At the time of writing this, more than 170,000 Americans have died from COVID-19. Unfortunately, the death toll keeps rising with no end in sight for this ravaging pandemic that’s threatening the very fiber of the country’s economy.
With the current unemployment rate continuing to soar, the ever-growing number of new infections, and an election right around the corner, the question remains – How do you hold a federal election in the age of the coronavirus?
How do you do it when the existing government directives require citizens to shelter in place, avoid large gatherings, and maintain social distance from one another?
The reality is – it will be a difficult task. Nonetheless, election officials and state secretaries are working tirelessly to ensure that the 2020 presidential election goes off without a hitch, in a way that doesn’t cause a spike in the number of new COVID-19 infections.
The adoption of the vote by mail and absentee ballot initiatives will allow you to exercise your constitutionally-protected right without endangering your health in the process. This article explores everything you need to know about how to vote by mail for the 2020 presidential election.
How to Vote by Mail – Check the Rules in Your State
Different states across the country have varying definitions of what constitutes mail ballots versus absentee voting. Nonetheless, their fundamental function is the same. It involves a voter receiving a ballot from their local elections office, filling it out, and returning it in-person or through the US Postal Service (USPS) to a ballot drop box.
The first thing you’ll need to establish is if your state allows for in-person voting. There are currently seven states that don’t offer voters the option to vote by mail.
If you live in a state where absentee voting is an option, you’ll need to familiarize yourself with the rules. Most offer some form of early voting in which case, you can head to the polling centers in the days leading up to Election day.
Other states have guidelines that allow for early absentee voting, particularly for individuals who know they will be unavailable or out of the country on Election Day itself. So, although you can opt to vote early, some states require that you provide a valid reason why you won’t be able to on the day itself.
Request Absentee Ballot
Next, you need to figure out how to get an absentee ballot. Anyone living in DC, Washington, Vermont, Utah, Oregon, Nevada, Hawaii, Colorado, or California will likely have a mail-in ballot automatically sent to them. So, there’s no action required on your part to get one.
If, on the other hand, you live in Wisconsin, Ohio, Michigan, Massachusetts, Maryland, Iowa, Illinois, or Delaware, rather than automatically receiving a mail-in ballot, you’ll receive an application to fill out to request for a mail-in ballot.
Twenty-four other states are letting voters cast their mail-in voting ballot without requiring them to provide a documented excuse, beyond the risk of contracting COVID-19 through in-person voting.
The majority of states will have an online portal to allow voters to request their absentee ballots. The rest of the states require that you send in a signed form from your county or state election office. These are available for download on your election office’s website as well as from non-profit organizations like VoteAmerica or Vote.org.
To avoid overwhelming the local election officials, the earlier you can request for and send in your ballot, the better it will be for them to meet the soaring demand.
Learn the Vote by Mail Requirements in Your State
Although most states will now allow all registered voters to use absentee voting, others only provide this option to the elderly. Others require voters to meet their respective state’s conditions before they can receive a mail ballot.
Nonetheless, even places that don’t require voters to provide a valid reason to receive a mail-in vote still have certain conditions that have to be met for their ballots to count. In most cases, you’ll be required to submit a copy of your photo ID, get your ballot notarized, and submit witness signatures.
Absentee Ballot Deadlines by State
Once you’ve received your ballot and have met all the conditions required for your vote to count, you can send it in via the USPS or in-person, to ballot drop boxes or election offices within your district. If you’re not sure where to go, check with your local election office for any clarification you might require.
Keep in mind that daylight savings time ends on November 1. So, the absentee ballot deadline is quoted in daylight time, while the Election Day itself is quoted in standard time.
Early voting timelines by state
If you live in a state that has multiple time zones, you’ll need to take note of the one that applies to you. The National Conference of State Legislatures website has a comprehensive list of the state laws governing early/absentee voting, as well as the respective deadlines. Look up your State from the list beforehand to confirm the voting period.
How Do I Register to Vote
To register as a voter, you’ll need to be a US citizen, be 18 by Election Day, and meet your state’s voting requirements. You’ll also need to complete the registration process before the deadline.
You can register in person at your local or state election office, at the Department of Motor Vehicles (DMV), online using the national mail voter registration form, county and state public assistance offices like the WIC and SNAP/food stamps, or at armed forces recruitment centers.
Once you do, you’ll receive your voter registration card listing your polling center. That’s where you’ll turn up to vote on Election Day.
Time Is of the Essence
Now that you know how to vote by mail for the 2020 presidential election, ensure that you send back your ballot at least seven days in advance if you plan to do it through the USPS. If your ballot arrives past your state’s deadline, it’s not going to count.
To be on the safe side, factor-in a minimum of 14 days for the round trip from the moment you request for your ballot right up to when it gets back to the elections office.
In March 2016, three protesters were allegedly roughed up at a Trump rally in Louisville, Kentucky. The three later sued Trump on the grounds of “incitement to riot,” claiming that they suffered injuries at the hands of his supporters after he yelled to “get ‘em out of here”.
As a result, they were pushed, shoved, assaulted, and unceremoniously removed from the campaign venue for repeatedly interrupting Trump’s 35-minute speech, in what they termed as a “peaceful protest.”
The suit, which was brought before the 6th US Circuit Court of Appeals, was dismissed on the basis that their claim against Trump and his campaign team was not valid under Kentucky law, since his speech was protected under the First Amendment. In the court’s opinion, his utterances did not specifically advocate for nor support violence.
With the ongoing Black Lives Matter protests across the country calling for an end to the racial injustices faced by members of the African American community, the question is: Do the same First Amendment principles apply? Can you sue the Black Lives Matter Movement for any injuries you sustain(ed) as the direct result of protests?
Here’s everything you need to know.
Social Movement Definition
A social movement is essentially a group of loosely organized individuals or organizations whose activities seek to achieve a particular goal – which is often of a political or social nature.
The Occupy Wall Street, Civil Rights, and the Black Lives Matter movements are some of the most notable examples of social movements in recent times.
The activities of these types of organizations generally have three agendas:
To create change
To resist change
To offer a political voice to disenfranchised members of the society
Now, violence in social movements is not uncommon, although the definition of the term in such scenarios is often broad. Nonetheless, it is generally considered to be the damage to and/or destruction of property, and the death/injury of people.
So, if you sustain injuries in social protests or end up incurring losses due to damage to your property, can you sue?
Black Lives Matter Lawsuit 2017
In July 2016, a police officer sustained injuries while responding to Black Lives Matter protests in Louisiana. According to court documents, he was struck by a concrete block that was hurled at him while attempting to quell the escalating violence.
This resulted in injuries to his head, brain, and jaw. He also got a couple of his teeth knocked out in the process.
In his lawsuit, he argued that DeRay Mckesson – one of BLM’s most prominent supporters – and the Black Lives Matter movement in general, should be held liable for the injuries he sustained. He further asserted that Mckesson should have foreseen the possibility of things going awry and, therefore, acted negligently in that regard.
BLM Lawsuit Dismissed
In his ruling, Chief Judge Brian Jackson of the US District Court dismissed the suit on the basis that “Black Lives Matter” cannot be sued since it is, in essence, a “social movement” – much in the same way that no individual can sue the Civil Rights or the LGBT Rights movement.
Lawsuits can only be brought against legal entities and not loosely organized social movements. He further stated that Mckesson isn’t directly liable for the actions of the protestors since he did not commit the offense himself, nor did he incite others to act violently.
Jackson used a Supreme Court precedent that has been widely interpreted as a sanctuary for protestors. It protects them against liability for damages and/or losses they did not directly cause.
Lawsuit Appeal
When the case was brought before a three-judge bench at the US 5th Circuit Court of Appeals, their decision overturned the previous ruling, citing that the matter should be presented before a jury to allow them to hear and issue a verdict on Mr. Mckesson’s alleged negligence, and the extent to which he should be held liable.
The three-judge panel argued that Mckesson failed to exercise “reasonable care” when he led protesters onto the highway and engaged in a confrontation with the police, the direct result of which led to the injury of the plaintiff.
Lawyers, legal scholars, and the American Civil Liberties Union (ACLU) balked this decision, fearing that it could have far-reaching consequences for protesters across the country. They argued that allowing the case to proceed in such a manner would be an infringement to the First Amendment rights of protesters.
If protest organizers can be sued for the action of anyone present at their protests, then no citizen would dare organize such demonstrations.
ACLU lawyers appealed to the Supreme Court to hear the case citing that the 5th Circuit Court Ruling directly defies the Court’s earlier precedent in the NAACP v. Claiborne Hardwarelandmark ruling.
One of the three judges in the Circuit Court panel has since changed his vote. He defended the fact that the First Amendment right to free speech does indeed cover unruly demonstrations/protests as well.
What Does the First Amendment Protect?
The First Amendment may only be 45 words long, but 227 years since its adoption, it is still the source of endless debates among judges, lawyers, lawmakers, and legal scholars alike over its interpretation.
Here are the five freedoms it protects:
Speech
Religion
Press
Assembly
Freedom to petition the government for reparation of grievances
The freedom to protest is protected in the Constitutional right to peaceful assembly and freedom of speech. Based on Supreme Court precedence dating back to the 1960s, even so-called “hate-speech” is allowed, unless it is specifically used to incite violence.
Keep in mind, though, that as much as the First Amendment protects citizens against government limitations on the freedom of expression, it doesn’t restrict private employers for setting their own rules.
What Does the First Amendment Not Protect
Not all categories of speech enjoy First Amendment protection. They include:
Blackmail
Child pornography
Defamation
Fighting words
Incitement to impending lawless conduct
Obscene speech
Perjury
Solicitation to commit a crime
True threats
The Constitutional right to protest does not include:
Endangering the welfare of others. For instance, organizing or taking part in a protest that blocks traffic without a permit
Blocking people from accessing buildings or walking on a sidewalk
Protest activities that trespass on private property
Interfering with, touching, or verbally antagonizing law enforcement officers
Taking part in a protest while carrying weapons or drugs
The Jury Is Still Out
So, can you sue Black Lives Matter? Well, the answer to this is still up in the air, based on the 5th Circuit reversal of the District Court’s decision.
At this point, it is up to the Supreme Court to determine whether it is Constitutional to file a lawsuit against the BLM protest organizers. As far as suing the BLM movement is concerned, the answer to this is – no, you can’t. The reason for this is simple – BLM is a loosely organized social movement and not a legally “suable” entity.
If you have any legal questions about liability as it relates to the BLM movement, feel free to chat online with a Laws101.com attorney.
You’re the procurement director at your local hospital. You enter into a legal agreement with a manufacturer to supply a thousand wheelchairs at a discounted price.
However, before either of you can sign the agreement, the manufacturer requests for an indemnification clause to be included in the contract. It is usually the standard procedure in such transactions.
If you’re ever in a similar scenario – whether as the procurer of a product or service or the one providing said commodities – an indemnity agreement is one of the most important parts of the process.
So, what does indemnification mean, and why is it important? Here’s everything you need to know.
What Does Indemnity Mean?
First off, let’s look at the verb to indemnify. It refers to the act of compensating someone if they incur a loss of some kind. Indemnity is, therefore, the guarantee or agreement to compensate someone if they incur a loss.
An indemnity agreement becomes necessary when the actions or mistakes of one party could potentially result in the other party being liable for any damages that come about. You’ll mostly come across the terms “indemnity” and “indemnify” in insurance policies. Here’s an indemnification clause example.
“… ABC Company Ltd. shall indemnify Mr. Slater for any liability incurred, through any commission or omission, in whole or in part performed by Mr. Slater, while acting in good faith on behalf of ABC Company Ltd. within the scope of his authority under this agreement…”
Types of Indemnity
The level of indemnity varies based on the obligations and responsibilities assumed by the at-fault party.
1. Broad Form Indemnity
The most common example of a scenario where this particular type of indemnity could come into play is where an employee who sustains an injury, sues their employer for additional pay over and above what they’re awarded in workers’ compensation benefits.
The employee in question would sue on the basis that their employer was solely at fault, which is why they sustained the injury. In such instances, the employer will likely tender the claim back to the employee if they do not believe that they were 100 percent at fault.
The employee would then have to respond to the employer’s tender using a broad form indemnity to pursue the claim.
2. Intermediate Form Indemnity
In this type, one party indemnifies itself for its negligence, except in instances where the other party is solely at fault. If you come across indemnity agreements with the phrase “… caused in part,” then you know you have an intermediate form indemnity on your hands.
The key differentiator of this type of agreement from its broad form counterpart is the omission of the word “whole.”
So, whatever is liable for compensation, will be due to the partial negligence of the party that seeks to be indemnified. Keep in mind that the extent of “partial” negligence in such instances can be as high as 99 percent.
3. Limited Form Indemnity
The third type of indemnity is limited form, although it isn’t an “indemnity” in the strict sense of the word. This is because it does not indemnify a party for its negligence. So, the phrase to look out for in these types of agreements is “… only to the extent”.
Double Indemnity Clause
Double indemnity clauses are provisions that you’ll come across in accidental death, dismemberment, and life insurance policies. It provides for an additional payout in the event of accidental death. But it’s not always that straightforward.
Most insurance providers make it extremely difficult to classify a death as “accidental,” and this stands in the way of people getting the payout they deserve. This additional payment is often two or three times the amount provided for in the policy, so it is easy to see why it can be a herculean task to get the insurers to pay up.
A few examples of death causes that would be classified as “accidental” include:
Murder
Death by drowning
Motor vehicle accidents
Falls
Generally, any other death that the insurer would consider an “accident”
Many insurers will use exceptions to coverage to deny double indemnity claims. Some of the common ones include:
If the murder is committed by a beneficiary under the policy
Drowning that results from the insured’s alleged negligence
Motor vehicle accident where the insured was driving under the influence of an intoxicating substance
Death by suicide or natural causes
Nonetheless, it is always a good idea to retain the services of a lawyer who is well-versed in such claims. They are better poised to understand the specific circumstances surrounding an incident and determine whether or not it would qualify as an accidental death.
Indemnity vs. Guarantee – Are They the Same Thing?
Although they may appear similar, the two mean entirely different things. The purpose of an indemnification agreement is to provide financial protection, more so against potential lawsuits.
The whole idea is for both parties – the indemnifier and indemnitee – to prevent financial loss.
A guarantee, on the other hand, takes on a more proactive and positive approach. It ensures the contractual performance of a party, as per the stipulations of a contract.
Protect Your Interests at All Costs
Indemnification agreements are generally enforceable in a court of law. Keep in mind though that some courts limit the extent of this enforceability to where the loss or damage incurred was considered “logically unforeseeable” or “unreasonably extreme” by the liable party.
So, before you go ahead and grant/receive an indemnity, ensure that you get a business contract lawyer to examine the indemnification clauses carefully. Doing this ensures that such agreements reasonably address business risks and any other legitimate concerns that may arise.
If you have any legal questions, we’d love to hear from you. Chat online with a Laws101.com attorney, and we’ll be happy to address any legal issues you may have.
The fact that you got hurt at a boat marina doesn’t necessarily mean that anyone was negligent. The rule of thumb when it comes to pursuing such lawsuits involves proving that your injuries were the result of another party’s negligence. That had the circumstances been better; the injury in question would have never resulted.
The term “negligence” as used here refers to one party’s failure to exercise a “reasonable amount of care.”
There’s a lot that goes on at a marina at any given time. So, there several things that could potentially go wrong, resulting in injuries of some form.
In such instances, the question is – Can you sue a boat marina for negligence? Here’s everything you need to know about marina liability.
What Is a Marina?
First, let’s look at the legal definition of a marina. The term refers to a place, building, or structure located on a navigable waterway (although this doesn’t always have to be the case) that contains docking facilities. It is a place where boats and related boating accessories are stored safely, repaired, serviced, or parked for sale.
Consider the following scenarios:
You hire a boat mechanic based at your local marina to repair your vessel. In the process of test driving it, they end up losing control, and the boat hits a dock right after bouncing off another vessel. Your boat not only ends up sustaining a substantial amount of damage, but it also damages the two boats that were adjacent to it.
Intoxicated partygoers on a boat at your marina end up wreaking havoc and vandalizing your vessel. In your opinion, the security personnel at the marina did not intervene in time to stop the destruction.
You hire a dockhand at your marina for the summer. When fueling up your boat, they accidentally fill up your water tank with gas and the gas tank with water.
These three scenarios demonstrate some level of negligence. Naturally, it would appear that the marina is at fault. But, it’s not always that straightforward.
Damage Responsibility Agreement
More often than not, suing the marina operator is a lot harder than it sounds – even in instances where you were not involved in the damage your vessel sustained or caused to another boat.
This is precisely why you need to examine your marina contract’s fine print to understand what it covers before you sign on the dotted line. Most of them contain phrases like –
“… by signing this contract, the owner of the vessel fully agrees to release the marina from any loss or liability for damage to the vessel, for any acts including any omissions or negligent acts committed by the marina or its personnel…”
You can immediately see how suing a marina for negligence would be a herculean undertaking since the damage responsibility agreement you might have signed releases the marina from any loss, expense, or damage to the vessel while it is docked at its facilities.
The marina rights and protections, however, only apply in scenarios where the gross negligence was not involved. If a marina employee, for instance, was driving your boat while drunk and, as a result, crashed into another vessel causing damage to both of them, it would be considered gross negligence.
Why? The employee in question acted in voluntary and conscious disregard of the need to exercise “reasonable care.” In such circumstances, you can sue the marina for negligence.
Marina Operators Legal Liability
A marina operator is responsible for making sure that the vessels that make use of its facilities have a safe berth. So, they need to inform the vessel operator of any potential deficiencies or hazards in the marina or berth that may harm the vessel.
When marina operators fail to do this clearly and concisely, they become liable for any damage the docking vessel incurs as a result of this non-disclosure.
Marina operators’ legal liability insurance coverage is designed to protect them against the liability exposures that come with their line of work. The coverage insures against exposures relating to the care, custody, and control of waterborne vessels docking at the marina.
So, if you’re a marina owner or operator, your marina insurance policy covers all legal liabilities that you may incur for:
The repair and maintenance of, and/or alterations made to third party vessels or any other property that’s under your care
The storage of boats at your marina
The mooring spaces, slips, or buoys rented by the marina
Launching or hauling out vessels but not in connection with 1) or 2)
Miscellaneous servicing and fueling
If you’re a boat owner, you need to examine your marina insurance contract to ensure that it covers any damage or loss that arises from any of the aforementioned activities at your local marina. Confirm that there are no clauses in the policy that may exclude your claim.
Marina Slip Contracts
A marina slip is the part of the pier where a boat is moored or berthed or used to embark or disembark from the vessel. Marina slip contracts are generally very specific about what you can / cannot do with the slip you use. It outlines the fees you have to pay, the activities you can / cannot engage in at the slip, conditions on subleasing, etc.
If you’re using the marina facilities, you need to check that the provisions of the slip contract you sign are free from so-called “risk-shifting” language. Such contracts may shift the responsibility for the resulting damages to you or your insurance provider even when the cause of the damage is the direct result of the marina or its personnel.
It is always a good idea to retain the services of the best maritime law firms in your locale to examine such contracts. That way, you can avoid devastating financial consequences in the future.
What Is Admiralty Law?
Admiralty and maritime law both refer to the same thing. It is a combination of both the US and international laws that encompass injuries, offenses, torts, or contracts that occur on navigable waters.
Traditionally, maritime law has always focused on issues that center around oceanic matters. However, it has since expanded to include any body of water that would be considered public – including rivers and lakes.
Admiralty laws generally look at the interaction between two or more water vessels, the vessel captain’s responsibilities and obligations to the passengers and their crew, the rights of each of these entities, and any other related legal issues.
These cases are usually heard in federal district courts, although it is not uncommon for such matters to be brought to state courts.
When in Doubt, Consult a Lawyer
Can you sue a boat marina for negligence? Well, it depends on the nature of the negligent acts.
You can file a lawsuit if you can prove gross negligence on the part of the marina and its personnel. This means that they need to have acted in voluntary and conscious disregard of the need to exercise “reasonable care.”
Ensure that you retain the services of a competent maritime lawyer to examine your damage responsibility agreement before you sign it. The failure to do so could cost you in the long run.
If you have any legal questions related to maritime law, chat online with a Laws101.com attorney.
As the COVID-19 pandemic swept across the nation, one of the measures that state governments across the country took in an attempt to contain its spread, was to shut down business operations and encourage citizens to stay at home.
It meant that you couldn’t dine-in at your favorite restaurant, catch a couple of drinks with your friends at the local bar, or even watch the latest action movie in the theaters. The shelter-in-place order only allowed people to leave their homes for what would be considered essential activities.
Likewise, if your business was not deemed an essential service, then it was shut down too. These directives left business owners questioning the legality of the whole process.
Can the government close a business? Here’s what you need to know.
Can the Government Close a Business – The Legality of It All
The short answer is – yes, it can.
So, any allegations asserting that the measures taken by the government are against the law are wrong and misinformed.
Granted, there was the looming fear that the country might go the China route in its response to the outbreak, by invoking martial law to keep the population in their homes; the good news is – western democracies tend to avoid using such extreme measures.
Constitutional Limits and Authority
The US Constitution offers strong protections for its citizens, even in times of crisis. So, the government cannot take arbitrary action even if it is to protect its citizens.
Our legal history as a nation is full of numerous instances when the government failed to meet the threshold required to justify the overly broad and restrictive measures it took. There are even instances where the restrictions were in themselves impermissibly discriminatory.
Case in point: the 1900 outbreak of the bubonic plague when the city of San Francisco, unfairly targeted its Chinese residents in an attempt to contain the spread of the pandemic.
Nonetheless, the existing constitutional framework ensures that there’s a balance between the need to protect every individual’s civil rights and liberties, while also protecting the general public, more so in truly compelling emergency situations that call for severe measures.
A global pandemic ravaging the nation that spreads even among people who appear asymptomatic and has the very real potential of overwhelming the health care system would be justified as a “compelling emergency situation.” So, the government would be perfectly justified in issuing directives – like the closure of businesses – to keep the public safe.
Emergency Health Powers Act
Most declarations of emergency in the country are for natural disasters like hurricanes and snowstorms. In such instances, states invoke certain provisions of the existing statutes with some of the most common ones being – calling on the National Guard to intervene and help deal with the effects of the storm, freeing up money allocated for emergency use, and authorizing law enforcement officers to redirect traffic.
In the case of COVID-19, it became necessary to invoke a provision of state law that is not typically implicated by other forms of natural disasters – the Emergency Health Powers Act.
It provides additional authorization for direct control over the way medical resources are distributed and medical facilities managed, in addition to identifying the areas within the state that are/may be hazardous to public health. This begs the question: Based on the provisions of this Act, can the government quarantine a city?
Yes, it can. The Emergency Health Powers Act gives state governments the authority to restrict the movement of people within an area if such an action is deemed “necessary and reasonable” in response to an existing health emergency.
Additionally, if a vaccine to a known pandemic exists, the Act allows the state to enforce the vaccination of its citizens against the infectious disease, but only after obtaining the informed consent of the individual in question. The Act further states that those unwilling or unable to get vaccinated against the disease may have to be quarantined.
Can You Sue the Government?
Here’s what we know so far: The government can shut down your business, quarantine you, and vaccinate you – with your consent, of course.
But here’s something else you probably were not aware of that is also embedded in the Emergency Health Powers Act.
According to the statute, public agents or entities cannot be held liable for injuries caused by any acts or omissions, directly or indirectly associated with a public health emergency. So, no – you cannot sue the government for shutting down your business or quarantining.
Keep in mind that all this happens at a state level. Here’s what you need to know about federal powers vs state powers.
Can the Federal Government Sue a State?
Absolutely! Remember, the US Constitution is the supreme law of the land.
So, if a state was immune from a suit brought against it by the federal government, it effectively circumvents the hierarchy of American law. However, the law grants immunity to the federal government against a suit brought by a state.
Federal Powers During National Emergencies
What can the president do in response to COVID-19 now that we know the measures state governments can take in emergencies?
For starters, the federal government, whose powers are vested in the President, can declare a national emergency. President Trump did this by invoking the provisions of the National Emergencies Act, the Stafford Disaster Relief and Emergency Assistance Act, and the Public Health Service Act.
The National Emergencies Act waived the existing federal rules to allow for an increase in hospital capacity. It also authorized telemedicine.
The Stafford Act allowed the federal government to take specific actions to assist local and state governments alike, as well as specific private non-profit organizations. It also allowed for the provision of financial assistance to individuals and businesses from the President’s Disaster Relief Fund.
Can You Sue the President?
Section 319F-3 of the Public Health Service Act provides immunity to certain individuals and entities against any claims of loss that result from the activities related to the countermeasures taken by the federal government to deal with the COVID-19 pandemic.
So, no – you can’t sue the President for the government closure of your business, or any other steps taken to counter the further spread of the pandemic, even if you incurred monetary loss as a result.
Besides, in Nixon v. Fitzgerald, the Supreme Court ruled that the President is entitled to immunity from any claim for civil damages based on his actions while in office. He is, however, not immune to criminal charges.
A Delicate Balancing Act
Setting the balance between the powers of the federal and state governments, and the constitutional rights of the citizens can be difficult to achieve in times of crisis, even with the best of intentions.
So, can the government close a business? Yes, it can – in a state of emergency. And, there’s nothing you can do about it – from a legal standpoint.
Nonetheless, this shouldn’t stop you from being vigilant in ensuring that the measures taken by the government to protect individuals, do not turn into acts of repression once the emergency blows over.
You believe that something went horribly wrong in your trial and are in complete disagreement with the final judgment. Maybe you’re happy with the outcome, but the other party isn’t.
Either way, the court process is far from over.
You’re now facing an appeal that could potentially reverse the existing verdict and secure a more favorable outcome for you or the other party. But what is an appeal anyway, and how does it work?
Here’s everything you need to know about appellate law.
How Does an Appeal Work – a Brief Overview
An appeal is a court process where the losing party in a court trial gets the opportunity to have their case re-tried again at an appellate court. Generally, both parties in a civil case have the right to appeal the verdict. This is NOT the case for not-guilty verdicts in criminal trials.
If, on the other hand, a guilty verdict was issued, either party can appeal the sentence issued. Some federal administrative agency decisions may also be subject to appeals.
Although trials and appeals may appear similar, they have several important differences. For starters, in a trial process, all parties present their cases. It involves presenting evidence in the form of photographs, documents, reports, blueprints, surveys, diaries, etc.
Witnesses are also called to testify on each party’s behalf. There’s usually a jury present to determine all the facts of the case and establish what they believe happened, and a judge to control all the courtroom activities, rule on motions, and any objections raised by opposing counsel.
If the parties involved in the trial opt for a bench trial as opposed to that of a jury, the judge is responsible for finding the facts and making the final ruling.
What Is Appellate Law and How Is It Different From Trial Law?
Appellate law involves asking a higher court to examine and review all or a portion of the decision issued by a lower court, or federal administrative agency. The request is based on a procedural or substantive issue that the appealing side believes may potentially have rendered an entirely different ruling.
The appellate court achieves this by reading the record of proceedings of the lower court, which typically includes the orders issued, motions, evidence exhibits, and the full transcript of the hearing.
The appellate lawyer then files a brief presenting all the best arguments in support of the appeal. They’re then given the chance to argue those points before the appellate court judges.
At the end of the process, the appellate court may either uphold or reverse the decision made by the lower court or remand the issue back to the lower court.
Keep in mind is that an appeal is not a new trial. So, a new set of evidence cannot be introduced, nor can witnesses be called to testify. Appeal lawyers are well-versed in appellate law and how the higher court systems work.
Types of Appeals and How They Work
There are three different types of appeal actions that you can initiate. So, it is important to understand their differences before you can even consider appealing.
1. Constitutional Right to Appeal
In this first type of appeal, the defendant maintains a constitutional right to appeal. The court system cannot abridge it since it is a basic liberty that is provided for in the US Constitution.
If an egregious error was committed in the trial process and basic legal principles were violated – like abuse of protocol – either side has the right to appeal.
2. Writ of Certiorari
In this second type of appeal, a higher court issues an order to a lower court to forward a particular case to it for review. It is usually the next logical step in post-trial procedures.
3. Writ of Habeas Corpus
Here, the defendant would have to initiate the appeal for any chance of being granted relief against a guilty verdict. If the individual is denied a writ of certiorari and is dissatisfied with the outcome of the appeal process, their final chance hangs on petitioning one of the several existing court systems for a writ of habeas corpus.
How Long Does an Appeal Take?
Well, there’s no straightforward answer to this question. It could take anywhere between a couple of months to a couple of years. It ultimately depends on how fast everyone involved in the appellate process handles their business – from the appellant, appellee, circuit clerk, and court reporter, to the trial court, appeals court, and supreme clerk.
Appeal Process
As soon as the notice of appeal is filed, the appellant has 90 days to “lodge a record.” They then have a further 30 days to file the appellate brief, the abstract, and the addendum.
It is usually a huge undertaking, and it is not uncommon for them to request an extension on this deadline. The court may initially grant them a seven-day extension, and then three (3), thirty-day extensions if need be.
The appellee also has the same options available to them. They need time to file a reply brief, which may take another ten days or so.
The appellate court will then take about a month to render its final decision before the losing party can file a motion for review, rehearing, or both. This may take another month or so.
In short, it’s a lengthy process – certainly a lot slower and more tedious than the trial itself.
Your Last Chance for a Favorable Verdict
An appeal works very different from a jury trial. No new evidence is introduced, and no witnesses are called to testify.
Appeals involve asking a higher court to review a portion of or the entire decision issued by a lower court if there was a procedural or substantive issue that you or the opposing party believes may have rendered a different ruling altogether.
Appellate lawyers specialize in the nuances of judicial process, so if you’re facing an appeal, ensure that you have the best appellate lawyer on your side to represent you. After all, it is your last chance of getting a favorable verdict. So, make it count.
Here’s the best way to describe alternative dispute resolution. Picture this: You loaned a friend a substantial amount of cash. They were down on their luck and were having a hard time trying to make ends meet.
So, they asked you for money to help get them through their rough patch. You obliged, especially because they promised to pay it back as soon as they got back on their feet. Besides, that’s what good friends do, right?
Fast forward to a year later, and your friend’s luck is now on the up and up. They used the funds you loaned them to start a business that has picked up steam. They moved out of the apartment they were living in, in the rough part of town, and got a house in an upscale, gated neighborhood community.
They look like they’re doing well for themselves. There’s only one problem.
Every time you bring up the loan they’re supposed to pay back, they keep giving you the run-around. And now, the amount they’re supposed to pay back seems to be in question too. You also feel like you’re entitled to some of the company’s shareholding since you technically funded the startup.
Lawsuit … or Something Else?
Going the court route seems like the natural solution to get this resolved. But, when you weigh the cost-benefit ratio of retaining a lawyer and the time and resources the whole litigation process would take, it just doesn’t add up.
You also, to some extent, want to maintain the friendship. Litigation would ruin that.
Alternative dispute resolution would be a better remedy and is more likely to yield a favorable outcome for both parties. Here’s everything you need to know about it.
What Is Alternative Dispute Resolution – An Overview
Alternative dispute resolution, or ADR for short, refers to the process of settling disputes between two or more parties without having to go through litigation.
While going through a court-ordained process is an option worth exploring, you also have to remember that it is an expensive, emotionally-draining, and time-consuming endeavor.
Keep in mind as well that not all disputes have a legal solution. Plus, in some instances, going through the court system can aggravate a problem and make it a bigger deal than it was initially.
There are several reasons why ADR, in general, is a better method of resolving disputes as opposed to litigation.
Gives you more control over the entire process – ADR processes give both parties the chance to give their side of the story and share their experiences based on how they see it. This, in itself, allows all parties to shape the process and outcome.
Helps to preserve relationships – An ADR process is a less adversarial way to resolve a dispute. All parties can reach an amicable solution and maintain or repair the existing relationships.
Increases satisfaction – Trials have a winner and loser. The losing side will likely feel short-changed while the winner may not be entirely satisfied with the ruling. An ADR process helps all the parties find a win-win solution.
Saves money – Lawsuits cost money. There are court costs, attorney fees, expert witness fees, and several other litigation-related costs to consider. You would only spend a small fraction of this amount if you were to go through an ADR process.
Saves time – Taking a lawsuit to trial is a long-drawn-out affair. It could take a year or more, depending on the complexities involved. ADR, on the other hand, can resolve a dispute in a matter of months.
Alternative Dispute Resolution Methods
Dispute resolution can take one of several forms. The two most common ones are arbitration and mediation. Here’s what you need to know about them.
What Is Arbitration?
Arbitration is a private process where the feuding parties agree on a neutral third party to hear from the disputing sides, receive evidence, and make a decision on the issue in question.
Once the hearing is over, and both sides have presented their cases, the arbitrator issues an award. The arbitration process can take one of two forms.
It can be binding, in which case, the decision is final. The court has the power to enforce the arbitration agreement that was reached.
It can also be non-binding where the arbitrator’s award is only on an advisory capacity. The disputing parties would have to agree on it for the award to be final.
What Is Mediation?
Mediation is a private process that involves a neutral third party – the mediator – who helps the feuding parties discuss and work through their issues, to reach an amicable resolution.
You might ask – What is a mediation hearing then? It is the legal term for the mediation process in general. The terms mediation and mediation hearing both refer to the same thing.
In this ADR process, the aggrieved parties are given a chance to table their interests, discuss their points of view on the matter, and explore different ways to resolve the dispute.
So, what is the difference between mediation and arbitration? Well, it has everything to do with the power vested in the neutral third party. In arbitration, the arbitrator has the authority to make a binding/non-binding award on the dispute in question.
The mediator in a mediation process, on the other hand, doesn’t have this power. They can only guide the disputing parties through the ADR process and help them come to an agreement that is mutually acceptable to all involved.
Mediators establish the ground rules and set the agenda for the session. The process may either be joint, with all the disputing parties present, or separate, in which case the mediator would have to shuttle back and forth between all parties.
A Better Alternative for Dispute Resolution
Arbitration or mediation are alternative ways to resolve disputes without having to go through a court litigation process. It’s faster, cheaper, and more likely to yield a favorable outcome by the end of the process.
Not all disputes have to be heard by a judge. If you can handle it yourselves, you’re more likely to get a better outcome.
Ah, the deep, dark web – a mysterious digital netherworld where anything is possible. A place in cyberspace most people will never see in their lifetime. A shadowy underworld that sparks intrigue and fear in equal measure.
The dark web is mostly perceived as an online repository for infinite amounts of backend information that’s available to the highest bidder. A place where extremism, fraud, arms exchange, child pornography, illicit drugs, human trafficking, and other social ills run rampant.
If you’re thinking of browsing this hidden dimension of the web – for whatever reason – one question that’s likely lingering at the back of your mind is: Is it illegal to go on the dark web?
The answer to this might surprise you. Here’s everything you need to know about this mysterious world.
What Is the Dark Web – An Overview
People often use the terms dark web and deep web interchangeably. However, the two mean entirely different things.
Deep Web
The “deep web” generally refers to websites that are not and cannot be indexed by search engines like Google, Bing, etc. The web addresses of deep-web sites typically consist of a string of randomly-generated alphanumeric characters.
Although these websites are encrypted and can be accessed using conventional browsers, it’s almost impossible to find the information you need without the help of an expert who knows how to navigate these murky waters.
The fact that they are not indexed means that if you use Google to search for a certain piece of information, the results displayed will not feature deep web websites. You’ll only view the sites on the “surface web” – which is the web most people are familiar with.
Dark Web
Now, to the dark web. It is a deeper layer of the internet that exists on the Tor network. Tor is short for “The Onion Router” and can only be accessed using a special dark web browser – with the most popular one being the Tor browser.
Deep-web URLs also consist of a series of random alphanumeric characters that have a “.onion” top-level domain reserved for anonymous sites, and “.onion.to” for non-anonymous websites.
While deep web and dark web sites may appear similar, the “.onion” domain is the differentiator between the two. Dark web sites have it; deep web sites don’t.
Is It Illegal to Go on the Dark Web?
The primary reason for the dark web’s existence is not so much for illegal activities (although there are quite a bit of illicit transactions that go on there), but for anonymity.
People who use the dark web are concerned about protecting their identity – whatever their reason may be.
The dark web uses a relay protocol to keep the user’s identity hidden behind three proxy layers. Each of the relays has a different geographical location, which makes it extremely difficult to trace the actual location of the user in question.
Disclaimer: Laws101.com does not endorse the downloading of encrypted browsers or accessing the dark web in general. Using it for any kind of sinister activity is at your own risk.
Who created Tor and for what purpose?
Tor (aka the dark web) was developed by the US Naval Research Center in the 1990s as a military-grade app built to help covert operators transfer classified information while protecting their identities.
Although foreign hackers couldn’t identify the users on Tor, the one thing they could be sure of is that they were all US government agents – since they were the only ones on the dark web.
As a solution to this issue, the federal government made the dark web available to the general public in the early 2000s. This action made it harder for foreign governments to identify US clandestine operators and agents.
So, while accessing the dark web is not illegal in itself, it does open the door to a world of illegal activities.
The Dark Web and Cybersecurity – What’s the Link?
The anonymity factor is what makes the dark web a lucrative haven for perpetrating crimes that involve covert transactions.
It is what makes it such a hotbed of crimes that involve drugs, money, and even humans. If you’ve come across the term “Besa Mafia” before, then you probably know that it was one of the most well-known dark web marketplaces for contracting hitmen and assassins.
On the flip side, Tor is also used by government agencies, whistleblowers, bloggers, activists, journalists, and lots of other users with benign motives, who just want to browse the internet in an entirely private fashion.
Data privacy
This is not something that can be guaranteed by the surface web, despite the best efforts of the existing US data privacy laws that give individuals the right to:
Make a request for their data records
Request changes to their data records that contain incomplete, inaccurate, irrelevant, or outdated information
Be protected against the unwarranted invasion of privacy that results from the collection, disclosure, use or maintenance of their personal information
The third one, in particular, is at the heart of the existing internet privacy laws as we know them. It compels websites to disclose what data they collect when you visit their website, what it is used for, and whether or not it will be sold to third parties.
Nevertheless, the only foolproof way to protect your privacy online is by controlling what personal information you disclose. That way, you don’t give any third parties the ability to link your online activities to any personally identifiable information.
Dark Web Privacy Protection
Keep in mind that the dark web is an unpoliced and seemingly unpoliceable area of the internet that allows you to browse and transfer data with complete anonymity.
Although very few US statutes mention cybersecurity law by name, the spirit behind the existing privacy laws is to promote the integrity and confidentiality of information systems, to protect individual rights and privacy.
With that said, the very essence of the dark web makes it impossible for anyone to violate your privacy and access your information without your consent – well, as long as you’re not breaking any laws, then all bets are off.
Don’t Get Lost in the Dark
So, while it’s not illegal to go on the dark web, it is illegal to engage in illicit activities while you’re there.
Cybersecurity law firms have criminal defense attorneys who understand the intricacies of internet-related law, as well as the technology involved.
If you wrongfully got mixed up in a dark web criminal investigation or believe that your privacy was violated, you’ll need to get in touch with the best cybersecurity lawyer as soon as possible.
It’s a sunny Sunday. You’re in your backyard grilling some hotdogs and burgers for your family, as the kids splash about in the pool – the perfect way to spend a summer afternoon.
Moments later, you hear what sounds like a high-pitched whirring sound coming from above. You look up and spot a drone hovering over your property. You give it a minute or two to see if it flies away. And, sure enough, it does.
But, just as you’re about to breathe a sigh of relief, it hovers back. Is someone spying on you? Are criminals using it to scout your residence? The only thing you’re sure of is that whoever’s flying it over your home is up to no good, and you want the darn thing gone.
You wonder — Is it legal to shoot down a drone?
Well, before you grab your shotgun and point it at the flying menace, here’s everything you need to know about the laws of airspace.
Is It Legal to Shoot Down a Drone – The Legal Perspective
The Federal Aviation Administration (FAA) is the agency of the US Department of Transportation responsible for regulating and overseeing all matters related to civil aviation within the country.
So, what does that have to do with drones?
The short answer is – everything.
According to the FAA, any unmanned aircraft, regardless of how big or small it is, is covered under Title 18 of US Code 32.
A drone is, by this very definition, an unmanned aircraft. So, shooting it down would be a violation of US Code 32 and could see you spend a considerable portion of your life behind bars if convicted – up to 20 years!
Okay, so it’s clear that shooting down a drone is out of the question. But what about intercepting control or “jamming” the offending drone? That seems like a more “reasonable” approach, right?
Wrong.
The Communications Act of 1934 outlaws any form of interference with radio transmissions. So, jamming it would essentially be a criminal offense.
Between these two federal statutes, using any of the existing anti-drone technology available in the market to shoot down drones, or jamming their network signals, could land you in quite a bit of legal hot water. Even shooting a drone with a non-lethal weapon – like a net gun – will yield similar consequences.
Although it might seem unfair to be powerless over someone flying a drone over your property, there’s a legal reason why – You may own the property you’re standing on, but not the airspace above it.
Who Owns the Air Above Your Property?
To better understand the answer to this question, let’s take a trip back in time to 1946, when a North Carolina chicken farmer named Causby filed a lawsuit against the US government for trespassing on his property. Not on his land, but the air above it.
You see, the US Army and Navy operated an airstrip that was adjacent to his farm. The runway’s glide path extended directly above Causby’s house and outbuildings. So, as you can imagine, there was always quite a bit of commotion every time fighter jets, bombers, and other planes routinely flew over the property.
According to him, the noise was so startling that he had to give up his flourishing chicken business since he would lose six to ten birds every day when they flew into the walls out of fright.
At night, the glare from the exceptionally bright lights, coupled with the noise from the flying airplanes, frequently deprived him and members of his household of sleep. Based on those extenuating factors, it would appear that he was perfectly justified in his suit.
The Old Common Law Rule on Property Ownership
Keep in mind that at the time, the old common law rule was applicable in all US jurisdictions. According to it, a property owner had legal rights over all the land beneath their property – which was a great thing if you happened to have gold deposits underneath – as well as all the sky above it, up to the “periphery of the universe.”
The United States v. Causby case gave rise to the “enveloping atmosphere” rule. It states that a property owner has legal possession over as much of the airspace above their property that they can reasonably use. The airspace above that would then be considered part of the public domain.
The enveloping atmosphere rule is what protects drones. You only own the airspace above your land that you can “reasonably use.” You can think of the rest of it as a public highway.
Technically-speaking drones won’t typically fly in the lower airspace that is directly above your property, nor will they fly in the upper airspace that is used by airplanes. They fly somewhere in between.
Drone Laws
But drone operators cannot operate with impunity. They must adhere to very strict federal laws and fly within allowable airspace. Violating airspace is a serious federal offense.
So, to gain a better understanding of this concept, let’s explore the various airspace classes that exist.
Airspace Classes
Have you ever wondered how airplanes fly around without ever colliding with each other? Or, the reason why some airports have control towers while others don’t? The answers to these questions have everything to do with airspace classes.
The United States airspace is divided into four distinct categories.
1. Controlled Airspace
This is a generic term that refers to the different airspace classes and defined dimensions that fall within Air Traffic Control (ATC). It consists of 5 classes, namely:
Class A Airspace
Class A airspace refers to the space between 18,000 ft. mean sea level (MSL) and flight level (FL) 600. It also includes the airspace above the waters that lie within 12 nautical miles (NM) off the 48 US contiguous states and Alaska.
Any operation in this class airspace has to be done in compliance with the existing instrument flight rules (IFR).
Class B Airspace
Class B airspace refers to space from the ground surface level to 10,000 ft. MSL that surrounds the country’s busiest airports. ATC clearance is required for any aircraft to operate within this area.
Class C Airspace
Class C airspace refers to the region between the ground surface level and 4,000 ft. MSL over and above airport elevation that surrounds airports with a functioning control tower. Each Class C space consists of a surface area with a five NM radius, in addition to an outer circle with a ten NM radius, extending from 1,200 to 4,000 ft. above airport elevation.
Before entering this airspace, each aircraft has to establish two-way radio communication with the ATC facility present and maintain this communication for the duration it is within the airspace.
Class D Airspace
Class D airspace refers to the airspace from the ground surface level to 2,500 ft. MSL above airport elevation, surrounding airports with a functioning control tower.
Before entering this airspace, each aircraft has to establish two-way radio communication with the ATC providing air traffic services and maintain that communication for the entire duration it is within that airspace.
Class E Airspace
Any airspace that cannot be classified as Class A, B, C, or D is generally considered Class E airspace. More often than not, it refers to the space between FL 600 and 18,000 ft. – the lower limit of Class A airspace.
2. Uncontrolled Airspace
Uncontrolled or Class G airspace, is the portion of airspace that doesn’t fall into any of the classes A to E.
Although ATC has no power to control, nor is it responsible for Class G airspace, anyone flying in this area should remember to apply the visual flight rules (VFR) minimum when operating any manned and unmanned aircraft (drones) in this space.
It extends from the ground surface level to the lower limit of the overlying Class E airspace.
3. Special Use Airspace
Also known as Special Area of Operation (SAO), special use airspace refers to the area designated for specific activities, or where certain limitations exist for an aircraft that doesn’t form part of those activities. It consists of:
Alert areas – These are the areas with an unusual type of aerial activity or a high volume of pilot training.
Controlled firing areas (CFAs) – These are the areas where the activities taking place there could be hazardous to a non-participating aircraft if not conducted in a controlled environment.
Military operation areas (MOAs) – These are the areas reserved for military training activities. They are kept separate from IFR traffic.
Prohibited areas – These areas ban aircraft flights for security, or any other reasons associated with the national welfare.
Restricted airspace – These are areas with activities that would be considered hazardous to any other non-participating aircraft. Such activities include guided missiles, aerial gunnery, or artillery firing
Warning areas – These areas are similar to restricted airspaces, except that the US government doesn’t have sole jurisdiction over the area in question. These may be located over domestic or international waters or both.
4. Other Airspace
“Other airspace” is a general term that refers to the vast majority of the remaining airspace that doesn’t fall into any one of the aforementioned aerial categories. It includes:
Air Defense Identification Zones (ADIZ)
Flight Restricted Zones – particularly those in the vicinity of the White House and Capitol
Intercept Procedures
Local Airport Advisory (LAA)
Military Training Route (MTR)
National Security Area (NSA)
Parachute jump aircraft operations
Published VFR routes
Special Awareness Training
Temporary Flight Restriction (TFR)
Terminal Radar Service Area (TRSA)
Wildlife Areas, National Parks, Wilderness, and any requests to operate above 2,000 above ground level (AGL)
Where Can I Fly My Drone
Image courtesy of the Federal Aviation Administration
If you’re a drone operator, it may interest you to know that the FAA has a mobile application with an interactive drone airspace map that lets you know exactly where you can and cannot operate your drone. The B4UFLY app is available to download for free at Google Play Store for Android users, and the Apple App Store for those with iOS-powered devices.
Be that as it may, you still need to familiarize yourself with controlled and uncontrolled airspaces, while keeping in mind that there’s no such thing as “unregulated” regions.
Remember, controlled airspaces exist around some airports and in certain altitudes where ATC actively communicates, directs, and separates all air traffic. All other airspace is generally considered uncontrolled in the sense that ATC doesn’t direct air traffic within these limits.
The rule of thumb is that you can operate your drone in uncontrolled airspace below 400 ft. AGL. Anything is above that is considered a drone no fly zone. If you’re a commercial drone operator, you have to seek permission from the FAA before you can fly in controlled airspace.
It’s important to note that private pilots fly in both controlled and uncontrolled airspace. According to the FAA, it is your responsibility as a drone operator to obey the no drone zone restrictions, and stay away from any manned aircraft, and not the other way round.
Drone Airspace Restrictions
Here’s a list of the restrictions that commonly affect unmanned aircraft systems, including drones. Most of them feature in your average drone no fly zone map, although others are event-based.
Emergency and rescue operations – Don’t fly your drone over wildfires, hurricanes, or any other emergency or rescue situation
Near airports – Flying drones in areas with other air traffic is a safety hazard and are, therefore, prohibited – unless you get permission from ATC, have an agreement with the FAA, or are a public entity (government or law enforcement agency) with permission from the FAA
Restricted or special use airspace – It is against the law to fly your drone in a prohibited or restricted area, or one with TFRs
Security sensitive airspace restrictions – Drones are not allowed to fly over military bases, national landmarks, or critical infrastructure like nuclear power plants
Stadiums and sporting events – You can’t fly a drone in or within a three NM radius of a stadium, one hour before or after a Major League baseball event, National Football League, NASCAR Sprint Cup, Champ Series, and Indy Car races
Washington, DC – The region is classified as a special flight rules area.
Ignorance of the Law Is Not a Defense
No matter how annoying and invasive at it may seem, it is not legal to shoot down a drone.
But on the flip side, if you’re a drone operator, you could get into significant trouble for flying a drone in a no drone zone.
Ignorance of the law is not a defense. So, read up on aviation law and get to know the dos and don’ts of flying unmanned aircraft systems.
While the information detailed in this article is a great starting point, it always helps to talk to an aviation lawyer for any drone-related legal issues you may run into, as drones will likely become much more commonplace in our lives.
The people you hire to work in your company could make or break your business. If you’re a small business owner, then you understand just how important it is to manage your growing workload while finding innovative ways to cut down on expenses.
You don’t need us to tell you about the benefits of outsourcing work and hiring independent contractors, as opposed to having full-time employees on your payroll. Sometimes, you need someone with a set of skills and experience level that you can’t find (or even afford) if you were to source for talent locally.
But, before you hire the next overseas freelancer you come across, keep in mind that there’s a right way to do it. Otherwise, you could potentially be exposing your company to legal liability issues under international laws that you may not be prepared to deal with.
With that being said, the first thing you need to figure out is – How do I pay a foreign contractor and reduce the risk associated with the entire process?
Contractor vs Employee
While the difference between the two terms may seem inconsequential, make no mistake about it – they mean two entirely different things from a legal standpoint.
If the IRS or a US court determines that the individual you hired to work in your company as an independent contractor is, in fact, an employee, you could get into legal trouble for not meeting the minimum requirements for an employee.
The potential liabilities you could be looking at include paying that individual’s Medicare taxes, Social Security, unemployment tax, worker’s compensation premiums, and all unpaid benefits dating back to when you first engaged them. Not to mention the fact that you’ll also have to pay the penalties and interests associated with those payments.
If the worker lives outside the US, you may have to pay even more liabilities under the applicable local laws. EU countries, for instance, require that you pay a minimum of four weeks’ worth of paid vacations and holidays for every calendar year. The same applies to workers in Peru and Argentina.
How to Make Sure That Your Contractor Is Not an Employee
So, how do you distinguish between an employee and an independent contractor? Sometimes, the line between the two is not always clear.
You would think that the existence of a written and signed agreement would be enough evidence to prove the existence of a principal-contractor working relationship. Well, it is not.
The government uses various testing standards to analyze whether the individual in question should be classified as an employee or contractor.
For starters, if a contractor works exclusively for one principal, they are considered a de facto employee. This arrangement is particularly hard to dispute if they’ve been working for a particular company for a long time.
Second, if an independent contractor has their own office and supplies, the government will likely view them as an independent contractor as opposed to an employee.
Finally, if the written contract has a non-compete or non-solicitation clause, this may be seen as evidence of an employer’s control over the worker after the termination of the binding contract. It would be an indicator of the individual’s “employee” status within the company.
Payments to Foreign Contractors for Services
If you hire an independent contractor who is based in the US, the IRS requires that you report all annual payments that exceed $600. However, a whole different set of rules apply when paying foreign independent contractors.
If a foreign contractor performs services outside the US, in most cases, you won’t have any reporting or tax withholding obligations. It is different if the foreign contractor in question performs their services within the country.
To avoid the tax obligations that come with hiring them, you need to meet the following conditions.
The foreign contractor performing the services within the country is only present for less than 90 days during the tax year
The total amount you pay them for their labor or services shouldn’t exceed $3,000
The payment should be for services performed for a place of business or office maintained in a foreign country
If you don’t meet the above conditions, you’re required to withhold the foreign contractor’s income, and report this when filing taxes. The exception to this rule is if the foreign contractor is from a country that has an existing tax treaty with the US.
How Do I Report a Payment to a Foreign Contractor?
A principal is not obligated to report payments made to foreign contractors that don’t meet the stipulated requirements outlined in the previous section.
Nonetheless, you should still have them (the foreign contactor) complete Form W-8BEN – which is the applicable foreign contractor tax form for individuals, or W-8BEN-E – foreign contractor tax form for entities.
The IRS uses the claims made on the form to determine your company’s tax withholding or reporting obligations. The forms are supposed to establish the status of the contractor as a foreign person or entity.
Keep in mind that if the information provided on the form does not meet the conditions for classifying them as foreign contractors, you are not liable for meeting the tax requirements.
On the other hand, if you are not a resident of a foreign country nor do you have a permanent establishment/premises/place of business in the country where the foreign contractor you have hired is a resident, then you don’t have to withhold income or report to the local tax agencies of the country in question.
When in Doubt, Consult a Tax Lawyer
In a nutshell – How do I pay a foreign contractor?
First, you need to make sure that the person you’ve hired as an independent contractor is not an employee by both US law and the local laws in their country of residence.
Second, if…
They’re performing services within the US for more than 90 days
The cost of said services is $3,000 or more
The services in question are not performed in a place of business that your company maintains in a foreign country
…then you’ll need to withhold income before you pay them and report it when filing your company taxes. If those three conditions aren’t met, then you don’t have to.
Finally, if you’re not a resident of the foreign country in question, nor do you have a permanent establishment there for your business, you can pay the contractor without withholding income and reporting to the local tax agency.
Always consult a tax lawyer to review how your principal-contractor relationship is interpreted by US laws and those of the contractor’s country of residence, to understand the legal risks involved and your tax obligations.
