Author Archives: Randy Ivie

Non-Disparagement Clauses

Non-Disparagement Clauses - Appropriate for Wedding Professionals?

Wedding Professionals and vendors work with clients that have high expectations. Few events involve the emotion and import associated with a wedding. Unfortunately magic wands to change pumpkins into coaches and mice into horses only exist in the realm of Disney. So what is a wedding professional or vendor to do about a client that has unrealistic expectations? There are only two options. You are either going to deal with the expectations before or after you have done the job.

Before you accept a job, you need to make sure that you present an accurate picture of what can be expected in terms of your goods and services. Often the first question that wedding professionals and vendors are asked is how much they charge. If a professional allows the discussion to focus only on price, there is a good chance that the client’s other expectations will not be addressed. While cost is a major consideration, clients are not going to be happy with goods or services that fail to meet their expectations no matter how cheap the price.

Perhaps it is no surprise, then, that wedding professionals  and vendors have sought to manage unrealistic expectations after the fact by inserting non-disparagement clauses into their contracts. These clauses are meant to discourage Non-Disparagementnegative reviews of the business by providing for monetary damages against clients who do so. If you think that sounds a little heavy handed, you’re not alone. The State of California recently banned these clauses in consumer contracts beginning January 1, 2015. Similar legislation has been introduced in Washington to make non-disparagement clauses unlawful in interstate commerce contracts.

If you are considering the use of a non-disparagement clause in your contract, you should consult with an attorney to discuss the legal benefits and liabilities and to ensure that the clause will be enforceable. You will need to include an adequate definition of what constitutes disparagement, a liquidated damages clause that states the monetary consequences should a client act in manner that meets the definition of disparagement and a means of establishing that the client was made aware of these provisions before executing the contract.

Perhaps not surprisingly, many clients are not going to appreciate your attempt to muzzle them if you fail to meet their expectations. In the end you may find that any attempt to do so chases away business. Even those clients that still hire you will likely express their discontent in some fashion or another. Consider the possible impact of a non-review review: “I am unable to post anything negative about this vendor’s goods or services because of a non-disparagement clause in my contract and am unwilling to post anything positive.”

A better approach would be to have an attorney create a contract without a non-disparagement clause that clearly states what the client can expect of you as a wedding professional and what you expect of your clients. In other words, you would be better served by managing a client’s expectations in the process of marketing your services and goods than trying to manage their feedback after the fact by suing to enforce your non-disparagement clause. There are other options to deal with negative reviews of wedding professionals and vendors, particularly if the comments are defamatory.

Click It or Ticket

Thanksgiving “Click It or Ticket” Campaign Kicks Off

NC law enforcement stepping up enforcement of seat belt laws through December 1st

The NC Governor’s Highway Safety Program began its Thanksgiving “Click It or Ticket” campaign to catch motorists that fail to buckle up over the holiday. Radio and print announcements sponsored by the NC Department of Click It or TicketTransportation have been published to communicate the emphasis. The announcements warns motorist not to be a turkey and states that a ticket for violation of the seatbelt law can cost you $161.00.

This is the twentieth year for the program which celebrated its anniversary in May of this year. According to a representative of the program, the use of a seat belt during a crash “reduces the chances of suffering critical injuries or death by 50 percent.”

For the record, the $161 publicized in the ads, which includes a fine of $25.50 and costs of $135.50, applies to the driver and any front seat passenger. The fine for passengers riding in the rear of a vehicle is $10 for a total cost of $145.50. The infraction does not result in any assessment of driver’s license points or insurance surcharge. Under most circumstances all passengers are required to wear seatbelts, though the failure of rear seat passengers to do so does not justify a stop of the vehicle by law enforcement officers.

If you have received a traffic ticket, contact Ivie Law Firm to discuss your options.

Social Media Research by Employers

Employers Run Risks by Researching Potential Employees on Facebook

There are significant risks for employers who use Facebook and other social media to research potential employees.

According to one study conducted by Carnegie Mellon University a small percentage of employers, between ten percent and a third of companies, use social media to research potential employees. While most employers are likely to deny that they violate discrimination laws, the study suggests that researching social media information may result in unlawful discrimination, whether consciously or not.

Information that potential employees post may present or suggest factors that if used to disqualify them from employment might violate federal and state laws Social Media to Research Potential Employeesdesigned to prevent specific acts of discrimination. Such information may be used intentionally by potential employers or unconsciously may influence hiring decisions. Once the employer has the information, particularly when that information relates to gender, religious preferences, age, marital status, or sexual orientation, it may prove a liability in any defense against unlawful discrimination.

A second more recent study conducted by North Carolina State University presents another liability of using social media research for potential employees: it alienates the very individuals that the employer seek to hire. Will Stoughton, a Ph.D. student at the university and the lead researcher, notes that the hiring process is an applicant’s first impression of an employer and serves to indicate how the employer treats its employees. Further, he suggests that if potential employees believe an employer has compromised their personal privacy it will place the employer at a competitive disadvantage for quality personnel.

One might question whether a potential employee should have any expectation of privacy for information shared on social media, particularly since they determine what information to share and with whom. However, legislation was proposed in North Carolina during this past year to prevent employers from requiring applicants to disclose access information for social media accounts precisely because the practice of using social media as a research tool so has gained momentum.

According to the study, most participants deemed the act of accessing their Facebook profiles by potential employers to be inappropriate even when that information is public. Further, they reported a negative impression of the company for doing so.

In the end, using social media as a screening tool can create more liabilities than benefits for employers. Employers may be well served to develop and enforce human resource policies that seek information directly from applicants, former employers and references instead of resorting to research tactics used by private investigators.

Ivie Law Firm can help you design and implement human resource policies and procedures to avoid unlawful discrimination, potential litigation and alienation of personnel. Call, email or use the Contact Form for additional information.

 

Nonprofits

Nonprofits provide valuable services even in economically challenging times

Over 4000 new NC Nonprofits registered so far this year

In spite of the warnings posted on the NC Center for Nonprofit’s website that this is not a good time to form such entities, over 4000 new nonprofits have been registered so far this year with the North Carolina Secretary of State. Over 600 of those have their registered address in Wake County. Obviously, the warnings reflect a concern over further diluting the available resources that support of nonprofit entities. However, there remain good reasons to form nonprofits.

Nonprofits deliver needed programs, services, education, advocacy and faith based activities in North Carolina and provide over 425,000 jobs in the process. NonprofitsAccording to the NC Center for Nonprofits, that is approximately 1 out of every 9 jobs in the state. While nonprofits are tax-exempt, these employees pay income, sales and property taxes contributing over $38 billion to our state’s economy each year.

Forming a nonprofit requires particular steps, many of which the NC Center for Nonprofits advises should be supervised by an attorney and accountant. After organization and formation there are ongoing legal requirements for most nonprofits. Further, those who operate nonprofits as well as the board members who have a duty to oversee operations need to ensure that the nonprofit complies with the law and avoids avoid any conduct that might create legal liability.

While economic conditions should cause careful consideration of the benefits and liabilities associated with forming a new nonprofit, there remain valid reasons to do so. As federal, state and local governments face increased budget constraints, nonprofits and the resources they provide will become even more critical.

Whether dealing with issues of formation, organization, operation or compliance, Ivie Law Firm can provide the necessary legal services to make your nonprofit efficient and effective at achieving its defined mission. Contact Ivie Law for further details.

Abusing 911 Emergency Call Systems

The 411 on Abusing 911

Increased penalties for abusing 911 Emergency System intended to deter a problem of undetermined significance

Recent events in North Carolina serve as a reminder of the importance of a functioning 911 system. Unfortunately, a house burned down last month during an outage of the emergency call system in Moore County.

A desire to keep such systems working properly and efficiently may have motivated the state legislators to increase the penalties for those found guilty of abusing 911 emergency call systems. On December 1, 2013 violation of the statute that Abusing 911 Ivie Law Firmprohibits accessing 911 for a purpose other than emergency communication will be bumped from a Class 3 to a Class 1 misdemeanor. Violators have to knowingly access the 911 system and know that the access is not for an emergency.

Accordingly, a North Carolina man who dialed 911 in Hanover County earlier this year to report his drug dealer for failing to deliver the drugs he purchased might not be in violation of this particular statute. He apparently thought he was reporting a crime that warranted assistance or, at the very least, the attention of the police. He may have been correct, but for the wrong reasons.

The change in the law is more likely intended to address the behavior allegedly exhibited by a 52 year old Summerfield woman who was arrested this week for making 41 calls to 911 between April and September 1st.  That pales in comparison to a Gastonia woman who was accused earlier this year of abusing 911 by calling more than 360 times in a three month period.

In the past, 911 systems received misdials from those trying to reach 411 and directory assistance. Now that almost everyone has immediate access to the web the need for such assistance has decreased significantly.

In North Carolina there are at least two area codes that can create a misdial: the 910 area in the southeastern North Carolina, including the cities of Fayetteville, Jacksonville, Laurinburg, Lumberton and Wilmington and the 919 area in the Triangle and adjoining counties. However, with the advent of cell phones and contact lists many cannot remember the last time they had to dial a number.

With technological advancements one might assume that accidental dialing of 911 would have decreased, but it still presents a significant problem. If a caller realizes a misdial to 911 has been made and hangs up, personnel may still have to follow up on the call to ascertain whether there is a real emergency. Accordingly, citizens are advised by agencies not to hang up when they realize they have unintentionally dialed 911 so that additional resources are not expended.

The severity of intentional abuse (or unintentional for that matter) is not readily ascertained from statistics that are maintained by agencies. What can be discerned is the significant number of calls that are handled by such systems. The call centers in Wake County, for example, received 52,747 calls to 911 in May of this year, the most recent month for which statistics have been published as of this date (see published statistics HERE).

The primary evidence that people are abusing 911 is anecdotal and reported by dispatchers who find it frustrating when the system is used for inappropriate reasons including prank calls. Whether a call is a prank may not be readily evident at the time of the call. At least some prank calls are diversionary in nature, intended to direct attention to some nonexistent emergency and away from the location where a crime is being committed. Other inappropriate calls are made by people who are paranoid or mentally-ill and actually believe an emergency exists when there is none.

Unfortunately, without more concrete evidence of abuse, the amended law is an answer to a problem of undetermined significance. Lawmakers hope that the increased penalties will act as a deterrent but have no idea how many people need to alter their conduct or, of those, are capable of doing so.

If you have need of legal representation in a criminal matter contact the Ivie Law Firm by phone, email or the Contact Form on this website.

Mediation and Family Law

Mediation Panel to Family Law Attorneys: Let Us Do Our Job.

A panel composed of mediators advised attorneys who might really want to settle their family law case in mediation to be prepared and let the mediator do the job for which he or she has been trained.

A mediation panel, which was part of the 2013 Family Law Update presented by the Wake County Bar Association and included Cary Close of Cary Close Family Law, Michael F. Schilawski of Wake Family Law Group and D. Caldwell Barefoot of Barefoot Family Law, discussed several things that they believe a mediator is trained to provide.

First a mediator seeks to provide comfort to the client. Mediation allows clients a context in which to express themselves to an independent third-party. A good mediator spends time explaining that all communications are confidential and providing an opportunity for the client to have a voice. This process of making the client feel comfortable and building rapport may take some time, but it promotes a willingness to negotiate.

A second thing the mediator seeks to provide is perspective. The mediator seeks to gain an understanding of each client’s perceptionMediation of the situation. By listening to all parties involved the mediator gains an appreciation for both sides of the story and where each stands. Schilawski noted that mediators can provide valuable insights into the perceptions of opposing parties. Because of this unique perspective, the panel agreed that it is a mistake not to allow the mediator to share a client’s perception and priorities with the opposing party and vice versa.

A third element that the mediator provides is neutrality. That doesn’t mean that the mediator is void of empathy. An emphasis on neutrality can be perceived as lack of concern. A good mediator communicates empathy while seeking to understand both sides. Barefoot often tells a client that he is not on the client’s side or the opposing party’s side but is one the side of getting things done.

The panel agreed that there are things an attorney needs to do in order to prepare a client for mediation. The first is to explain the purpose of mediation and the role of the mediator. Ms. Close noted that she can’t count the number of times that clients have assumed her role was to settle the case and have asked her to be fair in the process. Attorneys need to prepare client to understand that this is not court.

A second area of preparation by the attorney should involve discussing possible outcomes and addressing client expectations. Schilawski stated that an attorney should be just as prepared for mediation as one would be for trial. For example, there’s no benefit to pushing for an opposing party to be removed from a deed if you already know that your client cannot qualify for financing. Ms. Close opined that the attorney and client should be prepared to give up some things. This can be facilitated by an honest discussion with the client of the intangible costs of not settling in mediation. Delays mean that the client continues in limbo. Barefoot noted that it can be worth a lot to a client to get it over with and move on with ife.

The panel stressed that the rules of professional conduct apply in the context of mediation. They stressed that an attorney has to accept the decisions made by fully informed client whether the attorney agrees or not. Mediation is not the place for an attorney’s ego.

The panel also discussed the advantages and disadvantages of having other third parties present at the mediation. Barefoot expressed his preference that third parties stay home in most situations, but he acknowledged that a parent or friend with the right perspective might be helpful in some cases.

Ms.Close observed that third parties are not limited to actual participants in the mediation. She noted that problems have arisen over the use of social media during mediation when clients communicate about progress or the lack thereof with others. She recalled one mediation in which a client expressed frustration that the other party was tweeting about his offers. Tweets and updates can derail settlements. Attorneys should be prepared to ask the client what are they texting and who are they communicating with if they are using social media during mediation.

Finally the panel stressed that attorneys should let mediators do their job. They are not merely a messenger service. Attorneys can exchange offers by mail observed Ms. Close. A mediator brings new eyes and ears to the situation. And, according to the panel, attorneys often squander a limited opportunity by not letting the mediator talk with clients and share their perspectives on the positions and priorities of each side.

Underage Alcohol

Underage Drinking among College Students

While some consider alcohol use among college students to be a rite of passage, local universities have implemented efforts to make underage students think twice before imbibing.

Summer has passed for local college students who are starting classes, and there is evidence that at least a few students are hitting the books hard. Just two days into the fall semester the UNC Library tweeted with an attitude of amazement that students there had already borrowed close to 3,000 books. Even so, UNC and other local universities are not so naïve to assume that studying is the only thing on students’ minds.Underage

UNC and NC State University both have implemented a policy that requires freshmen to complete an online exam that addresses the dangers of alcohol. UNC has had the requirement in place for the past 2 years. The online program, called AlcoholEDU for College, claims to significantly reduce the frequency of past 30-day alcohol use as well as the frequency of binge drinking (defined as 5 or more drinks for men and 4 or more for women within a 2-hour period) and the past 30-day alcohol-related problems such as drunk driving and sexual assault.

This year, UNC has raised the stakes. Students who fail to complete the online course and take the exam will be prevented from registering for spring courses until they do.

These initiatives are consistent with the changing attitudes towards underage drinking. Whereas in the past society may have deemed alcohol to be a rite of passage for college students, they now are under increased scrutiny. Police are far more likely to arrest students or issue citations for underage purchase, possession and consumption of alcohol.

Ivie Law Firm can help you deal with the consequences of underage alcohol offenses. Call, email or use the Contact Form on this website for additional information.

Homeless Crime

When Charity to the Homeless is a Crime

Local ministries run afoul of the law for feeding the homeless

Saturday morning, Raleigh failed to live up to a recent accolade – one of the most hospitable of America’s cities. In fairness, the accolade, touted on the  city’s website, was for services provided to guests. Raleigh showed that it doesn’t think of the homeless as guests and, worse, that it doesn’t really care if they go without food on the weekends.

Saturday and Sundays the homeless in downtown Raleigh have been fed by volunteer organizations for the past 6 years, as there are no other formal feeding programs in place on the weekends. The task has been shared by several different groups that carry food to Moore Square. One such group called Love Wins Ministries, led by Hugh Hollowell, was threatened with arrest Saturday morning after showing up with biscuits and coffee. Officially, according to Hollowell, the groups do not use the park but distribute food on the sidewalk bordering the park.

In spite of the distinction, police, who refused to cite the ordinance or explain the nature of the infraction, told the group that if they attempted to distribute the food Homelessthey had brought they would be arrested. City Code Section 9-2022 requires individuals or groups to secure a permit from the Parks, Recreation and Greenway Director, a position currently held by Diane Sauer, before distributing meals or food of any kind in or on any city park. As the term distribute is not defined, the same ordinance would appear to require a permit should a person purchase food, bring it to the park and distribute it among family members. For Love Wins Ministries and the other groups that have taken on this mission, the homeless are part of the family of God and feeding them is an act of obedience to the commands of Jesus Christ.

Regardless of the reasons for the heightened scrutiny, the manner in which this has been handled by the city and the police is embarrassing. The groups that have served the homeless each weekend for the past 6 years, to the city’s benefit and at their own expense, were not acting covertly. If the city feels a need to change this method of feeding the poor it should have had the decency to call these groups together and work out a viable alternative instead of creating a confrontation, intimidating citizens and threatening arrest

Raleigh can do better. I would encourage the City Council to persuade Ms. Sauer to waive all costs and issue whatever permits are required for as long as it takes to develop an alternative means of addressing the problem. In the meantime, perhaps the councilors would be well served to join in the effort and show a little bit of that hospitality for which the city is known.

You can find Love Wins Ministries blog about Saturday’s events HERE.

If your church or nonprofit needs legal advice or representation, Ivie Law Firm can help.

Copyright Infringement

Blurred Lines in Copyright Protection

Robin Thicke sues for declaratory judgment that his hit summer song, “Blurred Lines,” doesn’t cross the line on copyright infringement.

In the same month of 1977 as Robin Thicke’s birth, Marvin Gaye released what would become a chart topping hit single, “Got to Give it Up.” Fast forward to the summer of 2013, and Thicke’s “Blurred Lines” has reached the number one spot.

Thicke is on record as stating that Gaye’s hit is his all-time Copyrightfavorite song and influential upon his recent composition. The Gaye family and the copyright owner of Gaye’s hit allege that Thicke’s composition crosses the line of copyright infringement, because it feels or sounds the same. According to the complaint filed by Thicke, they asked for a cash settlement in lieu of a lawsuit.

Instead of writing a check, Thicke, who admits that his song was intended to evoke an era and be reminiscent of a particular sound, has filed his own a preemptive lawsuit asking the court to declare that his song does not infringe on Gaye’s hit. His complaint alleges that the Gaye family is claiming ownership of an entire genre instead of a specific work.

When it comes to copyright in music, the line is sometimes blurred. Gaye’s hit, originally titled “Dancing Lady,” was inspired by the Johnnie Taylor hit “Disco Lady.” The song depicts a shy man who was once too nervous to dance but is eventually emboldened by the music and the possibility of romance. The Copyrightlong play version sums it up the sentiment with the words, “Let’s dance; let’s shout; get funky what it’s all about.” These lyrics were altered by Michael Jackson and his brother Randy to “Let’s dance, let’s shout; shake your body down to the ground” in the Jackson’s classic released in late 1978, “Shake Your Body.” Michael Jackson borrowed even more of Gaye’s “Got to Give It Up” style in his song released in mid-1979, “Don’t Stop ’til You Get Enough” which also uses percussion instruments and a constant guitar riff as a foundation.

Apparently during the 70′s artists did not feel infringed upon by others who found inspiration in their music. So, in the words of Marvin Gaye, what’s going on? Obviously attitudes have changed. That may be understandable given the music industry’s status and profits. Even so, absent similar lyrics or melodic progression, any claim by Gaye’s family that Thicke has got to give it up may be misplaced. On the other hand, they are likely to benefit from all the publicity given to a 70′s hit that has not received this much attention since disco died.

If you have need of legal advice or representation in the area of copyright law, contact Ivie Law Firm by phone, email or the Contact Form on this website.

Courtroom not the only stage for local attorney

Raleigh Attorney warms to the spotlight of Community Theater.

By day, Amber Ivie practices law with the J. W. Bryant Law Firm located in downtown Raleigh. In that capacity she often finds herself in the courtroom before a jury of her client’s peers. By night, she likes to perform before another audience – the patrons of the Cary Players Community Theater Company.

Ms. Ivie has been cast in the upcoming production of Nunsense, a musical comedy that depicts a group of nuns in the midst of crisis trying to raise funds by staging a variety show. She will be playing the part of Sister Robert Anne who starts out as an understudy for the fundraiser but, through twist of fate or act Nunsenseof God, moves into a leading role. “Sister Robert Anne is a streetwise nun who is a bit of a pain for the Mother Superior,” Ms. Ivie notes. “She may not be the most polished nun in the convent, but she is genuine and compassionate.”

This is the fifth show in which Ms. Ivie has performed with the Cary Players. “In many ways this is like an extended family,” she observes. “The preparation and performance is time consuming, even exhausting, but you end up developing special relationships with those involved.”

At least one unusual aspect of Nunsense makes it similar to a courtroom trial, according to Ms. Ivie. “In the courtroom, a good attorney directs all statements to the jury. In most plays the audience is not acknowledged by the actors. They avoid breaking what is referred to as the fourth wall.” During Nunsense, however, actors speak directly to the audience, and “they become a part of the production in a way that you don’t see in most plays.”

The cast, staff and crew hope for a favorable verdict from those who attend the musical comedy. The Cary Players’ production of Nunsense runs for two weekends, September 27th through October 6th. Matinees are scheduled for Sunday afternoons at 3:00 p.m., and the shows on Friday and Saturday nights start at 7:30 p.m. Tickets are now on sale and can be purchased in person at the Cary Arts Center, by phone at 800-514-3849 and online at www.caryplayers.org.