2011 is already on the path to being the year that various sections of the government told the people to get shit done on their own.
I mean, it makes perfect sense that individuals be required to stand alone against global fortune 500 level companies. Both are citizens, one just happens to have a few advantages. Surely that $500/hour/lawyer law firm on retainer isn't all that big a deal.
Forar on
First they came for the Muslims, and we said NOT TODAY, MOTHERFUCKER!
Is there anything that can be done to remove a justice from office? Lets say Clarance Thomas starts showing up in court with a stripper on each knee wearing a 'Nazi's are awesome' t-shirt. Perhaps if he killed someone, or was found to be a drug dealer?
Is there anything that can be done to remove a justice from office? Lets say Clarance Thomas starts showing up in court with a stripper on each knee wearing a 'Nazi's are awesome' t-shirt. Perhaps if he killed someone, or was found to be a drug dealer?
As already mentioned, he can be impeached by Congress the same way the President can.
It's just not going to ever happen while Republicans have a controlling minority.
2011 is already on the path to being the year that various sections of the government told the people to get shit done on their own.
I mean, it makes perfect sense that individuals be required to stand alone against global fortune 500 level companies. Both are citizens, one just happens to have a few advantages. Surely that $500/hour/lawyer law firm on retainer isn't all that big a deal.
Actually, while corporations are people I don't believe they are considered citizens yet in any legal sense, because they cannot fulfill the constitutional requirements for citizenship: they can't be Naturalized and they are not born, just created through legal magic. Plus citizens can't be owned by other citizens and every corporation is someone's property.
Edit: God I hope I'm not wrong or this country's legal definition of corporations is starting to amount to a crime against humanity.
Every employment contract I've ever encountered was effectively under duress.
Non-compete clause (illegal in my state, but in the contract anyways)
All matters go to arbitration
Can be fired at will (but I have to give 2 week's notice or pay a fine)
Failure to agree with the contract means you won't be hired
Any creative work I do in my off time belongs to them
etc.
Well, any contract you've signed period has probably been under duress, by your standards. Gotten a loan at the bank? Bought a car? Whatever, you need a contract to spell out what your respective responsibilities are. You're basically arguing for not letting citizens do anything ever because otherwise they will have to deal with a business who almost certainly has more power than them.
Employment contracts, in general, are not evil. Non-competition clauses are common sense - no sane employer is going to want you secretly working against their interests in your down time. And I actually don't mind at-will employment, though the "give two weeks' notice or pay a fine" sounds just plain illegal.
And keep in mind that without a contract, you get hosed, too. Your boss agreed to pay you $20 an hour. Oh, but there was no contract! Well, maybe he'll just pay you $10 an hour for this week - not like there's anything forcing him to pay you a set amount, right?
Basically, we need contracts. We just don't need blatantly evil contracts.
ElJeffe on
I submitted an entry to Lego Ideas, and if 10,000 people support me, it'll be turned into an actual Lego set!If you'd like to see and support my submission, follow this link.
We need contracts written in good faith that are highly regulated so as to prevent tiny evils from creeping in, essentially. And regulators who are up to the task.
I'd say that in most cases, we do not have these things.
Xenogear_0001 on
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TL DRNot at all confident in his reflexive opinions of thingsRegistered Userregular
Off time? So if you're an artist or something that paints at home the company is laying claim to this? How is that at all enforceable or even legal?
Probably something you can fight them on, if it has any teeth at all. Googled a bit, 'pre-invention assignment' seems to be the term for it.
Some states have laws limiting the scope of pre-invention assignments. These laws prevent an employer from assuming ownership of inventions that are created by employees completely outside the scope of employment. A pharmaceutical chemist, for example, who designs model cars in his garage on Saturdays will not forfeit his ownership rights for inventions created on his personal time to the company he works for, regardless of whether or not there is an assignment in place.
Nova_CI have the needThe need for speedRegistered Userregular
edited April 2011
I can't believe that it's legal anywhere for a corporation to lay claim to inventions or works done by their employees when they are not working for the corporation. It just does not compute, especially for works unrelated to the corporation's business.
I can't believe that it's legal anywhere for a corporation to lay claim to inventions or works done by their employees when they are not working for the corporation. It just does not compute, especially for works unrelated to the corporation's business.
That's straight up evil corporation shit.
I don't think it's terribly unreasonable provided that the object in question is created using resources obtained from the company or if it's an invention that competes directly with something the company produces. The whole "BRATZ" thing is an interesting example of this.
Those type of idea ownership agreements expire the moment your employment does though, and never cover unrelated material (say you're working for a software firm and design a new type of superconductor, they'll try to claim it but it won't work).
Now, when they start trying to copywrite your "DNA and all derivative works." Then you worry.
Interesting. We the People have to sign a contract to take a leak these days, and it's becoming increasingly difficult to impossible to freely assemble in order to barter any such contract on equal footing.
/Sigh. This country is really pretty shitty for a first world industrialized country.
Every employment contract I've ever encountered was effectively under duress.
Non-compete clause (illegal in my state, but in the contract anyways)
All matters go to arbitration
Can be fired at will (but I have to give 2 week's notice or pay a fine)
Failure to agree with the contract means you won't be hired
Any creative work I do in my off time belongs to them
etc.
I can't even imagine what type of person would be able to stand with an equal footing as the company that is employing them, but I imagine that they would be being hired for the few types of job where you'd actually need an employment contract and would have the resources to draft a mutually beneficial contract.
IF something needs a contract to be done, it should be a standard agreement covered by law and not drafted up by individual companies. Employment doesn't need a contract, labor law protects employers enough already from theft or fraud, and no employment contract I've ever heard of protected the employees at all.
I can't see an individual standing on equal footing with an employer for contracting purposes.
Which is why collective bargaining is such a great thing. And why it's important that we maintain the ability to do so.
Interesting. We the People have to sign a contract to take a leak these days, and it's becoming increasingly difficult to impossible to freely assemble in order to barter any such contract on equal footing.
/Sigh. This country is really pretty shitty for a first world industrialized country.
That's because we are actually the richest third world country on Earth, but we do a great job of pretending to be a first world country.
Edit: I think many people will disagree with me but consider that there are only 65 million middle class jobs (roughly) for around 250 million working age US Citizens. Plus, With at least 40-50 million living below the poverty line (NOT including illegal immigrants), how can we pretend to be anything other than a super-power-ed version of Mexico with a much better military and a lot of misplaced respect from other first world countries?
hanskey on
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adventfallsWhy would you wish to know?Registered Userregular
I can't believe that it's legal anywhere for a corporation to lay claim to inventions or works done by their employees when they are not working for the corporation. It just does not compute, especially for works unrelated to the corporation's business.
That's straight up evil corporation shit.
I don't think it's terribly unreasonable provided that the object in question is created using resources obtained from the company or if it's an invention that competes directly with something the company produces. The whole "BRATZ" thing is an interesting example of this.
A non-compete clause takes care of this, and non-compete clauses, so long as they expire in a reasonable amount of time (1 year or so) are something that I do not object to, but any work done on someone's own time belong to that individual unless they voluntarily hand over the work to their employer.
Interesting. We the People have to sign a contract to take a leak these days, and it's becoming increasingly difficult to impossible to freely assemble in order to barter any such contract on equal footing.
/Sigh. This country is really pretty shitty for a first world industrialized country.
That's because we are actually the richest third world country on Earth, but we do a great job of pretending to be a first world country.
Edit: I think many people will disagree with me but consider that there are only 65 million middle class jobs (roughly) for around 250 million working age US Citizens. Plus, With at least 40-50 million living below the poverty line (NOT including illegal immigrants), how can we pretend to be anything other than a super-power-ed version of Mexico with a much better military and a lot of misplaced respect from other first world countries?
Umm... we can pretend that because it's sort of true. Why don't you actually try going to Mexico (and staying a week at a resort in Puerto Vallerta doesn't count) and then see if you can spot the differences.
Go ahead, I'll wait.
ElJeffe on
I submitted an entry to Lego Ideas, and if 10,000 people support me, it'll be turned into an actual Lego set!If you'd like to see and support my submission, follow this link.
Interesting. We the People have to sign a contract to take a leak these days, and it's becoming increasingly difficult to impossible to freely assemble in order to barter any such contract on equal footing.
/Sigh. This country is really pretty shitty for a first world industrialized country.
That's because we are actually the richest third world country on Earth, but we do a great job of pretending to be a first world country.
Edit: I think many people will disagree with me but consider that there are only 65 million middle class jobs (roughly) for around 250 million working age US Citizens. Plus, With at least 40-50 million living below the poverty line (NOT including illegal immigrants), how can we pretend to be anything other than a super-power-ed version of Mexico with a much better military and a lot of misplaced respect from other first world countries?
Umm... we can pretend that because it's sort of true. Why don't you actually try going to Mexico (and staying a week at a resort in Puerto Vallerta doesn't count) and then see if you can spot the differences.
Go ahead, I'll wait.
Give it another half century of zero infrastructure investment and increasing income disparity, and then go back and try it again. People seem to have this idea that we're better off than [insert third world hellhole here] because we're just flat better; we're not. We're better off because we did shit differently, and then we did that better.
Shit like collective bargaining and massive invenstment in infrastructure and quality workforce education development. Which we, you know, aren't doing so much anymore.
The simple truth is that no matter how unfair a claim like that may be, its very likely the result of some employee stealing ideas from that business and applying it to make his own money from that companies work.
Kinda like how you know that the container of drano has "DO NOT EAT" on it because some adult was stupid enough to eat it then almost die and sued successfully. One thing the law seems to be very blind about is a persons personal stupidity.
I'm not saying its right, im just saying it usually wouldnt have been ever contimplated by the company unless someone was a dickhole and burned someone from not having that protection.
I can't believe that it's legal anywhere for a corporation to lay claim to inventions or works done by their employees when they are not working for the corporation. It just does not compute, especially for works unrelated to the corporation's business.
That's straight up evil corporation shit.
I don't think it's terribly unreasonable provided that the object in question is created using resources obtained from the company or if it's an invention that competes directly with something the company produces. The whole "BRATZ" thing is an interesting example of this.
A non-compete clause takes care of this, and non-compete clauses, so long as they expire in a reasonable amount of time (1 year or so) are something that I do not object to, but any work done on someone's own time belong to that individual unless they voluntarily hand over the work to their employer.
I disagree that a year is a reasonable amount of time before a non-compete expires. Most of the agencies I've worked for have included six-month noncompetes and even that is pushing it since it basically means I can't work in my chosen industry for half a year. Three months should be enough I would think.
On the patent thing, if they're making use of proprietary resources or training that the company provided in order to produce their own product, the company is entitled to a little compensation from that. If they bring you on with a contract to basically "invent something... anything!" and when you come up with something in your garage you decide it's too awesome to share then there's going to be a problem here. That's what happened to Steve Wozniak back in the day, the company had the right of first refusal on anything he created. (Oddly enough they declined because, well, who's going to want a computer in their home?).
Of course, that's a very niche application, but it's a weird grey area and it's tough to draw a specific line as to how far either side can go, but I DO understand why the clauses exist and don't necessarily find them unfair. (unless they're unreasonably far-reaching).
Well, arbitration is set up to basically be a mini trial. You go through most of the normal procedures, but you can agree to cut some of them. If everything starts being arbitrated, trial lawyers will just start arbitrating instead of trialing (totally a word, shut up). Fun note: there really isnt any arbitration precedent because the agreements that come out of them are typically subject to a NDA. Yay! This way you dont know if that settlement you got from your thieving cell phone company is the same as your friends, who has the exact same plan for the exact same amount of time. Yay!
The above is basically wrong.
Arbitration is sorta like a trial in that you each present your case to the guy who decides the outcome. It is completely unlike a trial in that it has zero affiliation with anything like a codified legal system. The arbiter, chosen by the corporation, can decide to resolve the matter however they see fit. They may rule against you because you were inarticulate, rude, wearing a blue shirt or simply because you aren't the person who chose to give them the job.
Oh, and if you don't like the outcome? Well most arbitration doesn't have any mechanism for appeals.
Arbitration started out as a reasonable idea until it was actually put into practice and the people involved acted like people.
Uh, no. First, theres usually a panel of three arbitrators, one picked by each side with the third being agreed upon by both sides (this process can take a while since, you know, both sides have to agree). That said, the corporation can specify the list of selectable arbitrators. However, this list is typically a list provided by an arbitration association (like the American Arbitration Association) which is basically just a list of arbitrators and their specialities (like contracts, or torts, or computers, or cars, etc since you dont need to have a legal background to be an arbitrator and this can work out in favor of the consumer/employee since they will typically have specialized knowledge that a lawyer would not).
When an arbitrator is selected they need to disclose certain information before they can actually arbitrate the case (like, whether theyve worked for or with or on behalf of either party, whether theyre stock owners etc).
Granted, this is all based on the assumption that the arbitration agreement specifies that its ging to use the rules set forth by an arbitration association which they dont have to do, but then they are left having to create the rules governing the arbitration setting which opens the agreement up to greater likelihood of judicial scrutiny due to ambiguities in the phrasing. Even if the ambiguities are left to the arbitrator theres no guarantee that the arbitrator will side with the contract drafter.
Look, Im not a fan of arbitration and I definitely dont find it preferable to the actual court system which is open and reviewable, but its not completely fucked in the head corrupt. Should it be as pervasive as it is? God no. Will it keep expanding? Probably, because the people with money like it.
While yes, there is an incentive for arbitration companies, and to a lessor extent arbitrators, to find in favor of the corporation doing so may be grounds for judicial review since an undisclosed bias of an arbitrator is grounds for judicial review.
Again, there are also varying state rules that come into play with arbitration. Some states like California have passed their own arbitration laws which are generally more open to judicial review.
Its also important to note that arbitration agreements are just contracts and as such are subject to the same rules governing contracts (however, theyre considered contracts within contracts, so while all defenses against a contract are open to you, they have to be directed at the arbitration agreement itself and not the contract as a whole. So even if there is fraud in the inducement of the contract, that fraud is going to be arbitrated as subject to the arbitration agreement in that contract. If youre alleging fraud in the inducement of the arbitration agreement you may be able to take your claim to court).
As for judicial review, it is available just not in all circumstances (kinda like in an actual trial, where you need grounds for an appeal). Going from memory you can appeal an arbitrators decision where the decision is not supported by substantial evidence or where the arbitrators conclusions of law are clearly erroneous. You can also expand the grounds for judicial review of an arbitration award.
Ive kinda jumped around while typing this all up so Im sure theres a paragraph I stopped typing in the middle of to touch on another issue and have just left incomplete. Sorry. Im also sure that there are paragraphs which seem complete of which I have left out information
I'm not denying anything that you have said thus far - but binding arbitration puts things in the company's court.
When you can get raped with little recourse...well...
Arbitration is a closed, private process, often with little or no written record. But one state, California, changed its law to require that arbitration results be publicly recorded. Public Citizen staff reviewed 34,000 California cases, and Arkush says the results speak volumes.
"Overall, consumers lost 94 percent of the time," he says.
Rulings And Consequences
Elizabeth Bartholet was one of the NAF's arbitrators for a time. She's a law professor at Harvard and for two decades has moonlighted as a part-time arbitrator. The first 19 cases she arbitrated for the National Arbitration Forum were all credit card cases. She ruled each time for the credit card company.
Then, on the 20th case, she ruled for the consumer. After reviewing the evidence, Bartholet awarded the cardholder $48,000. And with that, her career as an NAF arbitrator was effectively over. She says she was stricken from her remaining cases.
Arbitrating the merits of a rape suit is fucking despicable, as is the Justice Department's refusal to investigate the rape allegations (which will subsequently make it harder for her to sue/arbitrate since she doesnt have a conviction establishing that she was raped in the first place). Senator Franken proposed a law that withholds defense contracts from companies that "if they restrict their employees from taking workplace sexual assault, battery and discrimination cases to court" as a direct response to Jamie Leigh Jones's fucked up situation. The fact that this didnt pass unanimously is fucking atrocious.
As for the 94% loss rate, while it is shocking and in all likelihood an indication that things are not right in the arbitration system (which Ive never said is perfect, and just to reiterate Im not a fan), it doesnt account for whether those same cases would have been losing cases in the court system. Nevertheless, corporations have an easier time establishing their case since the discovery rules present in actual trials typically arent present in arbitration (but again, since theyre just contracts the corporation can basically specify whatever rules the corporation wants).
I think theres a definite conflict when theres only one arbitrator. The pressure to find for the corporation in that situation is much larger then when theres a panel. With a panel of arbitrators you typically (ie should) have an arbitrator selected by each party and then an arbitrator either agreed upon by the parties or by the arbitrators. This is slightly more fair since youre not at the whim of just the single arbitrator, but instead have someone who is more likely to see your side.
Also, NAF (National Arbitration Forum) sounds shitty, most of my understanding surround the American Arbitration Association. Its interesting that NAF removed Bartholet from the list of possible arbitrators. It also goes on to say she still arbitrates, so corporations are still seeking her services.
Reform of the arbitration system is needed. Badly. I can think of a couple things that would go a long way in improving the system:
require arbitrators to document how/why they came to their decision. And not like a simple one liner, I mean full disclosure of how they reached their decision.
no more NDAs regarding the award. Its important for consistency in the system (and thus a greater sense of justice) that people with similar claims receive similar awards. There is no reason for one person to get $180,000 and the other to get $18,000 or nothing because the arbitrators were different.
standardization of arbitration procedures. Im okay with corporations creating their own rules when arbitrating between corporations since when the contract is drafted there is an assumed equal bargaining going on. However, when its consumers/employees signing arbitration agreements and have no way of seeking modifications to the arbitration agreements the arbitration procedure should be standardized, and any ambiguity should go in favor of the non-drafter (ie, the consumer/employee).
EDIT: Cant believe I forgot this, but: dont let people arbitrate suits stemming from criminal complaints.
EDIT2: Class action arbitration is just fine and should be allowed. If arbitration isnt suited for it (which is kind of a bogus claim, thats like saying a courtroom isnt suited for it since in both instances the only real differences between it and a bunch of individual suits are 1) the size of the settlements/awards, and 2) the relatively minor size of the individual complaints being brought.
Anyway, like I said, I much prefer non binding mediation. You can resolve a lot of conflicts through mediation and, when youre faced with someone who is determined to go to court, that option is available. And should that person bring a frivolous claim you can always award attorneys fees. Although, a benefit of the mediation procedure is that you can ask the mediator for their opinion on your case (since they have information from both sides theyre in a better place to judge, but they wont tell you the other party's case; its just a whether or not you have a chance sort of thing)
I can't believe that it's legal anywhere for a corporation to lay claim to inventions or works done by their employees when they are not working for the corporation. It just does not compute, especially for works unrelated to the corporation's business.
That's straight up evil corporation shit.
I don't think it's terribly unreasonable provided that the object in question is created using resources obtained from the company or if it's an invention that competes directly with something the company produces. The whole "BRATZ" thing is an interesting example of this.
A non-compete clause takes care of this, and non-compete clauses, so long as they expire in a reasonable amount of time (1 year or so) are something that I do not object to, but any work done on someone's own time belong to that individual unless they voluntarily hand over the work to their employer.
I disagree that a year is a reasonable amount of time before a non-compete expires. Most of the agencies I've worked for have included six-month noncompetes and even that is pushing it since it basically means I can't work in my chosen industry for half a year. Three months should be enough I would think.
On the patent thing, if they're making use of proprietary resources or training that the company provided in order to produce their own product, the company is entitled to a little compensation from that. If they bring you on with a contract to basically "invent something... anything!" and when you come up with something in your garage you decide it's too awesome to share then there's going to be a problem here. That's what happened to Steve Wozniak back in the day, the company had the right of first refusal on anything he created. (Oddly enough they declined because, well, who's going to want a computer in their home?).
Of course, that's a very niche application, but it's a weird grey area and it's tough to draw a specific line as to how far either side can go, but I DO understand why the clauses exist and don't necessarily find them unfair. (unless they're unreasonably far-reaching).
Plus there's also the fact that even if the company owns the patent for something you invent, they still have to name you as inventor and you get royalties. So it's not terrible unless the company isn't interested in pursuing it and won't let you retain ownership.
I can't believe that it's legal anywhere for a corporation to lay claim to inventions or works done by their employees when they are not working for the corporation. It just does not compute, especially for works unrelated to the corporation's business.
That's straight up evil corporation shit.
I don't think it's terribly unreasonable provided that the object in question is created using resources obtained from the company or if it's an invention that competes directly with something the company produces. The whole "BRATZ" thing is an interesting example of this.
A non-compete clause takes care of this, and non-compete clauses, so long as they expire in a reasonable amount of time (1 year or so) are something that I do not object to, but any work done on someone's own time belong to that individual unless they voluntarily hand over the work to their employer.
I disagree that a year is a reasonable amount of time before a non-compete expires. Most of the agencies I've worked for have included six-month noncompetes and even that is pushing it since it basically means I can't work in my chosen industry for half a year. Three months should be enough I would think.
On the patent thing, if they're making use of proprietary resources or training that the company provided in order to produce their own product, the company is entitled to a little compensation from that. If they bring you on with a contract to basically "invent something... anything!" and when you come up with something in your garage you decide it's too awesome to share then there's going to be a problem here. That's what happened to Steve Wozniak back in the day, the company had the right of first refusal on anything he created. (Oddly enough they declined because, well, who's going to want a computer in their home?).
Of course, that's a very niche application, but it's a weird grey area and it's tough to draw a specific line as to how far either side can go, but I DO understand why the clauses exist and don't necessarily find them unfair. (unless they're unreasonably far-reaching).
Plus there's also the fact that even if the company owns the patent for something you invent, they still have to name you as inventor and you get royalties. So it's not terrible unless the company isn't interested in pursuing it and won't let you retain ownership.
Can you cite any of that? Because my understanding is the exact opposite. They do not have to put your name on it, and even if they do it can be symbolic and does not entitle you to royalties unless they're agreed upon.
It might differ between countries, and I can't find a nice easy statement on the patent office website right now - but I do know that there was a court case over an engineer working at Milipore (I think) who had invented a new device that the company handled really badly, which was went on to establish that you can only get royalties based on what the company makes from a product rather than potential profit that they could have made.
I can't believe that it's legal anywhere for a corporation to lay claim to inventions or works done by their employees when they are not working for the corporation. It just does not compute, especially for works unrelated to the corporation's business.
That's straight up evil corporation shit.
I don't think it's terribly unreasonable provided that the object in question is created using resources obtained from the company or if it's an invention that competes directly with something the company produces. The whole "BRATZ" thing is an interesting example of this.
A non-compete clause takes care of this, and non-compete clauses, so long as they expire in a reasonable amount of time (1 year or so) are something that I do not object to, but any work done on someone's own time belong to that individual unless they voluntarily hand over the work to their employer.
I disagree that a year is a reasonable amount of time before a non-compete expires. Most of the agencies I've worked for have included six-month noncompetes and even that is pushing it since it basically means I can't work in my chosen industry for half a year. Three months should be enough I would think.
On the patent thing, if they're making use of proprietary resources or training that the company provided in order to produce their own product, the company is entitled to a little compensation from that. If they bring you on with a contract to basically "invent something... anything!" and when you come up with something in your garage you decide it's too awesome to share then there's going to be a problem here. That's what happened to Steve Wozniak back in the day, the company had the right of first refusal on anything he created. (Oddly enough they declined because, well, who's going to want a computer in their home?).
Of course, that's a very niche application, but it's a weird grey area and it's tough to draw a specific line as to how far either side can go, but I DO understand why the clauses exist and don't necessarily find them unfair. (unless they're unreasonably far-reaching).
Plus there's also the fact that even if the company owns the patent for something you invent, they still have to name you as inventor and you get royalties. So it's not terrible unless the company isn't interested in pursuing it and won't let you retain ownership.
Can you cite any of that? Because my understanding is the exact opposite. They do not have to put your name on it, and even if they do it can be symbolic and does not entitle you to royalties unless they're agreed upon.
Yeah, when I worked in the space program, they were pretty explicit from the first day onwards that anything I invented was owned by them, and that while they could include my name on it, I was not entitled to any royalties from the sale of it. This also, hilariously, led to several potential patents NOT being pursued by people I worked with, which were later patented by private organizations.
the only solution I can see here is Legislative. They can easily fix this, but that requires them to you know, fix it.
You'd think that the trial lawyers would be pitching a fit over something that threatens to put them out of business were it to become universal.
They are. Fat chance of getting the Federal Arbitration Act amended with the House being a wholly-owned subsidiary of the Chamber of Commerce, though.
Also, it's not exactly a sexy issue, especially given that your average US journalist doesn't understand how to report on legal issues other than the kind you might see on a CSI episode.
mythago on
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Kinda like how you know that the container of drano has "DO NOT EAT" on it because some adult was stupid enough to eat it then almost die and sued successfully. One thing the law seems to be very blind about is a persons personal stupidity.
YANAL. Please don't try and play one on the Internet. It's just that the law defines personal stupidity using the "reasonable person" standard, not the "some guy on the Internet who thinks everybody else is dumber than he is" standard.
In my state, and most other states work along these lines, a product can be defective if it "does not perform as safely as an ORDINARY CONSUMER would REASONABLY expect." Emphasis added. That means if your steak knife is sharp, you're not going to be suing anybody. But if your steak knife turns out to have C-4 embedded in the handle? Yeah, that probably wasn't something you could have figured out.
The purpose of a warning is to take care of dangers that may not be completely obvious. I promise you, there really is no need for coffee cups to have "CAUTION: HOT" printed on them.
By the way, I just took a lot at a bottle of Drano I have sitting in my garage. Funnily, it does not say DO NOT EAT. Maybe you bought an off-brand.
mythago on
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The purpose of a warning is to take care of dangers that may not be completely obvious. I promise you, there really is no need for coffee cups to have "CAUTION: HOT" printed on them.
This case gets brought up a lot as the perfect example of someone stupid doing something stupid and then suing and getting a stupid amount of money. Unfortunately this case was completely warranted. The lady who ordered the coffee required skin grafts to her crotch because of the coffee. Im pretty sure it didnt burn her vagina, but I know she needed grafts to her inner thighs. McDonalds knew that the coffee at this location was too hot because it had already received a number of complaints about its temperature. Plus, in the end she didnt end up with that much money anyway. The jury awarded her a crazy amount of money (well, not crazy since you know, almost burned her vagina), the judge cut that down to something like $650,000, and then they settled out of court for an undisclosed amount (which is lower than the judge's amount). In fact, the lady had tried to settle with McDonalds long before the jury found in her favor, but McDonalds wouldnt have it.
I know thats pretty off topic, but the way that case is thrown about as the shining example of why tort reform is necessary really bugs me.
Nova_CI have the needThe need for speedRegistered Userregular
edited April 2011
Originally all Stella wanted was her medical costs covered.
Tort reform fanatics refer to this case as an example of lawsuits run amok, but it really isn't. Most of the other cases they refer to are complete fabrications.
Also, many warning labels are there not because someone sued after using a product inappropriately, but because someone thought it would be a good idea.
Right. Big manufacturers hire people who are actually experts in warnings - whether the wording and style of the label adequately give notice of the severity and likelihood of danger.
mythago on
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Originally all Stella wanted was her medical costs covered.
Tort reform fanatics refer to this case as an example of lawsuits run amok, but it really isn't. Most of the other cases they refer to are complete fabrications.
Also, many warning labels are there not because someone sued after using a product inappropriately, but because someone thought it would be a good idea.
So, if anything, this case is an example of how outrageous the cost of health care is in the US.
Interestingly, Pi-r8, one good way to reduce the number of lawsuits would be to have a single-payer system and generous sick leave protection. If people don't have to sue for medical bills and lost wages/earning capacity they won't. Try THAT one on conservative 'tort reformers', though.
mythago on
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Interestingly, Pi-r8, one good way to reduce the number of lawsuits would be to have a single-payer system and generous sick leave protection. If people don't have to sue for medical bills and lost wages/earning capacity they won't. Try THAT one on conservative 'tort reformers', though.
Along with that, wouldn't you need some sort of mechanism to tie the health care costs back to the offending corporation? So McDonalds makes crazy-hot coffee, a bunch of people get searing crotch-burns, they all get their free health care to take care of it, nobody ever sues, and McDonalds has no incentive to stop serving the crazy-hot coffee.
Would you just hope that someone sued for pain and suffering? Would you let the government sue McDonalds on behalf of the victims?
ElJeffe on
I submitted an entry to Lego Ideas, and if 10,000 people support me, it'll be turned into an actual Lego set!If you'd like to see and support my submission, follow this link.
Originally all Stella wanted was her medical costs covered.
Tort reform fanatics refer to this case as an example of lawsuits run amok, but it really isn't. Most of the other cases they refer to are complete fabrications.
Also, many warning labels are there not because someone sued after using a product inappropriately, but because someone thought it would be a good idea.
Because sometimes a company temporarily remembers healthy customers are repeat customers, and the dumber ones are the ones most likely to buy their inferior products.
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That company was a high tech company, but I was doing shipping and receiving.
I presume HR uses the same contract for everybody. I mean why wouldn't they, it's a great contract ... for the employer.
I mean, it makes perfect sense that individuals be required to stand alone against global fortune 500 level companies. Both are citizens, one just happens to have a few advantages. Surely that $500/hour/lawyer law firm on retainer isn't all that big a deal.
As already mentioned, he can be impeached by Congress the same way the President can.
It's just not going to ever happen while Republicans have a controlling minority.
Edit: God I hope I'm not wrong or this country's legal definition of corporations is starting to amount to a crime against humanity.
Well, any contract you've signed period has probably been under duress, by your standards. Gotten a loan at the bank? Bought a car? Whatever, you need a contract to spell out what your respective responsibilities are. You're basically arguing for not letting citizens do anything ever because otherwise they will have to deal with a business who almost certainly has more power than them.
Employment contracts, in general, are not evil. Non-competition clauses are common sense - no sane employer is going to want you secretly working against their interests in your down time. And I actually don't mind at-will employment, though the "give two weeks' notice or pay a fine" sounds just plain illegal.
And keep in mind that without a contract, you get hosed, too. Your boss agreed to pay you $20 an hour. Oh, but there was no contract! Well, maybe he'll just pay you $10 an hour for this week - not like there's anything forcing him to pay you a set amount, right?
Basically, we need contracts. We just don't need blatantly evil contracts.
I'd say that in most cases, we do not have these things.
I worked at Blockbuster for 2 weeks, and they made their employees sign one of these.
source
And here's a snippet from a Google doc book on them
That's straight up evil corporation shit.
I don't think it's terribly unreasonable provided that the object in question is created using resources obtained from the company or if it's an invention that competes directly with something the company produces. The whole "BRATZ" thing is an interesting example of this.
Those type of idea ownership agreements expire the moment your employment does though, and never cover unrelated material (say you're working for a software firm and design a new type of superconductor, they'll try to claim it but it won't work).
Now, when they start trying to copywrite your "DNA and all derivative works." Then you worry.
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/Sigh. This country is really pretty shitty for a first world industrialized country.
I can't see an individual standing on equal footing with an employer for contracting purposes.
Which is why collective bargaining is such a great thing. And why it's important that we maintain the ability to do so.
That's because we are actually the richest third world country on Earth, but we do a great job of pretending to be a first world country.
Edit: I think many people will disagree with me but consider that there are only 65 million middle class jobs (roughly) for around 250 million working age US Citizens. Plus, With at least 40-50 million living below the poverty line (NOT including illegal immigrants), how can we pretend to be anything other than a super-power-ed version of Mexico with a much better military and a lot of misplaced respect from other first world countries?
Someone likes his Dilbert.
Nice catch. Not a well known punchline from the strip, but I always liked it.
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A non-compete clause takes care of this, and non-compete clauses, so long as they expire in a reasonable amount of time (1 year or so) are something that I do not object to, but any work done on someone's own time belong to that individual unless they voluntarily hand over the work to their employer.
Umm... we can pretend that because it's sort of true. Why don't you actually try going to Mexico (and staying a week at a resort in Puerto Vallerta doesn't count) and then see if you can spot the differences.
Go ahead, I'll wait.
Shit like collective bargaining and massive invenstment in infrastructure and quality workforce education development. Which we, you know, aren't doing so much anymore.
Kinda like how you know that the container of drano has "DO NOT EAT" on it because some adult was stupid enough to eat it then almost die and sued successfully. One thing the law seems to be very blind about is a persons personal stupidity.
I'm not saying its right, im just saying it usually wouldnt have been ever contimplated by the company unless someone was a dickhole and burned someone from not having that protection.
I disagree that a year is a reasonable amount of time before a non-compete expires. Most of the agencies I've worked for have included six-month noncompetes and even that is pushing it since it basically means I can't work in my chosen industry for half a year. Three months should be enough I would think.
On the patent thing, if they're making use of proprietary resources or training that the company provided in order to produce their own product, the company is entitled to a little compensation from that. If they bring you on with a contract to basically "invent something... anything!" and when you come up with something in your garage you decide it's too awesome to share then there's going to be a problem here. That's what happened to Steve Wozniak back in the day, the company had the right of first refusal on anything he created. (Oddly enough they declined because, well, who's going to want a computer in their home?).
Of course, that's a very niche application, but it's a weird grey area and it's tough to draw a specific line as to how far either side can go, but I DO understand why the clauses exist and don't necessarily find them unfair. (unless they're unreasonably far-reaching).
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Arbitrating the merits of a rape suit is fucking despicable, as is the Justice Department's refusal to investigate the rape allegations (which will subsequently make it harder for her to sue/arbitrate since she doesnt have a conviction establishing that she was raped in the first place). Senator Franken proposed a law that withholds defense contracts from companies that "if they restrict their employees from taking workplace sexual assault, battery and discrimination cases to court" as a direct response to Jamie Leigh Jones's fucked up situation. The fact that this didnt pass unanimously is fucking atrocious.
As for the 94% loss rate, while it is shocking and in all likelihood an indication that things are not right in the arbitration system (which Ive never said is perfect, and just to reiterate Im not a fan), it doesnt account for whether those same cases would have been losing cases in the court system. Nevertheless, corporations have an easier time establishing their case since the discovery rules present in actual trials typically arent present in arbitration (but again, since theyre just contracts the corporation can basically specify whatever rules the corporation wants).
I think theres a definite conflict when theres only one arbitrator. The pressure to find for the corporation in that situation is much larger then when theres a panel. With a panel of arbitrators you typically (ie should) have an arbitrator selected by each party and then an arbitrator either agreed upon by the parties or by the arbitrators. This is slightly more fair since youre not at the whim of just the single arbitrator, but instead have someone who is more likely to see your side.
Also, NAF (National Arbitration Forum) sounds shitty, most of my understanding surround the American Arbitration Association. Its interesting that NAF removed Bartholet from the list of possible arbitrators. It also goes on to say she still arbitrates, so corporations are still seeking her services.
Reform of the arbitration system is needed. Badly. I can think of a couple things that would go a long way in improving the system:
Anyway, like I said, I much prefer non binding mediation. You can resolve a lot of conflicts through mediation and, when youre faced with someone who is determined to go to court, that option is available. And should that person bring a frivolous claim you can always award attorneys fees. Although, a benefit of the mediation procedure is that you can ask the mediator for their opinion on your case (since they have information from both sides theyre in a better place to judge, but they wont tell you the other party's case; its just a whether or not you have a chance sort of thing)
Plus there's also the fact that even if the company owns the patent for something you invent, they still have to name you as inventor and you get royalties. So it's not terrible unless the company isn't interested in pursuing it and won't let you retain ownership.
Can you cite any of that? Because my understanding is the exact opposite. They do not have to put your name on it, and even if they do it can be symbolic and does not entitle you to royalties unless they're agreed upon.
Yeah, when I worked in the space program, they were pretty explicit from the first day onwards that anything I invented was owned by them, and that while they could include my name on it, I was not entitled to any royalties from the sale of it. This also, hilariously, led to several potential patents NOT being pursued by people I worked with, which were later patented by private organizations.
They are. Fat chance of getting the Federal Arbitration Act amended with the House being a wholly-owned subsidiary of the Chamber of Commerce, though.
Also, it's not exactly a sexy issue, especially given that your average US journalist doesn't understand how to report on legal issues other than the kind you might see on a CSI episode.
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YANAL. Please don't try and play one on the Internet. It's just that the law defines personal stupidity using the "reasonable person" standard, not the "some guy on the Internet who thinks everybody else is dumber than he is" standard.
In my state, and most other states work along these lines, a product can be defective if it "does not perform as safely as an ORDINARY CONSUMER would REASONABLY expect." Emphasis added. That means if your steak knife is sharp, you're not going to be suing anybody. But if your steak knife turns out to have C-4 embedded in the handle? Yeah, that probably wasn't something you could have figured out.
The purpose of a warning is to take care of dangers that may not be completely obvious. I promise you, there really is no need for coffee cups to have "CAUTION: HOT" printed on them.
By the way, I just took a lot at a bottle of Drano I have sitting in my garage. Funnily, it does not say DO NOT EAT. Maybe you bought an off-brand.
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This case gets brought up a lot as the perfect example of someone stupid doing something stupid and then suing and getting a stupid amount of money. Unfortunately this case was completely warranted. The lady who ordered the coffee required skin grafts to her crotch because of the coffee. Im pretty sure it didnt burn her vagina, but I know she needed grafts to her inner thighs. McDonalds knew that the coffee at this location was too hot because it had already received a number of complaints about its temperature. Plus, in the end she didnt end up with that much money anyway. The jury awarded her a crazy amount of money (well, not crazy since you know, almost burned her vagina), the judge cut that down to something like $650,000, and then they settled out of court for an undisclosed amount (which is lower than the judge's amount). In fact, the lady had tried to settle with McDonalds long before the jury found in her favor, but McDonalds wouldnt have it.
I know thats pretty off topic, but the way that case is thrown about as the shining example of why tort reform is necessary really bugs me.
Tort reform fanatics refer to this case as an example of lawsuits run amok, but it really isn't. Most of the other cases they refer to are complete fabrications.
Also, many warning labels are there not because someone sued after using a product inappropriately, but because someone thought it would be a good idea.
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Yeah, and imagine if McDonald's had a sign next to their drive-through menu:
By placing an order at this establishment you agree to settle all disputes with McDonald's through Mandatory Binding Arbitration.
So, if anything, this case is an example of how outrageous the cost of health care is in the US.
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Along with that, wouldn't you need some sort of mechanism to tie the health care costs back to the offending corporation? So McDonalds makes crazy-hot coffee, a bunch of people get searing crotch-burns, they all get their free health care to take care of it, nobody ever sues, and McDonalds has no incentive to stop serving the crazy-hot coffee.
Would you just hope that someone sued for pain and suffering? Would you let the government sue McDonalds on behalf of the victims?
Because sometimes a company temporarily remembers healthy customers are repeat customers, and the dumber ones are the ones most likely to buy their inferior products.
Is that a cheap shot? I sometimes forget...