Tuesday, May 31, 2005

W.Va. Sues Company Over Posters

This report at WOWK notes that "West Virginia Attorney General Darrell McGraw is suing a Michigan company that allegedly solicited posters addressing labor laws without clearly disclosing that such posters may be obtained for free from the government."

According to the AG's web site, these posters "may be obtained free of charge by contacting the West Virginia Division of Labor, Bureau of Employment Programs, at 304-558-1600."

I'm not sure what is upsetting the attorney general here, but it appears there are many, many companies hocking all-in-one labor law posters for our state. If repackaging and selling free, government-produced content is a crime, Westlaw and Lexis are in big trouble.

Monday, May 30, 2005

W.Va. Supreme Court strikes down employment arbitration agreement

In State of West Virginia, ex rel. Saylor v. Wilkes, Judge 32042 (May 11, 2005), the state supreme court held Ryan's Steakhouse was not entitled to compel arbitration of a Human Rights Act claim filed by one of its former employees because the arbitration agreement was an illegal adhesion contract and because it lacked consideration.

Ryan's arbitration contract was atypical. Ryan's had separately contracted with a company called EDSI to provide arbitration services for all employment-related disputes between Ryan's and its employees. Ryan's Agreement with EDSI was executed some time before the plaintiff applied for a job at Ryan's. Although the employee's agreement "purports to be with EDSI, no signature of an EDSI representative is required on [the plaintiff's] Agreement and a signature line for someone from EDSI does not appear on the form."

The court found the contract to be a "take it or leave it" agreement the terms of which heavily favored EDSI. "EDSI retained the right to unilaterally modify rules governing arbitration without input or notice to Petitioner before, during or after amendments are made," the court noted. "Additionally, Petitioner's Agreement reflects gross disparity of the values exchanged between Petitioner and EDSI."

Following the lead of several federal courts that have examined the Ryan's/EDSI agreement, the court also held that "[a]n employer's promise merely to review an employment application in exchange for a job applicant's promise to submit employment-related disputes not associated with the application process to arbitration does not represent consideration sufficient to create an enforceable contract to arbitrate such employment disputes." C.f. Geiger v. Ryan's Family Steak Houses, Inc., 134 F. Supp. 2d 985, 1001-02 (S.D. Ind. 2001) (applying Indiana contract law); Walker v. Ryan's Family Steak Houses, Inc., 400 F.3d at 381, 2005 WL 544353 at 8 (“Ryan's has failed to demonstrate that, under Tennessee law, an employer's promise to consider an employment application is adequate consideration for a promise to arbitrate employment disputes that are wholly unrelated to the application or hiring process.”); Penn v. Ryan's Family Steak Houses, Inc., 269 F.3d 753, 760 (7th Cir. 2001) (“[T]he defendants provide no evidence that any Indiana court has ever held that a mere promise to consider an application for employment would provide consideration for a separate contract.”).

I'm not too discouraged by this opinion because the Ryan's/EDSI contract is sort of an oddball agreement. The federal courts that have considered it are split on the issue of its enforceability. (The Respondent's brief (PDF) states that a majority of courts have found the agreement to be enforceable.) It is not surprising to me our court would tend to favor striking it down. I get the impression that this one was not even a close call.

Wednesday, May 25, 2005

Congress mandates Constitution lesson for nation's schools

The Charleston Daily Mail has this article uncovering "a little-known provision that Congress passed in 2004: Every school and college that receives federal money must teach about the Constitution on Sept. 17, the day the document was adopted in 1787."

Sen. Robert Byrd, "the West Virginia Democrat who keeps a copy of the Constitution in his pocket," inserted the Constitution lesson mandate into a massive spending bill in 2004, "frustrated by what he called a huge ignorance on the part of many Americans about history."

I believe Senator Byrd is absolutely right about the ignorance of our youth about basic American civics. At the beginnig of my senior year in high school, our Contemporary America teacher gave the class a U.S. Citizenship test--you know, the kind of test given to immigrants. 3 out of 25 people had a passing score. The test contained basic questions like, "Who is the current Vice-President?" and "How many U.S. Senators are there?" It was shocking how few people even knew who their U.S. Senators were.

Will this "Constitution Day" make a difference? We're already teaching civics, and the lessons are apparently not reaching the students. Maybe we, as lawyers, could make this OUR day to get into the schools and help kids learn about the Constitution. Afterall, we are among a handful of citizens who take an oath to "support the Constitution of the United States."

Monday, May 23, 2005

Videoconferencing has its day in court

This article in Washington Technology notes that the institution of videoconferencing systems in West Virginia courts has saved the state $30 million in prisoner transportation costs in its first year. This is a fine example of how we can use technology to reduce the costs for the taxpayers.

Saturday, May 14, 2005

Lemon aids government in Establishment Clause case

In Lambeth v. Bd. of Comm'rs of Davidson County, North Carolina, No. 041753 (4th Cir., 05/13/05) (PDF), two lawyers sued the county for inscribing the national motto, "In God We Trust," on the facade of the Davidson County Government Center where they regularly practice. They claimed it violated the Establishment Clause of the First Amendment.

The district court, applying the three-prong test of Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (the "Lemon test") dismissed the complaint. The Fourth Circuit affirmed, concluding that

even accepting the allegations of the Complaint as true, the display does not contravene any of the three prongs of the Lemon test. The Complaint fails to sufficiently allege that the display had no legitimate secular purpose; that it has the effect of advancing or endorsing religion; or that it results in an excessive entanglement of government and religion.



Don't these guys have anything better to do with their time (and money). Is the national motto that offensive? The justices of the U.S. Supreme Court have dropped plenty of hints that they believe it to be secular. Maybe throwing money down a hole is a form of silent protest because the money has the motto emblazoned on it, too.

Friday, May 13, 2005

Now you're surfin' with gas

The gas company is tired of playing second fiddle (actually third fiddle) to the phone, cable, and electric companies providing people with broadband internet access. Afterall, they have lines into your home, too.

Engadget notes in this post that San Diego-based Nethercomm Corp. may soon be offering "broadband in gas" (BiG), a form of broadband that boasts a 10-gigabit bandwidth using "the private spectrum isolated within natural gas pipelines." The system "pumps data from existing local hubs, through gas lines and into homes, where it can be accessed using existing cable modems." I can see it now, surf the net and toast marshmallows over your modem. What a country.

Sunday, May 08, 2005

In case you had any doubt West Virginia is "Almost Heaven"...

...take a look at this: Jesus Christ in legal battle for driver's license.

New W.Va. law let's doctors say "I'm sorry"

On Wednesday, Governor Manchin signed into a law a bill that protects statements of apology by healthcare workers from being used as evidence of an admission of liability in later litigation.

I would hope that on Thursday morning, the surgeon responsible for this called up his patient to apologize.