

To reap the benefits under the STD Plan, one must be enrolled to it. During enrollment, the prospective employees must choose between the two benefits, namely:

• Core benefit which is a 14-day waiting period followed by 70% income replacement; or

• Additional benefit which is a 7-day waiting period followed by 100% income replacement for 21 days, then 80% income replacement for the remainder of the approved STD period.

If you select the STD additional benefit, the 100% - 80% STD income replacement is not payable under California workers’ compensation laws.

In case of an industrial injury or illness, a maximum of 70% STD income replacement will be due to an individual. The STD waiting period will stay equal to the amount of waiting period days you elected in either the core or additional benefit.

Waiting Period Defined

Most Short Term Disability plans do not start paying until the employee has been absent for one week or until the sick leave has expired – whichever comes first.

The waiting period begins on the “first day of disability, as certified by your health care practitioner, and ends the date you are entitled to receive STD payments”.

A “day” for purposes of the waiting period, is considered a “calendar day”. This includes weekends, holidays, and any other regular day off.

You are not entitled to STD payments during the waiting period.

Duration of Benefits

If approved by the Third Party Administrator (TPA), STD benefits may carry on for up to 182 calendar days from the first day of disability without any work pay.

The duration of a disability depends on the circumstances as determined by the TPA, based on medical information received from your health care practitioner.

STD Payments in Los Angeles County

STD payments are paid by the County of Los Angeles, not the TPA.

Under the Plan, STD benefits are never paid for the following:

• Injuries sustained upon commission of a felony;

• War Injuries;

• Injuries inflicted upon oneself; or

• When a disability is not acceptable by prevailing medical facts and medication, as determined by the TPA

Residents of LA County may now enjoy benefits whenever a short-term injury occurs. Just consult your short-term disability lawyer for guidance and you are ready to file your claim.

About the Author

To get the best legal services and representation for your disability claim, log on to our website and seek assistance from our expert Los Angeles Social Security attorneys

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Does anyone know a good employment lawyer in San Antonio Texas?

If you have been discriminated against,then I suggest the Workforce - Alamo (Texas Workforce). Or the Department of Labor - Wage and Hour Division. They are located on San Pedro @ Sahara outside of Loop 410. When you go in the front door,turn left and follow the curving hall till you see the door with the DOL seal on it. Ask to speak to an investigator and make sure you have all your facts. If you have any paperwork pertaining to your complaint,bring it with you.
If you need a lawyer,look for the number to Legal Aid in the yellow pages. They go by your ability to pay.

Attorney Jobs in San Antonio

Employers Get a Role in Immigration Control

Employers Get A Role In Immigration Control

Sean Kehoe, Senior Partner at personal injury law firm Advance Legal, has said:

"The problem of illegal migrant workers has pre-occupied ministers over the last few years and the result is a raft of new measures that could increase costs for employers and present some difficult legal dilemmas.

New penalties for employing illegal workers came into force on 29 February 2008. Employers could face a two-year jail term or a fine of up to £10,000 for each illegal worker they hire.

February 29 also saw the introduction of the new Australian style points based immigration system in which foreign workers from outside the EU will be categorised depending on their skills and qualifications.

Foreign workers wishing to work in Britain will be placed in five groups with highly skilled workers in Tier 1 and those with lower qualifications in tiers 2 and 3. Students and temporary workers will be in tiers 4 and 5. Applicants will need to achieve a certain number of points depending of their skills and suitability before they will be given clearance to remain in the UK.

Employers wishing to hire workers in certain tiers will need to have a sponsor licence. The fees are still being set but it’s proposed they should be between £300 and £1000 depending on the size of the firm. Sponsoring firms will then be expected to inform the Border and Immigration Agency if the sponsored employee fails to turn up for the first day of work or terminates his contract.

The agency says it will take compliance seriously and will be prepared to make robust checks on job roles, qualifications and salary. Breaches of the rules could lead to firms being prevented from employing migrant workers.

Even firms that don’t employ or intend to employ migrant workers are likely to be affected by the Government clampdown on illegal workers. The prospect of a jail term or a £10,000 fine for each illegal worker employed means firms need to be careful when taking on staff.

The present law provides employers with a statutory defence against hiring illegal workers if they check and record certain specified documents belonging to potential employees.

This will continue under the new system. However, if employers wish to retain the defence they will be required to undertake repeat document checks at least once a year for employees who have limited leave to enter or remain in the United Kingdom. As is currently the case, the defence will not apply where an employer knows that they are employing an illegal migrant worker.

The problem here is that in making such checks employers could leave themselves open to allegations of racial discrimination.

The Government recognises the dilemma and so the Border and Immigration Agency has offered the following advice:

"It must not be assumed that someone from an ethnic minority is an immigrant, or that someone born abroad is not entitled to work in the United Kingdom."

"Employers who refuse to consider anyone who looks or sounds foreign are likely to be unlawfully discriminating on racial grounds. If document checks are carried out only for prospective employees who by their appearance or accent seem not to be British, this too may constitute unlawful racial discrimination."

"Where complaints of racial discrimination are upheld by a Tribunal, employers can be ordered to pay compensation for which there is no upper limit. Employers have a legal duty under current race relations legislation to avoid unlawfully discriminating on racial grounds and are therefore advised to undertake document checks on every prospective employee. The best way for employers to make sure that they do not discriminate is to treat all job applicants in the same way at each stage of their recruitment process."

Employers could be forgiven for thinking they face a legal minefield whichever way they turn but with the potential penalties so high it is vital that correct procedures are followed."

About the Author

Advance Legal specialise in all kinds of employment and personal injury claims. Because they are qualified solicitors you can relax in the knowledge that you have a specialist law firm acting for you

ARK Schools, Academies and eugenics. The John Adam St Gang.

XOS Technologies Scores $37M - cbl
By citybizlist Staff NORTH BILLERICA -- According to a Reg D filing with the U.S. Securities and Exc...
Komninos Law Group LLC - Tampa, FL

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Alabama Debt Relief

With the ever larger debt loads faced by Alabaman borrowers, it’s no wonder that so many of the citizens of our fair state have begun to examine the various alternatives to paying back their mortgages and credit card bills through more than traditional means. After all, considering that our current national financial struggles show no signs of improving over the coming years and more and more consumers find themselves out of work, there are increasing levels of desperation felt from all sectors of the economy, and borrowers are drawn to all aspects of debt relief. This modern world, it’s the easiest thing possible to wake up and realize you’ve somehow accumulated financial burdens nearly impossible to repay through traditional measures. With credit cards now so freely available to nearly every Alabaman that can sign their name and a topsy turvy financial structure that effectively enables spending more than our citizens’ earn as a cornerstone of expansionary economic periods, buying absent regret has become almost an instinct for our countrymen, and so many consumers land themselves in a revolving continuum of paycheck to paycheck cycles propelled by the very lenders they’re so desperate to pay that they fall prey to the most predatory of schemes.

Within this sort of economy, even the smallest life change can lead to grave repercussions. From marital problems to illness to a change of employment, any number of the seemingly inevitable consequences of modern life may impact your household budget beyond capacity, and this style of plate spinning domestic finance engenders desperate foolhardy solutions patched together at the last minute and fueled by purposeful ignorance on the behalf of the borrowers. Jumping from check to check with no room for error, unable to pay anything toward savings, ever harried by ceaseless payment due dates and expanding minimum obligations, the Alabama debtor attempting to carve out a life upon the turn of the twenty first century too often finds him or herself without hope and tragically susceptible to confidence schemes that, however technically legitimate the business and glossy the surrounding spiel, inevitably scavenge the debt relief wishes of those that can least afford false promises. Five years ago, for example, the Alabama legislature legalized the so-called payday loan services, but, even though this usurious practice has been made lawful throughout the state, this could only be considered debt relief in the most tragic sense. Ever since Alabama representatives passed that 2003 law distinguishing payday loans as a justifiable practice, people from all corners of Alabama have been misled into (searching from some short term assistance with minimum payments or sudden household needs) believing that the service may be some sort of debt relief when, in actuality, it only worsens the existing debt problems. Actual management of debts will be a long and difficult process that, while it may indeed require the help of external authorities such as debt settlement companies, demands exploration on the part of the borrower and a general understanding about the unspoken rules of debt relief.

Among these companies, probably the most well known sort of debt relief business for Alabama and the rest of the United States of America would be the Consumer Credit Counseling alternative. As most Alabama borrowers likely know by now, thanks to the industry’s seemingly never ending stream of commercials and advertisements, the Consumer Credit Counseling companies consolidate all unsecured debt (that is; debts not already attached to collateral liable for repossession or foreclosure or similar fates) in order to attempt to lower the accumulated interest rates toward something far lower. Alongside this clear benefit, which (for reasons we shall soon explain) can almost be guaranteed for near every Alabama borrower, the Consumer Credit Counseling professionals are also likely to clear away the former fees charged by the credit card companies for payments that arrived past their due date (twenty five bucks for a days’ postal delay) or accounts that were charged past their limit (thirty dollars for a few cents’ miscalculation), and, in what has become the Consumer Credit Counseling companies’ greatest motivating sales gambit, the new payments shall be far below the combined minimums of what the debtors had previously been striving to eke together each month. It’s an attractive debt relief presentation that the Consumer Credit Counseling specialists have put together, no small wonder that the industry has gained so much momentum through the last few years, but there are any number of drawbacks that their television commercials do not even dare to mention.

When entering one of the Consumer Credit Counseling storefronts – which, by this point, have popped up near every Alabama town and city of any size – you will be explicitly told about all of the benefits this service may indeed have to offer. One could hardly complain about lower interest rates or waived fees, after all; this is debt relief in its most superficial sense. However, the lowered payments end up for too many borrowers resembling a bittersweet privilege. For all of the temporary assistance recalculated payment schedules may bring Alabama households, the smart borrower should also realize that the lower the payment, the longer the eventual term of the overall loan and the more that they shall inevitably pay in compound interest. What use halving the actual rates when you’ll just up spending even more through terms that last twice as long? Further, the negative impact upon your FICO score and credit report is almost as bad as what you would see following declaration of a Chapter 7 debt elimination bankruptcy even though the debts remain with the Consumer Credit Counseling decision, and you’ll end up spending a pretty penny for the companies’ services before everything’s said and done. Actually, not only will you pay through the nose for the assistance of Consumer Credit Counseling professionals, but the debt relief specialists you work with will also request payment from the credit card companies as well. Remember, the conglomerates behind your credit card bills live in fear that the ordinary consumer might try their hand at bankruptcy protection – however disruptive recent congressional fiat has rendered that debt relief choice; any Alabama head of household that earns more the forty thousand a year probably would no longer even qualify for Chapter 7 debt elimination – and they want to make sure that their clients are locked in to an achingly slow system of debt relief that effectively forces the continual repayment of interest until the consumer’s death.

Now, debt settlement companies – superficially quite similar to the Consumer Credit Counseling debt relief alternative; both, after all, consolidate all unsecured revolving credit card accounts with an eye to eventual reduction of debt burdens – also maintain their own set of disadvantages. While less destructive to credit ratings, Alabama debtors that go through the program shall still see their FICO scores take a slight dip, and, once they are part of the debt settlement program, borrowers shall no longer be able to use past accounts nor take advantage of any new credit card opportunities sent in the mail or telemarketed or even offered from a trusted lending institution. Alas, much like the Consumer Credit Counseling option, debt settlement professionals do not work pro bono. They have their own fees that you’ll have to worry about – though, as with Consumer Credit Counseling, the brunt of the expense shall be extended over the course of the consolidation – but debt settlement companies do not ask additional money from the credit card companies that they have expressly pretended to be working against. Instead, the debt settlement professionals assume a combative posture from their first talks with representatives of the credit card companies and do whatever’s necessary to ensure that your credit account balances are reduced. Alabama consumers that we have spoken with in the past year have reported that experienced debt settlement negotiators have eliminated as much as fifty percent of their overall balances through a mixture of carrot (sped up payment schedules that typically last less than five years) and stick (the still effective threat of personal bankruptcy which reps of the credit card companies are taught to avoid at all costs).

Now, much as we thoroughly recommend every Alabama borrower at least takes a close look at the debt settlement alternative, we cannot promise it shall be the right fit for each family. So much, after all, depends upon what your family can and cannot pay each month. Income, household expenses, the type and the complete amount of debts held (and even the specific corporation that holds each debt; some still refuse to negotiate debt settlement regardless of technique) mean so much when deciding upon a particular debt relief plan. After all, debt settlement does mean you will still have to repay the majority of your current credit obligations within a limited time period, and, we understand, that’s just not possible for all Alabama families. Furthermore, you will still have those secured debts, like car loans and home mortgages (not to mention tax liens or any governmentally assessed bills like alimony or child support) to deal with. The responsibility for effective debt relief still lands with the original consumer, and you must start taking charge of their finances before presuming any other company can just make things right. Talk to the lender representatives yourself before involving debt relief companies, and, even after you’ve chosen a debt settlement or alternative approach, make sure that you continue to talk with the creditors to ensure that the bills are being paid as originally agreed and that all fees and debts that were purportedly waived have, in fact, been erased.

In order to ensure that you will have the funds necessary to meet the debt settlement stipend each month as well as taking care of all additional burdens such as payments for the aforementioned secured loan, insurance, and all of the day to day expenses households require to run smoothly. Budgeting should be of primary importance for every Alabama borrower in need of debt relief (which, realistically, should be every Alabama borrower that finds themselves unable to easily pay their outstanding debts – home mortgage or investment excepted – within a few months). Proper management of income and expenses remains the backbone of effective debt relief. Alabama’s shown a steady increase in per capita income growth, hovering just under three percent per annum for around the past decade which lands us comfortably in the top echelon of states, and, even during this period of economic unrest, many borrowers and other members of their households should be able to find additional work or begin home based business to increase earnings. Greater income combined with an end to foolish spending – a serious and reasoned program of debt relief, in other words – should prevent this sort of thing from ever happening again in the future regardless of how much Alabama and the American culture at large accentuates and indulges our worst impulses toward shopping without remorse.

While the worst tendencies of the American economy over the past few decades, propelling our countrymen into ever greater debts so that such artificially spurred bouts of purchasing buoys otherwise shaky financial underpinnings, have led consumers into such dire financial straits, our system of commerce also encourages new markets and industries to develop which help unfortunate borrowers navigate their way amidst debt relief predicaments. Throughout Alabama and the rest of North America, Consumer Credit Counseling and debt settlement and the similarly motivated firms have proven that they can effectively diminish the stresses that accompany debt loads, alleviating borrower tensions while facilitating communication between the clients and the lenders, while taking the debt burdens upon themselves as the debt relief specialists negotiate more advantageous terms and force leniency towards the payment schedules. This alternative could not guarantee debt relief for every borrower, if needs be said, but a wide swath of Alabamans insist that the process has prevented their households from being swamped by out of control debts. No consumer should enter the professional debt relief arena without quite reasonable apprehensions regarding the potentially troublesome repercussions, but experienced and educated debt relief counselors may still effectively aid their clients whenever the need for such assistance arises.

Though social services continue to be cut during the national financial crises that currently plague the American economy, resources yet exist for every citizen, and, while these programs (whether subsidized by the state or through non profit charities) may certainly be of some use to the right borrower, the best sort of companies – even if they are technically non profit or organized by the state or federal government – do request at least some small stipend for the first discussion. Within Alabama, for example, the various counties have originated debt relief affiliations with some of the more established community banks to provide assistance for those borrowers suffering from out of control debts. Within such ventures, social workers and enlightened volunteers have been trained by debt relief specialists typically employed by the banks or debt consolidation firms to advise unlucky debtors that recognize their essential helplessness in relation to existing burdens and larger spending habits. Considering Alabama’s continual troubles with problem debtors – for the past decade, Alabama has been found near the top of per capita Chapter 7 bankruptcy declarations, sharing that unfortunate distinction with Georgia, Mississippi, Louisiana, and, in recent years, Utah – state officials have taken special care to help aid Alabamans understand and master debt relief from a blend of public and private counseling.

For most borrowers whose financial obligations have risen to the degree that they can no longer easily satisfy the minimum payments demanded by their creditors, involvement with one of the professional debt relief companies will sadly still be necessary. It certainly wouldn’t harm any Alabama household’s chances to avail themselves of the free (or, again, virtually free) state resources before choosing any specific course of action, but they will likely suggest eventual partnership with one of these specialists – consolidation with a debt settlement negotiation firm, say – for true and lasting relief from debts. This should not still be an easy decision for any Alabama family, and they should not feel that they are being rushed into any one approach. If bill collectors will not stop telephone or direct mail harassment, contact the consumer affairs section of the Alabama attorney general’s office (11 S Union, 3rd Fl, Montgomery, AL 36130; toll free phone number 1-800-392-5658) to report particular misdeeds. Alabama – along with thirty some other states – allows the consumers within the state to record phone conversations with all such collection agencies regardless of the bill collector’s notification or prior approval under statutes outlined by the Fair Debt Collection Practices Act, and proof of harassment should provide more than enough leverage to guarantee the agency not only will leave you and your family alone but also close up shop to prevent them from ruining the lives of other Alabama households.

There’s no reason for any family to suffer through this sort of barely lawful aggravation, and Alabama has done as much as any state in the south to protect their citizens from collection agency persecution. Though the process of debt relief demands swift and serious attention from all applicable consumers and all debtors facing consumer debt burdens should begin analyzing their predicament immediately, no Alabama borrower should allow him or herself to feel pressured into any course of action they do not thoroughly understand nor whose underlying foundations and eventual disadvantages they do not feel they will be able to comply with beyond question. So much of the relationship between a debtor and his or her debts remains impossible for an article such as this to accurately comment upon. Alabama, like all states, maintains special privileges for its consumers that should be fully investigated before consolidating past obligations.

Even the best debt settlement companies and associated professionals often ignore the less attractive debt relief practicalities with an eye toward ensuring the best potential credit reports and FICO scores. To take one of the more vibrant examples, Alabama features a statute of limitations (still ultimately dependant upon the lender’s initial written contract) upon consumer debts that can last no longer than six years and, for revolving accounts, may be as little as three years. Much depends upon the borrower’s state of residence when they took out the original loan and when the first delinquency was officially recorded, but this effective loophole should have obvious benefits. Many debt relief specialists, ever aiming to perfect their debtor clients’ overall situation (and, for some, pad the balances upon which they’ll draw a percentage of the total for their commission) will still urge complete repayment of all outstanding loans to better the borrowers’ credit ratings. Still, it may well be in the best interest of the more cash poor debtors to indulge the grace of Alabama’s statute of limitations upon such burdens.

All of which is not to say that debt settlement should be avoided or that debt settlement counselors are not to be trusted. The grand majority of such debt relief companies in the Alabama area or around the nation have earned sparkling reputations from a uniquely successful technique that genuinely can diminish payments and settle debts by as much as half of what the borrowers are currently bound to owe while eliminating all financial liabilities in only a matter of years and safeguarding home and hearth from seizure. Furthermore, in conjunction with Alabama law and the best wishes of the state to protect its citizens from future troubles with monetary burdens, these debt relief companies will also counsel borrowers on purchasing habits, budgeting, and organization of all consumer related difficulties involving the most beneficial payments to be made and how best to avoid succumbing to similar problems down the road. Curious borrowers should make sure to ask the Alabama chapter of the Better Business Bureau about any specific company that they are thinking about meeting with as well as contacting the federal Fair Trade Commission to ensure that there were no existing complaints upon record, but, still and all, for any Alabamans serious about debt relief programs, there’s nothing to lose by a process of discovery. It may take a while, it may be difficult for you and your family to suffer through the various deprivations that the program requires, but, with little more than will and effort and the desire to succeed, debt relief can be a reality for every Alabama household.

About the Author

My name is Cole I am a professional in the financial fields of bankruptcy and debt settlement.

Senator Al Franken Can't Explain Obamacare

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Is there a limit on overtime hours for a salary worker in California?

My husband gets paid salary and plugs in more than 8 hours a day (10-12 hours sometimes). He doesn't demand to get paid for it, he does it because he needs to get all his work done. However his employers keep saying that he will get them in trouble because he is working beyond a "maximum limit" of hours. Is this true? Is there such a law, or does it depend on the employment contract also?

To answer your question, first, let’s remember that it doesn’t matter whether your husband is salaried or whether he is paid by the hour. The real question is what are his duties. If his job duties don’t make him “exempt” under California law, then he is entitled to overtime pay for any hours worked over 8 hours in any one day. He is exempt from overtime compensation only if his rate of pay computed by the hour is at least $16 per hour, and, he is a manager or supervisor, or is a professional such as a licensed engineer, or is directly involved in administering company policy at the highest levels of the company.
When his employer is commenting about your husband working long hours, the employer may be concerned about whether your husband will l want to be paid time and one half for his overtime hours. If your husband is what we called non-exempt, in other words is not an exempt employee under one of the categories I mentioned above, then his employer would have to pay him overtime. If he is an exempt employee, there is no law which would limit the maximum hours of work.

For help with any employment law issue, visit our website at www.rjtlawfirm.com

Wage and Overtime Disputes Lawyer Lancaster, California

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Tackling Employment Issues in California

California ranks among the ten largest economies in the world. Expectedly, with the rise of its economy comes the increase in its employment opportunities.

In a place where employment opportunities are vast, it is inevitable that employment disputes or suits will ensue. When this happens, there are California employment lawyers who are competent and expert in handling employment claims or cases.

Significance of Hiring an Employment Lawyer

The complexities of employment and labor laws are indisputable. Several laws including state statutes, administrative regulations and judicial decisions make up these laws.

Almost all these laws including minimum wage regulations have been enacted to protect the labor force. Other employment laws, such as unemployment compensation, take the form of public insurance.

These and more are difficult for an ordinary person to understand. It will take an employment lawyer to enlighten him/her of what the law means.

How to Select an Employment Lawyer

Choosing a lawyer whom to employ is not easy as choosing your food in the menu. It involves difficult and strategic process.

You can determine by consulting a lawyer alone if he or she suits your legal needs. You can search the web, ask for referrals or consult friends or family to find one whose skills are already tested by experience.

Bear in mind that while all lawyers are licensed to practice law in California, not all of them focus in the field of employment law. They too like doctors tend to specialize.

Having that in mind, choose someone who has gained the knowledge and experience in handling labor cases. Usually, those who are good have established good reputation in the community.

Below are areas of employment which non-employment lawyers may not have enough expertise on:

• Employment Discrimination




• Unemployment Compensation




• Pensions




• Worker's Compensation




• Collective Bargaining Agreement




• Workplace Safety

How to Handle Employment Disputes

Employment disputes may not always resort to lawsuits. One way of preventing it is by way of alternate dispute resolution.

Dispute resolution includes a variety of procedures in settling a legal issue in employment. The parties may resort to arbitration, mediation, or conciliation. All of which are reasonable means of resolving a dispute. In fact, they are widely recommended under the Americans with Disabilities Act in resolving conflicts.

At this stage, it is essential that you have the best bargaining representative to give you the maximum employment settlement. That is why, it is best to hire a California employment lawyer.

Only when the above processes failed that the aggrieved party may want to pursue a case in court. At this point, the case is tried on the merits. Going to court without a lawyer is stupidity! 

How to Deal with Employment Suits

When a dispute is brought to court, the case is tried on the merits. The first issue that will be resolved is whether an individual is an employee or not.

Determination of such issue alone entails a lot of work. Just imagine the work load if the issue involves complicated areas of employment law such as wrongful termination, whistle blowing, discrimination, workers compensation, harassment,  and other unfair practices by the employer.

Our California employment lawyers can help you settle any of your legal problems regarding your work. Just log on to our website and learn more of our areas of expertise.

About the Author

Jean is a content writer for the web page of one of the prestigious law firms in Los Angeles. She also worked as a legal analyst for a Florida based company and a paralegal to a credit cooperative. She hopes to publish her own book someday.

Lawyers in Didsbury # 1 Marketing EXPERTS....

British Illegal immigrants?

Illegal immigrants residing in britain often tend to complain about racism and discrimination from society. Whereas I totally renounce racism and all sorts of abuse based on skin color, i would like to advice them not to link every situation to race as they come here through the back doors and expect a grand life.
employment for foreign nationals in uk is purely based within the immigration legal frame works. Already being law brakers, they should not be pushing businesses to infringe on the law and illegally give them jobs.

The problem faced by the Borders Agency in Britain, in deprting Illegal Immigrants is there is no record of what Country these immigrants came from. They know that under International law, any Illegal Immigrant must be deported to the Country of his Birth, so these Immigrants destroy all forms of Identification of them selves before they arrive here to prevent themselves being deported back to the Country of their Birth. Therefore until the Border Agency can get this information, they remain in Britain, and getting this information can take months or even years. Meanwhile although they are kept in secure accomodation, they are entitled to avail their use of the NHS, and recieve certain benefits. Once Illegal Immigrants are in the International waters of Britain, their Welfare becomes our responsibility under the Human Rights act, so we cannot turn their boats away. It was during Tony Blair introduced the Human Rights Act, and at the same time reduced the number of staff working for the border Agency which has caused Immigration to become the problem it is, and it seems there is no solution to it. Even when an illgal immigrant has been identified of his Country of Birth, he has the legal right to appeal against any descision to deport him, again, this can takes months before the matter is brought to court.costing this country, Millions in Solicitors fees.
AS to Companies employing Illegal Immigrants, the Propieter of the Companies involved is liable to a fine of £10,000 for every Illegal immigrant he employs, and quite a lot have been caught

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Ford & Harrison Shows Support for Long-Time Client Set to be Featured on ABCs Extreme Makeover: Home Edition May 16
ATLANTA - Ford & Harrison is pleased to announce its support of one of its oldest clients, Palm Harbor Homes, by providing a financial contribution to the company’s efforts as the home builder on ABC’s “Extreme Makeover: Home Edition.”
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Are thier oppurtunities in UK to continue law studies whilst engaging in legal work in UK?

my son an attorney in Sri Lanka with 2 years experience in Maldive Islands and in the oldest law firm, wish to continue his law studies in UK. Is it possible for him to get employment in the legal field whilst further studies

Your question opens up a lot of possible different answers. It really depends on which qualification your son is wanting to complete; which country (or countries) he wants to work in; whether he will need permission to work in the UK; and which type of legal work he wants to do.

As he is an attorney, he will be used to doing research in a lot of detail. That being so, he needs to research the points that I mention above that best tie in with his own wishes.

Tips on How to approach an employment law firm

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Photo Release -- Orion Energy System's Apollo(R) Light Pipe Included in Landmark Renewable Energy Legislation Signed ...
MANITOWOC, Wis. -- Orion Energy Systems, Inc. thanks Wisconsin Gov. Jim Doyle for his leadership in signing into law forward-thinking legislation that will improve the environment and create jobs statewide.

Federal State Labor Law Poster Facts And Reviews

The employers all over the world require labor law and federal law posters to keep them updated in some conspicuous place. The federal labor law is required to let the employees know their rights. The employees should know the right to get right wages, security regarding health and life, workers compensation, benefits and insurance. Federal state labor law posters require posting employment posters, which are a part of the labor law. Labor law posters may change from time to time, as changes occur in law, judicial decisions or some issuing agency. The main mission of the Florida labor law poster is to let the employers comply with the poster requirement. Labor laws are governed by various federal and state agencies; make the employees aware of their needs and current laws.

The posters that the federal government creates are posted in businesses where many employees work. They generally contain information regarding the right and employment for the employees. The federal labors require this information so that the employees understand and access knowledge for better employment. The federal state labor law poster also incorporates the employees’ mandatory content into the single law poster. The law designates the places of labor laws to be posted. There are many commercial posters including different languages and posters designed with the recycled material. Florida's labor law poster intends to inform the employees about their rights so as to satisfy the employers’ mandatory statues and legal obligations. The employers should post their minimum wages, anti-discrimination, unemployed insurance notice and compensation notice.  

Most of the labor laws state the same thing regarding their rights and obligations. So, they are of a commercial variety. Homemade posters that are not mandated are permissible. The Florida labor law poster permits posting of the required material when sufficient space of binding for posting is not available. The safety posters are sealed for identification. Bilingual law posters are required by this state. Well, most of the requirements are common as of the other states. However, child labor is an added attraction as a priority by the voters of that state. There are very few changes that are required by the labor law posters, which are sustainable.  

About the Author

IDSTC provides MLM Software , Network marketing software for MLM, direct sales industry. Get business solutions with Multi Level Marketing Software, Direct Sales Software, party plan software .

Basics of Employment Discrimination Law for Law Clerks

The Law Professor Behind the Arizona Immigration Law
As the Justice Department and others weigh challenging Arizona's controversial new immigration law, the Missouri law professor who helped to draft it is preparing to defend it. A Yale Law School graduate, Kris Kobach later became then-Attorney General John Ashcroft's counsel and chief adviser on immigration and border security.
Clarence Thomas - The Virtues of Debate

Why does the Democratic Party has to lie about supporting small businesses?

The Democratice Party supports policies that harm small businesses such as affirmative action, minimum wage law, etc. The Democratic Party complains that corporates are harming small businesses and yet they support/create those policies. For example, if you own a bakery shop, do you have to hire a minority group or would you rather hire based on their experience and not race. And, do you have to pay them based on the minimum wage law or pay them based on the market. Everybody knows that a good worker demand higher wage or else he/she will work for another company. Everybody knows that the cheaper the wage, the worst service will be provided to their customer.

They don't - I agree business under Clinton thrived. Many small business owners are good business people and great humans. Then there are the others. When I hire people I pay them well because I want them to do a good job - color or gender does not matter.

If people do not have a living wage how do you expect them to buy your product?

Go pyar

Employment Law.mp4

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Belbas-Larson Awards honor faculty excellence at USD
VERMILLION, S.D. – The University of South Dakota will honor two of its faculty at the 2010 Spring Commencement ceremony for excellence in teaching.
Radio Ad: MA Marijuana Decrim Question 2, Retired Boston Police Officer Supports It

Chrysler Financial not reporting payments for me (co-signer). What can I do?

The car is in both me and my ex-girls name. She is the primary and I am the co-signer. Her credit was better than mine and she had a good employment history so I dont know how I became the co-signers. But anyway, I have been paying on time for about a year now and they are only reporting for her. I called about this and they said something about Illinois law saying that they cant report for me. Im trying to reach a 650 score and Im at 633, I think that this would put me there. Is there anything I can do to get the complete history of these payments on my report? Especially since I make all the payment and my name is on it. Or am I SOL?

They're feeding you a line of b/s because they don't want to fix it!! I would call their customer service phone # and ask to speak to a supervisor or manager. Explain your situation and tell them you would like them to report to your credit report. If they still are jerks, call the credit companies, Experian, Equifax and Transunion. Tell them that you have an open account with Chrysler and you want this reported on your credit. They will inturn send a letter to Chrysler who will not dispute and within 30 days, this will show up on the bureau.
What probably happened is they did not input your ssn and that is why it is not showing. Comaker or signer, doesn't matter, there is no such thing as a cosigner when it comes to a secured debt. You both are equally responsible.

Overview Of Five Step Process To Correct False Entries Or Information On Credit Reports

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Can an employer legally require you to divulge a second job or self-employment?

Recently, my company announced that all workers would have to divulge any second jobs or self-employment, and furthermore, have them approved (or denied) by the General Manager as a condition for continued employment.

Yes because they have to determine a conflict of interest.

And, when you work for a public agency, there is a "conflict of interest" form that you need to complete EVERY year (at least I know of people employed in the county's attorneys' office that complete it every year).

I'm a bit surprised that it's recently - unless you haven't been employed there very long. I work for a local public agency and had to complete one within 30-60 days of employment and every year thereafter (we have until end of March to complete the form).

It's called Form 700 (statement of economic interests) and here is information about it:
http://www.fppc.ca.gov/index.html?id=6

Disclosure

The purpose of financial disclosure is to alert public officials to personal interests that might be affected while they are performing their official duties, i.e., making governmental decisions. Disclosure also helps inform the public about potential conflicts of interest.

Public officials at every level of state and local government must disclose their personal financial interests. Elected officials, judges, and high-ranking appointed officials generally have the most comprehensive disclosure requirements. (Gov. Code Section 87200.) These include disclosure of:

* Investments in business entities (e.g., stock holdings, owning a business, a partnership)
* Interests in real estate (real property)
* Sources of personal income, including gifts, loans and travel payments
* Positions of management or employment with business entities

For most other officials, including employees of state and local government agencies, it is up to the agencies that employ them to decide what their disclosure requirements are. Each state and local agency must adopt a conflict of interest code tailoring the disclosure requirements for each position within the agency to the types of governmental decisions a person holding that position would make. For example, an employee who approves contracts for goods or services purchased by her agency should not be required to disclose real estate interests, but should be required to disclose investments in and income from individuals and entities that supply equipment, materials, or services to the agency. (Gov. Code Sections 87301 and 87302.)

Unpaid members of boards and commissions and consultants to state and local government agencies also may be required to disclose their personal financial interests if they make or participate in making governmental decisions that could affect their private financial interests.

Disclosure is made on a form called a "statement of economic interests" (Form 700). The form must be filed each year. Filed forms are public documents that must be made available to anyone who requests them.

So, yes, it can be required.

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Can I get a few pointers on Federal Law Enforcement duties ?

(FBI-DEA-US Secret Services-) Beside jurisdiction bound how are the feds different front local/state agencies. I am earning my Bachelor in Public Safety Management. I am researching this to determine a choice of employment and particularity education.

Most federal jobs are broken down by job series. The federal criminal investigator job series is 1811. Some other federal law enforcement job series include 1810 and 082. You will find many 1811 positions throughout the federal system, including the Department of Justice and the Department of Treasury. Other 1811 positons are in most executive branch agencies such as Agriculture, Education, HHS and Veterans Affairs. All Criminal Investigators are responsible for "making cases", i.e. investigating violations of federal law to establish that elements of crimes have been committed. They often work with and in association with state and local police to conduct these investigations. They also work closely with federal and state/local prosecutors.
One significant difference between federal and state/local invetigators is that the federal jurisdicition for criminal investigators is limited by agency and by the specific authority granted to their criminal investigators. Each agency is responsible for a specific slice of the investigative pie and the criminal investigators normally concentrate on only that specific jurisdiciton. State and/or local investigators usually are responsible for a wider range of investigative duties and responsibilities.

Immigration Law in the Workplace

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West Chester, PA (PRWEB) May 12, 2010 -- Velaris (http://www.velarisconsulting.com), a leading Professional Services organization dedicated exclusively to Business Intelligence consulting, announces its newest client, New York Law School (http://www.nyls.edu). With over 15 years of experience in BI consulting and hundreds of engagements with ...
Market Outlook - No Recovery Until Jobs are Created - Bloomberg

I worked for a real Jerk, I told him for the last 6 months about a knee surgery. he fired me.?

On the telephone the employer said he wanted to discuss seperation. I then filed the Federal Medical Leave Act. The employer says i am not elligable.
Question: Do you think in a court of law with a perfect employment record, 128% of quota, no write ups, ect. A jury would say, I was fired for retalation in needing ACL surgery? Or the employer is just.? Please let me know

Sounds like you have a case, especially if you can prove all of those things.

depends on your state but there may be other places to try first, like BOLI (bureau of labor and industry). In many cases BOLI will go to bat for you, you don't even have to hire and attorney but your employer would have to.

Basics of Employment Discrimination for Law Clerks

Watchdog sues city over closed-door Dolan settlement
A longtime activist for open government has filed a lawsuit against the Manhattan Beach City Council, claiming it kept the public in the dark by secretly arranging a separation agreement with its former city manager and then approving a hefty severance payout.
Los Angeles Women's Rights Lawyer Employment Law Attorney

Blarney Castle chief: Tourists want to be served by Irish staff
THE owner of one of Ireland’s biggest visitor attractions has claimed the tourism industry needs to keep Irish people instead of foreigners to curb the loss of overseas visitors.
Overtime Pay / Atty. Bruce Coane

Video Voyeurism and Surveillance Laws in the Workplace

Are you thinking about installing Hidden or Surveillance Cameras in your place of business? Many employers consider video and other surveillance key to keeping an honest and productive workplace. It keeps employees on the straight and narrow - no fingers in the till, no time clock funny business, no drinking or drugging on breaks. Many business owners and managers also record or review phone calls and emails from the office.

But employers must be careful not to go too far in their surveillance or they will risk being sued by an employee for an invasion of privacy under federal or state law. This article is an overview of the laws applicable to workplace surveillance - you should always talk to your own attorney to determine exactly what the law is in your state.

VIDEO SURVEILLANCE
There are several variables when considering video surveillance in your place of business. Your choices include visible traditional and dome surveillance cameras or hidden cameras, with or without audio. Each of the variables has potential legal implications. Visible surveillance cameras (not hidden in any way) are generally not illegal if they are in a non-private place.

If the camera records sound as well as video, you must comply with federal and state wiretapping and eavesdropping laws. You will need consent of one or all parties to any recorded conversation, depending on your jurisdiction.

Hidden cameras are a slightly different story. Video recording (without sound) is usually okay, even if the camera is hidden unless the person(s) being recorded has a reasonable expectation of privacy, the taping is done for some illegal purpose or there was trespass to record the video.

Courts across the country are finding with more and more frequency that no reasonable expectation of privacy exists with non-covert video surveillance or even with hidden surveillance if the physical space examined is a public space. Note that, if an employer uses union employees, the employer may be required to notify the union of its intention to use hidden cameras, but probably doesn't have to disclose where the cameras will be installed.

There is a federal law which makes it a crime to secretly capture photo or video images of people in places and situations in which they have an expectation of privacy. Most states have followed suit. These laws are often referred to as "video voyeurism" statutes.

VIDEO VOYEURISM LAWS
As you can see, surveillance technology has advanced so much over recent years that excellent cameras can be completely hidden from view in a number of different ways. These Spy Cameras are a great tool for many employers but can also be used inappropriately. The federal government and most states have recently passed "video voyeurism" laws.

These laws make it a crime to secretly record or distribute images of people in places where they have a reasonable expectation of privacy, such as bathrooms, dressing rooms, locker rooms, hotel rooms and tanning salons.

The federal law prohibits anyone from recording images of an individual's "private areas" without consent when that individual has a reasonable expectation of privacy. Every state in the U.S. now has some legal prohibition of video voyeurism or invasion of privacy, except Iowa and Washington D.C. About half of these statutes actually make this kind of video recording a felony. Many have an even harsher punishment for distributing such videos.

You will need to check your home state's particular laws as the courts from state to state may have differing opinions as to what types of places are expected to be private - bathroom and changing rooms may be "no-brainers" but some states' courts have even decided that employee break rooms or lunch rooms are "private" for purposes of video surveillance.

OTHER SURVEILLANCE IN THE WORKPLACE
The monitoring of electronic communications such as telephone calls, voicemail, email and IMs is covered by the federal wiretapping and eavesdropping statute - the Electronic Communications Privacy Act. The ECPA does include several business use exceptions to allow employers to perform necessary investigations, protect trade secrets and keep an eye on inventory and receipts.

Under the federal law, the monitoring of things such as email and phone calls is allowed if either the sender or recipient consents or if it is done in the regular course of business. Employers can monitor only equipment which they own and do not have the right to monitor email hosted by a third party (like web-based email programs.

BEST PRACTICES
Whether they have a right to privacy at work or not, many employees find surveillance of any sort offensive. It is good practice for employees to be provided with written notification of the existence or possibility of any monitoring in the workplace - video, audio or otherwise.

Notices can be made a part of a written, distributed policy or a section in the employee handbook. Employees can even be asked to sign a consent to or acknowledgement of the monitoring. If you are cautious, ethical and respectful of your employees and of the law, video and other surveillance in the workplace can be a wonderful tool to keep your business running smoothly and profitably.

About the Author

The Author Sharon Macdonald is a high-tech security specialist. Please visit her at http://www.A1-HiddenCamera.com to view the latest in Complete Surveillance Systems and High Quality Hidden Cameras

Law firm productivity down in Q3; hiring down 6%

Criminal Attorney: Pave Way to A Fair And Just Judgment

If the employer routinely performs background checks on employees, the conviction will show up in a search. This may result in the rejection from the job. Thus, it’s crucial to hire a criminal attorney even if one is charged with a minor offense. It’s essential to remember that arrest is not conviction. The Minneapolis criminal attorney is well versed in his job and can immensely help you understand the nature of the charges filed against you, your available defenses, what plea bargains are likely to be offered, and what is likely to happen in the event of conviction. The arrest can be intimidating and your future and freedom is the utmost priority.

If the charges are major then it becomes all the more necessary to take the help of Criminal Lawyers. You require a tough, reputed and dependable criminal lawyer who can successfully handle your case and win your case or even negotiate a plea bargain. Hiring a tough, reputed and dependable Minneapolis Criminal Lawyer who is able to handle the case with confidence can create a huge impact. Even when evidence seems overwhelming, the lawyer negotiates a highly favorable result.

There are large numbers of people who get arrested for the charges of DUI (driving under the influence of alcohol or drugs). This number also includes many of those who are arrested for the first time and have a clean criminal record. They become anxious and some of them become even scared as they are likely to face penalties and consequences which include fines, loss of license, vehicular immobilization, and increase rate of insurance fees, community service, and even jail time.

With the complexity and unique nature of DUI Laws, it would be hard to represent one's self even with a minor offense. Therefore, it’s best to hire an expert Minneapolis DUI Lawyer to seek legal advice. The lawyers clearly and transparently explain the trial process and also develop a winning defense strategy for your case. They also know the criminal justice system inside and out and will work very tirelessly to deliver a result that is fair and just. Don’t gamble with your future and utilize the skills and experience of criminal lawyers.

About the Author

For more information about Minneapolis DUI Lawyer Please visit : http://www.kanslaw.com/

Minneapolis Employment Law Jobs Video

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Dealing With Debt Collectors Detroit Michigan

You might need to hire a specialized solicitor if you are a Detroit resident, and are Dealing With Debt Collectors In Detroit Michigan.This page will debate the Fair Debt Collection Practices Act as well as your rights under the FDCPA.

Many purchasers do not understand that there are laws to guard them against debt collectors who lawbreak and creditors who blemish their credit reports. When you experience these Problems, you need an attorney with the data and experience that knows the best way to best make use of these laws to neutralise people who overstep their bounds and to protect you and your good name.

debt covered under the FDCAP include personal obligations, and household obligations. This includes debt owed for the purchase of a vehicle, hospital treatment, or for credit cards.

A collector may only contact you in real life, by mail, or telephone. A debt collector may not reach you at a unreasonable time or place though. Debt collectors may not reach you at work either if they know the employer disapproves.

You can stop a debt collector from touching base with you with a written letter to the collection agency informing them to stop. Once they receive that letter, they may only reach you to tell you that there will be no further contact. They might also get in touch with you if the debt collector or creditor means to take a specific action.

A debt collector may not contact third parties about your debt, except when trying to discover where you live or work. Additionally, if you have an lawyer, the debt collector may contact the lawyer as well . As a rule, a debt collector cannot divulge that you owe money.

A debt collector must identify himself/herself as a debt collector and must provide you with a statement that he/she is working in the capacity of a debt collector. Within 5 days from the primary contact, the debt collector must send you a written notice telling you the amount of your debt and the name of the creditor that you owe money to.

A debt collector may not reach you if, within thirty days after you are first contacted, you send the collection agency a letter saying that you are not responsible for the debt. However, a collector can renew collection activities if you are sent proof of a debt, such as a bill or invoice.

If this article reminds you of a problem that you or a family member are experiencing, and you areDealing With Debt Collectors In Detroit Michigan, you could need to hire a specialized attorney.




.

About the Author

Adam Alexander is specially trained in the Federal FDCPA and FCRA statutes, and related fraud and deceptive practices litigation. The goal of my firm is to protect consumers against unfair, deceptive and abusive debt collection and reporting practices.
Creditors, professional debt collectors, and attorneys who violate the law are subject to paying damages, statutory penalties, and the consumer's attorneys fees and costs.
If you have been a victim of unfair, deceptive and abusive coll

Michigan Supreme Court Forum 2010 Election (2 of 6)

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True facts about car theft

Car-theft. It's bigger than we think.

Do you know anyone that's had their car stolen? Have you had yours stolen?

Here are some interesting facts........ The top 10 cities to get your car stolen in 2006 were:

1. Las Vegas/Paradise, NV 22,415
2. Stockton, CA 7,046
3. Visalia-Porterville, CA 4,238
4. Phoenix/Mesa/Scottsdale, AZ 39,535
5. Modesto, CA 5,081
6. Seattle/Tacoma/Bellevue, WA 31,231
7. Sacramento/Arden/Arcade/Roseville,CA 19,558
8. Fresno, CA 8,363
9. Yakima, WA 2,155 10. Tucson, AZ 8,508

Source: National Insurance Crime Bureau

5 of the top 10 are in California ..... interesting eh ? As these numbers increase so do our insurance rates, especially if you live in California I'm sure.

Want to know the most stolen vehicles of 2006?

1. 1995 Honda Civic
2. 1991 Honda Accord
3. 1989 Toyota Camry
4. 1997 Ford F150 Series
5. 2005 Dodge Ram Pickup
6. 1994 Chevrolet Full Size C/K 1500 Pickup
7. 1994 Nissan Sentra
8. 1994 Dodge Caravan
9. 1994 Saturn SL

10.  1990 Acura Integra

Source: National Insurance Crime Bureau.

As you can see imports fair much worse over domestics. Look at the model years, in 2006, 8 of those top 10 were 10 or more years old. These cars have been consistent top sellers for many years and some of their parts are interchangeable. Thieves dismantle them for their components.

So driving an older car, especially an import, doesn't seem to make you less of a target, contrarily it seems to make you more of a target.

What are manufacturers doing about any of this ? Legislation back in 1984 started requiring manufacturers to stamp identifying numbers on major car components, making it easier to trace parts taken from vehicles stolen for dismantling. The Act also required that vehicles be made available for inspection prior to export and expanded U.S. Customs officials' powers of inspection and arrest in response to the growing international nature of motor vehicle theft.

In 1985, the Department of Transport started requiring that for post 1986 models, 14 major parts of these vehicles be inscribed with a 17-digit vehicle identification number (VIN). Unfortunately they had to relax the rules for imports.

New Technology: Insurers and organizations such as the NICB plainly state that manufacturers and consumers need to keep ahead of increasingly sophisticated auto thieves. Even though stamping VIN's is a legislative requirement, some manufacturers go a step further by spraying microdots, which are impossible to remove, onto auto parts. These microdots contain unique identifiers which can link parts back to their original vehicles. Nifty eh ?

Lojack, boasts a 90% recovery rate. Lojack employs a tracking device which can be activated upon vehicle theft. The device can lead law-enforcement not only to the car but, in some cases, to chop shops.

All these things outlined above are nice but have one major flaw, they don't stop your car being stolen. The best way to combat car theft is to not have your car stolen in the first place......right ?

Car alarms. devices, gadgets aren't doing the job. Thieves can get around these devices with alarming ease.

One device however is head and shoulders above the rest, Biometric fingerprint devices. The only way a biometrically secure car will start is by the input of an enrolled user's fingerprint. Not just an image of that print but a living, breathing human being's fingerprint.

This is the most effective technology today for securing your vehicle. Biometrics on the doors and the ignition system make your vehicle impossible to steal.

More to come ..

About the Author

Howard Lancaster is a freelance writer based in South Eastern Wisconsin. A respected authoritative voice on Biometric security systems. Visit his website at http://www.biometric-security-guards.com

Violation of Probation

NFL Capsules: Roethlisberger's police buddies under scrutiny
NFL Commissioner Roger Goodell punished Roethlisberger even though a prosecutor declined to charge him over the case, saying the league’s players must abide by a higher standard.
David Rhem for Circuit Court Judge

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Is it credible that Jacqui Smith can claim that they didn't have sufficient information to advise parliament?

regarding the illegal immigrants working in security.
Part of the defence offered today by a former advisor was that nothing happened because they didn't want the illegal immigrants to melt away into the black economy.

All I can say is thank goodness for whistle blowers.

But there is an alternative theory that the "leak" of this information was actually engineered by the Government to highlight the difficulty of tracking illegal immigrants and then using this to strengthen their argument for ID cards.

Milton Friedman on Minimum Wage

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The Essence of Employment Law

We work to live; we do not live to work.

As early as early adulthood, employment is one of this life’s major concerns. Actually, there are thousands federal laws and state statutes, administrative regulations and jurisprudence in the United States which deal with labor or employment law.

Employment law is very broad. But the most important specific areas include the following:

• Collective bargaining
  
• Employment discrimination
  
• Unemployment compensation
  
• Pension
  
• Workplace safety
  
• Workmen’s compensation
  

COLLECTIVE BARGAINING

The National Labor Relations Act is the main law governing collective bargaining. It expressly gives employees the right to collectively bargain and join unions. It is applicable to most non-agricultural employees and employers who are engage in some aspects of intestate commerce.

Collective bargaining is composed of negotiations between the employees and the employer to determine the conditions of employment such as wages, work hours and compensation and benefits, among others.

Most states have laws, which further regulate collective bargaining and make collective agreements enforceable under state law.

EMPLOYMENT DISCRIMINATION

Discrimination laws prohibit discrimination based on race, gender, religion, national or ethnic origin, physical disability, age and sexual preference by employers.

Bias in hiring, promotion, job assignment, termination, compensation, and various types of harassment are discriminatory practices.

The Federal Constitution and some state constitutions give additional protection where the employer is a government agency or the government has taken significant steps to foster the discriminatory practice of the employer.

UNEMPLOYMENT COMPENSATION

This is insurance for those who are unemployed because they are terminated without the fault of their own. Monetary payments are given to terminated employees until such time that they find a new job.

PENSIONS

Employees continuously receive this monetary compensation from their employers even after retirement.

There are two main forms of pensions, they are:

• defined benefit plan
  
• defined contribution plan
  

Defined benefits plan is based on the length of the employee’s service and his wages.

Defined contribution plan is based on the employer’s regular deposit into an account secured for each employee.

WORKPLACE SAFETY

Workplace safety laws establish regulations designed to eliminate personal injuries and illnesses from happening in the workplace. These laws are primarily composed of federal and state statutes.

The Occupational and Safety Health Act (OSHA) is the main law which protects the health and safety of workers in the workplace. It is Congress which enacted this law.

All private employers who are engaged in interstate commerce are subject to the regulations promulgated under OSHA.

WORKMEN’S COMPENSATION

For those who are injured or disabled on the job, these laws give them fixed monetary award as a matter of right without the need of an action in courts.

Under these laws, dependents of workers who were killed while working or suffered work-related illnesses and died will also be given benefits.

While majority of these laws can be considered pro-employees, some were also designed to protect employers by limiting the amount an injured employee may received from the former.

To help you with issues related to your employment, you can consult with our experienced http://www.mesrianilaw.com/Los-Angeles-Employment-Lawyers.html or visit our website to avail of our free case analysis.

About the Author

Jamil Estorninos is currently jumbling work and law school. He is now only 5 units away from his law degree but 1.5 million miles away from his dream – to become the next John Grisham. He writes while waiting to become a force to reckon with in the legal world.

Washington Night 2009

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Health Insurance Plans and Recruiting Star Candidates

Employee health insurance is health care that is provided by an employer. When a company provides these health insurance benefits, they pay for all or part of the health insurance premiums for their employees. As of today, employers are not required to provide health insurance coverage to employees but this may change in the near future. Health insurance is typically a matter of agreement between an employer and employees.

By definition, health insurance coverage is an employee welfare benefit plan established or maintained by an employer or by an employee organization like union, or both. They provide health care for participants and their dependents through insurance coverage or reimbursement.

There are certain employee benefits that are mandated by law. These include overtime, minimum wage, leave under the Family Medical Leave Act, workers compensation and disability, as well as unemployment. There are other types of employee benefits available that employers are not required to offer to their employees, but some do make the choice to provide them as well.

Offering health insurance plans to potential employees is one way to gain a competitive advantage in recruiting star candidates. Here are four reasons why:

1.) Because group insurance plans often cost less per person than individual policies, employees effectively earn more when they receive health coverage instead of equivalent wages. The following comparison demonstrates this advantage:

- Employee "A" is paid $37,000/year and has to purchase individual coverage at $600 per month.

- Employee "B" is paid $31,000/year and receives group health insurance that the employer pays $500/month for.

Both individuals cost the employer the same amount, but employee "A" has $1,200 dollars less yearly income after health insurance costs. Keep in mind that the extent and availability of this advantage varies depending upon the membership and group size.

2.) Most employment candidates find it more convenient and affordable to receive health coverage through their employer, rather than having to look for a suitable individual insurer. It is also much easier to become covered by a group insurer; applications for individual insurance are much more likely to be rejected.

3.)Great health insurance plans can not only be helpful in recruiting star candidates, but in retaining them as well. People remain less likely to leave a job if it provides good health coverage. Another advantage is that companies will save time and money on training and recruiting when them employees stay with the company longer.

4.) When potential employment candidates read in recruiting advertisements that medical coverage is included, they will feel that the position in question is considered important by the employer. Candidates also will not worry about finding an individual insurer and getting accepted. Each of these factors add up to give your organization or business a competitive advantage in recruiting star candidates, compared to companies which do not offer employee health coverage plans.

About the Author

Rickey Pearce, an insurance agent, understands how important having the proper insurance coverage can be.Rocky Mountain Health Plans offers an affordable Colorado Health Insurance to state residents and employers. To view some of the most extensive varieties of individual and group health insurance plans and options available, visit Rocky Mountain Health Plans today!

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The Concept of Group of One Health Insurance

Small business forms the backbone of our economy. It is rather interesting then to realize what a raw deal small business gets. A classic example is the brutally difficult time a self-employed person with a pre-existing condition has trying to get health insurance. If you are lucky, some states have a concept known as a group of one that can help.

Health insurance companies are in business to make money. People seem to forget this. I am not standing up for these companies. They do some pretty brutal things in my opinion, but people need to remember they are businesses. As businesses, they don’t want to ensure someone they know is going to cost them a bundle. No business wants a customer like that. Self-employed individuals with pre-existing conditions are, unfortunately, just that.

The “group of one” health insurance option is a real winner. It is based on the idea that a person cannot be denied coverage because of a pre-existing condition under a group policy. For instance, a person with a heart condition who works for Google cannot be denied coverage under their plan. In states that allow it, you can actually purchase group plans for your self-employed business and then join your own group. It sounds strange, but it works.

Are there any downsides to this strategy? Yes, there are a few. First, the group of one concept is so despised by insurance companies that a law has to be passed before they will submit to it. So far, only 12 states have it - Colorado, Connecticut, Delaware, Hawaii, Maine, Massachusetts, Michigan, Mississippi, New Hampshire, North Carolina, Rhode Island and Vermont. If you live in another state, the group of one strategy cannot be used.

The second problem is the timing of coverage. While the 12 states above will allow the group of one concept, the coverage can be limited at first. A not uncommon regulation is the insurance company can avoid coverage on the pre-existing condition for the first six months of the policy. For individuals with ongoing health problems, this is a huge problem.

Is group of one health insurance the answer for individuals seeking health insurance with pre-existing conditions? Yes, if you live in one of the 12 golden states that allow it.

About the Author

Mark P. Warner is with BestPlaceToBuyHealthInsurance.com - where you can located the best place to buy health insurance on the web and information to make sure you get the best deal.

Enter a descriptive keyword-loaded title here!

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Did the Immigration Issue Touch a BIG Nerve?

From the Christian Science Monitor

What illegal immigrant issue?

Bertini, O'Donnell & Hammer Law

Palin to Obama: 'Do your job, secure our border'
Former vice presidential candidate Sarah Palin joined the national battle over Arizona's controversial new immigration law Saturday, appearing with Gov. Jan Brewer in Phoenix to denounce the Obama administration's criticism of the law. (CNN) - Former vice presidential candidate Sarah Palin joined the national battle over Arizona's controversial new immigration law Saturday, appearing with Gov ...
Law Talk Today: Episode 13 (Part 1/3)

What You Need to Know About Employer-employee Relations

Employer-employee relation is another name for industrial relations in the academic world. It is a system of communication between the employer and the employee, which seeks to maintain and develop work productivity, motivation and morale.

Contrary to common misconception, employer-employee relation is not limited to underlying unions or collective bargaining issues but also covers over-all employee management and the employee’s relationship towards his employer, i. e., the boss.

Employer-employee relation is governed by existing labor laws, related jurisprudence and administrative rules and regulations on the matter.

Labor laws on the other hand consist of federal law, state law and judicial decisions.

The laws are primarily focused oh the relationship between employers and employee who, for practical reasons, group themselves into union for more effective bargaining power. Employees are granted by these laws the right to unionize, picket and strike while employers are granted the right to seek injunction and lockouts.

In the US, the National Labor Relations Board (NLRB) hears relationship disputes between the employer and the employee or their union. It is also the NLRB, which determines which union will represent an employees’ unit.

But for those whose employer-employee relations are not governed by the National Labor Relations Act (NLRA), NLRB cannot exercise jurisdiction over them. However, they may bring their disputes for resolution under other federal and state laws.

For those who belong to the railway and airline industries, their employer-employee relations are governed not by the NLRA but by the Railway Labor Act.

For public employees in federal government agencies, their relations are governed by the Federal Labor Relations Authority.

To those who have been taken advantage by their employers, they may invoke the provision of the law. Issues that usually arise out of this employer-employee relationship include, but not limited to, the following:

•    Hours of work

•    Overtime pay

•    Benefits

•    Working conditions

In the State of California, the employer-employee relations between the state and the employees are specifically dealt with under the California Government Code. The law seeks to promote full communication between the state and its employees by providing a reasonable method of resolving disputes regarding:

•    Wages

•    Hours or work

•    Other terms and conditions of employment

The law also promotes the improvement of personnel management and employer-employee relations within the State of California by providing a uniform basis to recognize the right of state employees in joining organizations of their own choosing and to be represented by those organizations in their employment relations with the state.

Some of the counties in California follow suit by having their own employer-employee relations policy or rules and regulations to govern the relations between the county and its employees. Some of them include the counties of San Mateo, Solano, San Joaquin and Humboldt County.


For questions regarding employer-employee relations and employment law as a whole, our Los Angeles lawyers are competent to give sound legal answers and free case analysis.

About the Author

Jamil Estorninos is currently jumbling work and law school. He is now only 5 units away from his law degree but 1.5 million miles away from his dream – to become the next John Grisham. He writes while waiting to become a force to reckon with in the legal world.

Employment Law: 2009, 2010 and Beyond! (Part 2: FMLA)

Thorough Investigation Reveals Opportunity

WESTBORO, MASSACHUSETTS...

As investigators specializing in the insurance industry, L&W Investigations marches to the beat of a different drum in both its approach to investigations and business. The company’s recent buy back of three of its franchises—Philadelphia, Utah and Montana—demonstrates L&W’s commitment to providing service to local clients but with national capabilities.

“We bought back these three locations for two major reasons,” said Neal Lyons, CEO and chairman of L&W Investigations, Inc. “The first is that as an organization, we wanted to invest in our own growth, our own potential. The expanding profit from these offices will help fund our continued success. Second, by having ‘company’ offices, we are ‘in’ the business and have a street-level understanding of the day-to-day challenges of our franchisees. This will help us respond better to those ever-shifting trends and hurdles.”

With 35 locations nationwide in 23 states, the five-year-old company typically employs three to eight investigators at each office. While many traditional “mom and pop” investigative firms are typically a haven for retired law enforcement officers who treat the job more like a hobby, L&W employs seasoned investigators who specialize in investigating insurance fraud cases. All L&W investigators go through extensive training and have access to the most state-of-the-art surveillance equipment.

“It may be a small world in a figurative sense, but when you’re conducting surveillance and performing other investigative work, the world is a pretty big place. By having offices in 35 markets, including these three territories we just bought back, we have the coverage that other investigation firms don’t have. That keeps costs down for our clients and gives them better service because the investigators on that portion of their case are working on their home turf,” noted Lyons.

L&W works with a variety of organizations-- insurance companies, third-party administrators, self-insured companies, law firms and municipalities—on fraudulent workers compensation, disability, liability, auto and property claims. L&W’s offerings include:

? Surveillance

? Statements

? Activity/Disability Checks

? Asset/background investigations

? Medical audits/clinic inspections

“Our client base consists of global, multi-billion dollar companies and we treat them as such. That goes for everything from online access to status reports on investigations to rush services at no extra charge. By adding more offices, we’re simply enhancing the level of service we already offer,” said Lyons.

For more information on L&W Investigations, Inc, you can call their corporate offices at (508) 616-9370 or visit the Web site at www.lwinvestigations.com.

Not your everyday investigations firm

With 35 offices in 23 states, L&W Investigations, Inc. specializes in fraudulent insurance claims. In addition to nationwide coverage, L&W investigators are highly trained specialists equipped with state-of-the-art surveillance technologies and other advanced systems to provide second-to-none results and service. That includes online case status reports, video delivery by digital download or CD, DVD or VHS tape, rush services at no extra charge and much more.

Current offices are located in Arizona (Phoenix); California (Los Angeles, Riverside, Ventura) Colorado (Boulder); Florida (Miami, Ocala, Orlando, Tampa); Georgia (Atlanta); Hawaii (Honolulu); Idaho (Boise); Illinois (Chicago); Kentucky (Louisville); Maine (Portland); Massachusetts (Boston); Minnesota (Minneapolis); Missouri (St. Louis); Montana, (Missoula); New Hampshire (Nashua); New Jersey (New Brunswick); New Mexico (Albuquerque); New York, (Long Island); North Carolina (Charlotte, Raleigh); Oregon (Portland); Pennsylvania (Philadelphia); Rhode Island (Providence); South Carolina (Charleston); Tennessee (Nashville, Memphis); Texas (Houston, San Antonio, Dallas); Utah (St. Lake City); Vermont (Burlington); Virginia (Arlington); Washington (Seattle, Spokane); Wisconsin (Madison; as well as Puerto Rico (San Juan) and the Caribbean islands; and Canada (Toronto).

Franchise locations are still available and the company has set a manageable growth plan at 15 new units per year.

For additional information, visit the Web site at www.lwinvestigations.com or contact L&W’s corporate headquarters located in Westboro, Massachusetts, at (508) 616-9370.

About the Author

Law Enforcement Expo II

Question for accountants and people who have studied accounting.....?

I am going into my second year at uni studying accounting and I have to chose a module out of these choices. Could you tell me something about them please.
1 – Management Science for Accounting

Look for description in course catalog
Cirriculum varies by school
Which school?

xPresso Ed - Module 4 - Protected Classes and Employment - CA.wmv

5 Essential Employment Documents Your Business Needs

There are plenty of kinds of business documents that a company needs to conform with the law and help it to run more smoothly, and employment is one of the most important areas where you should make sure that your paperwork is up to scratch. As any HR manager will tell you, dealing with the myriad demands and concerns of your employees can be like navigating a legal minefield - high quality, reliable documents can be invaluable in helping you deal constructively with personnel. Many employers settle for just having good quality employment contracts, but there are many additional areas where employment documents can help your business...


Employment Contracts


Naturally, the most important employment document is the employment contract. These need to be comprehensive, covering all the significant areas (such as a detailed outline of the position, holiday allowance, notice period, prohibited behaviour and any applicable confidentiality agreements). You may need a wide variety of employment contracts - depending on the nature of your business.


Disciplinary Documents


In an increasingly litigious society, employers have to be very careful when they handle disciplinary and dismissal issues. Written warnings and dismissal documents need to be carefully phrased, and your disciplinary procedure needs to follow the letter of the law - if you don't have the right business documents or your company deviates from legal procedure you could face an employment tribunal for wrongful dismissal.


Anti-Discrimination Policy


It is now recommended for all UK businesses to have a comprehensive anti-discrimination policy, outlining what constitutes unacceptable behaviour, the methods the company is using to combat discrimination, and the official procedure for employee complaints. This business document is typically included as part of the employee handbook, and needs to cover discrimination on age, religion, sexual orientation, gender, ethnicity and disability.


Maternity and Paternity Policy


Your business needs to have an up to date policy on maternity and paternity leave, outlining the conditions concerning the length of leave (26 weeks Ordinary Maternity Leave or 52 weeks with Additional Maternity Leave), the renumeration that is offered (this must conform with the requirements of Statutory Maternity Pay), the rights of an employee to return to a job at an equal or higher level after maternity/paternity leave is concluded. This is potentially a very sensitive area - make sure your business is equipped to handle it.


Sickness and Absence Policy


UK businesses lose over £13 billion each year to staff sickness and absence, and many companies struggle with a culture of absenteeism that costs them heavily. A written policy concerning sickness and absence can be a crucial business document that helps to prevent this problem, outlining actions that will be taken if repeated sick days are taken. This solves a two fold problem, by providing a framework of support to people who are taking time off for genuine reasons and discouraging people from taking needless sick days.


Just remember, with all of these documents it is important to keep up to speed on the latest legal developments. Employment law is constantly evolving, and missing out on important updates can be disastrous!

About the Author


Iain Mackintosh is the Managing Director of Simply-Docs. The firm provides over 1100 UK documents covering all aspects of business from holiday entitlement to
employment contracts
. By providing these legal documents (with content provided by leading commercial lawyers, HR and health & safety consultants) at an affordable price, the company intends to help small businesses avoid costly breaches of regulation and legal action.

Landon Young - Employment Law Update Learn the Latest

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Republicans take House, but Senate looks unlikely
The Republican Party has regained control of the House of Representatives in Tuesday's mid-term elections, but their ambitious goal to take control of the Senate appears to be unlikely.
Marangi Doubts FCC to Act in News Corp.-Cablevision Spat

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Transnational Corporations Liability for environmental Harms

Contents:

“Transnational Corporations Liability on Environmental Harms”

• Introduction
• Norms controlling activities of TNC’s in UDHR and ICESCR
• Why and how these TNC’s are responsible for environmental damages and harms.
• Three catastrophic disasters in human history
• International Guidelines controlling TNC’s activities
• Are these Norms and guidelines are enough to hold these TNC’s liable
• Need of international binding regulations
• Recommendations
• Concluding remarks

Transnational corporation liability for environmental harm

Before starting my presentation on present topic that is transnational corporation liability for environmental harm, I would like to say that this seminar presentation is only an approach paper presenting set of issues involved which in the course of direction take us to the steps of suggestions as far as the TNC’s liability for environmental harms are concerned. Or I can say that this is the first step of my research work.

To begin with let me first briefly explain to you, what TNC’s or MNC’s basically are?

Transnational corporation (TNC), also called multinational enterprise (MNE), is a corporation or enterprise that manages production or delivers services in more than one country. It can also be referred to as an international enterprise.

The Norms specifically define a "transnational corporation" as "an economic entity operating in more than one country or a cluster of economic entities operating in two or more countries-- whatever their legal form, whether in their home country or country of activity, and whether taken individually or collectively." The working group defines the phrase "other business enterprise" as "any business entity, regardless of the international or domestic nature of its activities, including a transnational corporation, contractor, subcontractor, supplier, licensee or distributor; the corporate, partnership, or other legal form used to establish the business entity; and the nature of the ownership of the entity."

Very large multinationals have budgets that exceed some national GDPs. Multinational corporations can have a powerful influence in local economies as well as the world economy and play an important role in international relations and globalization. It is beyond dispute that TNC’s are now the leading vehicles for economic globalization. According to UN Conference on Trade And Development (UNCTAD). In 2002, global sales of TNC’s reached $18 trillion for world exports.

Throughout the past half century, states and international organizations have continued to expand the codification of international human rights law protecting the rights of individuals against governmental violations. In parallel with increasing attention to the development of international criminal law as a response to war crimes, genocide, and other crimes against humanity, there has been growing attention to individual responsibility for grave human rights abuses. The creators of this ever-larger web of human rights obligations, however, failed to pay sufficient attention to some of the most powerful non state actors in the world, that is, transnational corporations and other business enterprises. With power should come responsibility and international human rights law needs to focus adequately on these extremely potent international nonstate actors.

Transnational corporations evoke particular concern in relation to recent global trends because they are active in some of the most dynamic sectors of national economies, such as extractive industries, telecommunications, information technology, electronic consumer goods, footwear and apparel, transport, banking and finance, insurance, and securities trading. They bring new jobs, capital, and technology. Some corporations make real efforts to achieve international standards by improving working conditions and raising local living conditions. They certainly are capable of exerting a positive influence in fostering development.

Some transnational corporations, however, do not respect minimum international human rights standards and can thus be implicated in abuses such as employing child labourers, discriminating against certain groups of employees, failing to provide safe and healthy working conditions, attempting to repress independent trade unions, discouraging the right to bargain collectively, limiting the broad dissemination of appropriate technology and intellectual property, and dumping toxic wastes. Some of these abuses disproportionately affect developing countries, children, minorities, and women who work in unsafe and poorly paid production jobs, as well as indigenous communities and other vulnerable groups.

It is no doubt that environmental consequences of TNC’s behaviour are multiple and substantial, and here I am going to discuss these environmental consequences of TNC’s.

To start with, the question came, why and how TNC’s are responsible for transboundary environmental harms and damages? An emerging doctrinal elaboration refers to States as primary holders of human rights obligations , as opposed to the traditional understanding of States as exclusive duty-holders—an understanding that is still supported by those who consider human rights from a strictly state-centric perspective. The new doctrine seems consistent with human rights instruments such as the Universal Declaration of Human Rights (UDHR)  and the International Covenant on Economic, Social and Cultural Rights (ICESCR)  which, even though embedded in the state-centered tradition and focused mainly on the duties of States, specifically refer to “any . . . group or person”  as having duties. In fact, no group or person has any right to engage in activities that would result in the violation of the rights recognized in these instruments. If the UDHR offers a starting point for the liability of transnational corporations (TNCs) under international human rights law, the ICESCR reaffirms this proposition, particularly when involving operations in States that ratified this treaty.

International law has also not been successful in controlling the environmental practices of transnational corporations (TNC). The efforts in the late 1970s and early 1980s to establish a draft Code of Conduct ultimately failed. In 1990 there was another attempt by G-77 and the United Nations Centre on Transnational Corporations (UNCTC) to revive these efforts, but this went nowhere because of opposition from the Organization for Economic Cooperation and Development (OECD) countries and the United States. In 1992, the UNCTC was closed and its activities integrated into the office of the United Nations Conference on Trade and Development (UNCTAD). In addition to these failed efforts internationally, industrialized countries have made little attempt to apply domestic restrictions to the environmental practices of their own corporations operating in other lands. Where there have been some major advances in this area has been with regard to the transportation of hazardous and radioactive materials. Publicity over scandals concerning disposal of toxic chemical wastes in Africa brought this problem to the United Nations’ agenda. Law occupied the forefront of all debates because the lack of international law enabled the evasion of strict national laws by moving the problem, together with the toxic waste, to developing countries that had no protective legislation. The crucial role of law has been described succinctly by the WHO’s Regional Office for Europe: “A comprehensive system for the disposal of hazardous waste will not develop unless its basic requirements are prescribed and enforced by law.” The General Assembly affirmed the importance of law by urging governments to “take the necessary legal and technical measures in order to halt and prevent” illegal international traffic in and dumping of toxic wastes, and recognized “the necessity of developing rules of international law, as early as practicable, on liability and compensation for damage resulting from the transboundary movement and disposal of hazardous wastes.”.

1. However, when the international community joins together, with each country taking an active part in drafting a code of conduct, the document has a much greater chance of being a success. A healthy environment involves a multitude of private and government actors in many countries, therefore, the mechanism to properly implement the right must be created at the international level.
2. Considering that prior to the Norms the United Nations had not developed any legal obligations, its actions show it finds binding law is unnecessary.

Four catastrophic disasters in Human History:

Factual settings of disasters:

1. Unioncarbide, Bhopal(India)

It is true that Indian government to a larger extent is responsible for the Bhopal disaster but the liability of MNC’s incorporated in US also entail some responsibility.

There is no similar attempt to regulate the health, safety and environmental practices of these corporations by US government.  Thus, if the host country does not regulate these areas, U.S. multi corporations are essentially able to operate in a completely lawless manner. What this has lead to, in turn, are allegations that U.S. multinational corporations have engaged in a series of practices that would be illegal under United States law-- from systematic environmental degradation to exposing foreign field workers to pesticides known to be harmful; from the use of production plants that emit levels of sulphur dioxide that are fifteen to twenty times above what is permissible under U.S. law to the brazen shipment of leaded paint and glue commonly abused by desperate young children to Central American countries.

Perhaps the most unsettling example of the nonfeasance of U.S. law involved the sale of a nuclear power reactor to the Philippines by the Westinghouse corporation. The plant was to be situated above an earthquake fault line, and below an active volcano. In addition to these logistical considerations, the technical design of the plant did not meet domestic (U.S.) standards. Despite these grave flaws, the Nuclear Regulatory Commission (NRC) voted to issue the plant's license. The Board took the position that it did not have jurisdiction under domestic statutes to consider the health, safety and environmental impacts on the citizens of a recipient nation, or even to consider the effects of an exported reactor on U.S. interests and U.S. citizens abroad. The District of Columbia Circuit affirmed the NRC licensing decision, holding that the agency had properly approved the exported reactor without evaluating the health, safety, and environmental impacts.

It is ironic that American law bars the "corrupt practices" of U.S. multinational corporations doing business in other countries based on the idea that bribery is immoral, but it somehow refuses to address other actions of U.S. corporations that is every bit as immoral as bribery, if not more so. How does one explain this result? One answer might be that we are able to compartmentalize our morality, and that we are aided in this by the divisions that exist in our law. Another explanation, one that we will address in the next section, is that there is a decided purpose behind the anomalies created by the manner in which U.S. law has been applied extraterritorially, namely, to promote the national interests of the United States and its corporate entities.

Lessons from Bhopal and Seveso Accidents:

Bhopal and Seveso raised entirely different issues about how to effectively regulate, control, and mitigate the effects of an industrial disaster. In the case of Seveso, the subsidiary of a foreign parent company was willing to settle the case by paying damages. In the case of Bhopal, the attack initially focused on the foreign parent corporation to find fault with, and lay claim on, a TNC. This situation highlights the problems faced by developing countries that frequently import hazardous substances and technology for much needed developmental projects.

The Bhopal and Seveso incidents raised a number of issues that need further investigation: how to regulate and subject TNCs operating in foreign countries to a definite regulatory regime; how to establish and enforce international standards on the corporations involved in the export and import of hazardous substances and technology to prevent such accidents in developing countries; and what kind of dispute settlement mechanisms should be developed to find just compensation to redress the damage caused to human victims, state economies, and global ecology. Also, why not inject the sense of a fair social system  and environmental justice  into an international setting?

Perhaps what is required is an attempt to build an international regulatory regime that takes into account the political and economical realities of the contemporary world, including the interdependence of the global economy, the global implications of environmental hazards, the global reach of the activities of TNCs, and the existence of third world countries who need assisted development without the additional cost of environmental damage. The latter half of the twentieth century has seen the disregard of national boundaries with regard to technology and economics. Recent rapid integration of the European and South Asian economies strongly indicates that uniform values, standards, and mechanisms for the control and regulation of TNCs are needed in an increasingly borderless society to develop and sustain a relatively risk-free global community that addresses the need of both the developing and developed countries.

1. Differences between the two accidents discussed earlier and the Chernobyl explosion are numerous: 1) Chernobyl involved a government-owned operation with no TNC or foreign ownership in question; 2) the plant was subject to the local laws of the former Soviet Union; 3) the former Soviet government ran the operation with no foreign corporate involvement; 4) the accident perfectly demonstrated the concept of the public international law of state responsibility  because the former Soviet Union as a state was responsible for both the ecological and financial damage incurred by injured countries; 5) interestingly, the question of damage compensation was raised by the European Parliament and not by individual countries in any court of law;  6) the transboundary effect of the accident was felt all over Europe;  and 7) the main damages from the accident came in the form of long-term radiation pollution, ecological damage, dislocation of economic activity and long term health problems.

5. Newmount Mining corporation,2005

Recently in Buyat Pantai, one of Indonesia's most impoverished coastal communities where people live with only a single dirt road and without electricity or running water, something went wrong.  Villagers were afflicted by a variety of illnesses that had never been seen before in this area.  They began complaining of dizziness, breathing difficulties, tumours, skin rashes, and diseases.  Water and air quality tests, conducted to determine the source of the illnesses, revealed a dramatic increase in arsenic and mercury to levels never before seen in the region. What had changed in this tiny, isolated, and autonomous coastal village? The answer is the arrival of Newmont Mining Corporation (Newmont), a U.S.-based multi-billion dollar gold producer, and its gold mine near Buyat Bay.

1. The company's executives deny any wrongdoing and insist that everywhere Newmont does business, it adheres to U.S. environmental laws, which are often more stringent than those of developing countries.

Environmental concerns particular to Afghanistan and Iraq that must be addressed:

This land is your land & this land is my land--sure--but the world is run by those that never listen to music anyway.

1. The presence of foreign nationals in the two States strains the already depleted resources of the environments  and highlights the lack of international environmental law applicable to military and peace keeping forces.
2. 
   
   

These catastrophes draw attention to larger issues arising in international law. Specifically, there is a lack of certainty regarding what law controls transnational corporations (TNCs), and what regulations are in place to safeguard the people and natural resources of countries hosting TNCs.  Each nation has its own set of laws to protect the environment and the health of its citizens. However, when a TNC exploits a host country's natural resources and harms its land, developing countries often fail to enforce these laws because they fear the company will leave and take its jobs and dollars with it. Today, developing countries are asked to trade health and safety for the progress and prosperity promised by the economic ventures of TNCs. Presently, without any binding international law to protect host countries, individual nations find themselves in a difficult situation.

International Guidelines controlling Transnational Corporations Activities: an overview:

1. These various initiatives, however, failed to bind all businesses to follow minimum human rights standards.

There are many declarations, codes, rules, guidelines, principles, resolutions, and other instruments but the main guidelines for purposes of this Article can be found in the Stockholm Declaration, 1972, the Code of Conduct for Transnational Corporations, 1974, Organisation For Economic cooperation And Development adopted on 21 June 1976 the guidelines for Multinational enterprises, the ILO Declaration1977 and the Rio Summit and its declarations 1992, and more recently in 2003, UN norms On The Responsibilities Of TNC’s and other Bussiness Enterprises with Regard to human Rights, 2003. A careful examination of these recommendations and principles will show that they contradict each other and that there has been little progress, if any, between Stockholm to UN norms 2003. The tension between the North and South continues. The only progress is the recognition of new problem areas, and, once again, the nation states have agreed to disagree on the methods and means of resolving the new quagmire.

1) Stockholm Declaration,1972

A glance at the language of the recommendations suggests that the essence of the problem is a fight between the North and the South. Each party is seeking to maintain its freedom from foreign interference while agreeing to protect the environment in principle. Recommendation 103 addresses the North-South conflict and satisfies both by failing to invoke environmental concerns as a pretext for discriminatory trade policies and by failing to develop policies that might lead to restrictive practices in the transfer of technology to developing countries. At the same time, those seeking equality further emphasize that the same environmental concerns should not be permitted to deny or reduce access to developed countries since equality is necessary for the developing economies to sell their products in developed countries. The recommendation further emphasizes that the burden of environmental policies, such as expansive pollution control mechanisms and stricter process-safety standards, should not be transferred along with technology.  This means that ecologically damaging industries should not be relocated to developing countries.  This last scenario appears to be self-contradictory because the objective of equality with developed economies requires that developing countries strive to achieve the same standards as are observed in developed countries. How can the objective of equality be realized when, while seeking the most advanced of technologies, the very features of advancement are denied as part of a technology transfer package? This illogical approach has its roots in a bureaucratic mentality that thrives on minor technical successes rather than seeking practical solutions. The irony is that a guideline that seems to have emerged from an expensive diplomatic exercise on an issue of global significance, in the end, provides everything except a solution. The question of seeking access to markets amounts to asking for the acceptance of inferior goods. The very idea of such a position suggests that the inferior should be accepted as an equal. Inferior and superior can never be equal; the only way to seek and achieve equality is to compete and ask for fair competition. Equality does not follow from charity. If third world countries seek equality, then they must seek partnership on equal footing rather than technical victories at the negotiating table.
This is not to suggest that I support the policies of TNCs. There is enough evidence in the historical literature that multinationals thrive on the idea of maximization of wealth at minimal cost. The exploitative tactics of multinationals are indeed well documented. Multinationals often adopt strategies and means devoid of human values because human input is measured in economic terms rather than by moral and ethical standards.

2) Code of Conduct for TNC’s and ILO Declaration:

The proposed Code of Conduct for Transnational Corporations as proposed by the U.N. General Assembly states the following objectives: 1) the prevention of TNCs' interference in the internal affairs of the host countries and collaboration with racist regimes; 2) the prohibition of restrictive business practices by TNCs; 3) the transfer of technology and management skills by TNCs to developing countries on equitable and favourable terms; 4) the regulation of repatriation of profits by the TNCs; and 5) the adoption of provisions to promote reinvestment of TNCs' profits in developing countries. 
The International Labour Organization (ILO) Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy recommends that TNCs should give priority to local personnel in employment and training, use technologies which generate employment, provide workers with information about the firm to allow meaningful negotiations, and work with governments to promote good labour and employment practices.

1. While the principle helps create more jobs, it certainly fails to introduce local people to better work ethics and professionalism, both of which are needed to compete in the global market. Again, the effect is self-denial of a learning process, which is necessary for achieving technological progress and equality. By asking for technology that generates the maximum number of jobs, the developing countries give up efficient methods of production. A technology that is environmentally responsive is more likely to be one that creates fewer jobs, but is much more efficient in the quality of production.

3) The Earth Summit, 1992:

The Earth Summit was preceded by two meetings: the Tokyo Declaration on Financing Global Environment and Development and the Kuala Lumpur Declaration. At the Tokyo meeting, developed countries emphasized the "need to re-evaluate the thinking which underlies our present society." They further emphasized that new principles of environmental ethics needed to be established. All that developing countries would have liked to have heard was included in this declaration except for the specifics concerning the transfer of technology. There were commitments for financial assistance and recognition of the need to pass on environmentally safe and sound technology. However, at the Kuala Lumpur meeting, developing countries repeated their positions from the 1972 Stockholm Declaration. They stated:

We call on the developed countries to ensure without further delay a balanced, meaningful, and satisfactory conclusion of the Uruguay Round of Multilateral Trade Negotiations. We further emphasize that developed countries should not attempt to impose unilateral restrictions on international trade, in particular, on natural resource-based and other related products on environmental grounds. The Summit dealt with the issues of transferring environmentally sound technology, cooperation, and capacity building under Chapter 34 of Agenda 21.  Much of what was said in the two prior declarations was agreed to and constituted the substance of Chapter 34. However, one of the thorniest issues that remained unresolved was the expression "transfer of technology. It is clear that while developing countries are anxious to acquire the state-of-the-art, environmentally safe and sound technology, along with everything that accompanies it, they fail to recognize that there is no state-of-the-art technology that is designed for and compatible with nationally determined socio-economic and cultural priorities.  The idea is to keep cleaner areas less polluted. There is only one way to development, and that is to stop converting the technologies to suit developing countries. Developing countries have to understand that such conditions encourage TNCs to move outdated plants and technologies to the Third World. On the contrary, if the developing countries insisted on acquiring the same technology that exists in developed countries, they would then at least be assured of less pollution and improvement of their workforce to the highest levels that are compatible with developed nations.  Even the Rio Summit is a clear example of the duplicity of bureaucratic bungling where persons dissatisfied with UNEP tried to create a parallel institution in the form of UNCED. Of what value are 800 pages of agenda items, full of repetitive and self-contradicting provisions, if in the end they will transfer a watered-down version of state-of-the-art technology? It will be a waste of public funds to argue over the same principles ten years after the grand event at Rio. Instead, the aspirations of the poor and the rich need to be considered, and our priorities need to be examined in realistic terms. An international framework similar to domestic corporate law is needed to cover every aspect of global trading.

4) UN’s Norms on The Responsibilities Of TNC’s And Other Business Enterprises With Regard to Human Rights,2003:

The Norms as adopted are not a voluntary initiative of corporate social responsibility. The many implementation provisions show that they amount to more than aspiration statements of desired conduct. Although not voluntary, the Norms are not a treaty, either. Treaties constitute the primary sources of international human rights law.

TNCs have historically self-regulated their international operations regarding human rights and the                                                            environment. Today, there is little international law that clearly states the human right to a healthy environment. There is even less international law regulating corporations.  Some of the most overlooked and powerful non-governmental actors in the human rights arena are TNCs and other business enterprises.  There is no applicable "hard law" and little "soft law" pertaining to transnational corporate accountability. The most notable "soft law" is the single principle that calls for the promotion of corporate responsibility in the Johannesburg Summit.  Nearly all "non-binding" aspiring declarations are "soft law."  "Hard law" is what lawyers use at a domestic level.  Skeptics of "soft law" often call it "moralizing without consequences." Efforts to develop criminal law to punish international war crimes have led to an increased awareness of the need to ensure individual responsibility for violating human rights in other countries.  This awareness has even led to the acknowledgment of the right to a sustainable global environment. An increasing number of human rights activists have requested that the United Nations establish uniform legal obligations for TNCs regarding human rights. Until the U.N. Norms were adopted, the activists' efforts were unsuccessful. An initiative from Sub-Commission Resolution 1997/11 formed a Working Group on Working Methods and Activities of Transnational Corporations and requested a working document on human rights and TNCs.  The document included both human rights obligations and environmental requirements for TNCs.  With some minor changes, on August 13, 2003, the Sub-Commission approved the Norms on the Responsibilities of Transnational Corporations and Other Business

B. Obligations under the Norms

Some say the Norms represent the opinio juris of the world community, as "soft law" often does. The Norms address the increasing international anxiety about TNCs' indifference towards sustainable development.  The Norms assert both the primary responsibility of states and the obligation of TNCs to "promote, secure the fulfilment of, respect, ensure respect of and protect human rights."  This statement is implicit in all the requirements set forth in the Norms.  Further, the commentary explains that the document applies to all TNCs and other business enterprises and their activities in either the home or host country.

1. This requirement addresses the previous dilemma of which standard should be followed that of the home country, host country, or international standards.

C. Implementation of the Norms:

1. The Norms take a stance in the middle between strictly voluntary programs like the Global Compact and "hard law" desired by human rights organizations such as Amnesty International.

The direct obligations consist of internal mechanisms meant to develop a corporate culture of respect for the rights of citizens in host countries. The Norms also exhibit external means by proposing independent and transparent periodic monitoring and verification by the United Nations and other international and national mechanisms.  Sub-Commission Resolution 2003/16 called for NGOs and others to adopt a method of reporting corporations' failure to comply with the standards established in the Norms.  Principle 18 asserts TNCs must issue prompt and adequate damages to persons and communities adversely affected by failure to comply with responsibilities.

1. Nevertheless, there is no reason the Norms cannot be made more definite and "more binding in the future."

D. Effect of the Norms

1. Another major difference between the Norms and previous efforts is its terminology. When discussing compliance, the Norms substitute standard terms like "should" with "shall."  Therefore, the Norms are not merely a restatement of existing obligations, but rather an effort to fill the voids of previous agreements and mandate certain aspects of international corporate responsibility.
2. Regardless, the spirit of "soft law" is that while it is not legally binding, it is still significant.
3. Regional human rights commissions and courts can make use of the Norms and cite them as persuasive authority in determining states' obligations.
4. Often "soft law" is the first step to becoming customary international binding law. It is apparent that an extensive part of "soft law," which makes a substantial impression, often defines what eventually becomes "hard law."
5. In light of the case against Newmont, they seem to be correct. "Soft law," like the Norms, is just not enough to stop corporations from the grave abuse that occurs globally.

Are these present system of Norms sufficient to hold these TNC’s responsible for thier environmental accountability:

Using the Norms in Their Current State:

Whatever the inadequacies may be in the current Norms, countries can still make use of the Norms as persuasive authority when filing suit. Courts and regional human rights commissions can also cite to the Norms.  Although the Norms may not be concrete, countries can reference them just as they are until more binding authority exists. Though binding international law is needed, the Norms can have a considerable effect in their current state. States have been found to view "soft law" as having at least some political significance. Some states even consider it necessary to abide by such obligations, just as if "soft law" were a binding legal requirement.  Furthermore, in the absence of precise legal standards in international cases, there is an increasing trend for national courts to apply international "soft law," provided it has sufficient state support.

Regional courts can cite to the Norms when determining the requirements of states and encouraging them to scrutinize corporations' conduct within their jurisdiction.  Often "soft law" is considered too vague to provide any authority when applying these rules to disputes, however, this is not the case with the Norms. They can be cited as persuasive legal authority when a TNC violates the environmental rights of indigenous people in developing countries.

The Norms deal directly with indigenous people and their environment, which could help establish responsibility for TNCs. Principle 12 specifically gives the right to adequate food and drinking water, something citizens of Buyat Pantai no longer have because their fish and drinking water have been contaminated. Principle 12 further asserts that TNCs shall refrain from activities that "obstruct or impede the realization of those rights." In its current suit against Newmont, Indonesia could use Principle 12 as support when it asserts Newmont was aware of the damage it was causing.

The Norms also compel TNCs to abide by international principles with regard to the environment and human rights and conduct their activities in a way that contributes to sustainable development.  TNCs must conform to national laws and regulations relating to preserving the environment of the states in which they operate.

Two recent decisions [1] of the European Court of Human Rights have held states liable for failing to abide by international regulations.  They also charged states for failing to follow through with inspections, which can often avert corporate misbehaviour.  Both cases involved corporations that polluted the environment, a violation of family and private life under the European Convention on Human Rights.  The courts can refer to the Norms in deciding corporate accountability.  Furthermore, the African Commission on Human and Peoples' Rights could have cited to the Norms in holding the Nigerian government[2] liable for its involvement with regional oil companies.  The court held the government responsible for "its involvement in, and failure to limit, the activities of oil companies that were violating . . . environmental rights of the Ogoni residents."

Why there is need for binding international regulations?

Now, at this juncture, one question arises, are these norms, rules, regulations and administrative action is sufficient to hold these TNC’s responsible for thier environmental harms and damages?

Major Drawbacks:

1. Furthermore, although international standards are becoming more common, most are still "soft law" and developing countries' standards are less stringent than those regulating industrialized countries.

Companies such as Newmont seem to dismiss even binding national law. Newmont has a record of violating the U.S. Environmental Protection Agency's standards in its local operations and apparently disregards any sort of voluntary obligations.  The international community should not assume Newmont will quietly acquiesce to "soft law" like the Norms.

This problem is one significant reason why an international set of binding regulations is absolutely necessary. Governments confronting economic power and pressure of multibillion-dollar companies can be assisted by the Norms in identifying and applying the minimum international standards for corporate contact on their land. The major problem with these norms and administrative regulations are that these norms are a step in the right direction, but they are not binding. The Norms do not have adequate monitoring and verifying methods, however, they could easily be, and need to be, strengthened.

Furthermore, there is still no mandatory enforcement other than what states choose. There are multiple mechanisms available to aid in enforcement. Technology such as satellite surveillance can spot illegal activity, which would help countries stop illegal water dumping.  A study of Brazil, Mexico, Indonesia, and the Philippines found that countries need more stringent methods to detect, arrest, prosecute, fine, and convict perpetrators.  The Norms could fill this void by creating stricter monitoring and more severe penalties. In order to protect developing nations from being exploited, a set of international regulations is crucial.

The Norms give state governments a stronger foundation on which to stand when demanding businesses stop harming the environment. However, the Norms cannot protect indigenous people in developing countries when they seldom see their day in court. Many potential plaintiffs never have an opportunity to present their case due to lack of resources--primarily, the finances it takes to go up against a TNC. With economic pressure and threats by TNCs, many plaintiffs never get to present their claims. TNCs are powerful and can coerce citizens to drop any claims against them. The executives at TNCs also have the ability to easily persuade people because they appear to be educated, successful individuals. For the Norms to be most effective, it must be presumed that individual TNCs will adopt the Norms and cases will actually be brought to enforce them. To make such presumptions is not very realistic; therefore, binding law that protects people and enables cases to be pursued is essential.

If every nation is forced to abide by the same laws, investors will not be able to pick and choose a country to invest in based on whether or not that country prosecutes companies who destroy the environment. TNCs would not be able to evaluate which country would allow for the largest profit based on its weak environmental standards, lack of prosecution for polluting the environment, or harm to the health of its people. Countries would no longer be forced into trading health for economic development. Furthermore, it is not reasonable to require non-governmental organizations to file suit. Multibillion-dollar companies have an unfair advantage over non-profit organizations. A uniform set of binding principles is necessary to level the playing field.

Once a set of binding law is available, countries will be alleviated of the pressure to determine whether or not they should prosecute. Such laws would place the responsibility and enforcement in the hands of the international community. Developing countries searching for employment opportunities, development, and better lives for their citizens would no longer be forced to choose jobs and economic development over health and the environment.

Recommendations:

The hazardous activity of these TNC’s poses major threat to the world at large. If certain recommended steps have not been taken in the near future, then the day will come that our whole fabric of environmental set up stand up rooted. If we were to seek solutions based on a few isolated incidents, we would create narrowly conceived remedies. The factors that cause distrust need to be recognized. They are: 1) the domestic laws, practices, and perceptions of the bureaucratic and political elite relating to hazardous activity; 2) international law, codes of conduct, declarations, and the psychological perceptions of the diplomatic elite regarding human welfare, equality, and freedom; 3) the long history of the economic exploitation of developing countries, the history of reluctance to adopt new methods to deal with emerging problems, and the recent escalation of the global activities of TNCs that has made the global economy completely interdependent; and 4) the recent awareness about the ineffectiveness of the fragmented nature of environmental laws that are unlikely to provide protection from hazardous activity, which has created an atmosphere of mutual global distrust. These problems must be addressed to create a trusting environment conducive to result-oriented negotiations. To create such an environment, a global institution based on democratic principles and combining both competence and popular representation must be structured.

• GLOBALIZATION OF ENVIRONMENTAL RESPONSIBILITY IN

TRANSNATIONAL BUSINESS ACTIVITY

We need a comprehensive global regulatory regime covering all aspects of transnational corporate activity that not only endorses the practice of equality in principle, but voluntarily follows it in practice. First, the plans need to be designed so that international business activities are compatible with the aspirations of the people of the host countries, as well as the objectives of multinationals. Second, these activities should be carried through without severely impinging the legitimate expectations of any party. Third, the execution of these plans should lead to the achievement of the social ends of economic development without sacrificing the ecological sanctity of our planet in ways that are efficient and consistent with global social justice. Fourth, the scheme of international social cooperation must be stable. Fifth, these rules must be regularly complied with and willingly acted upon. If and when infractions occur, the apex organization should act as a stabilizing force to prevent further violations and to restore the arrangement of safe and ecologically sound business practices.
The following objectives in a new transnational legal regime for multinational corporate activity must be pursued. First, the terms and conditions of such activity must promote the cause of global economic and social justice. Second, there must be global standards of process safety for transnational hazardous and nonhazardous business activity. Third, the activity must satisfy the highest standards of environmental protection. Fourth, the activity must observe the highest standards of human rights. Fifth, dilution of technology to a lesser level while operating in developing countries should be banned, even if the importing nation so desires. Sixth, restrictions against foreign capital investment in developing economies should be set, regulated, and reviewed by an impartial committee consisting of the representatives from both developed and developing countries, but excluding the parties in question so that the solutions agreed upon are free from the psychological biases of interested parties. Last, an international dispute resolution mechanism should be established where preference is accorded to arbitration before appealing the decision to a court of binding jurisdiction.
A comprehensive global approach towards liability prevention can go a long way in establishing healthy trade practices. By establishing such principles, not only will the possibility of environmental disasters be reduced, but also liability for observing different standards in different locations will be effectively avoided. Such a scheme will have to go beyond primary environmental concerns because factors such as recycling, health standards, and employees' rights to know about the hazards associated with particular activities are increasingly being incorporated into national and international standards. However, so long as these standards remain fragmented and scattered, their effectiveness will remain spotty and questionable. The only answer to the quandary lies in the globalization of the issues, concerns, and objectives that fall within the sphere of transnational business activity.

To attain these objectives, we need to structure a treaty that essentially establishes an International Company Law. We can profit by the experience of the European Community. However, we must not fall into the trap that the European Community seems to have fallen into--issuing too many directives and causing an utterly confused state of environmental standards. We need a treaty that provides for a new international organization, similar to the International Civil Aviation Organization, the International Maritime Organisation, or the International Postal Union. The new organization must not only protect the interests of developing countries, but also prevent the bureaucratic mentality from lowering the human rights standards or the pollution standards and risk perceptions simply because the lives of the citizens of developing countries appear to be less significant than their so-called tactical victories in the exercise of liberty. A human is a human and, therefore, must be treated with dignity by both the bureaucratic elite of the developing countries and the TNCs. All this can be achieved by bringing the functions of several United Nations agencies that relate to the activities of TNC’s under one organization. The U.N. Commission on Transnational Corporations can serve as the starting point. Some functions of the U.N. Conference on Trade and Development, especially those relating to the new international economic order, the Code of Conduct for Transnational Corporations, and the ILO standards, need to be brought together and dealt with in a new organization. Such a treaty should create a Board for Multinational Business Activity with both judicial and administrative functions.  All corporations that are involved in transnational business activity must be required to register as TNCs with the Board. The Board, in addition to registering such corporations, should make sure that the technology being transferred is state-of-the-art, safe, and environmentally responsive. There should be one uniform standard for risk perceptions, process safety, environmental health, recycling, packaging, and products liability.  The Board should maintain records of the levels of scientific advancement. Further, all corporations that operate outside the country of their incorporation must convince the Board that the product safety, process safety, and efficiency standards are the same at all of the plants of that corporation regardless of their location, allowing some regard for the older facilities and the time needed to bring them up to the safest standards.
With this approach, a sense of global justice that can be described as fair international law relating to global commerce can be introduced. Extending these norms to cover the behaviour of states vis-a-vis state and corporate entities is not a matter of choice, but a matter of necessity.

Let me conclude by saying that Bhopal and the other accidents should not be treated as grim reminders of destiny and should not be forgotten as still mere episodes of the cost-benefit era. It will be a pity if "we, the people," who like to call ourselves civilized, fail to realize the priceless beauty of our planet that has sustained our lives, and the lives of our ancestors, and the necessity of uplifting the downtrodden from raw poverty. The ideas expressed in the conclusion are, at best, fragments of a paradigm that has become a necessity in an era eclipsed by Malthusian prophecy. Many learned, informed scholars and pragmatists might find a degree of absurdity in the propositions presented in this discourse. My only suggestion is that we think not as individuals, a nation, or an interest group, but as one who looks at the grim realities of the world while searching from within for a solution that can at least mitigate the sufferings of the poor, if not alleviate them altogether. Besides the business of money-making, multinational corporations also need to realize their responsibility toward global social justice. They need to help reduce the inequity between the haves and have nots while respecting the sanctity of the planet earth. Professor  Borgese wrote in 1953 that "the era of humanity has not begun, but the age of nations has ended."  Is it not yet the time to start the era of humanity?

The responsibility of states in controlling TNC’s:

Improving the accountability of transnational corporations for human rights violations may be done through four avenues, which are complementary in theory, but are often presented as alternative routes in political and legal discourse. It may be envisaged, first, to impose on the States a responsibility to control corporate actors. The State in which the corporation is domiciled may control its activities even when these are pursued abroad, either directly or through the setting up of a subsidiary corporation (home State responsibility). The 'receiving' State where the corporation has its activities also may be said to be under an obligation to protect the human rights of its population (host State responsibility). “As part of their obligations to protect people’s resource base for food, States parties should take appropriate steps to ensure that activities of the private business sector and civil society are in conformity with the right to food. The Inter-American system of human rights, composed by the Inter-American Commission of Human Rights and the Inter-American Court of Human Rights, has consistently indicated that international responsibility may arise from acts by third parties, that is, from acts of individuals, groups of individuals, and corporations that are not attributable to the State, due to the failure of governments to fulfil their positive obligations under international human rights law. Of course, it is also settled doctrine of the Inter-American system that positive obligations should not be interpreted in ways that impose impossible or disproportionate burdens on the States. Governments cannot be held responsible for every situation of risk that arises within their jurisdictions as long as they are in full compliance with their due diligence duties. Among the cases that are worth noting for involving social and economic rights is the case of the Yanomami people in Brazil. One of the issues addressed in this case was the serious harm caused by private mining activities to a community of indigenous people, in large part because of the lack of prior and adequate protection for their safety and health. The Commission found that there had been a violation of the right to the preservation of health and to well-being under the American Declaration of the Rights and Duties of Man. Also, the Commission examined the human rights situation in the Oriente region in Ecuador for several years, “in response to claims that oil exploitation activities in the region were contaminating the water, air, and soil, thereby causing the people of the region to become sick and to have a greatly increased risk of serious illness” and particularly address the negative impact of certain “development activities”  ending its report with several recommendations to the government that are consistent with the content of the obligation to protect and ensure described in the preceding paragraphs. The European Court of Human Rights, although naturally less prolific in addressing this issue in connection with socio-economic rights given that these rights are generally absent from the European Convention on Human Rights and Fundamental Freedoms (ECHR), has clearly adopted a similar approach regarding the responsibility of the States for actions of third parties that affect the enjoyment of recognized human rights.

There have also been important precedents within the African system of human rights protection regarding the interpretation of the duty to protect and attributing international responsibility to States for failing to safeguard persons under their jurisdiction from the damaging actions of private actors, such as TNCs. Particularly remarkable is the case against Nigeria regarding its practices on oil extraction in Ogoniland , which, among other rights, concerned violations of several social and economic rights contained in the African Charter on Human and Peoples’ Rights (ACHPR)—namely the rights to health (art. 16),  to economic, social and cultural development (art. 22),  to housing or shelter, and the right to food (the last two understood as implicit in the ACHPR)—perpetrated by both public and private actors. Both the government of Nigeria and Shell Petroleum Development Corporation had been involved in an oil consortium whose operations caused serious environmental degradation and resulted in serious harm to the Ogoni People. The African Commission on Human and Peoples’ Rights stated that “the State is obliged to protect right-holders against other subjects by legislation and provision of effective remedies” . Regarding the content of this duty to protect, the Commission held that it “requires the State to take measures to protect beneficiaries of the protected rights against political, economic and social interferences” and that it “generally entails the creation and maintenance of an atmosphere or framework by an effective interplay of laws and regulations so that individuals will be able to freely realize their rights and freedoms”.

Despite the emergence of the States’ duty to protect as an indirect way to promote compliance with social and economic rights standards by TNCs, some of the most serious challenges that the human rights regime is facing—particularly regarding the implementation of social and economic rights in the current globalized world—may be to find efficient ways to overcome the difficulties posed by its still state-centric territorial base and the resulting problems of jurisdiction. As some scholars have noted, “international human rights law has not yet evolved so as to hold States responsible for the actions of their non-government citizens, including corporate nationals, abroad.” However, developed countries could eventually enter into a multilateral agreement and accept an “oversight responsibility for the failings of parent companies incorporated in their jurisdictions . . .  that contribute to human rights abuses overseas”  and potentially be held accountable before international monitoring bodies.  Given the increasing relevance of the impact of economic globalization on the traditional concept of state responsibility for human rights violations, many respected scholars now favour the expansion of state responsibility “in specific fields, such as with respect to certain acts committed by corporations abroad” imposing the obligation to the home State of “controlling the activities abroad of the corporations which are incorporated under their jurisdiction . . .  without prejudice of the sovereign rights of the territorial host state..”

This position succeeds by acknowledging the uneven influence and impact of TNCs in the North-South context, while still recognizing the importance of developing a notion of state responsibility for the actions of TNCs which imposes duties on the home States, such as regulating the controlling companies in ways that prevent them from escaping the jurisdiction of host States that are usually burdened and conditioned by the need to attract foreign investments. Nevertheless, as the U.N. Special Representative on the issue of human rights and transnational corporations and other business enterprises noted, there is no agreement among experts “on whether international law requires home States to help prevent human rights abuses abroad by corporations based within their territory.”  However, he also pointed out that “there is greater consensus that those States are not prohibited from doing so where a recognized basis of jurisdiction exists, and the actions of the home State meet an overall reasonableness test.” An essential element of this reasonableness evaluation is the assessment of the extent in which the principle of non-intervention in the internal affairs of other States might be threatened. Although from this perspective “the entire human rights regime may be seen to challenge the classical view of non-intervention”  the issue here revolves around “what is considered coercive.”  In fact, the U.N. Special Representative noted that “there is increasing encouragement at the international level, including from the treaty bodies, for home States to take regulatory action to prevent abuse by their companies overseas.

In summary, not only the possibility, but also the desirability of the expansion of the duty to protect of the States to reach the overseas operations of the TNCs based within their territorial jurisdictions seems limited by the need to allow sufficient respect for state sovereignty consistent with the dignity of the individuals residing in the affected countries. It is likely that such a process will take place gradually but inevitably. It is also likely that it has already begun considering that it is currently an item on the international agenda. The question remains: how voluntary or how coercive will it be for each State to assume or to share responsibility for the behaviour of non-state actors that adversely affects the enjoyment of social and economic rights abroad?

Self-regulation of transnational corporations

How credible is this alternative? This depends on the efficacy of codes of conduct, which are the clearest manifestation of such voluntary initiatives adopted by companies in order to improve their reputation and to answer to the calls for corporate social responsibility. Codes of conduct, however, appear in many different forms: they differ by their content, by the monitoring mechanisms they may or may not include, and by the level (the individual company, the sector, the country or group of countries) at which they are drafted and proposed for adoption. International Framework Agreements are concluded between a transnational corporation and a global union in order to protect the fundamental social rights of the employees of the company concerned in all its operations. Such agreements go beyond most codes of conduct by the active implication of unions in the monitoring of the undertakings of the company having signed the agreement.

Direct liability of transnational corporations under international law

Afourth tool for improving the human rights accountability of corporations is by the direct imposition on corporations of obligations under international law. This, indeed, is how most commentators have interpreted the initiative of the UN Sub-Commission for the Promotion and Protection of Human Rights when it adopted its Draft set of Norms on the Human Rights Responsibilities of Transnational Corporations and Other Business Enterprises in August 2003.

1. Nothing should prevent TNCs from being seen as subjects of international law. The mere existence of international norms applying directly to them allows us to regard them as international legal subjects. There are certain international instruments in different areas that grant TNCs a range of rights, impose directly on TNCs international obligations (for instance, not to interfere with the internal affairs of a host country), address to regulate the behavior of TNCs on the international level. Hence, the fact that TNCs have international rights and obligations is evidence that TNCs can be considered as subjects of international law, because international subjectivity stems from the fact of enjoying  rights asserted and protected under international law and having obligations imposed on by legal instruments.

Being a subject of international law TNCs can be directly liable for breach of international law.

After the Second Word War, the criminal law of some countries, mainly from the common law system, came to recognize the concept of corporate criminal liability. So, why not recognize such corporate criminal liability under environmental law?

According to the independent research foundation (Fafo), founded by the Norwegian Confederation of Trade Unions in 1982, there are certain provisions of the criminal codes in a number .of countries: Canada, France, the United Kingdom, the United States, and Norway, - that make it possible for a business entity to be prosecuted for war crimes or crimes against humanity committed outside those countries.

One of the sources of international law is "the general principles of law recognized by civilized nations". If criminal corporate responsibility is recognized within the domestic systems, then it can be recognized on the international level. A starting point for the liability of TNCs under international law is the Universal Declaration of Human Rights (UDHR), where the preamble states that “every organ of society” is bound to abide by its substantive human rights provisions. Furthermore, the existence of such international instruments as ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy(16.11.1977) in International Legal Materials, 1978,15 ;OECD (1997) The OECD Guidelines for Multinational Enterprises mean that they can be useful points of reference for national governments that wish to impose binding domestic duties on TNCs. The most comprehensive proposed outline of human rights duties for TNCs is the "United Nations Norms on Responsibility of Transnational Corporations and Other Business Enterprises with Regard to Human Rights. The current document envisages enforceability of the norms by "national courts or international tribunals, pursuant to national and international law".

Since TNCs can be regarded as subjects of international law in light of existing international positive norms that are directly regulating their behaviour, taking into consideration recent developments that are changing the concept of the international human rights protection by including non-State actors’ responsibility, customary principle that states individual responsibility for violations of jus cogens norms we can conclude that TNCs  have direct responsibility for breaches ofenvironmental law. At this point it is necessary to answer whe all international legal instruments mentioned above are effective tools for comprehensive protection of individuals from illegal activities of TNCs. The answer is not positive. There are several reasons for that but the main one is the absence of obligatory norms of international law. Treaties and other international instruments analyzed above are considered to be so called “soft” law which has no binding effect on its subjects. Nevertheless, the recent developments of international law and efforts of international community to impose on TNCs legal responsibility are regarded to be the first steps to ensure that human rights are not just ideals but also a reality.

Concluding Remarks:

About the Author

Workers Compensation News for 6/28/2005

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The Impact of Privatization of Solid Waste Collection and Transportation in Delhi: The Impact on the informal Recycling Sector

he Impact of Privatization of Solid Waste Collection and Transportation in Delhi: The Impact on the informal Recycling Sector

Background

Since the late 1990s, two important public interest litigations have been filed in the Supreme Court, the highest court in India. Both demand greater accountability from the municipality for cleaner cities. The first, B.L. Vadhera Vs the Union of India, resulted in several court orders, even personal appearances of senior officials in the Court and rules being created for Hospital Waste. The second case, Almitra Patel Vs. The Union of India, has resulted in rules being made for Municipal Solid Waste. The case was also focused on technology as a primary solution for a cleaner country.

Apart from their individual outcomes, both these cases resulted in great pressure on the municipal authorities to perform their tasks in a more efficient manner. The media keenly reported the proceedings and frequently mocked municipal inability to meet the courts’ and public’s exacting standards.

Continuous court pressure and frustrated attempts to clean the city was an important reason for the municipalities in Delhi to seek privatization as an opportunity to respond to the courts. Subhash Chopra, a vocal member of the Delhi Legislative Assembly has stated, “privatization of garbage collection and disposal will be for the city. The MCD has been a total failure on this count.”

Other Roads to Privatization

Another reason was the change in Delhi’s own position as the capital of an increasingly important player in the global economy. The Masterplan 2021 includes many new features that are geared towards international conferences, entertainment etc. The problem of waste handling and a filthy city remained an environmental and visual impediment to the new city. With legislation that encouraged investment in services and several developing countries seeking to privatize waste management, Delhi was encouraged to do so too, as part of its quest to be what is often described as a ‘world class city.”

Another important reason was Commonwealth Games, scheduled to be held in 2009 in Delhi. The leader of the Delhi Parliament described the need, “All these measures would enable Delhi to become a clean and neat city, which is the need of the hour in view of the fact that the Commonwealth Games are due to take place in 2010 and thousands of foreign tourists would be visiting Delhi. There is a need to give a complete facelift to the Municipal Solid Waste Management System in MCD.”

Hence, privatization of waste collection and transportation (hereby referred to as privatization) was not just a policy, but indicated a fundamental loss of confidence in the ability of the municipality to supply the city with essential services. The decision also indicated the perceived new needs of a rapidly changing Capital City.

This paper unpacks the interaction between the informal sector and the private waste contractors and the impact of privatization on the informal sector in Delhi. It uses the unfolding of privatization in Delhi and global experiences to understand the issue and to suggest how waste can be handled in an equitable manner.

Framing Privatization

There have been several ways by which governments across the world have approached privatization of services. The early ideas of privatization began in the late 1970s and 1980s, with governments like that of Margaret Thatcher in the UK and Ronald Reagan in the USA. In this context, privatization came to mean a shift in activities or functions from the state to the private sector as well as the shift of production of goods from the public to the private sector. Governments then began to stop directly producing services, but enacting legislation and the framework for these to be privately produced.

In this case, privatization has been ‘privatization by attrition,’ as the quality of services was seen to be allowed to run down and in need of urgent reinvigoration.

In India, privatization of solid waste handling has two components, from the municipal perspective. The first is related to transportation of the waste and the second to its appropriate disposal, recycling or use in waste to energy projects.

Privatization of waste handling in Delhi is currently limited to the MCD. It has been framed by officials here as a taking over of existing municipal systems for more efficient functioning. Hence, the waste contracts demand efficient collection from the dhalaos, transportation to the landfill and a stage wise segregation of the waste.

A few of the most significant clauses in the contract are as follows:

• Article 5.15 : Sale/distribution of recyclable substances

The concessionaire shall be free to sell or otherwise dispose of recyclable substances and other materials recovered from the Municipal Solid Waste at such price and to such persons and using such marketing and selling arrangements and strategies as it may deem appropriate.

• Article 5.19d : Endeavor to improve the ancillary conditions and infrastructure related to the project, including assistance to the project including assistance to informal recycling workers

• Article 5.19l. Be responsible for all the health, security, environment and safety aspects of the project at all times during the concession period.

• Article 5.19t :Endeavour to employ the informal Municipal Solid Waste collectors within the concession area to carry out the work of collection and segregation of MSW, in accordance with this agreement and applicable law.

• Article 6 : MCD Obligations : Give all assistance to the concessionaire to employ the existing informal Municipal Solid Waste collectors including rag pickers and assist the concessionaire in solving issues arising from the redeployment and employment of such waste collectors by the concessionaire

Therefore, the contract shows that the MCD is aware of the sector.

In the context of this discussion, the following aspects of the contract must be kept in mind:

• The private contractor is paid for the waste collected by weight
• The ownership of the recyclable waste lies with the contracting company
• The private contractors have the right to manage the dhalaos as their own spaces , with rights to advertise on the walls and to fence off the waste dumped there
• Additional spaces to store the segregated dry waste will be allocated to the contractors during the 8 year contract period. The contractor is expected to segregate waste in a graded manner over time

Therefore, despite how it is framed in official discourse, privatization in Delhi is not a direct transfer of a set of services from the government to the private sector.  A new role, in keeping with evolving thinking by technical experts, and the changing nature of the city itself, was created for the private company. Both the collection and disposal services provided by the government and the segregation services by the informal sector, were handed over to the private contractor. Public assets of built land and space were also handed over as part of the contract.

II. Implementing Privatization

In order to implement the process, the IDFC (Infrastructure Development and Finance Corporation), was contracted to manage the process of privatization on a turnkey basis. A global tender was put out and bids sought. There were no detailed discussions or consultations with any other interest groups, except for an initial meeting prior to the writing of the bid. During this meeting, there was intense opposition by NGOs to the privatization on various counts. These included the in-build disincentive for waste generators to segregate, the marginalization of the informal recycling sector and the level of private involvement. The last point was based on whether the contractor should also be involved in collecting waste from the households or not. There was no further discussion.

Finally three companies were selected and their work was scheduled to begin in June 2005.

The most notable amongst the private companies, Delhi Waste Management (DWM), is a consortium of transportation companies and financiers. What sets this company aside is that it was allocated what were perceived by the competing companies and the municipal workers as the most ‘lucrative’ zones. The others were allotted zones that were less developed, or older and therefore, with poorer infrastructure and with less influential residents.

Each contractor was to ensure that the waste in the dhalao (an intermediary transfer point, often like a room )  was segregated, the dhalao and its defined surroundings of 25 feet was clean and the waste was collected and transported at regular hours to the landfill. Each contractor was given a list of existing dhalaos to ease their work.

Prior to this, for over two years, the Delhi Government initiated the Bhagidari (literal meaning : partnership) scheme where middle and high income residential areas were trained to understand the importance of segregation of waste into dry and wet categories. This programme was well publicized and several hundred residents from the more affluent parts of Delhi were invited to attend these trainings. This does not seem to have been implemented, since the waste arrived at the bins in an unsegregated manner, despite a law that made it mandatory for waste generators to segregate. The task of the private company therefore was not impacted by the Bhagidari scheme, underlying the failure of the exercise. This failure also drove home the point that residents were unlikely segregate their waste and an external agency would have to continue to do so for them. Traditionally, the informal recycling sector has always segregated the waste and sold it in the chain for reprocessing.

A survey of the privatized areas undertaken in January 2006, preceded by a discussion with managers of DWM revealed that the company had sub-contracted each area to smaller players, who acted as labour providers. Using this model, each sub-contracted party would provide a fixed number of workers who would be called bin guides. They would be stationed at a dhalao or bin, cleaning the bins, segregating waste and helping load the compactors. Many of them would also live in the bins overnight, as they were unable to find inexpensive housing neaby. Few of them were waste pickers, but several were simply paid daily wagers. On an average, they were paid appx. 1/3rd of the minimum daily wages, or Rs. 1000 and had no social security. However the workers had informal access to dry waste, which was sold to a junk dealer and significantly supplemented the income.

This model was only viable in high income areas where there was adequate recyclable waste discarded. In lower income areas, the worker was forced to live off the payments and often, undertake responsibility for a cluster of bins, in order to optimize his earnings. This resulted in lower quality of work and poorer work conditions. It was also difficult to implement this in areas where large amounts of organic waste were produced. In South Delhi’s Dakshin Puri area, the waste from processing fruit and vegetables was so enormous that the workers were forced to stay out of the dhalaos  and work from a distance.

According to several media reports, the performance of DWM in handling waste has been poor, based on the quality of visual cleanliness. Other companies have received less flack and none of it is reported as yet in the media.

The NDMC is also now preparing to privatize the waste handling, on the same lines as the MCD.

Initial cost comparisons are known only informally and via discussions with the private operators. According to a former official of DWM,  the cost per truck to the company was only $ 40, which is significantly less than that of the MCD’s $. 140 or the NDMC’s $ 180 per truck. Greater efficiency and stricter monitoring is likely to be one cause for this significant drop, as are, possibly, different approaches to calculating the cost, which may hide some costs. A recent World Bank reportsuggests that this difference is an India wide phenomenon, and that the difference can be in the range of 20-40%. Comparing the costs of waste collection and transportation in 10 towns in the southern Indian state of Karnataka, the report shows the trend of cost reduction across the board. However, the Bank suggests that “One of the reasons for the relatively lower costs incurred by the contractor is quoted as differential wages, particularly when private contractors tend to pay lower than minimum wages to their sanitary workers.” The government, on the other hand, cannot indulge in such practices and therefore would incur much higher costs for the same labour performed by the same number of workers. It also pays social security to many of them.

Comparing these findings, it is likely that the privatization process is economically viable only at the cost of underpaying the workers.

III. The Impact on the Informal Sector Waste Recyclers

According to the former Municipal Commissioner of Delhi, Rakesh Mehta, the design of the privatization system was intentionally different from that of other cities in that the contract did not start at the doorstep of the generator. Instead, this space was left open for informal players, so that they could access the waste that they wanted. Another reason was also that this was likely to prove too complex for the private contractors themselves.

Despite this, a study of the contract signed with the private contractor reveals that the work of the informal sector, as it is being actually performed, has not been taken into account. Although their role has been acknowledged by various government bodies for well over a decade prior to privatization, it finally excludes them. This is likely to be for three reasons. Firstly, that the sector has not been well appreciated in the past to merit adequate inclusion. It is not on the radar of government bodies. Second, the working of the sector is poorly understood by those involved in designing the process and its inclusion is therefore unlikely to have a good fit, should it be undertaken. Thirdly, the vision of a city with an efficient system of privatized waste does not include wastepickers or other informal sector recyclers, since they are in contradiction to the idea of the modern and the ordered. A former Chairperson of the NDMC expressed the imagined city succinctly when he remarked, “I want our streets to look like Singapore.”

The following sections analyze the impact of privatization on the various levels of the informal sector.

Wastepickers

Many of the workers are not wastepickers, but other informal sector workers or wage labourers. This indicates a gradual displacement of the wastepickers from their work. It also indicates an artificially increasing competition for a limited resource. By itself, this fall out is clearly an undesirable one.

But there are several other ways by which the means of privatization is breaking down the waste picking system.

A recent survey showed that in such sites where a wastepicker was on duty, it was often to the exclusion of all other wastepickers. Usually, most wastepickers move from bin to bin at peak hours along a fixed territorial route which is shared by other wastepickers. Alternatively, a few wastepickers take over dhalaos, from where they mine the waste as it is thrown in. This is then their monopoly. Wastepickers find several ways to both collaborate and compete through unwritten codes of conduct and community and peer pressure. As a result, a complex and evolving system of resource sharing comes into play, resulting in one of the highest rates of recycling in the world. This informal system therefore plays out not as the tragedy of the commons but remarkably, the opposite of it.

By breaking the existing system and replacing it with ‘bin guides,’ waste is no longer able to be shared amongst a vast community of the poor. It is instead monopolized via an individual. Moreover, by hiring persons who are inherently entrepreneurial, the incentive to seek out waste to segregate and sell is killed, as a new debilitating dependency is fostered. Many such people are stuck, because refusing an underpaying job may result in job loss or a lost opportunity to leverage better terms of work.

The poor typically harness their social capital to get through difficult times. Systems such as the one described above are likely to break up this social capital because they rupture the basis on acting like a community and instead, seek to create a new ‘professional’ individual outside this system. This considerably weakens the individual and the community, which is seen to provide valuable services where the state/government fails or is unable to.

The model above is indicative of the many problems with this form of privatization. The system of contracting to the lowest bidder has a ripple effect at the dhalao level, where underpayment to workers becomes the only economically viable form of functioning. Sub-contracting places priorities on cleanliness, but does not lay safety standards for workers. Moreover, it continues to operate along the same degraded quality of work, involving standing in waste, and exposes the worker to the same hazards as previously.

In some areas, a quid pro quo system appears to have been established. A site visit to a small dhalao in Delhi’s elite Gulmohar Park Area suggested that in smaller and more discreetly located bins, a wastepicker may access the waste in return for helping with loading the compactors. In other parts of Delhi, municipal workers were seen at the bin sites supervising wastepickers who were loading waste into receptacles installed for the purpose. A discussion with the workers indicated that their role was both unclear at that point as well as in transition. In the meantime, they were still responsible for overseeing the waste handling by the private operator. Given that on site cleanliness was linked with efficient supervision, the officials continue to use existing linkages of coercion to carry out the task at hand.

The ownership of space-the dhalaos and bins-has also negatively impacted wastepickers. Earlier, they would segregate their waste in these dhalaos, as the only available space to undertake such work. Now, DWM  does not allow this and has therefore taken away the only ‘work space’ available to such persons. The decision to take away public spaces and make such assets available exclusively to a single private player therefore disincentivizes recycling.

A newer trend is that of DWM beginning to make rightful claims on the recyclable waste. A clash between the black letter legal owners and the customary legal owners is inevitable. Recent documentation shows that the contractors usually intimidate, abuse, harass and even beat wastepickers who attempt to ‘break into’ a newly privatized space to carry out their work. In a more recent series of events, wastepickers who were simultaneously engaged in collecting waste from the doorstep to access the recyclables also found themselves disallowed from entering bins for segregation and even disposal of waste that is depleted of it recyclables.

It would therefore seem that by not explicitly defining the rights and role of the wastepickers, and by not clearly identifying them as legitimate players in the process of waste management, they are perceived as a category without rights.

Junk Dealers

In the recycling hierarchy, junk dealers buy waste from the waste picker and itinerant buyers, further segregate it and sell it ahead to specialized dealers or directly to reprocessing factories. In this, they are dependant on the materials flow from the wastepickers.

The previous section showed that privatization, as it is unfolding in Delhi, has begun to fracture the wastepickers’ work and access to recyclables. This clearly impacts the junk dealers as well. According to DWM officials, their own short term plan is to sell the waste directly to the reprocessing factories. In the medium term, they hope to recycle it themselves.

Unless they begin to expand and compete for other, alternative sources of waste, junk dealers are likely to be badly hit by privatization, as they cannot even be hired, unlike some of the wastepickers.

Reprocessors

Reprocessors are unlikely to be impacted by privatization significantly, as they will receive most of  the waste they require. Even recycling operations will not absorb the entire amount generated. Much of it is likely to be in an aggregated form, from a single source, thereby making it only marginally harder for them to negotiate prices. Within this group, the smaller,  semi-legal or ‘illegal’ factories may face greater uncertainty about supplies and the sector will require to upgrade itself.

It is clear that the current form of privatization is fracturing the informal recycling sector. Waste, which was till now a public good, handled by the government as part of its public duty, has been transferred to the private sector. There has been no public discussion about giving off public assets in this case.  Moreover, along with this, the dhalaos, which were similar to common public spaces in that they were manned on behalf of the public by government agencies, have been privatized and the waste contained therein fenced off. The ramifications of this have been described in this section  already, but further include:

• An lowering of incentives to pick out the lowest grade recyclables. Once ownership is removed, wastepickers as employee will no longer feel compelled to mine the waste of its least lucrative recyclables. This will result in more residual recyclables reaching the landfill and an increase, not decrease in the space required for landfills in a city. The cost of new landfills is mounting, with an estimate budgetary requirement of $ 2 billion in the next 10 years.
• An associated concern with reduced recycling rates is the problem of sustainable use of resources.
• Currently, wastepickers are estimated to pick up between 15% to 59% of the total waste generated in Delhi. This waste is segregated into several categories along the chain, before it is accepted by any reprocessor. The schedule set for the private operator, on the other hand, demands 20% segregation only in the 8th year of operation. Prior to that, and even during this period, the operator is paid by the weight that is delivered at the landfill. This creates a disincentive to segregated. Seen in the light of Article 5.15, giving the operator rights over the recyclables, the contract ‘creates competing interests between the private operator and the wastepicker.’

Table 1 : Segregation Requirements from Private Operators

Year of operation Months from COD Segregation benchmark Applicable penalty

for corresponding month for corresponding month

(in % terms) (in % terms)

Year 1                     1-12                                    0                                         -

Year 2                     13-24                                  5                                       15%

Year 3                     26-36                                  10                                     15%

Year 4                     37-48                                  12                                     15%

Year 5                     49-60                                  15                                     15%

Year 7                     60-72                                  18                                     15%

Year 6                     73-84                                  20                                     15%

Year 8 onwards      85 onwards                         20                                     15%

Source : Contract signed between the MCD and Private Operator, 2005

• Waste recyclers, particularly at the lower levels of the chain, are characteristically poorly educated, earning less than 2 dollars a day, and self employed. Recycling is one of the few occupations open to them, where they provide themselves with employment and contribute essential services to the city. They typically do not have the access to resources that allow them upward mobility, and are particularly vulnerable. A system that does not take them into consideration is likely to increase urban poverty and place greater stress on the recyclers. The impacts of this can be felt by the entire family; Reduced parental income amongst the poor require children to contribute to the family income, differential priorities for children’s education come into play, increase the pressure of work on women, reduce available nutrition, reduced expenses for medical care and differentiated access within the family to health care, the breaking up of social capital and the consequences of that. This in turn violates the objectives of the Millennium Development Goals, to which India is also committed
• Waste, which is a mixture of discards, is no longer able to lend itself to a developmental, social role but becomes a purely commercial object

IV. The Global Experience

It is useful to examine comparable global experience and to determine to what extent the experiences have been similar. In general, the three regions about which the most information is available are Africa, East Asia and Latin America.

In Central Africa, unlike in Egypt and South Africa, there are little informal waste recycling activities. This is because of the low level of industrialization, particularly of the recycling sector. Where factories exist, they are able to reprocess the waste of several countries, leaving little scope and viability for other units.

However, in Egypt, privatization has resulted in a loss of livelihoods for the Zabaleen, or the traditional waste handlers. Estimates are that in 1997, the Zabaleen handled one third of Cairo’s waste, which was almost 3000 tons. Of this, 85% was recycled directly through the Zabaleen’s self-owned and operated micro-enterprises that were constantly upgraded.Despite this, officials did not wish to include them in their privatization plans as their work was considered unhygienic and the new private investors seemed to be a better prospect for Cairo.

When privatization began here in the early years of 2000, it included waste collection from the doorsteps. The Zabaleen were additionally impacted as many of them earned by pelletizing plastics.  Loss of access to waste plastics resulted in an additional loss of income.

Some estimates put the number of job losses at 75,000. After a period of being displaced, and an international campaign, the Zabaleen were able to regain some lost ground by being involved in the waste collection. Researchers have concluded that their inclusion was related to the fact that implementing the contract became impossible without the help of the Zabaleen and their skill sets. Moreover, in Egypt, the privatization companies used mechanical means to collect waste, which was unviable in the old city with narrow roads. It was here that the Zabaleen with donkey carts were able to help the companies to fulfill their legal obligations.

Currently, several, but not all the Zabaleen have been able to regain their former work, but they claim to earn less than they used to. Additionally, local NGOs say that while they were organized, after prolonged negotiation, to work on a more equal footing with the traditional middlemen, Wahiya previously, they have now been re-hired as workers under the same middlemen. The picture is unclear, as others assert that they are now free of the Wahiya, who, ironically, paid them more than the private companies currently do. Private contractors now claim , “ It is our strategy to employ the local Zabaleen. We want to avoid conflict and this satisfies the social component of our contract.”  On their part, the Zableen have constantly emphasized that their earnings are not based on payment as much as access to the recyclables. The companies have therefore turned a blind eye to the fact that the Zabaleen now additionally take the waste and are not characteristic employees.

In Tanzania’s Dar-es-Salaam, the impulse to privatize was driven by the poor impression of that country. The privatization of waste was undertaken in collaboration with UN HABITAT and was deemed a resounding success, because of the noticeable cleanliness. The scale of privatization was unique. Rather than foreign companies, it was the local community based organizations and small local businesses that were facilitated to provide waste collection services from households. The savings by the municipal bodies was used for road construction and maintenance.

We do not have any known information about the informal sector operations here prior to this. Based on the available information, this kind of privatization is noteworthy because it built upon existing structures. After this phase, as larger players entered the scene, the scenario may have been altered. In sharp contrast, in Kenya, an Italian company, Jacorossi International, was invited to take over waste management amidst wide spread protests.

In Accra, Ghana, researchers point out that privatization has achieved nothing that a revitalized private sector could not have done, had it complied by the country’s laws and enforced existing regulation. Instead, the authors point out, the privatization effort is “structured to benefit private interests by excluding the public.”

In Columbia, local initiatives have borne results. The results of organized waste recyclers are already visible. Across the country, 10,000 wastepicker families have formed 118 cooperatives that are allowing them to bring in over 300,000 tons of recycled materials into the market. The strength of the groups lie in their ability to federate under the National Association of Recyclers, which helps them to enhance their business activities through capacity building and credit. They also offer waste handling services to various institutions. Although privatization has been challenging for the sector, they have been able to negotiate for niche work, such as fees based service provision. More recently, in 2003, under Decree 1713, part 1505, wastepickers have been included and their rights to participate in solid waste management plans , at the development and follow up stages, has been made formal. n Argentina, a Zero Waste Decree makes it mandatory for private waste handlers to provide facilities for the informal sector to segregate and store recyclable waste. In this case, the wastepicking sector has consciously not pushed for a strict implementation of the rule, since many of them see themselves in the work only temporarily, due to economic hardships.

A common experience in several countries has been that of formal sector workers organizing against privatization, for fear of job losses. From Singapore to Pakistan, reports show that agitating workers are able to negotiate with the government to retain their employment, often even scaring them to delay privatization. In Singapore, one of the suggested ways to handle the fallout was to set up a fund for displaced workers. In Pakistan, workers were forced to take to the streets. From this, it becomes clear that formal sector workers, already in the formal realm, are able to organize themselves to protest more effectively. It is therefore critical that the informal sector also be organized.

Based on these experiences, it is clear that:

• Waste recyclers must be organized if they are to negotiate in the event of privatization
• The access to waste is a critical part of any waste recyclers work. Being employed is more a means than a desired end
• Where the informal sector activity is already very low, the impact of privatization will not be easy to discern

V. Conclusions and Recommendations

The analysis in the preceding sections makes it clear that it is economically and socially desirable to include the informal recycling sector in any waste management initiative. The errors, experiences and the studies detailed previously throw light on the possible ways by which this can be done.

This author believes that privatization of waste is inevitable in the developing world, because of the overriding trust that policymakers and multilateral donors globally have in this path. As cities become more global and require competing for visibility, funds, investments, expertise and drawing in economic prosperity, many more city planners and policy makers will be under pressure to take this path of seemingly, the least resistance. Much of the citizenry and the media sees privatization as a good step and has created a demand for this market driven form of services.

In several cases, privatization has come to mean the right to exclude others. Proponents of this argue that if this is not the case, the tragedy of the commons will kick in. We have seen that that the contrary holds true in the case of Delhi. The fencing-off of common resources and transferring of public property into private hands is indicative of poor policy making. The informal waste recycling sector is also a private player, offering important environmental services to the city. It is therefore important to see its work as already operating in the private sector and therefore, follow similar policies to promote it.

Against this backdrop, privatization needs to be reconsidered in fundamental ways. It should not be seen as a solution to a dirty city, or a formula held exclusively in the private sector. Rather, it must be viewed as one of many possible solutions to specific aspects of the waste management cycle. One of the important aspects is developing disposal facilities, a section not discussed in this paper, but one that requires large investments and technical know-how.

Nor should privatization be privileged over other indigenous forms of waste handling, whether they be waste recycling through the informal sector or community based innovations. Instead, it should be clearly accepted that complete corporatized privatization will result in more asymmetrical outcomes. It should be clear that the informal recycling sector is also providing private services to the city and should be viewed as such.

A central shift in understanding must inform policy on privatization. Currently, waste management companies involved in privatization are typically accountable in highly quantitative terms, such as the amount of waste collected, the response time to complaints and the fleet efficiency. However, in a developing country, in whose cities almost 1% of the population is dependant on waste recycling for a living, this must be dovetailed into all practices. As previously explained, the sector is based on a complex system of cooperation and competition, which is still not entirely understood and which itself seems to be constantly evolving. Therefore, instead of trying to de-construct this sector, it is more practical to follow guidelines that are likely to encourage it to develop and incentivize its participation in the process, instead of alienating it.

Clearly, then, the social efficiency of privatization must be considered too. Not doing this fractures the social fabric, particularly amongst the poor and the most vulnerable, leading to irreparable losses of social capital and of their increased vulnerability, and in theory at least, increasing the burden on the government. This is the single most important lesson learnt from the Indian and International experiences of privatization of waste services.

Some recommendations that flow from this conclusion are described below :

• The central site of conflict is the ownership of recyclable, or dry waste. In both the Indian cases as well as the international case of Egypt, it is clear that access to waste, not payment for working at site, remains central to the wastepickers. Hence, any contract must necessarily include a clause specifying that right over recyclable waste belongs to the wastepickers first. Access to waste for wastepickers is the backbone of any policy made for waste in India
• Global experiences show that privatization must not begin even at the dhalao level, and must be restricted to transportation. Bids should be for the transportation and dumping sector, and not prior to that. A lesson should be drawn from the decision of the MCD not to enter the household level for privatization. This is an example to follow.
• Some wastepickers work at the landfills. Although this is unsafe work, privatization should include their rights over waste that reaches here. In the medium term, the wastepickers and their organizations should examine other, safer ways to earn through recycling activities
• Any plan for solid waste management in India must necessarily be informed by an understanding and an appreciation of the informal recycling sector. This implies designing systems that can strengthen an existing system and ride on it. In this case,  the bid should have included a section on including the sector and allow the bidders to suggest how they would want to do this, after helping them to understand the issue. Understanding the sector must be made a part of the bidding process, just as several other aspects are explained and clarified. It is critical not to leave the bidders without this understanding on their own
• The informal sector must be treated as a tightly knitted chain, and one that must not be fragmented, if the city is to reap the benefits it offers. Hence, the chain should not be tampered with or be modified to become ‘modern’ except where consensual use of newer technologies or new design can be offered, though not imposed. The case of Egypt, where plastic is recycled by the Zabaleen, is a case in point.
• In order to be able to participate gainfully in a shifting city, waste recyclers must organize themselves as a tangible, legal entity that can enter into contracts and negotiations on behalf of its members. It is often difficult for policymakers to find ways of including a sector that exists through individual or family enterprise, but without any defined collective organization and indeed, it is beyond the imagination of defined structures to work with these
• Taking a cue from the policies in place in Columbia, such recyclers’ organizations should be recognized and be privileged through the cycle of waste handling. Studies have shown that allowing the sector to work legitimately significantly impacts their poverty levels and improve their work conditions.
• One commonly observed trend in community level waste management is that of local resources, such as volunteer time, subsiding the lives of waste recyclers and detailed networks, creating innovative kinds of social security for workers in the urban context. Instead of overriding those, privatization should let them be and not attempt to meddle with them for homogeneity. A study of Churchill County, in the United States, calculated that privatization of waste handling could result in 279 less jobs, reduction in county household income by $36.171 million, 14,735 hours of voluntary time, and $ 85,233 in charitable donations. These unaccounted for costs are only in the developed world. They are likely to even higher in the developing world and should be left undisturbed
• The MDGs (Millennium Development Goals) should be mainstreamed into waste handling, because of the opportunity this provides in tackling poverty through micro enterprises, individual enterprise and demonstrated low capital and running costs.

If there is to be privatization of solid waste management services, it must be designed to be equitable for everyone. It can offer answers for urban poverty and the increasing urban environmental problems we face. If urban policy makers are to use this for the optimal benefit of a city, then privatization should be seen  as a means of enabling the urban poor, not disempowering them. This requires a paradigm shift and visionary leadership, but there are rudimentary examples to build up from.

References

Jha, Ajay. Removal, Disposal of Waste Must be Privatized . Gulf News. November 26 1999

Jha, Lalit, K. Govt.-MCD tiff leads to garbage problem. The Hindu. Oct 7, 2004

Starr, Paul. “The Meaning of Privatization.” Yale Law and Policy Review. 1988

Contract between MCD and Private Operator, signed in 2005. Original copy denied, current copy informally obtained

The survey was undertaken by the author of this paper, as part of an exploratory research survey of the post privatization scenario for a film

Chintan Environmental Research and Action Group. Unpublished Survey. Delhi.  2006

The pronoun ‘he’ has been used because there were no women seen in this scheme

Hindustan Times. August 27, 2006

Personal discussions with Mr. Satyavir Chauhan, DWM. June 2006.Delhi

The World Bank. Improving Management of Municipal Solid Waste in India : Overview and Challenges. May 2006

Bhargava, Vishal and Chaturvedi, Bharati, film, 60 kilos. Delhi February 2006

Personal Discussion with B.P. Misra, Chairperson, NDMC. May 2001. Delhi.

Chintan Environmental Research and Action Group. Unpublished Survey.  2006 Delhi.

Ghosh et al. A Partnership for a Decarbonized Energy Future. World Affairs : The Journal of International Issues. Volume Ten, Number One, Spring 2006.

The survey was undertaken by the author of this paper, as part of an exploratory research survey of the post privatization scenario for a film

Bhargava, Vishal and Chaturvedi, Bharati, film, 60 kilos. Delhi February 2006s

Email from S.A. Rizwee et al, Chintan Environmental Research and Action Group. December 2006

Personal discussions with Mr. Satyavir Chauhan, DWM. June 2006.Delhi

Fahmi, Wael Sala. “ The Impact of privatization of solid waste management on the Zabaleen garbage collectors of Cairo.” Environment and Urbanization. Vol 17. No. 2. October 2005

Iskander, Laila. Presentation at ASMARE Conference, Belo Horizonte. August 2006

Wael Sala. “ The Impact of privatization of solid waste management on the Zabaleen garbage collectors of Cairo.” Environment and Urbanization. Vol 17. No. 2. October 2005

Iskander, Laila. Presentation at 5th Festival of Lixo and Cidadania. Belo Horizonte. August 23, 2006

Pan African News Agency (PANA). UN-HABITAT Policies work miracles for Dar es Salaam June 23. 2004

Demanya, B.K. Remapping Garbage : The privatization of waste management in Accra, Ghana. MA Dissertation, Queen’s University, 2001. Canada

Medina, Martin. Supporting Scavenger co-ops. Biocycle. Vol 38, Issue 6. June 1997

Padilla, Nohora and Grisalez, Ruiz Silvio, National Association of Recyclers. Presentation at 5th Festival of Lixo and Cidadania. Belo Horizonte. August 23, 2006

Yap, Sonny. Set up a venture fund for displaced workers The Straight Times. August 25, 2001. Singapore

The Pakistan Newswire. Sanitary workers kick off protest against privatization. February 16, 2006.  Karachi

Rose, Carol. The Comedy of the Commons : Custom, Commerce and Inherently Public Property. The University of Chicago Law Review. Volume 53. Issue 3. Summer 1986

Medina, Martin. Presentation at CWG International Conference on MDGs and Waste. Calcutta. 2006

Burkley, et al. Impacts of Privatization : Use of Multimodal Survey. Social Science Journal. Volume 43, Issue 4. October 2006

About the Author

Research Associate
Madras School of Economics
Chennai

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A union thug in charge of labor, a radical lesbian in charge of employment. Does this sound like Chicago?

This is your Federal government.

It sounds like organized crime to me! Yeah Chicago comes to mind, in my opinion

Rep. Herseth Sandlin speaks in favor of her legislation to improve the employment protections of veterans who work for the federal government

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Gross v. FBL Financial: Requiring “But-For” Causation in All Age Discrimination Cases

In a 5-4 decision, the U.S. Supreme Court determined that the burden-shifting standard applicable to “mixed-motive” discrimination cases brought under Title VII specifically does not apply to age discrimination cases brought under the ADEA, pursuant to the plain statutory language of the ADEA. In Gross v. FBL Financial Services, Inc., ___ U.S. ___, 129 S.Ct. 2343 (2009), a plaintiff asserting a disparate treatment claim under the ADEA must prove that age was the “but-for” cause of an adverse employment decision, not merely one “motivating factor.” The decision finds that while mixed-motive cases are permitted under Title VII, they are not permitted under the ADEA.

In 2003, FBL Financial Group reassigned long-term employee Jack Gross, then 54 years old, from his position as claims administration director to claims project coordinator. FBL also transferred many of Gross’ duties to a slightly younger female employee who once reported to Gross and who was assigned the newly created position of claims administrative manager. Gross and the female employee received the same compensation – the same compensation Gross had received before the transition—but Gross considered the new position and reallocation and reduction of his duties a demotion.

In 2004, Gross filed suit in the Southern District of Iowa, alleging that his reassignment was based, at least in part, on his age in violation of the Federal Age Discrimination in Employment Act (“ADEA”). Gross presented evidence that FBL’s actions were based at least in part on his age. FBL claimed that it reassigned Gross as part of a corporate restructuring and that Gross’ new position was better suited to his skills.

The district court judge gave the jury a “mixed-motives” instruction, telling the jury that it must find in favor of Gross if he proved, by a preponderance of the evidence, that FBL had demoted him and that his age “was a motivating factor” for doing so. The trial court further instructed that age was a “motivating factor” if it “played a part or a role in FBL’s decision to demote” Gross. The judge instructed the jury that it should find in favor of FBL if FBL proved by a preponderance of the evidence that it “would have demoted Gross regardless of his age.” The jury returned a verdict in favor of gross for about $47,000. FBL appealed.

On appeal, the Eighth Circuit reversed and remanded, stating that the jury had been incorrectly instructed under the burden-shifting standard established in Justice O’Connor’s concurring opinion in Price Waterhouse v. Hopkins, 490 U.S. 228, 276 (1989), a Title VII discrimination case. Under the Eighth Circuit’s interpretation of Price Waterhouse, a plaintiff must first use direct evidence to establish a prima facie case of discrimination, creating a rebuttable presumption of discrimination. The burden then shifts to the employers to demonstrate that it would have taken the same action regardless of any impermissible considerations of age or the like, which then voids the presumption of discrimination. The question then becomes one of whether unlawful discrimination occurred.

Gross conceded that he had not presented direct evidence of discrimination – evidence showing a specific link between the allegedly illegal motive and the adverse employment action. As a result, the Eighth Circuit determined that a mixed-motive instruction was not warranted at all and the entire burden of persuasion should have remained with the plaintiff at all times. The Circuit Court ruled that the trial court should have instructed the jury only to determine whether Gross proved that “age was the determining factor in FBL’s employment action.”

The Supreme Court granted certiorari to decide the issue of whether a plaintiff must present direct evidence of discrimination to obtain a mixed-motive/ burden-shifting instruction in a non-Title VII discrimination case. Indeed, as Price Waterhouse itself was a splintered decision on the Court, and only Justice O’Connor’s concurrence, joined by Justice White, required a presentation of direct evidence to effectuate the burden shift.

The Title VII mixed-motive standard does not apply to ADEA claims

Although the Supreme Court granted certiorari on – and the parties briefed and argued – the “direct evidence” issue, that is not ultimately the question answered by the Court. Instead, the Court decided that it first had to determine “whether the burden of persuasion ever shifts to the party defending an alleged mixed-motives discrimination claim under the ADEA” if the employee does produce direct evidence of an improper motive.” Gross v. FBL Financial Services, Inc., ___ U.S. ___, 129 S.Ct. 2343, 2348 (2009) The Court held that it does not.

The Court first addressed whether Price Waterhouse and the Title VII mixed-motive standard applies to ADEA cases, since the statutes are worded differently. Title VII was amended in 1991 to enable “mixed-motive” claims – enabling an employee to win by showing that an improper consideration was “a motivating factor,” even if it was not the sole motivating factor. In such mixed-motive cases, once a plaintiff proves that membership in a protected class played a motivating factor in an adverse employment action, the burden shifts to the employer to prove that it would have made the same decision even if it had not taken that factor into account.

Since Price Waterhouse, the Eighth Circuit, like numerous other courts, had extended the Title VII mixed-motive burden-shifting analysis of Justice O’Connor’s concurrence to ADEA cases. See, e.g., Gross v. FBL Financial Services Inc., 526 F.3d 356, 359 (8th Cir. 2008) (citing Erickson v. Farmland Indus. Inc., 271 F.3d 718, 724 (8th Cir. 2001)).

However, the Supreme Court pointed out that Congress did not extend the mixed motive language to the ADEA, which states that it is unlawful for an employer to discriminate against an employee “because of such individual’s age.” 29 U.S.C. section 623(a). The Supreme Court found it significant that while Congress amended Title VII to allow mixed-motive claims, it did not similarly amend the ADEA when given the opportunity. 129 S.Ct. at 2345.

The Court held that the words “because of such individual’s age” mean that age must be the reason that the employer took the action in question.  As a result the Court found that “a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action,” not merely a “motivating factor.” 129 S.Ct. at 2352. Accordingly, there is no burden-shifting in ADEA cases; the employee retains the burden of persuasion throughout. An employer need not show that it would have made the same decision regardless of age, even if the employee produces direct or circumstantial evidence that age may have been a contributing factor in the adverse action. Id.

The Court never had to answer the question that was actually briefed and argued because a Title VII mixed-motive jury instruction is never appropriate in ADEA cases. The Court vacated the Eighth Circuit’s decision and remanded the case for further proceedings.

Justice Stevens authored a dissent, joined by Justices Souter, Ginsburg, and Breyer, stating that he disagreed “not only with the Court’s interpretation of the (ADEA), but also with its decision to engage in unnecessary lawmaking. I would simply answer the question presented by the certiorari petition and hold that a plaintiff need not present direct evidence of age discrimination to obtain a mixed-motives instruction” Id. at 2353. The dissent argued that Price Waterhouse is controlling and it was inappropriate for the Court to “adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII.” Id. The dissent also disagreed that Congress’ decision to amend Title VII and not the ADEA was indicative of any specific intent by Congress to preclude mixed-motive cases under the ADEA, and in fact finds “some evidence” that Congress intended for the 1991 amendment to apply to ADEA claims as well as Title VII claims. Id. at 2356

CONCLUSION

The Gross opinion clearly eliminates a plaintiff’s ability to bring a mixed-motive claim under the ADEA. The decision makes it equally clear that the amended statutory language makes mixed-motive cases viable under Title VII, though it is still unclear as to under what circumstances a plaintiff is entitled to a mixed-motive instruction, as the Supreme Court did not reach that issue in Gross as expected. It is equally unclear as to what standard a court should apply – and how it should instruct the jury – in cases where both ADEA and Title VII claims are involved.

Plaintiffs seeking to bring age discrimination lawsuits that may be based on mixed-motive claims should look to applicable state court statutes, which likely have a less stringent standard that the ADEA.

The impact of Gross is widely predicted to be short-lived, however, as many practitioners theorize that Congress will soon respond to this ruling and pass a bill amending the ADEA to allow mixed-motive cases under that statute. Such an amendment would make this ruling moot. However, the majority opinion in Gross expresses overall skepticism about the burden-shifting of Title VII mixed-motive cases, stating that “(w)hatever the deficiencies of Price Waterhouse in retrospect, it has become evident in the years since that case was decided that its burden-shifting framework is difficult to apply.” 129 S.Ct. at 2352. Such a comment might indicate that the Supreme Court would also do away with Title VII mixed motive analysis if given the opportunity.

One lasting impact of the Gross decision, however, is its indication of the sharp divide on the Court. If Judge Sotomayor is confirmed as the next Justice, replacing Justice Souter, this divide is unlikely to change, as Souter sided with the dissent. Should another Justice retire during President Obama’s term, however, the appointment of another Justice may shift the Court’s balance of power in employment cases.

About the Author

Mr. Gray is a partner of Zuber & Taillieu LLP, where he specializes in employment law. He earned a J.D. from Loyola Law School, where he graduated second in his class, and was Chief Note and Comment Editor of the Law Review.

Connecticut Personal Injury Attorneys and Real Estate Lawyers in CT - WWB, PC

What can Massage Therapy Schools and Colleges offer you?

It has become well known that a career in massage therapy can be very rewarding, and with over 80 types of massage therapy techniques and careers available there may be one that is of interest to you. With the many options of massage therapy specialties like chair massage, infant massage, medical massage, sports massage, and more, opportunities for a career in this trendy field are abundant.

In recent years massage therapy has become widely recognized as a certified profession, and it is often recommended by medical professionals for a range of medical problems. There are a number of professionals including chiropractors, reflexologists, and holistic nurses that choose to obtain certification in massage to enhance the care they provide to clients. It is because of this recent recognition that there has been an increased interest and demand for massage therapists.

With over 80 different types of massage therapy more people are now using therapeutic massage as part of their healthcare regime. Massage techniques include, but are not limited to Aromatherapy, Hot Stone Massage, Prenatal Massage, Reflexology, Shiatsu, and Swedish massage. Massage therapy programs offer a wide variety of techniques that can be utilized in private practices, clinics, rehab centers, salons, spas, and health clubs, to name a few.

Certification for massage therapy has been implemented in order to verify that high standards of ethical and professional practices are maintained by all therapists. There are currently 37 states in the U.S. that regulate the use of massage therapy, and 32 of these states utilize the National Certification Board for Therapeutic Massage and Bodywork (NCBTMB) exams. A written exam and a practical exam must be taken in order to determine whether or not the therapist understands the principles of massage therapy and bodywork as well as be able to demonstrate their skills.

In order to become a massage therapist it is important that you receive the proper training, knowledge, and experience needed in order to demonstrate the skills you have learned and possess. The best way to obtain useful and accurate skills and knowledge is to make sure you enroll in an accredited massage therapy college. Fully accredited programs will provide you with the best education possible, and can prepare you for a career that will be highly respected.

Course length and areas of study will depend on the specific massage therapy techniques each individual student would like to pursue, and the training offered by the educational facility chosen. With so many options to choose from one should make sure that they fully understand all aspects of becoming a certified massage therapist, and research specific areas of interest before committing to obtaining an education in this field.

As employment opportunities are on the rise, there are various schools and colleges that can assist you in finding massage therapy jobs all over the United States. Research in 2002 shows that by the year 2012 the massage therapy industry will be growing faster than any other industry, and recent statements by the NCBTMB claim that there has been a 25% rise since 1996. Almost 48 million American’s received professional massages in 2005, and this number has risen by 2 million ever since.

DISCLAIMER: Above is a GENERIC OUTLINE and may or may not depict precise methods, courses and/or focuses related to ANY ONE specific school(s) that may or may not be advertised on HolisticJunction.com.

Copyright 2009 - All rights reserved by HolisticJunction.com.

Notice to Publishers: You may use this article on Ezine or on your Website; however, ALL links must remain intact and active. Failure to retain links is expressly prohibited and violators will be prosecuted extensively by law.

About the Author

David Woods is a staff writer for HolisticJunction.com. Find Massage Therapy Schools, as well as other Colleges and Universities offering holistic massage therapy training at HolisticJunction.com, your positive pathway to discovery!

HR Management: Ethics & Fairness

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HUFFPOST HILL - JULY 12TH, 2010
What's Your Reaction? True to form, one of Congress' first acts after a week off was to delay Elena Kagan's committee vote so Judiciary Republicans could think it over some more.
Glenn Beck:Texas Officials Begin Jailing Illegal Aliens

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Career of Fellow Texan Lance Armstrong Highlights the Need for More Sports Law Attorneys

Some superstar athletes develop such a close association with the city or state in which they perform that you cannot mention one without the other quickly coming to mind.  Do you think of Peyton Manning without the city of Indianapolis being part of the picture?  Of course not.  Unless, that is, you are from Tennessee and you still associate the Hall of Fame quarterback with that “other” UT school that drapes itself in bright orange.  Michael Jordan may have studied and played ball at the University of North Carolina and had an awkward late stint with the Washington Wizards, but he always will be associated with Chicago.  Here in Texas, we have developed or displayed plenty of amazing athletic talent on the fields and in the arenas.  There is a reason that every movie and television program revolving around high school football takes place in Texas.  Just think about some of the household names that have played their sport in our state—Troy Aikman, Vince Young, David Robinson, Tony Parker, Nolan Ryan, and Fred Biggio just to name a few.  One athlete of whom we are especially proud is native (Austin) Texan Lance Armstrong.  Everyone by now, knows his amazing accomplishments and compelling personal story. 

Just after his twenty-fifth birthday in 1996, Lance Armstrong was diagnosed with testicular cancer that had spread to his abdomen, lungs, and brain.  Even after drastic surgeries and treatments to remove the diseased areas of his organs, doctors gave Armstrong less than a fifty percent chance of survival.  Obviously, he did make a full recovery following this devastating diagnosis and went on to win the Tour de France for a record-breaking seven consecutive years, from 1999 to 2005.  Lance Armstrong used his celebrity status to create the Live Strong Foundation, an organization which works to inspire and empower people affected by cancer.  Who doesn’t own, or know someone who owns, one of those famous yellow bracelets that have become a marketing phenomenon for the cause?  Armstrong’s dedication to shining a light on cancer research is closely felt here in Texas, as well as in the halls of Congress and in charitable circles around the world.

With his high profile and healthy bank account, there certainly have been times at which Lance Armstrong has needed the services of an aggressive attorney to defend his name and image.  Most notably, Armstrong has faced ongoing allegations that he has used steroids and other performance-enhancing drugs, a claim, which he has always adamantly denied.  A book titled L.A. Confidentiel: Les secrets de Lance Armstrong was published in France in 2004 and purported to include interviews with those close to Armstrong who could account for his supposed use of steroids.  Even though its author, David Walsh admitted that it contained only circumstantial evidence, the allegations caused a great deal of unwanted publicity.  In 2005, a former employee named Mike Anderson testified in court filings that he found suspicious drugs without an attached doctor’s prescription in Armstrong’s hotel room in Spain.  The following year, Armstrong’s former teammate, Frankie Andreau, and his wife shared in court testimony that they had witnessed conversations between Lance Armstrong and his doctor back in 1996 during which he admitted to use of various drugs.  The accusations that Lance Armstrong used illegal drugs to boost his performance, particularly during his recovery from cancer, continue to follow the athlete.  He has vowed to continue to use legal and media channels aggressively to clear his name, guaranteeing that attorneys in Texas will be revisiting the relevant laws concerning steroid use, defamation, and other content that may prove helpful to Armstrong’s efforts.

Last week, Lance Armstrong encountered another challenge to his professional standing.  During the first stage of the Vuelta of Castilla and Leon race in northern Spain, Armstrong broke his collarbone and is now back home in Austin for surgery and recovery.  He had a steel plate and twelve screws inserted in an effort to stabilize the collarbone.  Despite this obvious setback, Lance Armstrong still has hopes to race in the Tour de France in July.  As his team manager Johan Bruyneel said, "A broken collar bone in the month of March does not at all compromise the start of the Tour de France or your performance in the Tour de France."  In Armstrong’s case, it appears that the time he will spend away from his chosen profession is not going to be extensive.  For some other athletes, the time out of the limelight can prove to be more problematic.  If a long-term injury or personal circumstances keep someone away from the playing field or racing circuit for an extended period and the public starts to forget about his star power, the financial and marketing commitments that have been made to the athlete might be unceremoniously dropped.  Effective legal counsel can be crucial in an athlete’s desire to maintain standing in his profession and its related monetary perks.

There is strong evidence to support the idea that athletes, as well as celebrities who have followed other avenues of public notoriety, should always keep a sports and entertainment lawyer nearby.  From the first professional contract that is signed to the allegations against one’s character that are inevitably made in hopes of financial gain to the unfortunate instances in which an athlete makes a decision to engage in illegal activity, there will be legal issues that need to be addressed.  Lance Armstrong has discovered this truth through the unending reports of his use of performance-enhancing drugs.  Undoubtedly, Armstrong’s Live Strong Foundation also employs attorneys to ensure that contributions are being used effectively and that cancer patients seeking assistance are given proper advice.  He may find more cause for an attorney’s expertise if this current injury threatens his promised livelihood or negotiations over missed engagements are required.  With opportunities to defend such high-profile personalities and protect their futures, the area of sports and entertainment law is a specialized one of high stakes and great reward. http://www.belolaw.com

About the Author

Tony R. Bertolino is the managing partner at Bertolino LLP with law offices located in Austin, Houston and San Antonio, Texas. A member of the Trial and Appellate Litigation Team, Mr. Bertolino’s practice is devoted largely to complex transactions, commercial litigation, business law, entertainment law and family law matters. You can read more about Mr. Bertolino at www.belolaw.com

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Deadline for items for the Community Calendar is Wednesday noon two weeks before desired publication date. Send information on fund-raisers, clubs, lectures, community events, reunions and support groups to Community Calendar, Pioneer Press, 3701 W. Lake, Glenview IL 60026; Fax (847) 486-7495; or e-mail to jmolitor@pioneerlocal.com. There is no charge for publication.
Senate Session 2010-03-25 (16:25:52-18:00:11)

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California renter's rights if house is in foreclosure?

If I am renting a house in California (I'm not sure if the laws are different in other states) and the house is in foreclosure and the owner has not paid the mortgage for the last 6 months. What obligation do I have to pay the rent? According to the California Department of Fair employment and housing I need to continue to pay the owner but everything I see in the media and the small amount of information I have read online says I'm not obligated to pay. What does the law say?

You cannot live anywhere for free. You must still pay the rent to the current owner. Watch out for scams from people who say they are the new owners and you have to pay rent to them. Make sure they can PROVE they are the new owners. Some states are enacting renter's rights relating to situations that you are in. Sometimes, when the foreclosure is complete, the renter is evicted with little or no notice. Check with CA laws on this subject. Just make sure you receive receipts for all of your rent payments.

I would start looking for a place NOW in case you don't get much time later to find a new place to live especially if you are near the end of your current lease. You may even be allowed to break the lease without penalty. I don't expect your landlord has your security deposits anyway - that's probably gone.

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Chadbourne & Parke LLP Awards First Middle East-North Africa Student Fellowship
The international law firm of Chadbourne & Parke LLP announced today that it has awarded its first Middle East-North Africa Student Fellowship to Jacob A. Zenn, currently enrolled at Georgetown University Law Center.
Dalian 2009 - The Next Steps towards a Global Recovery

Employment Laws - Putting Them To Use

Back then employees were not protected as they would have preferred it to be. During the start of industrialization, many employees were mistreated even hurt. The workplace was not as regulated as it now. Fortunately for employees at present there are now employment laws that in some guarantees that a much safer and organized working environment. These developments are both beneficial to the employee and the employer. Employment laws cover the minimum amount a worker should be paid as well as their physical safety requirements. These employment laws demand very grave penalties when violated. The laws could be implemented on both state and federal laws.


Employment laws cover a whole lot of areas. There are employment laws that provide for persons with disabilities. Some tackle issues of discrimination over sex, race, age or religious affiliation and there are employment which cover issues for certain work environments like in the kitchens, factories or construction sites. Federal employment guidelines are guidelines that could be applied wherever the worker may reside in the country. However, there are also state guidelines that are being employed. These guidelines usually work in coordination with the federal guidelines. Although there are states guidelines that may be the same, one should always remember that they could be implemented in different manners. Thus when one transfers from one place to another it is important to note that the laws implemented before may not applicable in that area.


State and federal laws are both complex and are somewhat many in number. Although the basic phrasing of law could clearly state its meaning, there are many factors that come into play on how, where and when it could be implemented. Once a concerned individual feels that his or her rights were violated under any circumstance, they could seek the help of a lawyer/attorney to help them out on the case. The attorney should have an inclination towards these employment laws. These people would know what approach to take and what violations were actually incurred. There are cases which are simple others are not quite.


Employers are usually required by law to present the state and federal guidelines where employees would be able to see them. However, employment laws are from time to time changed especially when modifications to the work environment happen; laws are sometimes also changed with it. The changes correspond to the new needs that may arise together with the modifications. They are changed so as to address issues on keeping a safe and ethical work environment. As the working environment continually changes, new concerns and problems arises. With these comes the need to address such problems to continually cope up. Changes and modifications to the current guideline must be made in order to continually protect the rights of the workers.

About the Author

Abhishek is a Career Counselor and he has got some great Career Planning Secrets up his sleeves! Download his FREE 71 Pages Ebook, "Career Planning Made Easy!" from his website http://www.Career-Guru.com/769/index.htm . Only limited Free Copies available.

Speech: "The Federal Reserve System: Balancing Independence and Accountability" (1 of 4)

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Silldorf & Levine, LLP Expands Practice Into Orange County
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San Diego Lawyers Mark A. Osman

What are my rights under Indiana employment laws regarding harassment?

I was a victim of sexual harassment by a co-worker just recently.
I went through all of the protocol and used the "chain-of-command" provided by my employer. It has been 3 days since I've reported this and I feel like they are trying to pacify the situation rather than rectify. Now the person, who has not issued a formal apology, can still work at the same store, just on different shifts. That means that I lose days as well! They say that it's pretty much "he said-she-said" and that there's "really nothing there" to be true. I want to know what my options are and what I can do to seek my version of justice? Thanx in advance.

If you have gone as high as you can in your company (including HR) then your next step is the Indiana Department of Labor.

http://www.hrlawinfo.com/states/indiana.asp

Lanford & Associates Investigations

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Preemption of State Law Intentional Tort Actions Under the Airline Deregulation Act of 1978

After years of tight government control over the airline industry, Congress chose to pursue a policy of economic deregulation, enacting the Airline Deregulation Act of 1978 (ADA). Areas formerly controlled by the federal government, such as the awarding of routes, the entry of new air carriers, and the setting of fares, were left to the airlines and the free market to determine. Congress, concerned that States might attempt to circumvent federal airline deregulation through their own state enforcement actions, included an express preemption clause in the ADA, which bars States from enforcing laws “related to a price, route, or service of an air carrier.” This apparently innocuous provision continues to cause confusion and divide courts over exactly what causes of action are preempted by the ADA.

Top-ranked Chicago personal injury attorney, Matthew A. Passen, examines one class of state-law based actions, intentional tort claims, and considers whether such actions are sufficiently “related to” an airline “service” for preemption under the ADA. For example, can a passenger who was refused boarding on a commercial airline and strapped to an immobile chair in the waiting area sue the airline for false imprisonment? Can a passenger detained by airline employees upon landing of an aircraft, wrongfully accused of stealing another passenger’s ring, and arrested by police, seek recourse against the airline for false arrest, intentional infliction of emotional distress or slander? Can an airline racially discriminate against a passenger or airline employee with impunity?

As the following discussion reveals, the answer to these questions often depends entirely on how broad or narrow courts interpret the ADA’s statutory phrase, “related to a . . . service of an air carrier.” If a narrow reading is adopted, plaintiffs will have their day in court. If, on the other hand, a court interprets the preemption provision broadly, airlines will essentially receive immunity from state-law intentional tort actions.

Often, the best answer to such questions of statutory interpretation is found by reconsidering the purpose of the underlying statute containing the preemption provision. Here, the purpose of the ADA is straightforward: economic deregulation of the airline industry.

BRIEF HISTORY OF THE ADA’s PREEMPTION CLAUSE

Prior to 1978, the federal government heavily regulated the airline industry.1 Beginning with the Federal Aviation Act (FAA) of 1958,2 Congress created a regulatory organization, known as the Civil Aeronautics Board (CAB), to serve three main functions: award routes to airlines, control the entry of air carriers into new markets, and regulate fares for consumers.3 Still, Congress preserved state common law actions against airlines by including a “saving clause,” which provided: “Nothing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.”4

In 1978, however, Congress changed courses with respect to airline regulation, determining that “maximum reliance on competitive market forces would best further ‘efficiency, innovation, and low prices’ as well as ‘variety [and] quality . . . of air transportation services.”5 Accordingly, Congress enacted the Airline Deregulation Act of 1978 (ADA),6 which gradually ended economic regulation of the airline industry in a series of steps over the years, including the elimination of the CAB.7

The ADA, unlike its predecessor, contained express federal preemption clause to ensure that “States would not undo federal deregulation with regulation of their own.”8 The ADA’s preemption clause states:

Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce any law, regulation, or other provision having the force and effect of law related to a price, route, or service of any air carrier that may provide air transportation under this subpart.9

This preemption standard, while simply stated, has proven far more difficult to apply than Congress could have anticipated.

One source of confusion is Congress’ retention of the “saving clause,” which provides that “[a] remedy under this part is in addition to any other remedies provided by law.” 10 Some courts have found Congress preserved this clause in order to protect the states’ ability to control non-economic matters involving airlines within their respective borders.11 Still, the Supreme Court has referred to the saving clause as “a relic of the pre-ADA/no pre-emption regime,” without power to supersede the specific substantive preemption provision of the ADA. 12

The greatest source of confusion surrounding the ADA’s preemption clause concerns the ambiguous language of the statute itself. In particular, courts have struggled to advance a coherent framework for what types of causes of action are “related to a price, route, or service” for preemption under the ADA. Congress neither defined the terms nor specified what types of state action are preempted, and the Supreme Court has not drawn any distinct preemption lines.13 Consequently, lower courts have been left to apply their own, often conflicting, interpretations of the ADA’s preemption clause. Regardless of statutory interpretation, courts remain guided by fundamental principles of preemption doctrine.

BRIEF INTRODUCTION TO PREEMPTION DOCTRINE

The foundation for federal preemption of state law is based on the Supremacy Clause of Article VI of the Constitution, which provides: “This Constitution and the laws of the United States . . . shall be the supreme law of the land . . . anything in the Constitution or laws of any State to the contrary notwithstanding.”14 As a general rule, federal law preempts state law in three situations:15 (1) Express preemption: where Congress has explicitly preempted state law;16 (2) Field preemption: where Congressional intent to preempt may be inferred generally from the pervasiveness of a federal regulatory scheme in a particular area;17 and (3) Conflict preemption: where state law conflicts with federal law or interferes with the achievement of congressional objectives.18

Where Congress has included an express preemption clause in a statute, courts “typically do not consider the issue of implied pre-emption,” and instead simply “determine whether the state law in question falls within the scope of the statute expressly promulgated by Congress.”19 In other words, according to the Supreme Court:

When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue . . . ‘there is no need to infer congressional intent to pre-empt state laws from the substantive provisions’ of the legislation. Such reasoning is a variant of the familiar principle of expression unius est exclusio alterius: Congress’ enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted.20

Because Congress included an express preemption clause in the ADA, courts look to the specific statutory language in order to determine whether a particular state action is preempted. Unfortunately, the literal text of the ADA’s preemption clause is ambiguous; and the Supreme Court has not resolved the uncertainty.

SUPREME COURT INTERPRETATION OF

THE ADA’s PREEMPTION CLAUSE

The United States Supreme Court has interpreted the ADA’s preemption provision only twice since 1978. In Morales v. Trans World Airlines, Inc.,21 the Court decided whether the ADA preempts States from regulating deceptive airline fare advertisements through enforcement of state consumer protection statutes.22 The Court held such actions were indeed preempted by the ADA.23

In reaching its decision, the Court focused on the statutory phrase “related to” in the ADA’s preemption provision. First, the Court looked to Black’s Law Dictionary for guidance, concluding that “the words thus express a broad pre-emptive purpose.”24

Second, the Court examined the similarly worded preemption provision of the Employee Retirement Income Security Act of 1974 (ERISA),25 which the Court had previously interpreted as having a “broad scope.”26 Therefore, the Court held: “Since the relevant language of the ADA is identical [to the ERISA preemption clause], we think it appropriate to adopt the same standard here: State enforcement actions having a connection with or reference to airline ‘rates, routes, or services’ are pre-empted” by the ADA.27 Although the Court in Morales declined to define with particularity the circumstances under which a state law “relates to” airline services, it held the state consumer protection guidelines at issue were sufficiently “related to” airline “price[s]” because enforcement of such guidelines would compel or restrict airline price advertising.28

Notably, however, the Court recognized there are limits to the scope of the ADA’s preemption clause.29 Specifically, the Court explained that state action affecting the airlines in “too tenuous, remote, or peripheral a manner” will not be preempted by the ADA.30 The Court declined to expand on this notion, instead stating, “[t]he present litigation plainly does not present a borderline question, and we express no views about where it would be appropriate to draw the line.”31

In 1995, the Supreme Court revisited the ADA’s preemption clause in American Airlines, Inc. v. Wolens.32 Here, the plaintiffs brought claims against American Airlines for breach of contract and for violations of the Illinois Consumer Fraud Act following the airline’s unilateral devaluation of frequent flyer mileage credits earned by the plaintiffs.33 Rather than focusing on the “related to” language of the ADA’s preemption clause, the Court examined the phrase “enact or enforce any law” in the provision.34

First, in accord with Morales, the Court held that the plaintiffs’ claims based on the Illinois Consumer Fraud Act were preempted by the ADA.35 The purpose of the Illinois statute, according to the Court, was “to guide and police the marketing practices of the airlines; the Act does not simply give effect to bargains offered by the airlines and accepted by airline customers.”36 Therefore, because the plaintiffs sought to “enforce [a] law” regulating “the selection and design of marketing mechanisms appropriate to the furnishing of air transportation services,” the plaintiffs’ claims under the Consumer Fraud Act were preempted.37

Second, the Court carved out an exception to ADA preemption for the plaintiffs’ breach of contract claim. The Court explained: “We do not read the ADA’s preemption clause, however, to shelter airlines from suits alleging no violation of state-imposed obligations, but seeking recovery solely for the airline’s alleged breach of its own, self-imposed undertakings.”38 Because the plaintiffs’ breach of contract claim (based on American’s modification of its frequent flyer program) sought to enforce the terms of a voluntary undertaking by the airlines, and did not seek to “enforce any law,” the claim was not preempted by the ADA.39

COURTS OF APPEALS’ CONFLICTING DEFINITION OF “SERVICE”

Although the Supreme Court interpreted the “related to” phrase in Morales, and the “enact or enforce any law” language in Wolens, the Court has not defined the term “service” of an airline, as it is used in the ADA’s preemption clause. Instead, the United States Courts of Appeals have been left to define the term, resulting in conflicting approaches.

In Charas v. Trans World Airlines, Inc., the Ninth Circuit adopted a relatively narrow definition of “service.”40 Because the term “service” is inherently ambiguous, the court looked to the purpose behind the ADA, which Congress enacted to protect “the economic deregulation of the airlines and the forces of competition within the airline industry.”41 As such, only state laws that interfere with economic deregulation and the forces of competition within the airline industry should be preempted.42 Conversely, ADA preemption should not “displace state tort law in actions that do not affect deregulation in more than a ‘peripheral manner.’”43

With these principles in mind, the Ninth Circuit defined “service,” as referring to “the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo, or mail.”44 This definition includes “such things as the frequency and scheduling of transportation, and to the selection of markets to or from which transportation is provided.”45 This definition of “service” does not, however, encompass things such as “the pushing of beverage carts, keeping the aisles clear of stumbling blocks, the safe handling and storage of luggage, assistance to passengers in need, or like functions,” which the court found only peripherally affect airline deregulation or competition.46 Any broader a definition, according to the court, “effectively would result in the pre-emption of virtually everything an airline does. It seems clear to us that that is not what Congress intended.”47 This approach to ADA preemption has been followed by the Third Circuit.48

In contrast, the Fifth Circuit adopted a much broader definition of “service.”49 In Hodges v. Delta Airlines, Inc., a female passenger was injured when another passenger opened an overhead compartment and dislodged a case of rum. She brought a state law personal injury claim against Delta Airlines based on alleged negligent operation of the aircraft.50 In order to determine whether the plaintiff’s claim was preempted by the ADA, the Fifth Circuit adopted the following definition of “service”:

“Services” generally represent a bargained-for or anticipated provision of labor from one party to another . . . Elements of the air carrier service bargain include items such as ticketing, boarding procedures, provisions of food and drink, and baggage handling, in addition to the transportation itself. These matters are all appurtenant and necessarily included with the contract of carriage between the passenger or shipper and the airline. It is these [contractual] features of air transportation that we believe Congress intended to de-regulate as “services” and broadly to protect from state regulation.51

This definition of “service” is clearly far broader than the Ninth Circuit’s definition in Charas.

Still, the Fifth Circuit held the plaintiff’s claims were not preempted by the ADA. The court distinguished between claims related to the “operation and maintenance of the aircraft,” and claims related to airline “services,” holding that claims falling in the former category are not preempted by the ADA.52 With respect to the plaintiff’s claims, the court explained: “One uses the overhead luggage racks or the food and beverages provided in aircraft operation just as one uses the cigarette lighter or built-in cooler compartment in an automobile, and all these devices are available to support the general purpose of navigation.”53 The court rejected Delta’s arguments that the plaintiff’s injuries arose out of the “service” of baggage handling and boarding.54 Instead, the court found: “Whether certain luggage may be placed in overhead bins and whether the flight attendants properly monitor compliance with overhead rack regulations are matters that pertain to the safe operation of a flight.”55

Thus, while the Fifth Circuit adopted a broad definition of “service,” it added another layer of confusion with an almost untenable distinction between “service” and “operation and maintenance.” 56 Nevertheless, at least three other Circuit Courts of Appeals have adopted the Hodges court’s definition of “service.”57

SUPREME COURT DECLINES TO DEFINE “SERVICE”

In late 2000, the Supreme Court declined the opportunity to resolve the conflict concerning the appropriate definition of “service” within the meaning of the ADA’s preemption clause.58 Earlier that year, in Duncan v. Northwest Airlines, Inc., the Ninth Circuit held that a class-action lawsuit challenging Northwest’s smoking policy was not preempted by the ADA.59 Relying on its earlier narrow definition of “service” in Charas, the Ninth Circuit held that allowing smoking on Northwest flights does not constitute a “service” because such decision does not deal with “the frequency and scheduling of transportation, [or] the selection of markets to or from which transportation is provided.”60 Northwest appealed the Ninth Circuit’s decision, and the Supreme Court denied the petition for a writ of certiorari.61

Justice O’Connor, joined by Chief Justice Rehnquist and Justice Thomas, dissented to the Court’s denial of certiorari. In her dissent, she notes how the Courts of Appeals have “taken directly conflicting positions on this question of statutory interpretation.”62 Given these contradictory interpretations, the dissenting Justices would have granted certiorari in order to “provide needed certainty to airline companies.”63

APPLICATION OF THE ADA PREEMPTION CLAUSE

TO STATE-LAW INTENTIONAL TORT CLAIMS

Also in her dissent to the Court’s denial of certiorari in Duncan, Justice O’Connor suggests that while the underlying case involved a state law personal injury claim based on an airline’s smoking policy, “the legal principle at stake,” namely, the correct definition of “service” within the meaning of the ADA’s preemption clause, “has ramifications for a host of other tort actions against airline,” including “false imprisonment,” “intentional infliction of emotional distress,” and “defamation.”64 This section examines how courts have analyzed and should analyze these types of actions. Such cases often include state law discrimination claims.

DISCRIMINATION CLAIMS

The United States Supreme Court has not decided whether actions against airlines alleging state discrimination violations are preempted by the ADA.65 For lower courts examining this issue, the preemption outcome largely depends on the court’s definition of “service.”

A. Employment Discrimination Actions

Generally, discrimination suits brought by former airline employees bear “too tenuous, remote or peripheral” a relation to airline rates or services for preemption under the ADA, regardless of the court’s definition of “service.”66 Courts refusing to preempt such actions stress the purpose of the ADA, which “was concerned with the states’ attempt to regulate airline fares, routes and services, not employment practices.” 67

For example, in the racial discrimination context, courts generally agree that neither air safety nor market efficiency is appreciably diminished by the operation of state laws forbidding racial discrimination.68 As the Second Circuit explained in Abdu-Brisson: “Unlike the regulation of marketing practices at issue in Morales or the regulation of frequent flyer programs at issue in [Wolens], whether an airline discriminates on the bases of age (or race or sex) has little or nothing to do with competition or efficiency.”69

In other contexts, however, enforcement of state discrimination laws may appreciably “relate to” airline “services,” warranting preemption by the ADA. For instance, in 1996, the Michigan Court of Appeals held that state law weight discrimination claims brought by a baggage handler who was terminated for failure to comply with the airline’s height and weight standards were preempted by the ADA.70 Applying the Supreme Court’s broad interpretation of the phrase “related to” in Morales, the Michigan Court of Appeals held the plaintiff’s discrimination claims "related to" the “services of an air carrier,” and were preempted accordingly.71 In this case, as well as in other disability discrimination actions where the state law arguably “relates to” airline “service,” the scope attached to these statutory terms ultimately determines the preemption outcome.

B. Passenger Discrimination Actions

Cases addressing the scope of ADA preemption in discrimination actions brought by airline passengers provide a less coherent body of case law.72 Ultimately, whether or not a discrimination claim is preempted depends on the court’s definition of “service.”

Generally, courts have found such claims entirely unrelated to the performance of airline services, and therefore outside the scope of ADA preemption.73 For example, in Doricent v. American Airlines, Inc., a male passenger alleged that prior to his flight’s departure from Haiti, American Airlines employees referred to him using racial epithets, threatened to remove him from the plane, and physically assaulted him.74 The court held the plaintiff’s state law race discrimination claims did not “relate to” airline “services” under the Supreme Court’s precedent in Morales.75 While the airline employees’ behavior might “arguably constitute ‘services’—poor services, to be sure,” the court found this behavior had “nothing whatsoever to do with any legitimate or quasi-legitimate industry-wide practice of affording airline service.”76

Still, in other contexts, discrimination claims may have some legitimate bearing on an airline’s ability to render safe and efficient “service.”77 In such cases, even those involving alleged race discrimination, the plaintiff’s discrimination claims might be preempted by the ADA.

For instance, in Huggar v. Northwest Airlines, Inc., the United States District Court for the Northern District of Illinois held that an airline passenger’s race discrimination claims against Northwest were preempted by the ADA.78 The plaintiff, a 21-year-old black male was removed from a Northwest flight after removing another passenger’s luggage from an overhead bin and throwing it on the floor, threatening to physically assault the passenger, and claiming he could “buy” the passenger.79 The plaintiff’s ten-count claim against Northwest alleged that his ejection from the flight was racially motivated, and included a claim for a violation of the Illinois Human Rights Act.80

In determining whether the plaintiff’s state law race discrimination claims related to Northwest’s “service” of providing airline transportation, the court employed the following analysis: “the critical inquiry is [sic] the underlying nature of the actions taken, not the manner in which they were accomplished. Therefore, a court should not look to the subjective motivations of the employees because they are irrelevant to determining what constitutes ‘services’ within the meaning of the [ADA].”81 According to the majority, because the plaintiff’s actions clearly posed a safety threat to the other passengers, the airline’s decision to eject him from the flight “related to” the “service” of boarding and seating passengers, notwithstanding the airline employee’s subjective, allegedly discriminatory motivations.

As the above case highlights, the preemption outcome in passenger discrimination cases often depends entirely on whether a particular jurisdiction employs a broad or narrow definition of “service.” In order to find the plaintiff’s claims preempted by the ADA, the Huggar court first had to include “boarding and seating decisions” as cognizable “services” under the ADA’s preemption clause. In a similar case, the U.S. District Court for the District of Massachusetts held that a passenger’s lawsuit alleging he was discriminated against on account of his handicap in connection with boarding on a particular flight was preempted by the ADA.82 Necessary to the court’s decision was its reliance on the Fifth Circuit’s broad definition of “service,” which explicitly refers to “boarding.”

Conversely, jurisdictions employing the Ninth Circuit’s narrow definition of “service” will reach the opposite result under identical scenarios. For instance, the Ninth Circuit held a plaintiff’s disability discrimination claim against American Airlines based on the airline’s refusal to allow the plaintiff to board without a doctor’s certificate (she was in a wheelchair and had a heart problem) was not preempted by the ADA.83 The court’s analysis was probably over-simplistic; it simply held, “the term ‘service’ does not refer to alleged discrimination to passengers due to their disabilities.”84 Consequently, whether a passenger discrimination lawsuit is preempted by the ADA may ultimately depend on the court’s definition of “service.”

FALSE ARREST/ IMPRISONMENT

Several courts have addressed the issue of whether the ADA preempts false imprisonment and false arrest claims, reaching divergent conclusions.85 These cases can, however, be reconciled.

Where the courts have held a plaintiff’s claim for false arrest or false imprisonment is preempted by the ADA, such cases involve incidents where the airline refused or failed to provide a service relating to the transportation of a passenger.86 In these cases, “where the crux of the claim was the airline’s refusal to transport the passenger,” the courts have concluded that the claims related to the services of the airlines, and were therefore preempted by the ADA.87 This makes sense because all Circuit Courts of Appeals agree that “transportation” of passengers is a cognizable “service” under the ADA.

Conversely, where the basis of a false arrest or false imprisonment claim “is that the airline caused the passenger to be arrested by authorities without a proper factual basis,” courts have held that such claims are not “related to” an airline “service.”88 For example, if “an airline held a passenger without a safety or security justification, a claim based on such actions would not relate to any legitimate service and would not be preempted.”89

OTHER INTENTIONAL TORT CLAIMS

The Circuit Court of Appeals for the Seventh Circuit, in Travel All Over The World, Inc., examined whether a travel agency’s intentional tort claims against Saudi Arabian Airlines, arising out of the travel agency’s unsuccessful attempts to arrange flights to Saudi Arabia for its clients, were preempted by the ADA’s express provision.90 The court organized the plaintiff’s claims into two categories: (1) defamation and slander; and (2) “other” intentional tort claims.91

With respect to the first category, the Seventh Circuit acknowledged that courts have reached “divergent results” concerning whether claims for slander and defamation are preempted by the ADA.92 Here, the plaintiff based its defamation and slander claims on the airline employees’ making knowingly false verbal and written statements about the travel agency to the agency’s clients; specifically, that the agency “was not a reputable company, that [the agency] had not booked seats on Saudi for many of them, that [the agency] often lied to its clients about reserving seats for them, and that” the agency’s president would not be there to help them.93

Even after adopting the Fifth Circuit’s broad definition of “service,” the Seventh Circuit held the statements themselves were not airline “services” within the meaning of the ADA.94 Citing the Supreme Court’s opinion in Morales, the court explained: “It is difficult for us to envision how tort claims based on an airline’s knowingly false statements about a travel agency would have even a ‘tenuous, remote or peripheral’ economic effect on the rates, routes, or services that the airline offers.”95 Furthermore, although the statements refer to the travel agency’s services, the court held they certainly do not refer to the airline’s rates, routes, or services.96 Therefore, the plaintiff’s defamation and libel claims were not preempted by the ADA.

With respect to the second category of “other” intentional tort claims, including intentional infliction of emotional distress, tortious interference and fraud, the Seventh Circuit reached a different opinion. Only where these claims are based upon the same slanderous and defamatory comments that the court already found not preempted, could such claims withstand preemption scrutiny.97

Yet, the Seventh Circuit doubted this would hold true for the plaintiff in Travel All, as with most plaintiffs. Instead, the “other” intentional tort claims were most likely “based, at least in part, on [the airline’s] canceling the confirmed tickets of [the agency’s] clients and requiring these clients to purchase their tickets directly through [the airline].”98 To the extent that the plaintiff’s intentional tort claims rely on this “conduct” of the airline, rather than the airline employee’s allegedly slanderous and defamatory “comments,” the court held such claims “expressly refer to airline ‘services,’ which include ticketing as well as the transportation itself,” and are therefore preempted by the ADA.99 Again, this holding depends entirely on the court’s adoption of the Fifth Circuit’s broad “service” definition in Hodges, as opposed to the Ninth Circuit’s narrow definition of “service” in Charas.

CONCLUSION

The ADA’s preemption clause continues to cause confusion and divergent opinions throughout our nation’s courtrooms. The fundamental problem concerns the seemingly benign phrase “related to a price, route, or service” of an air carrier. The Supreme Court has done little to clear the fog surrounding this issue. Aside from expressly declining the opportunity to define “service,” the Court’s interpretation of the phrase “related to” has recently come into question.

In Morales, the Supreme Court interpreted the “related to” language of the ADA broadly, based largely on the “broad scope” previously applied to the similarly worded ERISA preemption clause.100 Yet, in recent years the Supreme Court has been narrowing the reach of ERISA’s preemption provisions.101 Indeed, the phrase “related to” in ERISA’s preemption clause “appears to be developing, to some degree, to mean whether state law actually ‘interferes’ with the purposes of the ERISA legislation.”102 Although the literal text of ERISA’s preemption clause is “clearly expansive,” like the ADA, the Supreme Court has held that for practical purposes the statute must be interpreted more narrowly, “lest its reach stop nowhere.”103 Analogously, it is unclear whether the ADA’s “related to” phrase should likewise receive a narrower interpretation to mean: whether state law actually interferes with the purpose of the ADA.

The larger question involving the ADA preemption clause concerns the proper definition of “service.” The Supreme Court has expressly declined to answer the question, despite the objections of three Justices.104 If the Court is not going to answer this question, Congress should. A clear definition of “service,” from either the Supreme Court or the Legislature, “would provide needed certainty to airline companies.”105

The question becomes: What definition of “service” should the Supreme Court or Congress adopt for the ADA’s preemption clause? This question must be answered in light of the fundamental purpose behind the underlying statute—courts should look to the objectives of the ADA as a guide to the scope of state law that should survive. The ADA is an economic deregulation statute designed to promote competitive rates, routes and services among the nation’s airlines.106 As such, only those actions directly impacting the airlines’ ability to provide competitive rates, enter new markets, and provide effective transportation to consumers should be preempted by the ADA.

The Ninth Circuit’s narrow definition of “service,” which encompasses the “prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo or mail,” best aligns with the purpose of the underlying ADA statute. Furthermore, this definition comports with the Supreme Court’s approach to express preemption clause analysis: “the familiar principle of expression unius est exclusio alterius.”107

Neither the language nor the history of the ADA suggests that Congress was attempting to displace all state law tort causes of action against the airlines; nor should the preemption clause act as a safe harbor against claims having only a tenuous impact on airline services.108 The vast majority of state law intentional tort claims cannot be said to frustrate the goal of economic deregulation in the airline industry. Furthermore, such claims do not affect a particular airline’s competitive posture any more so than a lawsuit affects any corporation in America. Accordingly, such actions should fall outside the scope of federal preemption under the ADA.

1 For a good discussion of the ADA’s legislative history, see Daniel H. Rosenthal, Legal Turbulence: The Court’s Misconstrual of the Airline Deregulation Act’s Preemption Clause and the Effect on Passengers’ Rights, 51 Duke L.J. 1857, 1869-1872 (2002).

2 Pub. L. No. 85-726, 72 Stat. 731 (later codified as amended at 49 U.S.C. §§ 40010-44310 (1994)).

3 Matt Andersson, The New Airline Code 62-64 (iUniverse, Inc. 2005).

4 49 U.S.C. § 1506 (current version at 49 U.S.C. § 40120 (c)).

5 Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992) (citing 49 U.S.C.App. §§ 1302 (a)(4), 1302 (a)(9)).

6 49 U.S.C. app. §§ 1301-1557 (1988).

7 Matt Andersson, The New Airline Code 67 (iUniverse, Inc. 2005).

8 Morales, 504 U.S. at 378; See also Trinidad v. American Airlines, Inc., 932 F. Supp. 521 (S.D.N.Y. 1996) (stating that the purpose of ADA’s preemption clause was to prevent states from interfering with the development of an air transportation system driven to higher levels of innovation and efficiency by economic competition).

9 49 U.S.C. § 41713 (1997) (emphasis added).

10 49 U.S.C. § 40120 (c); Chrissafis, 940 F. Supp at 1296.

11 Hodges v. Delta Airlines, Inc., 44 F.3d 334, 337 (5th Cir. 1995); Morales, 504 U.S. at 425 (Stevens J., dissenting).

12 Morales, 504 U.S at 385.

13 See Matthew J. Jelly, Federal Preemption by the Airline Deregulation Act of 1978: How do State Tort Claims Fare?, 49 Cath. U. L. Rev. 873 (2000).

14 U.S. const. art. VI § 1, cl. 2.

15 See Susan D. Hall, Preemption Analysis After Geier v. American Honda Motor Co., 90 Ky. L.J. 251 (2002).

16 Shaw v. Delta Airlines, Inc., 463 U.S. 85, 95 (1983).

17 Rice v. Santa Fe Elevator Corp, 331 U.S. 218, 230 (1947).

18 Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963).

19 Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1253 (11th Cir. 2003).

20 Id.; Cipollone v. Liggert Group, Inc. 505 U.S. 504, 517 (1992) (quoting Malone v. White Motor Corp., 435 U.S. 497, 505 (1978)); compare Grier v. American Honda Motor Co., Inc., 529 U.S. 861 (2000) (existence of express preemption provision does not mean that implied preemption cannot exist where the express preemption does not apply).

21 Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992).

22 Id. at 378.

23 Id. at 391.

24 Id. at 383.

25 29 U.S.C. § 1144 (a).

26 Morales, 504 U.S. at 384 (citing Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739 (1985).

27 Id. (emphasis added).

28 Id. at 390.

29 See John T. Houchin, Harris v. American Airlines: Flying Through the Turbulence of Federal Preemption and the Airline Deregulation Act, 51 U. Miami L. Rev. 955, 966 (1997).

30 504 U.S. at 390 (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 (1983) (emphasis added)).

31 Id.

32 American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995).

33 Id. at 224.

34 Id. at 226.

35 Id at 228.

36 Id.

37 Id. (emphasis added).

38 Id. at 228 (emphasis added); see also Williams v. Midwest Airlines, Inc., 321 F. Supp. 2d 993, 996 (E.D.Wisc. 2004) (holding the plaintiffs’ breach of contract claim was not preempted because the airline’s agreement to transport plaintiffs to New York City “was a self-imposed undertaking, and plaintiffs’ attempt to enforce it does not involve the enforcement of any state law”).

39 Wolens, 513 U.S. at 232-33. The Court stated that this distinction makes sense in light of the ADA’s saving clause, which does not prevent states from “affording relief to a party who claims and proves that an airline dishonored a term that the airline itself stipulated.” Id.

40 Charas v. Trans World Airlines, Inc., 160 F.3d 1259 (9th Cir. 1998) (en banc).

41 Id. at 1261.

42 Id. at 1263 (citing Gee v. Southwest Airlines, Inc., 110 F.3d 1400, 1410 (9th Cir. 1997) (O’Scannlain, J., concurring).

43 Id. at 1265.

44 Id. at 1261.

45 Id. at 1265-66.

46 Charas, 160 F.3d at 1266.

47 Id.

48 See Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, 195 (3d Cir. 1998); Duncan, 531 U.S. 1058; compare Abdulla v. American Airlines, Inc., 181 F.3d 363, 367 (3d Cir. 1999) (holding that the entire aviation industry is field preempted).

49 Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir. 1995) (en banc).

50 Id. at 335.

51 Id. at 336 (citations omitted) (emphasis added).

52 Hodges, 44 F.3d at 336-37. The court found that claims relating to the “operation and maintenance of the aircraft” concern matters of “air navigation.” Id. at 338 (citing 49 U.S.C.App. § 1301(31) (1998)).

53 Id. (emphasis added)

54 Id. at 338-39.

55 Id. at 339.

56 The Firth Circuit admits that “the provinces of ‘services’ and ‘operation and maintenance of aircraft’ overlap somewhat conceptually; no strict dichotomy exists.” Id. at 339.

57 See Duncan, 531 U.S. 1058; Smith v. Comair, Inc., 134 F.3d 254, 259 (4th Cir. 1998); Travel All Over The World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1433 (7th Cir. 1996); Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1257 (11th Cir. 2003).

58 Northwest Airlines, Inc. v. Duncan, 531 U.S. 1058 (2000) (cert denied)

59 Duncan v. Northwest Airlines, Inc., 208 F.3d 1112 (9th Cir. 2000).

60 Id. at 1115 (quoting Charas, 160 f.3d at 1265-66).

61 Duncan, 531 U.S. 1058 (2000) (cert denied).

62 Id.

63 Id.

64 Id.

65 Lynette M. Bledsaw, The Express Preemption Provision of the Federal Aviation Administration Authorization Act Does Not Reach State Civil Rights Claims of Race Discrimination, American Bar Association (2000).

66 See Branche v. Airtran Airways, Inc., 342 F.3d 1248 (11th Cir. 2003) (former airline employee’s state court claim for retaliatory discharge was not preempted by the ADA); Wellons v. Northwest Airlines, Inc., 165 F.3d 493, 495 (6th Cir. 1999) (former airline employee’s race discrimination claim was not preempted); Parise v. Delta Airlines, Inc., 141 F.3d 1463, 1467-68 (11th Cir. 1998) (plaintiff’s age discrimination claim was not preempted by the ADA); Aloha Islandair Inc. v. Tseu, 128 F.3d 1301, 1303 (9th Cir. 1997) (holding Hawaii law barring physical disability discrimination was not preempted by the ADA); Abdu-Brisson v. Delta Airlines, Inc., 128 F.3d 77, 84 (2d Cir. 1997) (holding New York age discrimination action was not preempted by the ADA).

67 Id.; (citing Delta Air Lines, Inc. v. New York State Div. of Human Rights, 652 N.Y.S2d 253, 257 (1996);

68 Ryan L. Bangert, When Airlines Profile Based On Race: Are Claims Brought Against Airlines Under State Anti-Discrimination Laws Preempted By the Airline Deregulation Act?, 68 J. Air L. & Com. 791, 801 (2003); see Thomas v. United Parcel Service, 241 Mich. App. 171 (2000) (holding that former African-American employee’s race discrimination claim was not preempted by the ADA).

69 Abdu-Brisson, 128 F.3d at 84; Wellons, 165 F.3d at 496; Thomas, 241 Mich.App. at 181; see also Wellons v. Northwest Airlines, Inc., 165 F.3d 493, 495 (6th Cir. 1999) (“State law claims of racial discrimination—as opposed to claims of discrimination on the basis of physical characteristics that might have some bearing on the individual’s ability to render service safely and efficiently—are not preempted, in our view; they bear ‘too tenuous, remote, or peripheral’ a relation to airline rates or services.”); Thomas, 241 Mich.App. 171, 181 (2000) (“Plaintiffs’ race and gender are wholly unrelated to defendants’ services”).

70 Bledsaw, supra note 65; Fitzpatrick v. Simmons Airlines, Inc., 218 Mich. App. 689 (1996).

71 Fitzpatrick, 218 Mich. App. At 692. See also Belgard v. United Airlines, 857 P.2d 467, 471 (Colo.App.1992) (“any law or regulation that restricts an airline's selection of employees, based upon their physical characteristics, must necessarily have a connection with and reference to, and therefore must be one ‘relating to,’ the services to be rendered by the airline”)

72 Bangert, supra note 22 at 803.

73 Bledsaw, supra note 65 at 5.

74 Doricent v. American Airlines, Inc., 1993 WL 437670 (D.Mass 1993).

75 Id.

76 Id. at *5.

77 Bledsaw, supra note 65 at 5.

78 Huggar v. Northwest Airlines, Inc., 1999 WL 59841 (N.D. Ill. 1999).

79 Id. at *1; see also Bangert, supra note 22 at 805-06.

80 Id.

81 Id. (citations omitted).

82 DeTerra v. America West Airlines, Inc., 226 F. Supp. 2d 274 (D.Mass. 2002).

83 Newman v. American Airlines, Inc., 176 F.3d 1128, 1131 (9th Cir. 1999).

84 Id. at 1131;

85 Chrissafis v. Continental Airlines, Inc., 940 F. Supp. 1292, 1298 (N.D. Ill. 1996).

86 Id.; see Williams v. Express Airlines I Inc.,, 825 F. Supp. 831, 832-33 (W.D. Tenn. 1993) (holding that plaintiff’s claim for false imprisonment after he was denied admittance to a flight and then strapped to an immobile chair in the airline waiting area was preempted by the ADA); Lawal v. British Airways, PLC, 812 F. Supp. 713, 715 (S.D. Tex. 1992) (holding that plaintiff’s false arrest and false imprisonment claims where airline personnel detained the plaintiff and forced him to purchase a new ticket were preempted); Galbut v. American Airlines, Inc., 27 F. Supp. 2d 146 (E.D. N.Y. 1997) (holding that plaintiff’s false arrest and false imprisonment claims arising out of airline’s refusal to permit plaintiff to upgrade using stickers the airline had falsely alleged were stolen and the demand for payment for the upgrade were preempted by the ADA); Smith v. Comair, Inc., 134 F.3d 254 (4th Cir. 1998) (passenger’s claim for false imprisonment based on the airline’s refusal to permit him to board due to the airline’s failure to ask for photo identification at the point of original departure was preempted).

87 Chrissafis, 940 F. Supp. at 1298.

88 Id.; see Diaz Aguasviva v. Iberia Lineas Aereas 902 F. Supp. 314, 316 (D. Puerto Rico 1995) (permitting a passenger to pursue a claim that airline personnel falsely identified the passenger as an illegal alien, causing police and customs agents to arrest and detain her); Curley v. American Airlines, Inc., 846 F. Supp. 280, 281-82 (S.D.N.Y. 1994) (holding that plaintiffs claim that the flight crew had falsely arrested the passenger for smoking marijuana, causing him to be strip-searched, was not preempted); Bayne v. Adventure Tours USA, Inc., 841 F. Supp. 206, 207 (N.D.Tex 1994) (refusing to preempt a passenger’s claim that an airline pilot made misrepresentations to police, causing the plaintiff to be taken into custody, detained, and subjected to a luggage search); Rombom v. United Airlines, Inc., 867 F. Supp. 214, 224 (S.D.N.Y. 1994) (finding that false imprisonment claims stemming from the airline’s decision to have plaintiff arrested, allegedly motivated by spite, were not preempted).

89 Smith v. Comair, Inc., 134 F.3d 254, 259 (4th Cir. 1998); Chrissafis v. Continental Airlines, Inc., 940 F. Supp. 1292, 1289-99 (N.D. Ill. 1996)

90 Travel All Over The World, Inc., v. Kingdom of Saudi Arabia, 73 F.3d 1423 (7th Cir. 1996).

91 Id.; see also Chrissafis , 940 F. Supp. 1292 (recognizing this distinction). In addition to defamation and slander, the “other” intentional tort claims included tortious interference with a business relationship, fraud, intentional infliction of emotional distress, and tortuous interference with a business relationship.

92 Travel All Over The World, Inc., 73 F.3d. at 1433; compare Fenn v. American Airlines, Inc., 839 F. Supp. 1218, 1223 (S.D. Miss. 1993) (finding claims for slander unrelated to airline “services”) with Chukwu v. Board of Directors of British Airways, 889 F. Supp. 12, 14 (D.Mass. 1995) (finding specific claims for slander related to airline “services”) and Pearson v. Lake Forest Country Day Sch., 262 Ill.App.3d 228 (1994) (same).

93 Id.

94 Id. at 1433.

95 Id. citing Morales, 504 U.S. at 383-85.

96 Id. at 1433.

97 Travel All Over The World, Inc., 73 F.3d at 1434..

98 Id.

99 Id. (citing Hodges, 44 F.3d at 336); see also DeTerra, 226 F. Supp. 2d at 277 (finding handicapped passenger’s claims for intentional and negligent infliction of emotional distress in connection with his denial of boarding on a particular flight was preempted); Chukwu v. Board of Directors British Airways, 889 F. Supp. 12, 13 (D.Mass. 1995) (concluding that plaintiff’s claim for intentional infliction of emotional distress based on the allegation that he had been improperly denied boarding on a flight was preempted by the ADA).

100 Morales, 504 U.S. at 384.

101 See Abdu-Brisson, 128 F.3d 77, 82 (2d Cir. 1997); DeBuono v. NYSA-ILA Medical and Clinical Serv., 520 U.S. 806, 816 (1997).

102 Abdu-Brisson, 128 F.3d at 82 (emphasis added); citing New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995); Boggs v. Boggs, 520 U.S. 833 (1997) (“We can begin, and in this case end, the analysis by simply asking if state law conflicts with the provisions of ERISA or operates to frustrate its objects).

103 Travelers Ins. Co., at 655 (Too expansive an interpretation of “relate to,” according to the Court, “would be to read Congress's words of limitation as mere sham, and to read the presumption against pre-emption out of the law whenever Congress speaks to the matter with generality. That said, we have to recognize that our prior attempt to construe the phrase ‘relate to’ does not give us much help drawing the line here”).

104 See Duncan, 531 U.S. 1058 (cert denied).

105 Id.

106 See Morales, 504 U.S. at 378.

107 See Cipollone, 505 U.S. at 517 (quoting Malone, 435 U.S. at 505).

108 Smith v. America West Airlines, Inc., 44 F.3d 344, 346-47 (5th Cir. 1995).

About the Author

Matthew A. Passen is an experienced Chicago Personal Injury Lawyer with Passen Law Group. Prior to joining Passen Law Group, Mr. Passen was an associate in the litigation department of Jenner & Block LLP.


Mr. Passen received his B.A. magna cum laude, Phi Bete Kappa, in Economics from the University of Michigan in 2002. Mr. Passen obtained his law degree, summa cum laude, from DePaul University College of Law in 2006, where he graduated Order of the Coif. During law school, Mr. Passen was as a member of the DePaul Law Review.


During the 2003-04 academic year, Mr. Passen clerked for the Honorable Ronald A. Guzman, United States District Court for the Northern District of Illinois. He also spent the following semester clerking at the United States Attorney's Office, Northern District of Illinois.


Mr. Passen is a member of the Illinois Bar. He is a member of the Chicago Bar Association, Illinois Trial Lawyers Association, Illinois State Bar Association, and the American Association for Justice. Mr. Passen also works with elementary teachers and students in Chicago-area public schools, as a volunteer in the Constitutional Rights Foundation of Chicago's "Lawyers in the Classroom" program.

Experts on Topic: Dr. Cheryl Maranto, Marquette University

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Protecting Yourself against Claims of Discrimination and Wrongful Termination

Most employers these days are being faced with the need to make some changes to the way in which their businesses are structured. During these difficult economic times, I am sure that each choice is weighed carefully. As of April 2009, the unemployment rate in Texas stood at 6.7%, which is better than the 9.4% rate of unemployment that the country as a whole is experiencing. This relative good fortune is of little comfort to those whose lives are affected. When you hold the livelihood of others in your hands, there is a great sense of responsibility. You need to make the decisions that are best for your business and family as well as give consideration to the people who work for you. Unfortunately, after issuing a painful but necessary cut to your staff, you still may be accused of discrimination or wrongful termination. Good jobs are hard to come by these days, and employees may try any tactic to keep their positions. You need to be familiar with both federal and state laws that apply to employment practices, as well as know that steps you can take if faced with such a lawsuit.

Let me start with a piece of good news. Texas is one of the friendliest states in terms of employer protection. Our state follows the "employment at will" rule, which means that, with limited exceptions, an employee can be fired without warning and without cause. Even if there is a written contract establishing employment, the employer must specifically indicate that he or she will not terminate anyone except for under certain circumstances, which must be laid out. So, even if you signed on the dotted line when hiring someone to assist you in your office, you likely have retained the right to let that person go at any moment that you choose.

The "at will" policy does reach its boundaries when it comes into conflict with the federal and state laws that are in place to protect employees. Texas employers cannot discriminate against or fire employees who fit into the following categories:

1. Whistle blowers - If any employee reports fraudulent activity or safety or environmental concerns to authorities, this person cannot be fired as a result.

2. Refusing to Break the Law - This should not be surprising. If you ask an employee to commit an illegal act and your request is refused, you may not use this decision as cause for termination.

3. Victim of Discrimination against Protected Class - An employee cannot be fired simply based on race, color, national origin, religion, sex, age (with exceptions), disability, or for taking maternity or family medical leave

If you are dealing with a former employee who is suing you for discrimination or wrongful termination and his reasoning does not fit into one of the categories listed above, the case should be dismissed quickly. This is certainly the desired outcome, as the cost for further legal defense can be quite difficult for employers to handle. Out of the discrimination claims that are not dismissed outright, eighty-one percent wind up in front of arbitrators of in administrative hearings. These proceedings cost the employer an average of between $22,000 and $40,000. Cases that end up going to trial, of course, will be exponentially higher in cost. An employer's best course of action is to know his rights and his boundaries when dealing with employees and always to operate within these guidelines.

Keeping up with this issue is crucial for employers because accusations of discrimination are on the rise, both here in Texas and around the country. Age discrimination is one area that perhaps does not get much publicity, but is a growing problem. As shared by Joe Bontke from the Equal Employment Opportunity Commission (EEOC), "The older the workforce gets, the more age discrimination claims come. 16,585 out of 86,000 cases received in Texas last year were regarding some form of age discrimination." This represents a 20% increase in claims since 2004. Section 21 of the Texas Labor Code, as well as the federal Age Discrimination in Employment Act of 1967, protects individuals who are at least forty years old from facing employment discrimination based on age. In addition, charges of racial discrimination in the workplace are at their highest levels nationally since 1994. With the diverse population that resides in Texas, this issue is one that needs to be of concern to all employers. And, with layoffs and office closures continuing to occur in the wake of the current recession, you can be certain that disgruntled employees will be looking for legal reasons to protect their jobs or promotions when paychecks are on the line.

What can you expect if an employee does seek legal action against you? A complaint will be filed with the EEOC within 180 days of the alleged wrongdoing. The EEOC may present the option of mediation as a first step to both parties if such a service is available. Mediation is free and the resulting settlements are confidential. If an investigation is determined to be necessary, someone from EEOC will be assigned to the case and embark upon a study of the case that usually takes at least six months. The EEOC then will send the employee a "right to sue" letter, which indicates that the employee either has a cause for a complaint, no cause for further action, or insufficient evidence to proceed further. Regardless of the decision reached by the EEOC investigator, the employee still has the right to sue you in federal or state court for up to ninety days after receiving the "right to sue" letter. Be prepared for the possibility that an employee who is unhappy with his situation will pursue his or her case to the fullest extent possible.

It is in your best interest to hire an employment attorney as soon as you receive notice that an investigation concerning possible discrimination at your workplace is underway. An experienced lawyer will assist you in the important process of being fully compliant with the request for materials. Your attorney also will be your advocate in presenting the best possible argument in your defense and ensure that all relevant state and federal laws are being applied on your behalf. If you are facing a complaint concerning employment discrimination or wrongful termination, please place a call to an attorney today.

About the Author

Tony Bertolino is a managing partner of Bertolino LLP, a law firm with offices in Austin, Houston, and San Antonio. Bertolino LLP has attorneys who specialize in the area of business litigation and can assist with issues surrounding employment. Please contact Bertolino LLP to learn how you can be assisted with your legal needs as an employer,

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