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Thread: OBJECTION Your Honor! Mag-Legal Legal-an muna tayo.

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  1. #631
    ^^^ Admiral, Duterte v KTC makes for very interesting reading. At its heart though it seems the only explanation here is that KTC was being an a--hole towards Duterte. :D

  2. #632
    The Anti-Drunk and Drugged Driving Act Is Now In Force And Here Is What You Need To Know

    By Frank Schuengel on March 14, 2015

    While drunk driving has long become socially unacceptable and subject to heavy fines and strict enforcement in many countries, the Philippines has been lagging behind a little bit when it comes to keeping drivers under the influence of alcohol and other drugs off the roads – but that is about to change. Following a period of training, the LTO as lead agency, as well as the Philippine National Police, MMDA and various local government units, have now begun using breath analyzers to detect motorists suspected of driving under the influence (DUI) of alcohol and Republic Act 10586 is now being fully enforced. Here is an overview of what you need to know about it:

    What substances are covered by the Anti-Drunk and Drugged Driving Act of 2013?

    As the name suggests, the act covers more than just alcohol. In fact, it covers a huge variety of drugs, ranging from cannabis and cocaine, over MDMA (Ecstasy), methamphetamine hydrochloride (Shabu) and Heroin (and its substitute Methadone), to substances that can be found in certain prescription drugs, such as diazepam (Valium), meaning it’s potentially not only illegal drugs that can land you in trouble. If you fancy some light reading, you can look up the 1961 Single Convention on Narcotics Drugs (as amended by the 1972 Protocol), and the schedules annexed to the 1971 Single Convention of Psychotropic Substances, which are both mentioned as the basis for all drugs covered by this act.

    When can an enforcer stop me under this act?

    The law is very clear that an enforcer must have probable cause to believe that you are driving under the influence of alcohol or dangerous drugs before he can stop you. Probable Cause can include over-speeding, weaving, lane straddling, sudden stops, swerving, poor coordination or the evident smell of alcohol in your breath, any signs of use of dangerous drugs and other similar substances, as well as other “apparent indications and manifestations”. There is of course some room for interpretation as to what exactly constitutes Probable Cause under the act, but it is safe to say that if you’re singing ‘I Will Survive’ at the top of your lungs while slaloming across three lanes on EDSA and holding a bottle of vodka in one hand, then that would be enough of a reason to stop you.

    What happens when I am being stopped and suspected of drunk or drugged driving?

    Once probable cause has been established, you will be subject to a field sobriety test which at the moment will include:
    - The Eye Test (“horizontal gaze nystagmus”). The officer will instruct the driver to follow a moving object such as a pen or the tip of a penlight held in front of his face and will then look for nystagmus, the involuntary jerkiness of the eyes. A sober person should be able to follow the object smoothly, while a person under the influence of alcohol or other drugs may display a noticeable jerkiness in the eye movement.

    - The Walk-and-Turn: The driver is required to walk heel-to-toe along a straight line for nine steps, turn at the end, and return to the starting point without any difficulty.

    - The One-Leg Stand: This requires the driver to stand on either right or left leg with both arms on the side. The driver is then instructed to keep the foot raised about six inches off the ground for thirty seconds.

    All three of these tests appear to have been adopted from the USA, where these exact methods are widely used. If you fail these roadside sobriety tests, then it is the duty of the law enforcement officer to determine your blood alcohol concentration level, which will be done by means of a breath analyzer, a small machine into which you have to blow. The LTO has acquired 150 of these machines for now, at a cost of P68,500 each, and motorists are advised to ensure that the disposable mouthpiece of the breath analyzer is new when taking the test, as this can otherwise negatively affect the result (and presumably also give you a nasty souvenir from the previous user). The breath analyzer will print out three copies of the test result: one for the driver, one for the apprehending officer, and one for the LTO.

    If a law enforcement officer believes you might not be drunk, but instead thinks you might be driving under the influence of any of the other drugs covered by this act, then it is his duty to subject you to a drug screening test and, if necessary, a drug confirmatory test.

    What happens if I refuse any of those tests?

    Refusal to undergo the mandatory field sobriety and/or drug tests will result in the confiscation and automatic revocation of your driver’s license, in addition to other penalties provided by the act and any other applicable laws.

    Anti-drunk-drive-act-philippines (2)An officer requires probable cause before stopping you for suspected drunk or drugged driving
    What are the alcohol limits?

    Non-professional drivers of private motor vehicles with a gross vehicle weight not exceeding 4500 kg who are found with a blood alcohol content (BAC) of 0.05% or higher will be penalized. For drivers of trucks, buses, motorcycles and public utility vehicles, the BAC limit is 0.00%, which means no alcohol is allowed at all.

    What are the penalties?

    A non-professional driver found in violation of the act for the first time, and where the violation did not result in physical injuries or homicide, will be fined between P20,000 to P80,000, imprisoned for three months, and have his driver’s license suspended for one year. If that driver is caught a second time, then the license will be perpetually revoked, meaning he or she can never apply for a license in the Philippines ever again.

    A professional driver will receive the same fine and length of imprisonment, but his license will be permanently revoked for the first offense.

    If a driver violates the act and the violation resulted in physical injuries, then he or she will be fined between P100,000 to P200,000, and be penalized under the Revised Penal Code.

    Where the violation of the act resulted in homicide, the guilty driver will face a fine of P300,000 to P500,000, and be penalized under the Revised Penal Code.
    FRIENDS LANG KAMI

  3. #633
    How many drinks can I have before breaching the 0.05% limit for non-professional drivers?

    Let’s be clear here: your safest option is always to simply not drink any alcohol at all before driving. Even low levels of alcohol will negatively impact your ability to operate a motor vehicle and if you are planning on taking the car for your night out, then make sure you have a Designated Driver who stays sober and gets you all home without incident or prison time. How many drinks it really takes before you are over the 0.05% Blood Alcohol Content (BAC) limit stated in the act will vary according to your gender, weight, level of fitness and age, so there is no general answer. It can be said, though, that the limit is quite low and depending on your condition and what you are consuming, even one or two drinks can already push you over the limit.

    Can I reduce my BAC if I drink a coffee or have a cold shower?

    Downing a triple espresso or pouring some ice water over your head may make you more alert, but it won’t lower your Blood Alcohol Content. Because blood alcohol concentration continues to rise even after you have stopped drinking (it peaks 30 to 60 minutes after you had your last drink), there is really only one thing that lowers BAC, and that is time. This also means that you can still be above the legal limit the next morning, something to keep in mind when going for drinks after work and then commandeering your Jeepney or taxi again early the next day.

    How will this be enforced?

    LTO officers, and properly deputized officers of the MMDA, PNP and various LGUs, will very likely carry out checks on a rolling basis. The LTO is also instructed under the act to conduct random terminal inspections and quick random drug tests of public utility drivers.

    Anything else I need to know?

    Even if you are not driving your car, you might still get into trouble as the owner of the vehicle can be held liable for the fine and the award against the offender for civil damages, unless you can convincingly prove that you have exercised extraordinary diligence in the selection and supervision of your drivers in general and the offending driver in particular. While this part is mainly aimed at the owners of delivery trucks, taxis and similar vehicles, it could also leave you liable if you let a friend drive and he or she drunkenly crashes your car.
    How do the drink drive limits in the Philippines compare with other countries?

    The automatic prison sentence attached to a breach of the 0.05% BAC limit for non-professional drivers makes the Anti-Drunk and Drugged Driving Act one of the tougher pieces of drink driving legislation in the world, putting it alongside the likes of Poland and Sweden in the harshness stakes. The 0.00% limit for professional drivers is the same as in Germany and Thailand.

    Final thoughts

    Tackling drunk driving is a good thing, but the act does seem to include some loopholes, or at the very least sections which are cause for concern. One such concern is the apparent reliance on one single roadside breath test. Many countries require a second, more accurate test to be carried out at the police station, either by means of another Alcohol Breath Analyzer (ABA) or by other means, such as a blood test. This is because handheld breathalyzers can be unreliable, and while the available information does not indicate what type of breathalyzer will be used, the mentioned price tag of P68,500 per unit would point towards such a handheld device, and not a more expensive, and more accurate, evidential breath testing device.

    The act also does not state if a certain period of time must pass between the driver having had his or her last drink and a roadside breath test taking place. In the UK, police will usually ask a driver if he or she has had any alcoholic drinks in the last twenty minutes before administering a roadside breath test. There is a very good reason for that. If a driver were to take a sip of an alcoholic drink and then immediately take a breath test, the breath test would record that driver as over the drunk driving limit. However, if one were then to wait for 20 minutes, which is the time that the manufacturers of many the Alcohol Breath Analyzer machines recommend, the breath test would give an accurate reading and would indicate that someone who had just had one sip of one drink was well below the limit.

    Then there are concerns about medical conditions (a person suffering from diabetes can, under certain circumstances, show up as drunk on a breathalyzer test, even if sober) and other disabilities and medical problems. For example, some states in the USA, where the exact same field sobriety tests are being used, stipulate that people with back, knee or hip injuries or problems, as well as obese drivers, should not be taking the tests, and that if they do, the results will be invalid.

    As you can see, while in general it’s a very good thing that the Anti-Drunk and Drugged Driving Act of 2013 is finally being implemented and enforced, it also comes with some caveats and challenges, and a good few lawyers are probably getting ready to fight the first test cases as we speak (This is also a good moment to point out that this article is purely for informational purposes and does in no way constitute legal advice of any kind). In general, drinking alcohol and driving simply do not mix and the best advice to avoid any trouble is to simply stay sober when taking to the road.
    FRIENDS LANG KAMI

  4. #634
    When is stupid legal opinion stupid?

    By: Oscar Franklin Tan

    @inquirerdotnet

    Philippine Daily Inquirer

    02:13 AM June 22nd, 2015

    I WAS deeply humbled when I first entered the Philippine Law Journal office as student chair and was greeted by a submission from retired Justice Vicente V. Mendoza, the living legend who taught my professors. He later stressed it was my duty to evaluate submissions to legal academia’s holy of holies without regard for authors’ stature. And so I policed three chief justices, Sen. Miriam Defensor Santiago and even Bayan Muna Rep. Neri Colmenares, who we offered a chance to respond after Santiago cited his party.

    Law uniquely makes students responsible for its professional journals. The wise editor focuses not on a conclusion, but scrutinizes its underlying legal bases at each step. At a very basic level, even a student may pull out a law and raise that even a justice’s statement is clearly inconsistent. Law at this very basic level is no more than simple language.

    Contrary to what my friend John Nery insists in his last two columns, law is certainly like engineering at this basic level. While legal philosophers can argue beautiful enigmas for decades, most legal issues are exceedingly simple and leave no room for interpretation, except for lawyers arguing for clients. Not even Justice Mendoza may insist despite the Constitution that Manny Pacquiao may run for president before he is 40, nor that there can be 25 senators.

    It frustrates me when veteran editors like John insist that law is inherently subjective and there is thus an unbounded range of valid opinion on law, unlike science. His last column title “When does opinion become an unpublishable stupidity?” is itself frustrating because I would prefer to call a legal opinion baseless than stupid, a subjective term. Media treat law as so inherently subjective that reporters would rather interview a lawyer from an irrelevant field than cite the actual law. Rep. Ronaldo Zamora was interviewed on Sen. Grace Poe and quoted a high court decision defining residence. Instead of exploring this decision, reporters emphasized his topping the 1970 bar exams, complete with his score. John stresses how editors examine a legal pundit’s credentials, “spotting obvious cranks,” which misses my invitation to also minimally scrutinize legal statements themselves independent of the author.

    I underestimated how seriously editors respond to anything that appears to be censorship. Free speech is irrelevant as I invite them to reconsider how they exercise their free speech to choose what to publish. Everyone has a right to an opinion, but not to insist that someone publish it.

    Note that I ask editors to minimally scrutinize the bases of legal statements, not judge the statements themselves. Manuelito Luna astoundingly argued before the high court that the Disbursement Acceleration Program is unconstitutional because it violates the human rights doctrine of equal protection, because senators did not receive equal allotments. The court reached the conclusion, but not on this impossible basis.

    In contrast, the Inquirer published Filipino Freethinkers founder and nonlawyer Red Tani’s “Churches should remove posters or pay taxes” (Opinion, 3/16/13). He cited the constitutional rule that a church must be actually, directly and exclusively used for religious purposes to be exempt from real property tax, then argued that putting “Team Patay” tarpaulins on Bacolod City’s cathedral denouncing pro-reproductive health candidates was a political act that removed the exemption. While some consider the conclusion stupid, no legal editor would label it baseless, unlike RH Law essays that purported to discuss law but went to ideology.

    I make the narrow point that editors should minimally scrutinize legal bases and avoid confusing the public on what the law in textbooks actually is to begin with. Media do derail legal debate into nonexistent issues. When UP Law professor Sandra Olaso Coronel argued that the “condonation doctrine” absolves Mayor Junjun Binay for administrative acts from a previous term, reports made it appear that she was proposing a malicious new doctrine, not one entrenched in jurisprudence. Media gave the impression that the Cybercrime Law created online libel, yet while it was suspended, prosecution under the circa-1930 penal code continued. When Polytechnic University of the Philippines intellectual property professor Rod Vera tweeted that a Commission on Elections appointment violated the Constitution, reporters did not read the Constitution before reporting the nonexistent provision, confronting the President, and running the baseless story for up to five days (“The fake Comelec constitutional crisis,” Opinion, 4/24/13).

    Finally, after watching comedian Jon Stewart’s powerful monologue on the Charleston church shooting and racism, I ask again whether we are unconsciously tolerant of baseless legal opinion when it involves Islam. For example, in “The constitutionality of Shari’ah,” (Opinion, 5/12/15) retired insurance executive Araceli Lorayes states that Shari’ah law allegedly weighs a woman’s testimony as half of a man’s. Even she seems to admit that this alleged rule cannot become law in the Philippines, given equal protection and our female chief justice; and Randy David reminded that Philippine Shari’ah courts have existed since 1977. Are there no better critiques of the Bangsamoro Basic Law than long lists of legal impossibilities? And why are we indignant over Gawad Kalinga founder Tony Meloto’s comment for Filipino women to marry white men and produce “cappuccino” kids, but readily accept alarmist warnings of legal changes under an alleged Islamic state in Mindanao, however legally impossible under our Constitution?

    * * *
    FRIENDS LANG KAMI

  5. #635
    Twisted ruling

    @inquirerdotnet

    Philippine Daily Inquirer

    01:05 AM August 24th, 2015

    THE STUNNING Supreme Court decision in Enrile vs Sandiganbayan is in truth, and in the trenchant phrasing of the dissenting opinion, a “special accommodation”—an extraordinary privilege for a politician who remains one of the country’s most powerful men despite a year in detention on plunder charges. To engineer this privileged arrangement, the eight-person majority who voted in favor of Sen. Juan Ponce Enrile had to twist this way and that, to rationalize its decision. That the honorable justices seemed to have found constitutional bases for their ruling only confirms the perception that lawyers can rationalize virtually anything. Where there is political will, there is a legal way.

    Associate Justice Lucas Bersamin wrote the ponencia effectively granting bail to Enrile in a nonbailable case; he was joined by Associate Justices Presbitero Velasco Jr., Teresita Leonardo-De Castro, Arturo Brion, Diosdado Peralta, Mariano del Castillo, Jose Perez and Jose Mendoza.

    It is of no small moment that seven of these justices (all except Velasco) also joined in yet another controversial decision, again written by Bersamin; they formed the bulk of the nine-person majority that upheld in 2010 President Gloria Arroyo’s so-called midnight appointment of Renato Corona as chief justice. That ruling also squinted determinedly at the Constitution until the meaning of the provisions began to appear as the justices saw fit.

    In De Castro vs Judicial and Bar Council, the high court reasoned that the express limitation on the power of the president of the Philippines to make appointments two months before the presidential elections does not apply to the Supreme Court. Why? Among other credibility-straining reasons: Because the framers of the Constitution placed the pertinent provision under Article VII, which is “devoted to the Executive Department,” rather than under Article VIII, which is “dedicated to the Judicial Department.”

    Here is the argument that would shame a first-year law student: “Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions.”

    This is an astonishing view of the fundamental principle of the separation of powers. Many limitations on the scope of the executive’s duties and responsibilities can be found under other articles; those limiting the scope of the work of Congress can be found not only under Article VI, which defines the legislative department, but in other articles as well. And so on and so forth.

    The dissenting opinion of Justice Conchita Carpio Morales made short work of such twisted thinking. “Section sequencing alone … does not suffice to signify functional structuring. That the power of judicial appointment was lodged in the President is a recognized measure of limitation on the power of the judiciary, which measure, however, is counterbalanced by the election ban due to the need to insulate the judiciary from the political climate of presidential elections.”

    The Enrile decision is rich with similar embarrassments. Aside from the damning fact that the high court granted Enrile’s petition by creating a new, ill-defined argument on humanitarian grounds, an argument that the petitioner himself did not raise, there is also the tortuous thinking that sought to anchor the ruling on basic principles.

    Perhaps the most absurd is the one the majority of the Court referred to again and again. “Nonetheless, in now granting Enrile’s petition for certiorari, the Court is guided by the earlier mentioned principal purpose of bail, which is to guarantee the appearance of the accused at the trial, or whenever so required by the court.”

    The argument is that the imposition of a steep enough cash bond would compel the accused to appear at his own trial (so as not to forfeit the money). Correct as far as it goes—but the Bersamin decision stretches this principle beyond the breaking point. If in fact the main consideration of the high court was Enrile’s appearance at his own plunder trial, what better guarantee could there have been than continuing detention at the headquarters of the national police?

    In bending over backwards to extend a humanitarian courtesy to Enrile, the majority ended up twisting justice.
    FRIENDS LANG KAMI

  6. #636
    SC ruling win-win for Binay, Morales

    By: Tarra Quismundo

    @inquirerdotnet

    Philippine Daily Inquirer

    12:46 AM November 11th, 2015

    WHILE the Ombudsman is no longer spared from judicial review in investigating those in government, officials may no longer invoke reelection to evade administrative liabilities, the Inquirer learned Tuesday.

    The Supreme Court en banc issued the ruling Tuesday, according to court sources, giving points for both Ombudsman Conchita Carpio Morales and Makati Mayor Jejomar Erwin “Junjun” Binay Jr. in resolving the former’s plea to stop Court of Appeals’ (CA) proceedings on the latter’s petition against his suspension for his alleged role in overpricing of Makati City Hall Building II.

    The ruling has not been officially released.

    On the one hand, the high court struck down as unconstitutional Section 14 of the Ombudsman Act of 1989, which had spared the office from the issuance of writ of injunctions by courts and from “any appeal of application for remedy” against its decisions or findings before any court, sources privy to Tuesday’s proceedings said.

    Voting unanimously to invalidate such a provision, the magistrates gave courts the “limited” power to review rulings of the Office of the Ombudsman in case its actions are confronted with charges of “grave abuse of discretion only.”

    The court remanded the case to the Court of Appeals, giving it the green light to proceed with determining whether Morales had gravely abused her discretion in suspending Binay pending its investigation on the Makati City Hall Building II anomaly.

    In October, pending petitions before the CA and high court, Morales ordered Binay’s dismissal from service for grave misconduct and dishonesty, citing “irregularities in the services and contract for the construction in several phases of the parking building.”

    On the other hand, the high court abandoned the condonation doctrine, a principle that effectively extinguishes an elected official’s administrative liabilities from wrongdoing in his or her previous term by virtue of reelection.

    Binay’s legal team had invoked the doctrine in asserting that the mayor should no longer be held administratively accountable for alleged irregularities in a previous term because he was reelected.

    Sources said the principle was “abandoned because it is no longer consistent with the Constitution and lacked solid legal basis.” Magistrates voted 7-3 to exorcise Philippine jurisprudence of the principle.

    The doctrine, which Chief Justice Maria Lourdes Sereno had described as an “unfortunate doctrine… based on bad case law” during oral arguments on the case in April, was based on American jurisprudence.

    It first cropped up in Philippine law in a 1959 Supreme Court ruling, which absolved a San Jose, Nueva Ecija, mayor from administrative charges when he was reelected.

    Sereno had centered on the doctrine in her interpellation of Binay’s legal team in April, telling counsel Sandra Marie Olaso-Coronel: “We believe that this is wrong and you are telling us to continue along that doctrine? You will insist on a rule of procedure that will wreak havoc on our constitutional framework?”

    Before his dismissal, Binay also challenged a second suspension order that Morales issued against him in June, this time for his alleged role in the supposed rigged bidding for the construction of the 10-story Makati Science High School building.

    The mayor stepped down on July 1, after failing to secure an immediate temporary restraining order from CA’s Ninth Division.

  7. #637
    SC ruling win-win for Binay, Morales

    By: Tarra Quismundo

    @inquirerdotnet

    Philippine Daily Inquirer

    12:46 AM November 11th, 2015

    WHILE the Ombudsman is no longer spared from judicial review in investigating those in government, officials may no longer invoke reelection to evade administrative liabilities, the Inquirer learned Tuesday.

    The Supreme Court en banc issued the ruling Tuesday, according to court sources, giving points for both Ombudsman Conchita Carpio Morales and Makati Mayor Jejomar Erwin “Junjun” Binay Jr. in resolving the former’s plea to stop Court of Appeals’ (CA) proceedings on the latter’s petition against his suspension for his alleged role in overpricing of Makati City Hall Building II.

    The ruling has not been officially released.

    On the one hand, the high court struck down as unconstitutional Section 14 of the Ombudsman Act of 1989, which had spared the office from the issuance of writ of injunctions by courts and from “any appeal of application for remedy” against its decisions or findings before any court, sources privy to Tuesday’s proceedings said.

    Voting unanimously to invalidate such a provision, the magistrates gave courts the “limited” power to review rulings of the Office of the Ombudsman in case its actions are confronted with charges of “grave abuse of discretion only.”

    The court remanded the case to the Court of Appeals, giving it the green light to proceed with determining whether Morales had gravely abused her discretion in suspending Binay pending its investigation on the Makati City Hall Building II anomaly.

    In October, pending petitions before the CA and high court, Morales ordered Binay’s dismissal from service for grave misconduct and dishonesty, citing “irregularities in the services and contract for the construction in several phases of the parking building.”

    On the other hand, the high court abandoned the condonation doctrine, a principle that effectively extinguishes an elected official’s administrative liabilities from wrongdoing in his or her previous term by virtue of reelection.

    Binay’s legal team had invoked the doctrine in asserting that the mayor should no longer be held administratively accountable for alleged irregularities in a previous term because he was reelected.

    Sources said the principle was “abandoned because it is no longer consistent with the Constitution and lacked solid legal basis.” Magistrates voted 7-3 to exorcise Philippine jurisprudence of the principle.

    The doctrine, which Chief Justice Maria Lourdes Sereno had described as an “unfortunate doctrine… based on bad case law” during oral arguments on the case in April, was based on American jurisprudence.

    It first cropped up in Philippine law in a 1959 Supreme Court ruling, which absolved a San Jose, Nueva Ecija, mayor from administrative charges when he was reelected.

    Sereno had centered on the doctrine in her interpellation of Binay’s legal team in April, telling counsel Sandra Marie Olaso-Coronel: “We believe that this is wrong and you are telling us to continue along that doctrine? You will insist on a rule of procedure that will wreak havoc on our constitutional framework?”

    Before his dismissal, Binay also challenged a second suspension order that Morales issued against him in June, this time for his alleged role in the supposed rigged bidding for the construction of the 10-story Makati Science High School building.

    The mayor stepped down on July 1, after failing to secure an immediate temporary restraining order from CA’s Ninth Division.

  8. #638
    Meet the attorney suing Uber, Lyft, GrubHub and a dozen California tech firms

    Tracey Lien

    Shannon Liss-Riordan made a name for herself defending workers against FedEx, American Airlines and Starbucks in wage and hour lawsuits.

    If you’re a business executive and she’s knocking at your door, it probably means your company has been accused of doing something few Americans have much tolerance for: ripping off the little guy.

    So, if you’re an executive in Silicon Valley — where businesses are lauded for disrupting the old way of doing things, tearing down the hierarchies of the past, making the world a better place — you’d think you’d get a pass, right?

    Hardly. After slapping on-demand transportation company Uber with a class-action lawsuit over driver misclassification in 2013, the Boston lawyer has been busy, filing a dozen similar lawsuits against California tech firms.

    Silicon Valley companies may think they’re a breed apart, but to Liss-Riordan, too many of them are too similar to the big corporations she’s fought in the past, companies she says flout labor laws for profit at the expense of low-wage workers.

    Where some see Silicon Valley innovation, Liss-Riordan sees an old power struggle, wrapped in an app.

    ***

    Liss-Riordan hasn’t kept track of how many miles she’s logged between Boston and San Francisco since she started litigating against companies in the on-demand economy. But she’s now treated as a regular at the federal courthouse in San Francisco, where she’s often seen dragging a roller bag of legal documents in and out of the towering gray building.

    An opposing attorney in one of her cases saw her around so much he challenged whether she should be allowed to file so many lawsuits in the state when she isn’t a member of the State Bar of California.

    If he’d hoped to deter her, it didn’t work. Liss-Riordan responded by registering to take the California bar exam in February. Once admitted, she plans to open an office in San Francisco.

    Liss-Riordan carries herself more like an activist than a lawyer. At first, she comes off as approachable, friendly even. But her partner at Boston law firm Lichten & Liss-Riordan, Harold Lichten, describes her as having the heart of a grass-roots organizer with the tenacity of “a pit bull with a Chihuahua in its mouth.”

    She knows her stuff and can get really academic, but without making people feel dumb.

    Opponents have accused her of being opportunistic and taking advantage of young companies who don’t know legal rules. She counters by saying that the cases she’s filing aren’t about semantics. They’re about people getting ripped off.

    The on-demand economy — driven by smartphone apps with which people can instantly hail a ride, order a meal or book a house cleaner — is booming in California. Ride-hailing companies such as Uber and Lyft have achieved multibillion-dollar valuations from a business model that uses independent contractors to fulfill a core function of their businesses. Although they compete directly against the taxi industry, they’ve labeled themselves “technology companies” — intermediaries that simply connect willing workers with paying customers.

    Which would be fine, Liss-Riordan said, if they were also treating their workers as independent contractors.

    In the lawsuits she filed against Uber, Lyft, food-delivery companies DoorDash and GrubHub, and on-demand laundry service Washio, she alleges that these firms exert the kind of control that employers would have over employees — without providing any of the benefits employees, by law, are entitled to.

    In response to her efforts, these companies have hired legal big guns. Uber, for example, hired Gibson Dunn, a global law firm routinely recognized by industry groups as one of the top litigators in America.

    There’s a good reason they’re fighting so hard. A Liss-Riordan victory could put companies such as Uber and GrubHub on the hook for costs that would eat deeply into their profit margins. Labor experts estimate that their cost of doing business would increase by 30% to cover payroll taxes, unemployment insurance and workers’ compensation. Costs would rise even more with overtime payments and — particularly in the Lyft and Uber cases, in which drivers use their own vehicles and pay for their own gas — expense reimbursements.

    Could big firms such as Uber and Lyft afford it? Liss-Riordan believes so. But in Silicon Valley, where sky-high profit margins lead to enormous company valuations that could translate into staggering returns on investment, any increase in the cost of doing business poses a threat. After all, Uber didn’t become the world’s most highly valued private company by paying for its drivers’ gas.

    If the companies are to be believed, any significant changes to their business model would fall on the drivers. The Ubers and Lyfts of the world argue that recognizing workers as employees would come at the cost of flexible working hours, which is the reason many people sign up to drive for an on-demand service.

    Liss-Riordan huffs at the notion. Smaller companies such as Shyp (on-demand shipping), Munchery (on-demand meal delivery) and Luxe Valet (on-demand valet parking) have been able to do it while retaining some flexibility, although their workers now have scheduled shifts.

    “These companies just don’t want to do it because it’s going to cost more,” she said. “And there’s nothing stopping them from giving their workers flexible schedules.”

    She almost has to fight back an eye roll when she hears the on-demand economy’s defense.

    “It just doesn’t make a lot of sense to me why we should throw all these worker protections out the window to help a $50-billion company like Uber when the workers who are actually doing the work are struggling and need those protections,” she said.

    She speaks with an urgency. As she delivers each statement, one can imagine a concurrent thought bubble floating above her head in which she grabs people by the shoulders and shakes them: “Can’t you see? Can’t you see why this matters?”
    FRIENDS LANG KAMI

  9. #639
    ^ (Continued)

    ***

    Liss-Riordan has brought this kind of fight to big and small players alike. She’s taken on Starbucks and American Airlines (both were accused of skimming tips from workers) and sued a Massachusetts strip club and a pizza chain (the former classified its dancers as independent contractors but expected them to share their tips with managers and bouncers. The latter was a case in which kitchen staff members were forced to give back their overtime wages or lose their jobs).

    Her track record is strong: In Massachusetts, she’s won worker-misclassification and tip cases against Starbucks and FedEx. Her lawsuit against the strip club triggered a wave of similar lawsuits across the state. After her lawsuit drove the pizza chain out of business, she bought one of the restaurants herself and turned it into a profit-share pizza joint.

    “Overall she really cares about workers and advancing the law for workers,” said Lichten, who has known her for 20 years. “She’s very good about rolling up her sleeves and meeting with clients to explain to them what’s going on.”

    There’s big money to be made in this area, of course. Class-action lawsuits can lead to hefty payouts, with lawyers walking away with up to a third of what their clients are awarded. In a recent class action over worker misclassification involving FedEx Ground (Liss-Riordan was not the plaintiff’s attorney), the company announced a $228-million settlement with 2,300 California-based drivers.

    Liss-Riordan doesn’t charge an upfront fee — so if she doesn’t win, she gets nothing.

    Her critics have been blunt, accusing her of taking advantage of confusing and arcane laws to reap a windfall for her clients and her firm.

    “I have a lot of respect for Shannon, but I do see this cottage industry she's created around the tip statute as becoming abusive toward employers,” attorney Ariel D. Cudkowicz, who defended several Liss-Riordan-led lawsuits, told the Boston Globe in 2008.

    Others have pointed out that sometimes companies have good intentions but simply misinterpret the law.

    Before they get the chance to figure it out, lawsuits like Liss-Riordan’s can “knock them out of business,” said attorney Robert Berluti, who went up against Liss-Riordan in the Massachusetts stripper case.

    Some of her cases have taken more than a decade to resolve. In 2011, she took on a case representing a skycap who was fired in retaliation for participating in a class-action lawsuit; that was a five-year process.

    “She kept fighting without getting paid,” said her former client in the skycap case, Joe Travers, 50. According to Travers, Liss-Riordan continued to represent him even when the court reversed his victory. She recently won an appeal on his behalf.

    “It’s amazing someone would continue to fight for you even when there might not be anything for them in the end,” he said. “She just doesn’t like people taking advantage of other people.”

    Liss-Riordan doesn’t seem fazed by her critics or the size of the industry she’s taking on. In her eyes, no company — innovator, disruptor, whatever else they want to call themselves — deserves a free pass.

    When asked whether she’s been known to be intimidated by anyone — a company, an industry, another law firm — Liss-Riordan’s former colleague, attorney Nicole Horberg Decter, had this to say: “Ha-ha-ha!”

    Then, after a moment: “I don’t think of Shannon as someone who is intimidated by anything. When she takes on an issue, she’s not taking on a company, she’s taking on an industry. I think that’s very powerful. So, no, she is not intimidated at all.”
    FRIENDS LANG KAMI

  10. #640
    Should I tell my boss about my medical condition?

    By: Atty. C. Joe Sayas Jr. - @inquirerdotnet

    INQUIRER.net US Bureau / 03:41 AM April 01, 2017

    Q: I was diagnosed with herniated disc and severe anxiety. I want to request leave but want to keep my privacy at work. Do I need to tell my employer about my medical or psychological condition?

    A: No. The employee is not required to disclose the nature of the employee's medical condition or disability (i.e., their diagnosis). The employee is required only to provide reasonable medical documentation which describes the employee?s physical or mental limitations, which may prevent them from doing their work. For example, the medical documentation may simply state that the employee is restricted from lifting more than 25 lbs.

    The employer cannot inquire into the "nature or severity" of the employee?s disability. The employer cannot ask for the employee?s complete medical records as those records may be unrelated to the need for accommodation. The employer also cannot ask the employee about the underlying medical cause of the disability (unless such a medical examination is "job-related" and "consistent with business necessity").

    How much of an employee?s medical condition should be disclosed to the employer? If an employee?s disability or medical condition is not obvious, the employer may request the employee to provide reasonable medical documentation confirming the existence of the disability and the need for reasonable accommodation. That medical documentation may contain the following:

    - The name and credentials of the health care provider
    - Certification from the medical provider that the employee has a physical or mental condition that limits a major life activity or a medical condition, and a description of why the employee or applicant needs a reasonable accommodation.
    - There is a need for "reasonable accommodation" if the employee?s medical condition limits a major life activity, such as doing the necessary tasks that the work requires. To have a limitation in the performance of a major life activity is to have a disability. Reasonable accommodation may include granting or extending leave from work to allow medical treatments, offering part-time or modified work schedules, or making facilities accessible to and usable by disabled individuals.

    Even if the medical condition does not limit any major life activities (i.e., there is no disability), the employee is still entitled to reasonable accommodation if he or she needs to be absent from work for medical treatments or doctor appointments.

    For the employer to provide reasonable accommodation to the employee, the employer must know that the employee needs such accommodation. The employer knows an employee has a disability when the employee tells the employer about the condition, or when the employer becomes aware of the condition, such as through a third party or by observation. Thus, if the employee?s disability becomes known or obvious, the employer must engage the employee in a timely, good faith interactive process to determine if reasonable accommodation can be made for the employee. The employer must start the interactive process.

    Lastly, California law prohibits discrimination based on disability or medical condition. An employer may not terminate or demote an employee based on the employee's disability or medical condition.

    The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818 ) 291-0088 or visit www.joesayaslaw.com. [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary relief for thousands of employees and consumers. He is named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a member of the Million Dollar-Advocates Forum.]
    Last edited by Joescoundrel; 04-03-2017 at 10:41 AM.
    FRIENDS LANG KAMI


 
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