business law

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Business and Fourth Amendment Benefits

Published December 8, 2014 by Mayrbear's Lair

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The most successful business leaders comprehend the legal parameters to help them operate their firms  more efficiently. Managers that have a grasp on the law benefit from that knowledge. They are cognizant that comprehending the laws of the US Constitution, for example, plays a significant part in their ability to protect their rights. Organizational leaders that learn to interpret and comprehend the provisions of the Constitution will be ahead of the game in operating a successful firm.

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The Fourth Amendment, for instance, is an important component of the Constitution known as the Bill of Rights. It was created to protect US citizens and their possessions. In his book, More Essential Than Ever: The Fourth Amendment in the Twenty-First Century, Stephen Schulhofer (2012) contends that prior to the establishment of the Fourth Amendment, American Colonists were subjected to abusive searches from authorities who plundered their businesses and rummaged through their documents and possessions (Schulhofer, 2012). Other infractions of the Fourth Amendment involve violation of rights by the abusive power of officials who take advantage of citizens that are uneducated or may not be aware of their rights. Individuals that have emigrated from foreign countries, for example, may be at a disadvantage because they are unable to communicate effectively and are discriminated against. The Fourth Amendment was designed for this reason, to protect US citizens from having their property searched or seized without law enforcement having reason and/or obtaining a legitimate warrant to do so.

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The Fourth Amendment benefits citizens and their businesses because it protects them from unwarranted searches and having their possessions confiscated. On the other hand, the Fourth Amendment also benefits authorities because it gives them the right to search and seize evidence from individuals or businesses suspected of illegal conduct that may bring harm to the public at large. In his book, The Fourth Amendment: Its History and Interpretation, Thomas Clancy (2008) purported that with respect to any case that involves Fourth Amendment issues the following question must be addressed: does the government activity (whether search or seizure) invade the individual or their business interests that are protected by the amendment (Clancy, 2008). In other words is the activity warranted or not? For example, in today’s world, technological innovations in communication and the internet are creating cause for alarm with respect to the rights of citizens under the Fourth Amendment because of the astounding surveillance capabilities of the government to collect private information and data in the name of national security post the 911 terrorist attack. The questions modern citizens face today is whether this invasion of privacy is an infringement on their Fourth Amendment constitutional rights.

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Furthermore, the act of a search or seizure is very degrading for an individual to experience. In fact, Taslitz (2006) disclosed that the original Fourth Amendment of 1791 was constructed to tame political violence. The truth is that the early colonists not only complained about taxation without representation, they were outraged that the enforcement of these tax laws were conducted by searches from authorities without evidence of any wrongdoing (Taslitz, 2006). In other words, search and seizure were the core issues that motivated the revolutionary war!

The truth is, authorities that conduct seizures and raids have consciously engaged in an act that strips individuals of their rights and privacy. It is imperative that any authoritative figures that engage in such activity do so legally to prevent the violation of an individual’s US Constitutional rights, or rob a person of their dignity in doing so. In my publication, Ethics in the Real World (2013), I begin the book by pointing out that people in positions of power who have no one to answer to, can become dangerous, because time and time again history has shown us that rulers with unlimited power tend to behave with unlimited corruption. Without laws like the Fourth Amendment citizens would be powerless to stand up to misconduct and fraud.

The Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not beviolated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the  place to be searched, and the persons or things to be seized.

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Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress. –Martin Luther King, Jr.

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References:

Berry, M. A. (2013). Ethics in the Real World. USA: Kindle Direct Publishing.

Clancy, T. (2008). The fourth amendment: Its history and interpretation. Durham, NC: Carolina Academic Press.

Schulhofer, S. (2012). More essential than ever: The fourth amendment in the twenty-first century. New York, NY: Oxford University Press.

Taslitz, A. (2006). Reconstructing the fourth amendment: A history of search and seizure. New York, NY: New York University Press.

Employer Liability for Negligent Hiring

Published September 9, 2013 by Mayrbear's Lair

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Smart business leaders have a firm grasp of comprehending the law and recognizing its limitations when it comes to operating a business. Walsh (2013) explains that, “No single set of employment law covers all workers” (Walsh, 2013). In fact, employment laws consists of a variety of federal, state, and local laws that are contingent upon such things like: (a) whether the individual is a government employee, (b) whether the individual works in the private sector, (c) the size of their company or (d) whether they have any union affiliation. In addition, employment laws are ever changing, as new employment laws are created and old ones are reinterpreted.

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To better understand these laws, we will examine a case study of a scenario involving  a 17 year old plaintiff that seeks damages as a result of being violently assaulted by an employee of the defendant, XYZ Motor Freight Inc. When XYZ hired the employee that committed the assault, they questioned the individual with respect to prior vehicular offenses and criminal convictions. However, due to their position on EEOC discrimination statutes, XYZ only chose to verify his vehicular offenses and ignored his negative response to the criminal convictions inquiry. Rassas (2011) suggests that employers who have a working knowledge of labor law and the obligations of employers can help them avoid litigious events such as this. A lack of knowledge can unintentionally result in a failure to abide by a law and impact the operation of an organization significantly (Rassas, 2011). For example, employment laws have been established to protect both employees and employers by imposing certain responsibilities. For employees, employment at will is a default rule that permit employers to terminate employees without having a good reason. This means the employee has the freedom to engage in collective bargaining with their employers. In addition, according to employment laws, each relationship is subject to the terms and conditions of employment that meet minimum required standards. However, in today’s society the most effective and successful people, whether employer or employee, should also take responsibility and accountability to ensure their own safety as well as those of others.

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XYZ’s position is that it did not seek to verify the criminal background check citing they had no duty to do so because of a lack of foreseeability. They further defended their position stating that to impose such a duty would be against public policy and place too great a burden on them. However, in this case, failing to do so created another burden for them. Seaquist (2012) purports that when an employee is working within the scope of their employment, the employer will be liable to third parties for the torts of their workers under the doctrine of respondent superior (Seaquist, 2012). The plaintiff in this case seeks justice arguing that the employer should have been cognizant that the employee they hired was dangerous because he had a history and a record of violent sex related crimes when they hired him. In other words, by not checking his criminal background they created a dangerous condition by putting him in a situation in which he was able to bring harm to others because they failed to verify his criminal record.

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Both sides have very effective defenses to support their position. XYZ claims they did not verify the criminal background check because they were acting in accordance with EEOC discrimination law issues. However, because the employee was hired to participate in interstate commerce, it is their responsibility to make sure the individual performs their duties to best of their ability and trust they will not engage in misconduct or inappropriate behavior. In my view, if I were a business leader for XYZ, I would be concerned about the damages from the negative publicity alone that a case like this attracts. That is reason enough to engage in thorough employee investigations scrutinizing criminal backgrounds a little closer because of the nature of the trucking industry. As a part of the legal counsel for XYZ, I would suggest a settlement to keep the matter private to preserve the organization’s reputation, and take responsibility for their employee’s ethical misconduct by paying any and all damages to the plaintiff as an act of good faith that supports an ethical corporate climate.

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The plaintiff is in her right to seek damages for being so horrifically violated. However, the jury must decide on whether or not XYZ was responsible for negligence because they were acting in accordance with EEOC mandates with respect to the background check issue. Unfortunately, in a life changing situation as this, hopefully both parties learned some valuable life lessons from this experience. The defendant can begin to take more effective methods to insure the competence of their employees, and the plaintiff came to understand, that although an individual may represent an organization, that does not mean the individual is free of behavior from criminal or ethical misconduct. The moral of the story: never, ever, accept a ride from a stranger. The movie Hitchhiker was a good reminder as to why.

References:

Rassas, L. (2011). Employment law: a guide to hiring, managing, and firing employers and employees. New York, NY: Aspen Publishers.

Seaquist, G. (2012). Business law for managers. San Diego, CA: Bridgepoint Education, Inc.

Walsh, D. (2013). Employment law for human resource practice. Mason, OH: Cengage Learning.