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When to Hire a Civil Rights Attorney

Legal Assistant June 24, 2020Civil Rights, Constitutional Law, Resources Leave a Comment

Every American citizen has basic rights that are protected under the US Constitution and civil rights laws. Despite this, people of every race, color, creed, age, gender, or national origin can illegally have those rights violated or taken away.

Civil rights are basic human rights. These are infringed upon whenever human dignity, the right to defend yourself, the right to protect your life, the right to be free, or any other of the societal principles contained in the Bill of Rights, are ignored or disrespected.

Nonetheless, it’s important to keep in mind that not all forms of unfairness necessarily violate the Constitution. It’s therefore important to understand what constitutes a civil rights violation, to know when you need to hire a civil rights attorney.

Here’s what you need to know about it.

Disability Rights

It’s no secret that people living with a disability often face widespread discrimination, exclusion, and even segregation. If you’re an individual living with impairment, the federal disability rights laws can offer protection.

Below are examples of disability discrimination that may be cause for you to seek legal redress:

A landlord declines to rent their home to you because of your disability
A landlord demands a higher deposit from you than that required of the other tenants because of your disability
A landlord prevents you from making modifications to your home to make it more accessible
An employer declines to make “reasonable accommodations” in your work environment required to give you an equal chance to succeed
An employer refuses to hire you, give you a promotion, or equal pay when you are capable of doing the job
Your employer, coworkers, or customers make derogatory comments regarding your disability

If any of these rights are violated, get in touch with the top civil rights lawyers in your area to discuss your options.

Immigrants’ Rights

Regardless of what your current immigration status is, the US Constitution guarantees your rights. Here’s a list of instances when your civil rights could potentially be violated.

If a police officer inquires about your immigration status:
- You have the right not to speak. Any information you divulge to them could end up getting used against you later in immigration court
- If, on the other hand, you’re not an American citizen, you will have to provide the requested documents if you have them with you
- If they ask to search you or your belongings, you have the right to refuse
- If you’re over 18 and don’t have your documents with you, exercise your right to remain silent
If you’re arrested by a police officer or detained
- You have the right to remain silent and request for a government-appointed lawyer immediately – you don’t need to provide any explanations or excuses
- You don’t have to answer questions about whether you’re a US citizen, where you were born, or how you got into the country

It’s always a good idea to have your immigration documents with you or keep a copy of them with someone close to you. Also, ensure that you memorize your immigration number and give it to your family as well. It will make it easier for them to trace you if you end up getting detained.

It is well within your rights not to discuss your immigration status with anyone other than your immigration lawyer. Nonetheless, if you encounter any civil rights violations in the course of your interaction with law enforcement, top civil rights attorneys will help you hold the perpetrators accountable for their actions.

LGBTQ Rights

The legal landscape for the LGBTQ community is constantly changing. It is often quite difficult to tell whether you’re protected under state or federal rules. Nonetheless, here’s what you need to know about your rights.

Title VII of the Civil Rights Act of 1964 bans employers with 15 or more employees from discriminating based on sex. Several courts have set precedence by ruling that this section of the Act also prohibits discrimination based on an individual’s gender identity or sexual orientation. Many cities and states have gone a step further to outlaw this type of discrimination.

The federal Fair Housing Act bans landlords from sex discrimination, which the courts may also interpret to protect people of the LGBTQ community.

The specific local and state laws where you live may also outlaw discrimination in public accommodations like restaurants or shops. Keep in mind, however, that there’s no federal law in place that bans this kind of discrimination.

If an individual or entity has discriminated against you based on your gender identity or sexual orientation, get in touch with a lawyer to help you determine the protections that you’re entitled to under the existing civil rights law.

Prisoners’ Rights

If you’re incarcerated, the law also guarantees your rights as you serve your sentence. Make use of the prison library to learn to identify instances when you face abuse or discrimination in prison that go against your constitutionally-given rights.

Here’s a list of some of the key rights you need to be aware of.

Prison officers have a legal duty to the detainees to refrain from using excessive force
They also have to protect you against assault by other prisoners
They may use a reasonable amount of force in “good faith” to keep order if the situation calls for it
They are bound by the 8^th Amendment to respond to prior knowledge of a planned assault on a prisoner by the other incarcerated individuals or ensure that the prison practices and conditions do not create an unreasonable risk of assault
The prison rules, policies, and practices should not impede your ability to practice the religious beliefs that you hold dear

When any of these rights are infringed upon, you need to get in touch with a top civil rights lawyer as soon as possible.

Your Rights When Stopped by Police

Getting stopped by law enforcement is, no doubt, a stressful experience that has the potential to degenerate very quickly.

It’s important to stress at this point that the burden of de-escalating a situation doesn’t, in any way, fall on you. The sworn police officer must take charge of a heated situation, and find a calm and collected way to dial down the temperatures.

Nonetheless, you can’t always expect or assume that law enforcement officers will always behave in a manner that protects your civil rights or liberties. You also can’t assume that they will respect your rights even when you assert them.

The best thing you can do to protect yourself is to stay calm in such situations and avoid exhibiting any form of hostility towards them. Unfortunately, sometimes, despite your best efforts, this isn’t always the case.

There have been numerous reports of police brutality cases that occurred even when citizens did all they could to put law enforcement officers at ease. Cases where citizens ended up injured, or worse, killed at the hands of police officers who are supposed to enforce the law, not be a law unto themselves.

This is a gross violation of civil rights. If you’re ever in such an encounter with police officers, particularly if you believe that the brutality or discrimination was based on your skin color, you need to hire a civil rights attorney as soon as you can.

The Killing of George Floyd by a Police Officer

On May 25, 2020, a law enforcement officer from the Minneapolis Police Department killed a 46-year-old African-American man by the name of George Floyd. Video footage showed him getting pulled out of a car for his alleged use of a $20 counterfeit bill.

He was handcuffed and pinned to the ground before officer Derek Chauvin proceeded to kneel on his neck for almost 9 minutes, three of which Mr. Floyd appeared to be unresponsive.

This encounter was one of several police brutality cases, particularly against black people, that call into question the criteria that officers use to justify the application of excessive force to subdue an already co-operative and handcuffed suspect.

The unfortunate incident was a gross violation of George Floyd’s civil rights as guaranteed by the Constitution of the United States.

Your Rights

If you’re ever stopped by the police, these are your rights:

You have the right to remain silent. You’re not compelled to divulge details on where you’re traveling to or from, what you’re doing, or where you reside. If you wish to exercise this 5^th Amendment right, you need to say so out loud. Some states may require that you provide your name if they ask you to identify yourself. Failure to do this may lead to your arrest.

Police may pat you down if they suspect you of carrying a weapon. Otherwise, you don’t have to consent to them searching you or your belongings. Keep in mind that despite your refusal to consent to a search, a police officer may still decide to do it anyway against your will. To preserve your rights in any legal proceeding that may ensue after the incident, be sure to object to it both before and during the search.

If you’re arrested by the police, you have the right to ask for a lawyer. If you can’t afford one, you have the right to request for a government-appointed attorney to represent you.

If your civil rights were violated in a police encounter ensure that you write down everything that you remember, including the badge numbers of the law enforcement officers, the agencies they were from, the patrol vehicle registration numbers, and any other details you may recall that are vital to your case.

If you witness police brutality, keep a safe distance, and don’t interfere with what the officers are doing. You do, however, have the right to observe and use your phone to record video footage of the incident.

Civil Liberties vs. Civil Rights

Many people often use the two terms interchangeably, even though they mean two completely different things. Here’s how.

The Bill of Rights, and the first 10, 13^th, and 14^th Amendments to the Constitution, are essentially a list of “don’ts” that apply to the Federal government. They relate to the rights guaranteed to every American citizen that cannot and should not be suppressed or violated.

So, civil rights usually refer to the basic right to equal treatment of all persons based on protected characteristics that “We the People” deem important. These include disability, religion, gender, color, race, or origin.

Civil liberties, on the other hand, refer to the basic freedoms that are guaranteed by the Bill of Rights or as the courts and legislatures have interpreted them through the years. Here’s the kicker. When most people talk about their “rights,” they are usually talking about their liberties.

Examples of civil liberties are the rights to free speech, privacy, remain silent during a police interrogation, a fair trial, marry, vote, or the right to be free from unreasonable search and seizures in your home. Civil liberties are what give you the right to use public resources like parks or your neighborhood.

Examples of Civil Rights and Liberties Violations

In a well-publicized incident in New York’s Central Park, Christian Cooper requested Amy Cooper to leash her dog. This was the rule in the park section they were in. When Amy refused to rein in her dog, she was essentially infringing on his civil liberties.

In yet another incident, when two civilians shot and killed Ahmaud Arbery while he was jogging through their neighborhood, they denied him of his right to life.

It is one of many civil rights cases of violations that are carried out by people who either are not aware of what civil rights and liberties are, or simply choose to ignore them and discriminate against fellow Americans based on their race, ethnicity, or national origin.

Either way, civil rights organizations exist to draw national attention to the oppressive practices that minority groups in the country are subjected to daily. Their ultimate goal is to end these injustices and promote equality for all American citizens.

Get the Justice You Deserve

If you’ve been mistreated based on protected characteristics such as disability, religion, gender, color, race, origin, or even pregnancy, you’ll need to hire a civil rights attorney to figure out what steps to take next.

Make no mistake about it – civil rights laws are complicated and often require that you file a claim with the government first before you can even file a lawsuit. But, with the help of a great attorney, you will get the justice you deserve.

If you have any legal queries, chat online with a Laws101.com attorney to connect you to a lawyer who can offer guidance on your specific case.

Civil Rights: Protections in the United States

Legal Assistant June 24, 2020Resources Leave a Comment

Lately, there have been a lot of discussions and debates centered on civil rights. Have you taken the time to understand what it means?

What protections do your civil rights afford you, that give you cause to seek legal redress when someone else interferes with them? This article deciphers the answers to these questions and more.

What Are Civil Rights?

These are enforceable rights, liberties, and protections granted to every US citizen, that exist to ensure every person is not only treated equally and fairly but also safeguarded against overly intrusive actions by any institution, including the government.

American civil rights include:

Freedom of assembly
Freedom of speech
Right against involuntary servitude
Right to privacy
Right to refuse to unreasonable searches and seizures
Right to vote

Several of these rights, such as the freedom of speech, are rooted in the Bill of Rights in the United States Constitution. Even though federal law preempts local and state laws, the latter provides greater civil rights protections compared to federal law.

While the federal law provisions detail the minimum level of civil rights protections, local and state laws can go into greater detail to give citizens additional protections.

New York, for instance, has the most comprehensive civil rights laws in the entire country. The expansive statutes offer state citizens many protections that you may not find in any other piece of American legislation.

Nonetheless, other civil rights such as those in the context of housing, employment, and education are addressed in much greater detail in federal statutes and state laws. Any individual or entity that deprives a person of their federal civil rights under Title 42, Section 1983 of the United States Code, violates the “Color of State Law.”

Civil Rights Act of 1964

In certain cases, an individual’s civil rights are interfered with based on a protected characteristic related to their identity, or even their membership to a certain group. In the context of civil rights, these include traits like disability, religion, gender, color, race, origin, and even pregnancy. Different forms of discrimination in various contexts are addressed in several federal statutes. Each of these has its specific enforcement provisions that apply.

The 1964 Civil Rights Act is no doubt the most pivotal civil rights law since it was reconstructed at the end of the Civil War. The law criminalizes racial segregation and all other forms of discrimination based on religion, national origin, color, and race.

When Did Segregation End?

The Civil Rights Movement began in earnest in Montgomery, Alabama, when an African-American woman named Rosa Parks declined to give up her bus seat to a white man. She was later convicted of violating the segregation laws.

This series of events kicked off the Montgomery Bus Boycott – a civil rights protest led by a youthful church minister by the name of Martin Luther King Jr. The boycott, which lasted a year between December 1955, and December 1956, was the first demonstration of its magnitude that pushed for the abolishment of the existing desegregation laws.

A Federal Court in Montgomery ruled on June 5, 1956, that the existing laws that required seating segregation on buses contravened the 14^th Amendment. It was outlawed thereafter.

Martin Luther King Jr. went on to found the Southern Leadership Conference (SCLC) that worked tirelessly to do away with the discrimination laws in the South. It all culminated in the March on Washington in 1963.

This event was an important catalyst in the passing of the 1964 Civil Rights Act, the 1965 Voting Rights Act, and the 1968 Fair Housing Act, which all outlawed De jure segregation.

The Civil Rights Act and the Voting Rights Act were the first major changes made to the 14^th and 15^th Amendments. In certain areas of the country, however, segregation had been outlawed earlier when the Supreme Court overturned school segregation in the landmark Brown v. Board of Education (1954) ruling.

The 15^th Amendment and Voting Rights Act

The 15^th Amendment to the US Constitution prohibited any federal or state government from denying a citizen the right to vote based on their color, race, or “previous condition of servitude.”

However, there were still discriminatory practices that were being used in the South to prevent African-Americans from voting despite the Amendment. Some of these included literacy tests that they were likely to fail, and poll taxes that they could not afford.

The Voting Rights Act of 1965 put an end to these legal barriers at both local and state levels.

Women’s Rights

Even though African-Americans now had voting rights thanks to the 15th Amendment, this privilege was reserved for men only, regardless of race. The same, however, could not be said on the gender front.

It was not until the 19^th Amendment was ratified that all American women now had the right to vote for the first time in history. Other notable developments in the evolution of women’s rights are listed below.

Title VII of the Civil Rights Act of 1964 prohibits gender-based discrimination in employment.

In 1974 Congress outlawed housing discrimination against women based on their sex and credit.

In the same year, the Supreme Court ruled it illegal to force women to go on maternity leave on the assumption that they cannot work in their “condition.”

In 1986, the Supreme Court affirmed that the workplace could be declared abusive or hostile due to gender-based discrimination. It became an integral part of sexual harassment laws.

Know Your Rights

Keep in mind that the law prohibits any form of retaliation that comes about as a result of you exercising your civil rights. It means that if you file a complaint against your employer for violating your constitutional rights, and they end up firing you because of it, that is illegal.

You would need to get in touch with a civil rights lawyer to pursue the matter in a court of law. It is, therefore, important that every American citizen learns and understands what their civil rights are to ensure that no one, not even the government, infringes on them.

If you have any legal questions or concerns, chat online with a Laws101.com attorney. They’re available to provide you with guidance on your specific issue.

Legal Malpractice: When You Have to Sue Your Attorney

Legal Assistant June 24, 2020Resources Leave a Comment

What comes to mind when you hear the word “malpractice?” Probably medical malpractice, right? Well, it’s not just doctors who get sued when something goes wrong. Your lawyer, too, could screw things up for you that might just cost you the case. That’s what legal malpractice is.

Lawyers must uphold certain standards of professional and ethical conduct in their line of work. There are specific things they have to do to ensure that they give you the best possible representation.

That way, if you lose a case, you can be certain without a doubt that they did everything they could to win it for you. That given a chance to do it over, there’s nothing that they would have done differently to get you a different outcome.

But, if they didn’t do what was expected of them, then you may have grounds to sue them for legal malpractice. Here’s everything you need to know about it.

What Is Legal Malpractice?

This refers to the breach of contract, breach of fiduciary duty, or negligence by an attorney, with the intent to harm or cause injury to a client, in the course of providing legal services to them.

But, it’s not as simple as saying, “I’m suing my attorney because they lost the case.” There’s a lot more that goes into it.

You need to show that they did something wrong, and this, quite frankly, is not usually easy to do. In most jurisdictions, you’ll need to prove that they breached the attorney-client relationship or did not provide competent and skillful representation, the result of which caused you to suffer a quantifiable financial loss. This is what forms the basis for seeking damages in legal malpractice cases.

Should you sue your lawyer because of not answering or returning your calls? Probably not – mainly because it would be difficult to prove that it is what cost you the case. You can, however, take a different approach by filing a complaint against them. Here’s the difference.

A legal malpractice lawsuit centers on recovering damages because of your attorney’s misconduct or a grievous mistake they made in a legal matter that resulted in you losing money.

On the other hand, filing a complaint against them with the state disciplinary board would be because they failed to act professionally, and not necessarily because you want to be compensated.

Reasons to File a Complaint Against an Attorney

The Model Rules of Professional Conduct, as published by the American Bar Association, lists the best practices and ethical violations for lawyers. Most states have adopted them as their ethical guidelines for lawyers practicing in those states. Below are the most common reasons why you would file a complaint against an attorney.

1. Not Communicating With the Client

Every lawyer has an ethical duty to represent your best interests. This also means that they need to respond to your messages promptly or, at the very least, within a reasonable time frame.

If your attorney fails to communicate appropriately, you may end up missing out on crucial information to your case, which may, in turn, result in missed settlement offers and deadlines.

They need to inform you of any decisions and emerging circumstances that relate to your case. They need to consult regularly with you to discuss how best to accomplish your legal goals.

If your lawyer doesn’t communicate properly with you and continuously ignores your requests for information, those are grounds upon which you can file a complaint with the state disciplinary board. If legal malpractice settlements are what you’re after, then you’ll need to sue.

2. Failing to Return the Client’s Documents

Your client file is your property. This means that if you fire your lawyer and ask them to hand over your file, they have to return it promptly. In certain states like California, for instance, getting your file back isn’t contingent on paying your attorney fees in full.

So, if your lawyer blatantly refuses to hand it back to you or employs delay tactics every time you ask them for it, it’s your right to file a complaint against them.

3. Attorney Incompetence

When you retain a lawyer to represent you, you trust that they have the knowledge, expertise, and experience required to get you the best outcome at the end of the process. This also means that they must be sufficiently prepared to deal with any matters that crop up, whether its settlement negotiations or trial.

If, in the process, you realize that they are not competent enough to handle your case as they should, those too are grounds for filing a complaint.

4. Conflict of Interest

Your lawyer’s loyalty is to you. They should, therefore, avoid any situation that would create a conflict of interest. A perfect example of this is them taking on a client who wants to sue you while you’re still a client of their firm.

5. Financial Issues

If your lawyer is charging you an exorbitant amount of money in fees, refusing to transfer the settlement money owed to you, misplacing, or even stealing your funds – these are all complaint-worthy ethical violations.

Legal fees disputes, however, are solved through an independent fee-arbitration process.

How to File a Complaint Against an Attorney

The first thing you need to do is to identify the agency in your state that is responsible for disciplining and licensing lawyers. Some states have the bar association, while in others, it’s the state supreme court.

Next, you’ll need to download the complaints form from their website and fill out the fields with the requested information. You could also write a letter providing a detailed account of your complaint.

Be sure to include the name, address, and phone number of the errant attorney, and attach copies of all the documents that are pertinent to your complaint.

Keep in mind that most agencies wait until they receive several similar complaints about a particular attorney before they take any action. So, you might have to wait a while before you see any results.

Filing a Complaint vs. Suing Your Attorney – Weigh Your Options Carefully

State disciplinary boards are concerned about punishing errant attorneys, although the punishment is rarely severe, to be honest.

If you ended up losing money because of the reckless way your lawyer handled your case, filing a complaint isn’t enough. You need to get the best legal malpractice lawyers to help you recover punitive damages from them.

If, however, your lawyer doesn’t have legal malpractice insurance or any valuable assets from which they can pay you if you win, then there’s no point in suing. It’ll just be a waste of your time and energy. Chat online with a legal malpractice lawyer to weigh your options.

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Communications Decency Act – What Is It and Why Does It Exist

Legal Assistant June 24, 2020Resources Leave a Comment

Have you ever been on Twitter or Facebook and come across a post that left you thinking, “Whoa… How on earth do they get away with posting that?” Even more surprising is how the host platforms avoid getting sued over the information or “misinformation” that their users post on their platform.

The answer to this lies in the Communications Decency Act. So, what is it exactly? What does it do? And why does it exist? This article explores everything you need to know about this often misunderstood law.

What Is the Communications Decency Act?

In 1996, Congress enacted Title V of the Telecommunications Act, otherwise known as the Communications Decency Act (CDA), in an attempt to protect minors from accessing or getting exposed to sexually explicit materials on the internet.

In the initial draft stages of the Telecommunications Act – whose primary purpose, by the way, was to reduce regulation of the industry and promote competition – the CDA was not included. But, after several congressional hearings, it was proposed as an amendment.

It prohibited any individual from intentionally broadcasting indecent or obscene content to children below 18. It also banned the intentional transmission of “patently offensive” content in a way that made it freely available to minors. Internet service providers had to have a foolproof mechanism of verifying their viewer’s age.

To side-step the hefty fines and imprisonment penalties that came with violating both of those provisions, content providers had to integrate costly screening procedures to ensure that they remained on the right side of the law.

The Miller Test

To ensure that the CDA remained airtight against any potential challenge under the First Amendment right to freedom of expression, Congress put in place certain measures to ensure that the provisions of the Act remained as-is.

So, it intentionally mirrored the language used in Miller v California (1973) to define what constituted obscene speech. It was an exception to the protections provided by the First Amendment provisions.

The Miller Test explicitly defines the materials that can be considered “patently offensive” by “contemporary community” standards.

This language was used in the CDA, to ban the use of any online computer services, to display any images, proposals, suggestions, requests, comments, or any other form of communication, that describes or depicts content that, according to “contemporary community standards,” would be deemed patently offensive. It included displays of sexual or excretory organs or activities.

The ACLU Challenges the Constitutionality of the CDA

Soon after President Clinton signed the new legislation into law, the American Civil Liberties Union (ACLU) was one of several organizations that challenged the constitutionality of the statute.

The lawsuit targeted the provisions of the Act that criminalized “patently offensive” and “indecent” online expression. In the suit, a judge issued a temporary injunction to stop its enforcement since the term “indecent” was too vague to form a solid basis for criminal prosecution. As a result, it could violate the Fifth Amendment.

A three-judge district court panel later ruled that the CDA did indeed violate both the First and Fifth Amendments. It, however, upheld that the provisions relating to obscenity and child pornography laws would remain as they were.

Needless to say, the government was not too happy with this ruling. So, it appealed, and the case was handed over to the Supreme Court.

Reno v ACLU

In Reno v. American Civil Liberties Union (1997), the Supreme Court upheld the district court ruling citing that the CDA was unconstitutional. That, to protect minors from obscene, indecent, and harmful speech, it ended up suppressing a significant amount of adult speech that was protected under the provisions of the Amendments.

CDA Section 230 – What Does It Do

Section 230 of the Communications Decency Act is arguably the most important law as it applies to the internet. Its purpose is to protect “interactive computer services” from getting sued over what the users of their platform post there.

It is what allows social media sites like Facebook and Twitter, as well as blogs and news sites with a comment section, to operate without the risk of publisher liability.

The provisions of CDA Section 230 also prevent you from getting sued when you edit the content posted or delete entire posts, which is well within the usual prerogative of any publisher.

Keep in mind that the edits you make should not change the meaning of the original information by making it defamatory. Now, that could be a lawsuit in the making.

CDA 230 Amendment

On April 11, 2018, President Trump signed into the law the Stop Enabling Sex Traffickers Act and Allow States and Victims to Fight Online Sex Trafficking Act of 2017. It is commonly referred to as FOSTA SESTA. So, what is FOSTA SESTA, and why was it passed?

This human trafficking law was an amendment to Section 230 of the Communication Decency Act. It limits immunity for online computer services providers that intentionally host third-party content on their platform that facilitates or promotes sex trafficking.

The law was initially drafted in response to a massive number of reports that the escorts section of the online “classifieds” website Backpage.com, had evolved into a human trafficking haven for individuals promoting the illicit sex trade.

Although there was compelling evidence showing that several minors had been sexually assaulted by the adults who responded to these ads, a 2015 Backpage lawsuit brought against the owners of the rogue site, was dismissed by the courts citing CDA immunity.

The good news is the amendment now creates an exception to the Section 230 protections. This means that website owners will be liable if users of their platforms are found breaking federal human trafficking laws or even allowing individuals to post ads for sex work – even if it’s consensual.

The CDA – Protecting Your First Amendment Rights Since 1996

While the Communication Decency Act provides immunity against publisher liability for third-party user-generated content posted on their platforms, there is an exception to the rule. If users of a particular site are found to be breaking federal trafficking laws, then the Section 230 protections don’t apply to the platform owners.

Remember: the spirit of the CDA is to promote every individual’s First Amendment right to their freedom of speech and expression. If the law held publishers responsible for what users post on their platforms, rather than face the very real likelihood of criminal prosecution, they would much rather shut them down entirely.

This would effectively mean that the social media sites that you have grown to love would no longer exist.

If you have any legal questions, feel free to chat online with a Laws101.com to shed some light on your specific issue or question.

What Happens When a President Is Impeached?

Legal Assistant June 24, 2020Resources Leave a Comment

The only legal way to remove a sitting President from office would be through impeachment. According to Article 1 § 2 of the US Constitution, the sole power to impeach a president rests on the House of Representatives.

So, what is impeachment, and what happens when a president is impeached? Here’s what you need to know about the impeachment process.

Impeachment Definition

This is the process of bringing formal charges against a sitting president. Article 2 § 4 provides the operative legal standards to apply to the impeachment of a president as – bribery, treason, or any other high crimes and misdemeanors.

There are varying opinions on how such charges should be interpreted. Here’s what happens when a president is impeached.

The House Judiciary Committee carries out impeachment investigations into the President’s wrongdoing.
Based on their findings, the Committee then drafts and votes on the articles of impeachment.
Once approved, they are sent to the floor for the full House of Representatives to debate over them. The purpose of this is to make a clear case to the public on the grounds for the President’s impeachment.
Once the House adopts the articles, it chooses a group of House managers to serve as the prosecutors in the impeachment trial proceedings at the Senate.
As soon as the articles are presented to the Senate, the Constitution mandates that an impeachment trial should commence at 1 p.m. of the day they are received. The sessions have to continue daily from that point on until judgment.
Once the trial concludes and both sides make their closing remarks, the Senate meets to deliberate in a closed session. At the end of it, the presiding officer calls for a vote of “guilty” or “not guilty.”
If the President is found guilty of the charges against him, a mandatory punishment is imposed – removal from office. The Senate may also impose an additional punishment of disqualifying the disgraced president from holding any office of profit, honor, or trust in the United States.

How Many Presidents Have Been Impeached?

Only three US presidents have been impeached in the country’s history, albeit with one near-miss. None of them, however, were ever removed from office.

1. Andrew Johnson Impeachment

Following the assassination of Abraham Lincoln in 1865, his Vice President Andrew Johnson took over the reins as President. He was an outspoken anti-secessionist and strong advocate for white supremacy, who undermined the cause for racial equality.

Not only did he veto the civil rights legislation on several occasions, but he also gave a presidential pardon to hundreds of former Confederate leaders. As if that wasn’t enough, he even went a step further to lobby for the murder of his political foes.

The impeachment clauses brought against him in 1868 centered on the rather weak (and now repealed) charge of violating the “tenure of office” law when he removed Edwin Stanton – his then secretary of war from office.

Edwin played an instrumental role in opposing race-motivated attacks on the right to vote for former slaves. The Senate acquitted Johnson in the impeachment trial, thus allowing him to remain in office for the rest of his term.

2. Clinton Impeachment

The 1998 impeachment of President Bill Clinton was linked to the highly publicized affair he had with Monica Lewinsky – a White House intern at the time the scandal broke.

In a separate sexual harassment suit against Clinton brought by Paula Jones – a former Arkansas state employee, the President denied, both in a video interview and a sworn deposition, ever having had any sexual relationship with Lewinsky.

However, in a report presented to Congress by Kenneth Starr – an independent counsel, Clinton’s affair was documented in lurid detail.

The House of Representatives approved two articles of impeachment against him: One for obstruction of justice, and the other for perjury. The additional proposed articles on perjury and abuse of power were shot down. The then Republican-led Senate acquitted Clinton on both counts.

3. Trump Impeachment

On December 18, 2018, the House of Representatives, whose majority is predominantly Democrats, voted on two articles to impeach Trump – obstruction of a congressional investigation into his conduct and abuse of office.

It all began when an anonymous whistleblower wrote a letter expressing concern over a phone conversation Trump had had with the president of Ukraine, Volodymyr Zelensky.

Excerpts from the transcript later revealed that President Trump urged the Ukrainian president to “look into” Joe Biden, the former US Vice President and Democratic presidential frontrunner in the upcoming 2020 elections.

This phone call happened shortly after Trump blocked the release of aid to Ukraine, with the President making it clear that its release was contingent on the investigation of Joe Biden. Trump then went a step further to instruct his administration to refuse to testify and to defy subpoenas.

The White House also refused to furnish congressional investigators with the documents they requested, effectively stonewalling the impeachment inquiry. That’s where the obstruction of Congress charge came from. The Senate acquitted him of all the impeachment charges that had been leveled against him.

Nixon Impeachment – the Near-Miss

In November 1972, Richard Nixon secured a landslide victory in his presidential re-election results, with the largest-ever margin in the history of any US presidential election.

Little did he know that a burglary at the Democratic Party offices at the Watergate Hotel Complex five months earlier would set in motion a chain of events that would lead to the premature demise of his tenure in office.

Investigations into the incident uncovered a series of dirty campaign tactics employed by Nixon against his political opponents. All of which were funded by a secret slush fund orchestrated by the president himself.

He then went on to fire two top officials in the justice department for their refusal to fire Archibald Cox. Cox, who was the special prosecutor at the time, was the one that brought to light the dirty dealings that took place to secure Nixon’s victory in the just-concluded presidential election.

In July 1974, a third of the members of the House Judiciary Committee, alongside Democrats, approved three articles of impeachment against Nixon – contempt of Congress, abuse of power, and obstruction of justice.

And, once tapes of secret recordings of his conversations in the Oval Office surfaced, his fate was sealed. Nixon resigned one month later, following pressure from his fellow Republicans before the House could vote on his impeachment. So, his case was indeed a near-miss.

Impeachment Does Not Equate to Removal From Office

Most people associate the term “impeachment” with removal from office. As you’ve seen from this article, this isn’t the case.

Impeachment is simply another term for “bringing formal charges against.” So, while a President can be impeached, he can only be removed from office if at least two-thirds of the Senate votes to convict him.

If you have any more questions, don’t hesitate to chat online with a Laws101.com attorney to give you legal guidance on your specific issue.

Executive Order on Preventing Online Censorship – Legal Implications

Legal Assistant June 24, 2020Resources Leave a Comment

President Trump recently signed an executive order to prevent online censorship. The short of it is – online social media platforms wield incredible power in their ability to influence the public opinion on what’s happening in the world.

These platforms are generally seen to be neutral arbitrators, allowing users to post content as they please, provided that it conforms to the community guidelines. However, according to Trump, these platforms moderate and censor what certain users post, based on their political affiliation. Hence, they exhibit bias in relaying political speech.

While it would be naïve to believe that this is utter hogwash, the reality is, there has been evidence of political bias in the past. From a legal standpoint, however, this order has the potential to create significant issues, with the most glaring one being stomping on the right to free speech and expression.

So, what does this executive order mean for social platforms like Twitter, Facebook, and Instagram? And, how does it affect your ability to freely express your opinion on political matters and any other issues you’re passionate about?

This article explores in depth the legal implications of the latest Trump executive order.

The Telecommunications Act of 1996

Before getting into the legal implications, you need to go back to the beginning. In 1996, President Clinton signed into law the Telecommunications Act of 1996. This made major amendments to the Communications Act of 1934.

It set new ground rules for regulation and competition in virtually every sector of the communications industry. The provisions of the Act fall into five major areas also referred to as “Titles”:

Telecommunications services
Broadcast services
Cable services
Regulatory reform
Obscenity and violence

Title V of the Telecommunications Act of 1996: Obscenity and Violence

This fifth area of the Act is what is of interest here. It details provisions on indecent internet communications and that of any other computer network. This is known as the Communications Decency Act (CDA) of 1996.

It imposes criminal penalties on individuals who purposefully transmit obscene content across “an interactive computer service,” which the Act specifically defines to include the internet. It also outlaws the communication of obscene and indecent content with full knowledge that the recipient is under 18.

On the flip side, the CDA also offers a defense to content providers against the minors/indecency violations, but only if they prove that they’ve taken reasonable, effective, and appropriate steps to prevent or restrict access to said offensive content, by minors.

It also allows for “good Samaritan” blocking. This is done purely on a subjective basis, if they or the general public consider a particular piece of information disseminated on their platform, to be objectionable.

So, in short, commercial online content providers have the right, by law, to block content they deem inappropriate on their platforms. They can do this without any risk of civil or criminal prosecution. According to the Act, the Federal Communications Commission (FCC) has no jurisdiction to regulate the internet.

Section 230 of the Communications Decency Act

Tucked away inside the CDA of 1996 lies one of the most invaluable tools for protecting the freedom of expression and innovation, which has a profound impact on free speech and social media: Section 230.

This may seem somewhat ironic since the spirit of the original piece of legislation was to restrict free speech on the internet. This is because Section 230 was previously bound to a rather draconian-type crackdown on online indecency, driven by a moral panic over protecting minors from pornographic content.

If it were left as it was, the provisions of the rest of the CDA would have required age verification from all internet users, to not just porn sites, but to sites with user-generated content.

At the time it was enacted, the internet community was up in arms. People felt that it was a direct infringement of their freedom of expression.

The Electronic Frontier Foundation (EFF), a nonprofit organization that defends civil liberties in the digital sphere, challenged the anti-free speech provisions of the CDA in the Supreme Court. The Court ruled in their favor, and as a result, these offending provisions were struck down from the Act but leaving Section 230 intact.

Publisher vs. Platform

Section 230 of the CDA states that: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 U.S.C. § 230).

This means that there’s a range of laws that protect online intermediaries that host or republish speech, from being held legally liable for what others say or do. The definition of “intermediaries” in this case, extends beyond conventional Internet Service Providers (ISPs). It also includes online platforms that allow third parties to publish content on their website.

Although there are exceptions for certain intellectual property and criminal-based claims, the spirit behind Section 230 is to create broad protection that allows free speech and online innovation to thrive.

Publisher Liability

The legal and policy frameworks provided for in the CDA that shield platforms from publisher liability are what has paved the way for millions of users to upload YouTube videos, publish reviews on sites like Yelp and Amazon, and post personal opinions on social media sites like Twitter and Facebook.

It would be naïve for anyone to expect online intermediaries to censor every single piece of questionable or objectionable content that gets published on their platform. To then hold them liable for what their users publish would be unfair, to say the least.

If that were the case, it would be in their best interest to not host any user-generated content, to shield themselves from publisher liability. Alternatively, they would need to actively censor what their users post to offset any potential suits against them.

The CDA 230 also accords the same level of protection to website owners and bloggers who act intermediaries when they:

Host comments on their posts left by their readers
Accommodate the work of guest bloggers on their website
Receive any tips or information sent to them via email or through their RSS feeds

The protections still apply even if the website owner is well-aware of the objectionable content and uses their editorial authority to censor the material or leave it as it is.

President Trump Executive Order

The Trump Twitter handle is no stranger to controversy. Following a night of intense protests in Minneapolis, after a police officer killed an unarmed African-American man while in custody, the President tweeted a historic phrase originally uttered by a Miami Police Chief in 1967, in the heat of the civil rights unrest at the time.

Twitter hid the “…shooting starts when the looting starts…” tweet behind a message that stated it violated the site’s terms of service. But users could still click through if they wanted to view it.

Just two days before, Trump used his twitter handle to allege that the mail-in voting system would lead to massive fraud. In response, Twitter added a fact-check link for the first time to the Trump tweet.

The President responded by issuing an executive order on preventing online censorship.

Legal Implications

The executive order asserts that the protections against online censorship, as provided for in Section 230(c)(2) do not apply to social media platforms that moderate content in what would appear to be a “pretextual,” or deceptive way by stifling viewpoints that its owners disagree with.

It directed federal departments and agencies to review their marketing expenditure on online platforms that appear to be “problematic vehicles for government speech” due to viewpoint discrimination and other “bad practices.”

The order further states that social media censorship should not apply to large online platforms like Facebook and Twitter, as they are the modern-day versions of “public squares” and should, therefore, not restrict or limit protected speech.

It also asserts that online platforms may be misrepresenting their policies on moderation. It further encourages the Federal Trade Commission (FTC) to look into these deceptive or unfair practices and take action against the offending platforms.

The order also directs the FTC to consider whether the reports they receive on viewpoint-based moderation constitute “violations of law.”

The attorney general was also directed by the order to constitute a working group to look into avenues for enforcing state statutes that prevent online platforms from engaging in deceptive or unfair practices. The AG is further directed to come up with proposed federal legislation that promotes the goals of the executive order.

What This Means for the Existing Protection Laws Related to Social Media

While the proposals set out by the executive order are no doubt ambitious, the reality is, many of them will prove quite difficult to achieve.

For starters, revoking the social media liability protections as stipulated in the provisions of Section 230(c)(2), should the platforms be found to moderate content in a “pretextual or deceptive” way, doesn’t hold any merit, nor is it legally binding in any court.

Second, the FCC does not traditionally issue regulations regarding Section 230. Even its role in interpreting it doesn’t hold water. So, it remains unclear to what extent (if any) this federal agency can flex its muscles on the online censorship front.

Third, the insinuation that large social media platforms like Facebook and Twitter are the modern-day equivalents of public squares would mean making major changes to the existing First Amendment jurisprudence – which, quite frankly, is unlikely to happen.

Realistically, however, federal departments and agencies are likely to cut their marketing expenditure on social media platforms that appear to be censoring certain political viewpoints.

With regards to encouraging the prosecution of the online platforms for deceptive and unfair trade practices, this will be more effective as a political tool, as opposed to a legal one.

Keep in mind that, although the order is targeted at social media giants like Facebook and Twitter, its interpretation of Section 230, and any future regulations that may come up apply to all entities that have an interactive interface, forum, or online service that hosts user-generated content.

Social Media Censorship Examples

Social media sites can ban users for any reason. So, if you’re a user on their platform, you have to play by their rules.

For instance, in light of the recent civil unrest happening all over the country, the platforms may decide to ban users for posting off-color remarks, making racist comments, or even promoting white supremacy.

Now, if any individual who gets censored or banned decided to pursue a Twitter lawsuit, Facebook lawsuit, or Google lawsuit against the tech giants, the reality is, they (the individual) would lose 99 percent of the time.

Remember Laura Loomer? The conservative far-right activist who got kicked off Twitter for her anti-Muslim tweets against Ilhan Omar, the US Representative-elect for Minnesota? Well, the US Court of Appeals in Washington, DC, dismissed her suit.

She was suing Twitter, Facebook, Apple, and Google for violating her First Amendment rights by conspiring to suppress conservative content on their platforms. Other social media censorship examples include the case of:

Charles C. Johnson v. Twitter – Twitter defended its decision to terminate the plaintiff’s account on the basis that he posted threatening tweets. The terms and conditions on the site state that they can terminate a user account “for any reason.” He lost the suit.

Craig Brittain v. Twitter – Brittain’s lawsuit hinged on treating the social media platform as a publisher. CDA Section 230 contradicts these claims. He lost the suit as well.

Jared Taylor v. Twitter – The latter’s decision to ban the plaintiff was protected under the provisions of the CDA Section 230. He lost the suit.

Better Safe Than Sorry

Given that the executive order increases scrutiny on the moderation of online content, it’s a golden opportunity for companies and individuals to take stock of whether they host user-generated content on their platforms. If that’s the case, it’s the perfect opportunity to ensure that the moderation practices in place mirror the policies outlined in the site’s terms of service.

So, if you’re a platform owner looking to reduce the risk of a “deceptive and unfair trade practices” lawsuit, the best way would be to demonstrate good faith by removing any discrepancies between the stated moderation policies you have in place, and the actual practices.

Nonetheless, although the likelihood of any sweeping changes across interactive platforms is unlikely, it is still a good idea to be aware of the potential legal implications you could face when moderating user-content.

If you have any legal questions, feel free to chat online with a Laws101.com attorney. You’ll be put in touch with a lawyer who can give you legal guidance on your specific issue.

Can I Sue for Wrongful Termination?

Legal Assistant June 23, 2020Business Law Leave a Comment

You just got fired from your job. But, something about the way it happened doesn’t sit right with you. The reason they gave sounded flimsy and, in your opinion, did not warrant getting fired over.

If this describes the current situation you’re in, you’re probably trying to figure out – Can I sue for wrongful termination? Well, the answer to this isn’t so straightforward.

You first need to understand what qualifies as wrongful termination in the first place. Here’s what you need to know about it.

When Can I Sue for Wrongful Termination

An employer has the right to terminate your professional relationship at any time for any reason that’s not related to a protected characteristic or status. This is also known as the “at-will” rule.

Protected characteristics include:

Age
Ancestry or religion
Disability (physical/mental) or medical condition
Gender, gender identity, or sexual orientation
Military or veteran status
Pregnancy, maternity, or FMLA leave
Race, ethnicity or national origin

While some states may have more characteristics that fall into this protected category, these are the universally-accepted ones that are common to every state in the country. The next thing you need to be aware of is “pretext.”

Most employers understand the labor and employment law. So, they will very rarely, if ever, tell you that they’ve terminated your employment because of a protected trait. They may instead fire you under the pretext or guise of an entirely different reason.

If they’re homophobic, for instance, and they recently became aware of your sexual orientation as a gay man/woman, then they may fire you under the pretext of coming into work late, or for any other unrelated reason.

If that happened, you could make a case that they fired you using pretext, when in fact it was because of a protected characteristic. To prove that this was indeed the reason, you need to retain the services of competent wrongful termination lawyers to help you get the justice you deserve.

What Qualifies as Wrongful Termination?

Aside from getting fired because of a protected status, here’s a wrongful termination checklist that you can use to determine if you have grounds to file a lawsuit against them.

1. Defamation

Filing a defamation lawsuit against your employer is necessary if you want to protect your reputation in professional circles, as well as maintain good standing in the community.

You, therefore, have to prove that in the process of relieving you from your job at the company, your employer made false and malicious statements about you that affected your chances of finding employment elsewhere.

So, how do you prove wrongful termination in such instances? You would need to show that:

Your employer made false statements about you
The statements in question where made with reckless regard to their falsity
The offending statements were written or told to at least one other person who can confirm your allegations
The statements have caused some form of harm or injury like causing you to lose the job you had at the company, or standing in the way of getting a new one

To win this type of lawsuit, you’ll need to provide factual evidence of what was said and show why it was false. The main thing you need to keep in mind is that there should be no truth to it whatsoever. If there is, well, you don’t have a case.

2. Fraud

Fraud in this instance means that your employer went above and beyond to intentionally trick you during the recruitment process, by making false promises that were never fulfilled, or manipulating you into resigning from your job.

To win this type of wrongful termination suit, you will have to show that a false representation was not only made but that someone in authority was aware of it.

3. Legal and Public Policy Violations

It is illegal to get fired over reasons that are widely accepted by society as illegitimate reasons for termination. However, for the courts to consider your case, there needs to be some specific law in existence that sets out the policy.

Several state and federal labor laws specify employment-related actions that violate public policy. These include getting fired for:

Disclosing that a company refuses to pay its employees commissions they rightfully earned or not paying vacation dues
Serving in the National Guard or military
Taking time off work for jury duty
Taking time off work to exercise your right vote

If you got fired for any of the reasons listed above, then you may have a case.

4. Retaliation

Getting fired for engaging legally protected activities is illegal, and those are grounds for suing for wrongful termination. For instance, if you filed a complaint against your employer with the Equal Employment Opportunity Commission (EEOC) and you got fired as a result, those are grounds for suing them.

The EOCC is a federal agency that is tasked with interpreting and enforcing federal labor laws that prohibit all forms of discrimination.

5. Sexual Harassment

This is closely related to retaliation. If you file a sexual harassment complaint against your employer, firing you for doing so is illegal since it is considered a legally protected activity. Those would be grounds for a wrongful termination lawsuit.

6. Whistleblowing

Whistleblowing laws exist to protect the interests and wellbeing of employees who report the illegal activities of the companies they work for – especially if they are potentially detrimental to public welfare.

The state labor laws in some jurisdictions offer protection to employees who blow the lid on activities that break any state law, ordinance, or regulation.

Other states offer protection only if specific laws were violated, with the most common ones being labor laws or environmental regulations. If you get fired for whistleblowing, that qualifies as wrongful termination.

It’s Not Over Until It’s Over

Can I sue for wrongful termination? You already know the answer to that question at this point. Use the information in this guide to help you figure out if you have a solid case to pursue.

If you believe that you do, consult a wrongful termination lawyer to discuss your next step. Protect your rights at all costs.

If you have any other questions or issues, chat online with a Laws101.com attorney today to get legal guidance on your specific case.

Father’s Rights in Custody Disputes

Legal Assistant June 23, 2020Resources Leave a Comment

More often than not, any time you come across the word “custody,” it is usually followed by “battle.” And, that’s just what happens when there’s a custody dispute.

Every child has the right and privilege to know and to be loved by both parents. The adults in the situation have to put their pride and ill feelings towards each other aside, to try and figure out an amicable way to get along for the sake of the kids.

Father’s rights in custody disputes have always been somewhat of a gray area. If the parents of the child were not married, it was common practice for the mother to be granted full custody.

This, unfortunately, meant that the father wouldn’t have as much access to the child as they would have liked. Getting custody, however, was completely out of the question.

The good news is that law has come a long way since then, and fathers too can now get custody rights over their children, regardless of their marital status. This article takes an in-depth look at everything you need to know about a father’s rights in custody disputes.

Mothers Rights vs. Fathers Rights

Custody issues are complex enough, even when both parents are married. It gets even more complicated when dealing with unmarried parents.

In such instances, the general rule is to grant primary custody of the child to the mother. So, she has complete authority to make every decision regarding the child’s welfare. This means she has the right to decide:

Where they live
Where the child will attend school
Everything that has to do with the child’s health
Where to take the kids on vacation…

You get the idea.

The mother of the child is responsible for all decisions that relate to her child’s welfare. This isn’t generally the case with the father’s rights.

In an ideal world, an unmarried man who desperately wants to be a part of his child’s life would be able to sit down with his child’s mother and come up with a workable arrangement for shared custody or visitation.

The keyword here is “ideal.”

Fathers Legal Rights to Child

If a father’s name appears on a child’s birth certificate, regardless of whether or not he is married to the mother of the child in question, in the eyes of the law, his parental rights hold equal weight to those of the mother.

When a married couple has a child together, the husband is presumed to be the father and is automatically listed on the certificate as such.

But, if they’re not married, and the father’s name isn’t listed on the birth certificate, the first step towards pursuing paternity rights, and hence some form of custody over his child, is by proving paternity. For that, he would need to get DNA-tested. That’s not the end of it, though.

Even if the DNA results prove that he is the biological father of the child, he needs to show the court that he can take on custodial rights and everything that comes with it. Keep in mind, though, that a single father can never be granted primary custody of the child if the mother is deemed by the court to be a good parent.

Nonetheless, securing his paternity rights opens up the door to working out a legally-binding shared custody agreement or visitation schedule. Always get the best fathers rights lawyer involved from the get-go.

Fathers Rights Child Support

Regardless of whether the parents of a child are married or not, the law requires both of them to financially support any children they have together.

The court looks at the responsibilities and incomes of each parent, to evaluate which of the two should be responsible for making the financial contributions in the form of child support payments.

If, however, the parent making the periodic payments goes through a rough patch and, as a result, is unable to fulfill their financial obligation. The court re-evaluates the amount payable based on the existing circumstances.

If the child in question spends the majority of their time living with one parent, the court usually holds the other parent responsible for the child support payments.

Divorce With Young Children

Once upon a time, there was a presumption that young children should always stay with their mother when the couple divorces. This has since changed.

Most states no longer honor that presumption and now recognize that a fathers custody rights are equally as important as those of the mother. Some states have gone a step further to pass laws with no custody preference for women over men when they split up.

Despite these developments, women are still more likely to gain primary custody of the children, mainly because courts consider the best interests of the child. And, these usually favor mothers since that’s the way the family unit is set up.

Divorce Advice for Men With Children

Here are a couple of things the judge looks at when ruling on custody cases involving the dads.

The primary caregiver – This refers to the parent who is in the best position to meet the child’s daily needs and is the most willing to accept all the parental responsibilities that come with it.

Daily needs include activities like putting the child to bed, waking them in the morning, getting them ready for the day, making doctor appointments, playing with them, bathing them, and so on.

Parent-child bond – The younger a child is, the stronger the mother-child bond will be. Although this isn’t a reflection on the parenting ability of the father, that’s just the way it is when children are young.

If, on the other hand, the father is involved with his child from the time they’re an infant, the closer their bond will be. So, if you’re looking to get joint custody, you need to learn how to provide the same level of emotional support, love, and care that your young children need, just like they’d get from their mom.

Fathers’ Rights Matter Too

Any father, regardless of their marital status, looking to get primary or joint custody of his child, needs to get in touch with the top child custody lawyers in their jurisdiction. They’ll explain to you in detail all the factors that the courts consider when determining how best to resolve a custody dispute.

That way, you can negotiate a custody arrangement that takes into account your child’s best interests. Your rights matter too. So, fight to be in your child’s life.

If you need further assistance, feel free to chat online with a Laws101.com attorney. We’re always available to provide guidance on any legal questions you may have.

What Is an Executive Order?

Legal Assistant June 18, 2020Resources

You may have heard of the recent executive order issued by President Trump to stop immigration to the US, following the outbreak and spread of the Coronavirus (COVID-19) pandemic. This is just one of many such presidential directives issued by every American president since the very first one in 1789 when George Washington took office.

But what is an executive order anyway? And, why does it seem to be like an instant law once the President signs it? This article explores the answers to both these questions, as well as its constitutional implications.

Executive Order Definition

It is a written, signed, and published presidential-directive, whose purpose is to manage federal government operations. It is important to distinguish it from the other two types of presidential documents that exist even though they may appear quite similar.

One of these is a proclamation. It communicates information on trade, federal observances, commemorations, and holidays. The other is an administrative order and includes things like messages, letters, notices, and memos. These are used to manage administrative matters in the federal government.

Proclamations, administrative, and executive orders by the president all get published in the Federal Register. The federal government publishes this daily journal to keep the public up to speed on all federal actions and regulations that exist. The National Archives also catalogs these documents.

Keep in mind that proclamations and executive orders are backed by the force of law, as is the case with any other regulations that federal agencies issue. They are classified under Title 3 of the Code of the Federal Regulations – a formal repository for all the rules and regulations issued by both the executive arm of government, and other federal agencies.

Congress on Executive Orders – Who Has the Final Say?

It’s important to note that executive orders are not legislation, although they are backed by law. Nonetheless, the President does not need approval from Congress to issue one, nor does Congress have the power to overturn it.

That is not to say that Congress is powerless. Legislators can pass laws that make it difficult or sometimes even impossible for an executive order to be carried out.

Nonetheless, only a United States President in office has the power to overturn an order that’s already in force. They would have to issue another one in its place to negate the effects of a previous one.

How Are Executive Orders Numbered?

If you wanted to peruse both the contemporary and historical executive orders that various presidents issued in the course of their tenure, there are several resources you can use to do this. A few excellent online repositories include:

The White House – Here, you’ll find all the executive orders in PDF format related to the current presidential administration, as relayed by the White House press office.

The National Archives and Records Administration – Here, you’ll find everything related to the US government, including executive orders. They are searchable by topic, number, or by date. You to view them as text or PDFs within the specific Title # of the US Code of Federal Regulations or in the Federal Register.

The American Presidency Project – This is a repository maintained by the University of California, Santa Barbara. It has most of the executive orders dating back to the early years of the 19^th century. They are searchable by the year in which they were issued.

All orders are numbered consecutively and can be referenced by their assigned number, topic, or date. At the time of writing this, there have been more than 13,769 orders issued since 1789 when George Washington first took office.

Presidential Executive Orders Limits

While some of the recent executive orders by President Trump have been controversial, it raises questions on the extent to which they apply. Is there a limit? Before discussing the answer to this question, you’ll first need to understand what it is that makes them so controversial.

There are three branches of the United States government. Congress – the legislative arm that makes the laws, the executive branch – made up of the President, Vice President, Cabinet, Federal Agencies, etc., whose function is law enforcement, and the Judiciary – made up of the Federal and Supreme courts, and is charged with evaluating these laws. Here’s why they are sometimes so controversial.

The wording of these documents has to be carefully formulated, in a way that is seen to be working with the law, and not against it. Opposition parties may often accuse the executive of overstepping their mandate when they issue orders that appear to contravene the law.

This would be in direct contradiction to Article II of the Constitution that vests executive powers in the sitting President, making him the commander-in-chief. Article 2 presidential powers also stipulate that the President “shall take care that the laws be faithfully executed.”

When a president issues too many orders, it appears as though they are unable to push their agenda through Congress and the courts. There is a limit, though. The President cannot use executive orders to create new laws or allocate funds from the US Treasury for a particular purpose. That is strictly reserved for the law-making arm of government.

Examples of Executive Orders

Some of the executive orders (EOs) that have generated a lot of controversy in recent times include:

President Trump’s EO aimed at preventing online censorship
President Trump’s EO aimed at boosting security at the US-Mexico border by directing federal funding towards the construction of a wall
President Trump’s EO aimed at revising the provisions of the Affordable Care Act (Obamacare)
President George W. Bush’s EO aimed at enhancing more aggressive surveillance after 911

Executive Orders May Be Powerful, But They Have Their Limits

An executive order is by no definition of the word, a “law”. So, a sitting president cannot use it to create new legislation or appropriate funds from the US Treasury.

Its function is to instruct federal agencies on how to act – within the confines of the Constitution and the laws passed by Congress.

If you have any questions, chat online with a Laws101.com attorney to get legal guidance on your specific query.

Legal Obligations & Protections for Employers in the Age of COVID-19

Legal Assistant May 29, 2020Business Law, Employment Law, Resources 1 Comment

As the government continues to take unprecedented steps to control the spread of the coronavirus, a topic that has generated a great deal of public debate is – What exactly constitutes an essential business and how is it different from those classified as non-essential?

Understanding this is important when it comes to defining the legal obligations and protections for employers during the COVID-19 crisis, in light of the social distancing rules and the shelter-in-place rules that are currently in force. Here’s what you need to know.

What Is an Essential Business

Several states across the US have issued orders that require only certain businesses to remain open to curb the spread of the pandemic and flatten the curve with regards to the number of new infections.

Health care providers, transportation services, gas stations, grocery stores, hardware stores, and banks are all universally accepted as essential services. This means that they can still operate despite the shelter-in-place mandates in force.

The government may also allow businesses that provide essential support to workers of essential businesses to report to work. San Francisco, for instance, ordered that daycares remain operational to allow parents who work for entities in the essential industries, to report to work and carry out their duties effectively.

Nonetheless, these businesses still have to comply with the public health protocols in place, like sanitization, providing the necessary personal protective equipment to employees, and implementing social distancing.

What Is a Non-Essential Business

These are typically those businesses geared towards entertainment and recreation like shopping malls, sports and concert venues, theaters, and gyms. Dine-in restaurants are technically non-essential, although many cities have allowed them to remain operational but mainly for deliveries and take-out.

Generally, non-essential businesses that are capable of conducting their day-to-day operations remotely have been encouraged to do so and asked to take the necessary steps to ensure that their employees are properly equipped to work from home.

Legal Obligations for Employers

Non-essential businesses risk facing heavy fines and penalties for not complying with the government-issued health directives. In some states like Arizona, the violation of the business-closure orders is considered a Class 1 misdemeanor, which carries a fine of up to $20,000 or a maximum of six months behind bars.

It is therefore important for employers to comply with both the new and pre-existing directives to avoid being on the wrong side of the law. Here are a few things you need to consider in light of the COVID-19 crisis.

Compliance

The coronavirus pandemic has no doubt lent a devastating blow to several enterprises in different sectors across the country. If you’re an employer whose business is struggling to remain afloat, you may be left with no choice but to layoff, furlough, or terminate a large number of your employees.

According to the existing employment law in several states, an employer is within their rights to terminate an employment contract for any reason provided that it isn’t illegal or in direct contravention of the terms of the contract. This means that you don’t have to worry about getting sued for wrongful termination if you had to let go of your employees.

On the other hand, if you’re running a non-essential business and choose to defiantly remain open despite the current government directive, you risk a lawsuit if you fire an employee who refuses to come into work.

Furlough vs. Layoff

A work furlough and layoff generally mean the same thing. The difference comes in when you consider the duration of each.

The term “furlough” means suspending an employee from work without pay for a fixed period. It is a temporary measure taken by companies when they can’t afford to pay them.

The term “layoff,” on the other hand, refers to an indefinite and often permanent break from employment. Furloughed workers remain in your company books as employees, whereas laid-off workers don’t.

Discrimination and Harassment

You may also get sued by your employees for discrimination or adverse treatment based on certain characteristics that have recently been identified by local, state, and federal laws. Hate crime against individuals with Asian descent, for instance, has been on the rise since the outbreak of the pandemic.

They are unfairly targeted by people who mistakenly believe that they are solely responsible for the creation and spread of the coronavirus disease. If you are an employer with Asian or Asian-American employees, you are responsible for ensuring that they are protected from any form of discrimination. Failure to do this may open you up to a lawsuit.

Fair Labor Standards Act

Despite the current state of affairs, you still need to comply with the wage and hour laws under the Fair Labor Standards Act (FLSA) that provide guidelines for paying your employees.

If they are non-exempt as per the FLSA requirements, then you technically don’t need to pay them. But, if you have the financial ability to continue paying your non-working staff, this goodwill gesture is a great way to bolster morale.

Remote Work

With the shelter-in-place directives from the government, many businesses have been forced to transition to remote work. As an employer, you’ll need to set up clear policies that detail your expectations.

You’ll also need to provide your staff with the equipment they need to be able to work from home, as well as guidelines on when and where they can work. You can also limit certain employees to work remotely and require others to come into work if your office is legally permitted to remain open.

If an employee refuses to come to work, although your business premises are legally open, then you can terminate their employment contract without running the risk of facing a wrongful termination lawsuit.

OSHA Compliance

The Occupational Safety and Health Administration (OSHA) has issued guidelines designed to sensitize employers on the levels of risk associated with contracting COVID-19 in different types of workplaces.

OSHA regulations require employers to plan their emergency response if any of their employees gets exposed to the coronavirus. Some of the notable OSHA requirements include:

Making it mandatory for your employees to inform their respective supervisors if they exhibit symptoms of or test positive for the virus

Taking your employees’ temperatures and sending them home if they exhibit any of the symptoms associated with COVID-19

Sending home employees who you suspect to have the virus and any other individuals who may have interacted with them in any meaningful way in the preceding 14 days

Closing off and thoroughly cleaning any areas of your office that the affected employees may have used within that time-frame

Small Business Insurance

Many insurance policies offer business interruption coverage. Business owners in the country and other parts of the world can all attest to the fact that the COVID-19 pandemic has seriously hurt their business operations.

The real question is – will insurers honor business interruption claims?

What Does Business Insurance Cover

Business interruption insurance is typically combined with property insurance. In the wording of most policy documents, the cover is triggered when a business is interrupted as the direct result of physical damage to the insured’s property at the business premises. Here are some of the key aspects of the cover you need to be aware of as an employer.

Physical Damage

The raging debate revolves around whether the presence of the coronavirus on an insured property constitutes “physical damage.” Even more disconcerting is the fact that insurance policy documents hardly ever define what “physical damage” means.

In many common law cases, contamination has been equated to physical damage when:

a) The damage is temporary
b) The damage is reversible

The actual presence of people in your work premises who have been exposed to the coronavirus alone is insufficient to trigger the cover since it’s not the physical property itself that is contaminated.

Ensure that you examine the wordings of your policy carefully to determine what may fall under business interruption insurance exclusions. Some policies exclude contamination resulting from viruses, bacteria, etc. which would rule out COVID-19 entirely.

How Does Business Interruption Insurance Work for Non-Damage Claims

If your insurance cover contains a clause extension for non-damage interruption resulting from infectious diseases, then it is more likely to be triggered in the present circumstances. These types of extensions can take different forms.

Some list specific types of infectious diseases and cover business interruption claims that result from restrictions on the use of the affected premises on the advice or order of a competent authority. In reality, however, given the timing of the pandemic, it is unlikely that the existing active policies cover COVID-19.

Other forms may provide cover for the closure of part or all of the insured’s premises on the advice or order of a competent authority due to the outbreak of a “legally notifiable” human infectious disease. In certain jurisdictions, if the business interruption occurs before the disease becomes “legally notifiable,” which is often in the form of a specific order, the disease is not covered.

To know where your business stands, start by requesting a complete copy of your policy document and check if it covers the following:

Business interruption
Contingent business interruptions
Civil authority
Contingent extra expense
Extended indemnity period
Ingress/Egress
Ordinary payroll

Pay attention to the wordings used for each to see whether the current coronavirus crisis can trigger coverage in the above-listed categories. Several cases will receive compensation, and several others will be denied coverage. The bottom line is – both businesses and insurers are all trying to navigate uncharted waters.

Workers Compensation Benefits

Is COVID-19 covered under workers’ compensation? This is a common question posed by both employers and employees alike. Ideally, workers’ compensation benefits for occupational diseases are triggered when employees contract diseases in their line of work in jobs that put them at a higher risk for infection than the general population.

For instance, healthcare workers and first responders who contract COVID-19 from infected patients can receive workers’ comp. However, if your business lies outside of the healthcare industry and your employees don’t particularly face an elevated risk of contracting the coronavirus in their line of work, then it might be difficult for them to prove that their infection occurred while on the job.

If you’re not quite sure where your business stands with regards to the level of risk exposure your employees face in their work-related activities during this crisis period, workers’ compensation lawyers will help shed some light on your concerns.

COVID-19 FMLA and Paid Sick Leave

On March 18, 2020, the Families First Coronavirus Response Act was enacted. The law, which went into effect on April 1, 2020, does three main things:

It expands the Family and Medical Leave Act (FMLA) to include leave and loss of income when your employees need to care for their children due to the closure of schools and child care facilities as a result of the COVID-19 pandemic

It creates two weeks of paid FMLA leave for employees for reasons directly related to the coronavirus situation or for childcare

It provides for tax credits for paid leave set out by the FMLA

These new laws, however, only apply to governmental agencies and private employers with less than 500 employees.

To know whether they apply to you, add the number of employees you have who receive a W-2, as well as any persons providing services or labor to your business even if they are being paid by another company. This number also includes temporary or leased employees and day laborers.

Stay Up-To-Date with the Latest COVID-19 Legislation

The coronavirus has brought with it new challenges for employers, many of whom may be uncertain about the steps they need to take to comply with both the new and pre-existing laws in the country. Stay up-to-date on any new legislation or regulation that goes into effect and understand the potential impact it may have on your business.

If you have any legal questions concerning your legal obligations and protections as an employer, feel free to chat online with a Laws101.com attorney. You’ll be instantly connected to a lawyer who can give you legal guidance on your specific case or question.

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Disability Rights

Immigrants’ Rights

LGBTQ Rights

Prisoners’ Rights

Your Rights When Stopped by Police

The Killing of George Floyd by a Police Officer

Your Rights

Civil Liberties vs. Civil Rights

Examples of Civil Rights and Liberties Violations

Get the Justice You Deserve

What Are Civil Rights?

Civil Rights Act of 1964

When Did Segregation End?

The 15th Amendment and Voting Rights Act

Women’s Rights

Know Your Rights

What Is Legal Malpractice?

Reasons to File a Complaint Against an Attorney

1. Not Communicating With the Client

2. Failing to Return the Client’s Documents

3. Attorney Incompetence

4. Conflict of Interest

5. Financial Issues

How to File a Complaint Against an Attorney

Filing a Complaint vs. Suing Your Attorney – Weigh Your Options Carefully

What Is the Communications Decency Act?

The Miller Test

The ACLU Challenges the Constitutionality of the CDA

Reno v ACLU

CDA Section 230 – What Does It Do

CDA 230 Amendment

The CDA – Protecting Your First Amendment Rights Since 1996

Impeachment Definition

How Many Presidents Have Been Impeached?

1. Andrew Johnson Impeachment

2. Clinton Impeachment

3. Trump Impeachment

Nixon Impeachment – the Near-Miss

Impeachment Does Not Equate to Removal From Office

The Telecommunications Act of 1996

Title V of the Telecommunications Act of 1996: Obscenity and Violence

Section 230 of the Communications Decency Act

Publisher vs. Platform

Publisher Liability

President Trump Executive Order

Legal Implications

What This Means for the Existing Protection Laws Related to Social Media

Social Media Censorship Examples

Better Safe Than Sorry

When Can I Sue for Wrongful Termination

What Qualifies as Wrongful Termination?

1. Defamation

2. Fraud

3. Legal and Public Policy Violations

4. Retaliation

5. Sexual Harassment

6. Whistleblowing

It’s Not Over Until It’s Over

Mothers Rights vs. Fathers Rights

Fathers Legal Rights to Child

Fathers Rights Child Support

Divorce With Young Children

Divorce Advice for Men With Children

Fathers’ Rights Matter Too

Executive Order Definition

Congress on Executive Orders – Who Has the Final Say?

How Are Executive Orders Numbered?

Presidential Executive Orders Limits

Examples of Executive Orders

Executive Orders May Be Powerful, But They Have Their Limits

What Is an Essential Business

What Is a Non-Essential Business

Legal Obligations for Employers

Compliance

Furlough vs. Layoff

Discrimination and Harassment

Fair Labor Standards Act

Remote Work

OSHA Compliance

Small Business Insurance

The 15^th Amendment and Voting Rights Act