Social Media: Benefits and Applications in Litigation

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A presentation to paralegals in Brevard County, Florida on behalf of the Association of Certified E-Discovery Specialists - February 18, 2012

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Social Media: Benefits and Applications in Litigation

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Parties in a Florida civil lawsuit are required to mediate before they can go to trial. Trials can be an uncertain and expensive process. Mediation allows the parties and their lawyers to meet confidentially with a mediator to discuss whether they can resolve their dispute. No one decides who is right or wrong in mediation. How does mediation work The mediation process is very flexible. Mediation can occur before a lawsuit or during the proceedings. Before and in a suit but before the case has been noticed for trial usually one side will suggest mediation. If the case has been noticed for trial, then the Court normally mandates mediation. The lawyers agree on a mediator and set the location and date for the mediation. Each lawyer then has the chance to send a confidential mediation summary to the mediator. That summary gives the mediator the perception of the case from each side. Unless told to do so the mediator will not share a summary with the other side.

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In Florida, attorney’s fees are generally recoverable by the winning party if they are allowed by agreement such as in a written contract or by law in a statute. This protocol is commonly called the American Rule because it modified its cousin, the English Rule, which awarded fees to the winner in all civil cases. Attorney’s fee can also be awarded in a lawsuit under procedural rules, such as for the failure to make discovery. But such fees awarded in a lawsuit are limited to the specific event like failing to turn over documents and do not include all the reasonable fees incurred in the litigation that have their genesis in a contract or statute.

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The three distinct but broad categories of claims that are commonly brought in business disputes in Florida are those grounded in contracts, those based on torts, and those provided by statute. Contract claims may be predicated on a written or oral agreement or a contract implied by law. Torts are claims based on negligence or intentional bad acts. Statutory claims are those where a specific statute defines the claim and the relief. Lawsuits are not the only forum within which businesses can address their disputes. Businesses also have arbitration and direct resolution methods including mediation in addition to the court system. Therefore it is more appropriate to define these claims within the context of the more inclusive concept of business disputes as opposed to limiting them to just lawsuits.

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Recent changes in the law make it more likely that your business will receive a letter from an attorney demanding money for a former employee claiming unpaid wages, overtime, or both. Regardless of whether these claims are under federal law, Florida state law, or both your first response should be to gather all documentation on the employee like payroll records, evaluations, and job description and then to contact your business lawyer to discuss your response options. Federal Fair Labor Standards Act The Fair Labor Standards Act (FLSA) is a federal law that was enacted in 1938. It has naturally been updated numerous times since its inception but business owners perceive it as largely favoring employees due to its history. For example in most cases only the employee can recover attorney’s fees which are denied to employers even if they win. The FLSA is found in Section 29 of the US Code beginning at Chapter 8 and starting with Section 201. The US Department of Labor has significant helpful resources on its website about the FLSA, its application, and documents that employers should and must maintain. In any FLSA claim, the employee has the initial burden to prove that they performed the work. If they establish that then the employer must prove that the employee was properly paid. On that issue one of the most common mistakes that employers make is insufficiently documenting payments to employees particularly where cash payments were made. The failure to adequately document hours worked and wages paid puts a business in a precarious position in responding to FLSA claims as its ability to meet its burden can be severely compromised. Thus a business should make sure it is always documenting the hours that each employee worked and the money or wages paid to that party. Using a payroll company to do so may be well worth the cost as it may make it easy for the company to later prove that it fully and properly paid the employee. Likewise using software to track hours and wage payments is an equally efficient and effective way for a business to put itself in a position to easily meet its burden under the FLSA.

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In Florida if your business is not in the construction industry and you have four or more regular employees you are required by law to have workers’ compensation insurance. Whether a person working for your business qualifies as an employee for workers’ compensation purposes and whether an owner or worker qualifies for an exemption is an assessment to perform with your attorney before you receive a stop-work order or records request from the Division of Worker’s Compensation of the Department of Financial Services. Take the opportunity to assess your coverage obligation now This article is designed to inform business owners of the workers’ compensation insurance requirements in Florida so they can determine if they need to evaluate their business for coverage or obtain coverage. This article is not intended to analyze any particular business nor does it address the workers’ compensation claims process. The time for any business to determine whether it is obligated to have workers’ compensation insurance in place is before the Division imposes a stop-work order, initiates an investigation, or imposes penalties on the business. Like most business matters being proactive on a legal requirement such as workers’ compensation insurance can save the business a great deal of money later.

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Cybersquatting or cyberpiracy is when someone registers a domain containing your name or that of your business and does it to deprive you of the ability to register that domain. There are several ways to combat this cybersquatting and fight cyberpiracy as it is also known from contacting the domain registrant and notifying search engines to alerting the FTC and FCC in the federal government and filing a lawsuit. But a more proactive approach to guard against this kind of hijacking is to purchase domains and register trademarks for your business. https://www.davidsteinfeld.com/combat-cybersquatting-cyberpiracy.html

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Businesses can have video surveillance in the workplace but it depends where those cameras are located and their purpose. Electronic surveillance of the workplace can be tremendously beneficial for a business as to both employees and customers. Business owners engaging in such workplace surveillance are wise to openly display their cameras or place a sign in a prominent location indicating that cameras exist on the premises. They are also smart if they have employees acknowledge the existence of the cameras in some writing like their employee handbook. Security cameras in a business may also be capable of recording and storing video and sound. Because of the robust capabilities that these relatively low cost devices now offer the business should familiarize itself with the applicable law and the obligations that the business may have to preserve the data that those devices create and capture.

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