Powerball: 10 Ways to Lose Friends and Make a Lawyer Happy

You've probably heard that the estimated jackpot for the Powerball lottery game is at an all time high of $1.5 billion. You might have purchased some tickets with high hopes of winning. Sure, you say you'll use those lottery winnings to make the world a better place, feed starving children, and cure cancer. The odds of you winning are not good. But in the event that you do win, the odds are very good that you'll end up in some kind of fight over that money and how it should be used.

Photo courtesy of Susanne Nilsson.

To help you find the most efficient route to unhappiness, I've prepared this list of the top ten ways to lose friends, family, and co-workers and to make your lawyer happy with your Powerball jackpot.

1. Make vague promises to random people about giving them "something" if you win. Make sure that you don't say what that "something" is.
2. Your divorce is almost done, so now is the perfect time to hide those lottery winnings. But be sure to not claim the prize until after the judgment is final. Your ex won't be too upset about that.
3. Use money from your business to buy lottery tickets.
4. Start a lottery pool with friends, family, co-workers, and strangers.
5. Keep everything casual with a handshake and a promise with all the people in your lottery pool. Do not set up a trust or an LLC to distribute the winnings to your lottery pool. You don't need more things in writing. Just let a verbal agreement get passed among your group like a game of telephone.
6. You can definitely keep track of how much each person should get without writing it down. Do not let everyone in your pool know what their percentage of winnings will be until after the drawing.
7. Everyone will definitely remember which ticket they bought for the pool, and which they bought for themselves. Do not make copies of your pool's tickets to share with the group.
8. By April 15 of next year you'll still have plenty of money left to pay income taxes. Don't worry about putting anything aside now. Give away large amounts of money to friends and family. Would the government really tax gifts? Make sure to give money to people on Medicaid or Disability. Your one time gift will more than make up for their loss of government support.
9. Invest all the money in a new business that just happens to "lose" all the money and goes out of business. Look up "money laundering" on Wikipedia. 
10. Affluenza is a trendy new thing. Now is the time to get some for your kids.

As a lawyer, I really have say that the above is meant as humor. You should not do any of those things mentioned. Do not take this article as legal advice. If you have won the lottery, call a trusted lawyer to make sure you are protected and that you avoid any easily made mistakes. I can be reached at (616) 723-0444. That is, unless my winning numbers are called.

Pedal Pubs Pop the Cork

On July 15, Governor Snyder signed bills that will allow passengers to consume alcohol while riding "commercial quadricycles" also known as pedal pubs.

Passengers

The law allows passengers to have "beer, wine, spirits, or a mixed spirits drink" in an open container. The bill signed by the governor doesn't define what spirits are.  Some news websites have stated that the law does not allow "hard liquor" consumption. Hard liquor is not a term used in the law.

Spirits are defined in the Liquor Control Code as distilled alcohol mixed with water or other substances. What people may not realize is that the whiskey, gin, or vodka you buy in a store has actually been diluted with water. So, when people think of hard liquor, they are talking about spirits, and spirits can be consumed on these pedal pubs. 

An important note: this law allows local ordinances to over-ride it, so even though it is legal in the state, it may not be legal in your particular location.

Another note: just because it may be legal, it doesn't mean that the owner or operator of the pedal pub has to allow you to drink. You're still making a contract with the pedal pub operator, and it is their choice to decide what passengers are allowed to do.

Operators

The operator of the pedal pub must have a 0.00 blood alcohol level (BAC). Note that the operator is the person steering. The passengers peddling the pub are not operators. The law sets a fine of $300 for the driver for a BAC up to 0.04. According to this website, that is about one drink for the average person. Anything over 0.04 can mean a stay in jail up to 93 days, on top of the fine.

If a pedal pub is involved in any kind of accident, you can be sure that the driver will be tested for alcohol. A zero-tolerance limit for alcohol means that even one drink consumed hours before starting work could lead to a violation of the law for the driver.

Owners

The owner of a pedal pub is required to carry "bodily injury and property damage liability insurance with a minimum combined single limit of $2,000,000.00 for all persons injured or for property damage." This affects all pedal pub owners, even if they don't want to allow consumption of alcohol by patrons.

Cities

I expect that many cities will soon be passing their own regulations regarding these pedal pubs, and what can be consumed, and when, and how. 

What this all means is that if you are a pedal pub owner who wants to allow drinking, you will need to do a bit of work before. Insurance, liability waivers and contracts for passengers, training and testing for drivers, and local ordinances will all need to be looked at to make sure you're in the clear.

Medical Marijuana and Your Employees

Personal, after-hours use of marijuana by employees has been in the news recently, after the Supreme Court of Colorado ruled that employers can fire employees for off-duty medical marijuana use. I have received questions from employers regarding this issue and drug test policies. The law here in Michigan has been pretty clear since 2011.

In the case of Casias v. Wal-Mart, Joseph Casias, a Wal-Mart employee failed a drug test following a workplace injury. Wal-Mart had a zero-tolerance policy for failed drug tests, and promptly fired Mr. Casias. Mr. Casias tried to argue that the Michigan Medical Marihuana Act protected him from being penalized by his employer for medical use of marijuana. The federal court in Grand Rapids, Michigan ruled that the law only protected medical marijuana users from state penalties, not from actions by private parties. Therefore Wal-Mart could fire Mr. Casias even though he was properly using marijuana for medical reasons. 

While Michigan's Supreme Court hasn't ruled in a case like this, the federal court's reading of the law seems accurate, and it is very likely that a state court would rule the same way. But, federal courts don't make Michigan laws, and a state court could disagree. It would be interesting to see if some fired employee wanted to actually test this in state court.

Employers in Michigan should have no problem enforcing zero-tolerance drug policies, or firing an employee any time they fail a drug test. The only real issue an employer faces is what to do if they don't want to fire an employee who fails a drug test, or uses marijuana outside of work.

If the company has a written policy, they will have to apply that policy consistently to all employees, otherwise risk a discrimination lawsuit. So, if your best employee fails a drug test, and you decide to ignore your own policy, you will have to do that for everyone else as well. 

Medical marijuana use is still a crime in Michigan.

If you have no policy regarding employee drug use, you face other problems. Michigan's medical marijuana law just gives people a defense for the crime of marijuana use. Using marijuana is still illegal in Michigan, even if you have a medical card.

The medical marijuana law does not protect employers.

The law is only written to protect patients, caregivers, and physicians. Your business will have no protection if employees store or use marijuana at the workplace, or if an employee causes an accident and a test shows that they had used marijuana. Criminal arrest and lawsuits are a real possibility.

To Test or Not to Test

Whether or not your business drug tests employees will depend on your specific business. Unlike alcohol, marijuana can be found with tests long after use, so you can't just ignore after-hours use by employees.

What you decide to do will depend on your business needs, but you should be sure to have solid legal advice before you decide to implement a policy, or before you decide to do nothing.

UPDATE: Indiana amends and Arkansas signs updated "Religious Freedom" acts.

UPDATE: April 3, 2015: Arkansas has passed an updated Religious Freedom Restoration Act (RFRA), and Indiana passes an amendment to its RFRA law that has generated so much controversy. I have updated the spreadsheet, and it is changed in the original post, as well as attached to this post.

Arkansas Law

The law that the Arkansas governor eventually signed is basically a mirror of the federal law. It doesn't mention businesses, and it can only be used in cases involving the government. It also did not add any explicit protection against discrimination.

Indiana Law

The changes to Indiana's law are actually quite small. It still allows businesses to claim religious freedom protection, and it still allows individuals to use the law in private disputes. What it does add is a section saying that this act can not be used to discriminate in accommodations, employment, or housing based on race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service. But, it includes an exception for churches and church officials. I assume this is to clearly allow churches or religious schools to not hire someone if it offends its religion.

Also, the anti-discrimination protection only applies this this specific law. It does not give broader civil rights protection to people based on sexual orientation. It only says that a person can not use the religious freedom law as a defense. But, since sexual orientation is not protected by any civil rights laws in Indiana, a person would not need to use this law as a defense for discrimination based on sexual orientation. 

What this means is that if a gay person is refused service at a business, that business probably never needed to use religious freedom as a defense anyway, because there is no Indiana state law that says they can't discriminate based on sexual orientation. All this new law does is say that a business can not use religion as a reason for discrimination.

But remember, that cities and counties in Indiana could enact anti-discrimination acts that would cover businesses in those places. 

The Bottom Line

What should business owners take from all this? Unless you can point to a valid business-reason for hiring, firing, refusing service, or rejecting clients, you should be very careful. Even though there may be no law that will get you, public opinion is often an even more powerful force for businesses. 

An overview of 'Religious Freedom' laws in 20 states

UPDATE: April 3, 2015: I have updated the table to reflect changes in Indiana's law, and the new Arkansas law.

As a helpful source for people reading about the Indiana Religious Freedom Law, I've put together a spreadsheet highlighting differences in all 20 different states' laws. 

First, I'm looking at these laws from the viewpoint of how they may affect the ability of business owners and managers to apply their religious views to their workplace. In that regard there are a couple of background points to cover.

Protection for businesses

Few of the states' laws explicitly mention businesses as being able to express religious views. But, some courts have been willing to interpret a "person" to also include groups of people in associations, clubs, or even corporations. So, even if a state's law does not mention businesses, a business may be able to use the law in a claim or defense.

Public Accommodations

Most anti-discrimination laws across the countries will only apply to businesses that are considered a "public accommodation". Basically, if your business is typically open to any member of the public who walks in the door, you are probably a public accommodation, and your ability to choose who you decide to serve will be restricted.

Most states have laws that require businesses to serve people of any race, gender, ethnicity,  or religion, if that business is considered a public accommodation. The idea that any business owner has the "right to refuse service" is just mistaken in most instances.

A few states include sexual orientation in that list. Since much of the discussion around these laws has focused on sexual orientation, I point out if each state protects orientation in its public accommodations law.

Summary

For each state that has a Religious Freedom law of some kind, I have listed the following information:

• Law: The actual statute if you want to go and read it.
• Year: The year the law was put in place.
• Businesses explicitly protected: Whether the text of the law clearly says that businesses can take advantage of religious freedom protection.
• Private dispute defense: Whether this law can be used to make a defense or claim even if the government is not involved. This is what could allow a business to claim a defense if they decide not to serve someone because of their own religious belief.
• Discrimination exclusion: Whether the law says anything about not being able to use the law to discriminate against another.
• Public accommodation laws protect sexual orientation?: Does the state require public businesses to serve all people, whether they are gay or straight or transgender?

March into Madness at the Office

This is the time of year when people all across the county turn their workplace into a crime scene. Obviously, I'm talking about NCAA basketball tournament brackets. Now, just filling out a bracket is completely legal. Even the President of the United States fills out a bracket. But, honestly, is everyone filling it out just for the fun of it?

Across the country, 20% of employees have bet on NCAA Tournament pools, going up to  27% for senior management, and 40% for IT professionals. Have no doubt; wagering money on the outcome of college basketball games is illegal almost everywhere in the US. There are three federal laws that would likely apply to most cases: the Interstate Wire Act of 1961, the Professional and Amateur Sports Protection Act, and the Uniform Internet Gambling Enforcement Act.

Do people really get arrested for filling out NCAA brackets? Yes, they do. 

Covering Your Assets

If you're a business owner or manager whose employees are running an office sports betting pool, you may be wondering how this affects you? If you're not actively betting, you're not breaking the law, right? Wrong.

Your business. Your gambling house.

Michigan has its own set of laws against gambling. Basically, it is a crime to accept any money or valuable and pay out money or valuable things based on the unknown outcome of some event, like a basketball game.

Obviously, the people collecting money for the bracket are breaking the law. But, the owner or manager of the place where the gambling is happening is guilty of keeping a gambling house, if they permit or allow gambling in any building or place that they own, occupy, or control. 

You don't have to go home, but you can't gamble here.

Like the classic Semisonic song says, just let your employees know that gambling at the workplace is not allowed. You may not want to be a jerk about it, but you also don't want to be the manager of the employee whose office pool turns into an $837,000 crime scene. 

What, me worry?

Sure, there are worse crimes to worry about at the office, and you don't have to act like a nanny to your employees. But, if you're running a business, it is your life. You shouldn't let other people play games with your life.

Trademark fights cost more than money

Bell's Brewery in Kalamazoo is in a trademark dispute with a small brewer in North Carolina over the use of the word "Innovation". I'm not writing this to pick sides in that argument, but to use it to show how both using the trademark process can avoid expensive fights like this.

Costs

First, what are the costs of something like this? The money costs can be big. Legal fees for commercial lawsuits run into the tens of thousands of dollars. And if the plaintiff in the case wins, they can recover their own lost profits, or the defendant's profits. Just deciding on this amount takes a lot of time, expense, and is very unpredictable.

As a business owner, you do not want to have unpredictable liabilities.

Loss of Identity

For the losing side, you're going to have to deal with customers having lost a recognizable connection to your business. Even if it's just a slogan, there can be costs and confusion. For a small business, the cost of changing a name can be enough to put company out of business. It may seem unfair, especially if the company suing you never did business locally, but if they registered the name, and you didn't, your chances of winning are small. Even a similar sounding name can be a problem. Just look online for all the "Yard Doctors" sued by "Lawn Doctor". Most don't exist anymore, even if they changed their name.

Goodwill

The other cost that is harder to judge is to your business' reputation. If you're seen as taking advantage of the small local guy, you might get branded as a corporate bully. For some businesses that might not be a problem, but if you're trying to be the earthy, crunchy micro-brewer, you don't want your name being publicized by your attorneys. Let the marketing people promote your image. Lawyers are terrible at presenting a friendly, feel-good image.

Bell's has had to defend its action in this case, because of the backlash on social media.

Protection

There are three simple things you can do to avoid these problems. Research first, register it before you use it, and finally, use it as often as possible.

Research it

Before you pick a name, do some research. But remember, just because you don't find it with google doesn't mean you're good to go. A trademark attorney will look at US, state, and international trademark registrations, state business name databases, and other resources that you might not know about or have access to.

Plus, just because a name or phrase is taken, doesn't mean you can't use it. Depending on how it's being used, and how you want to use it, you might be okay as long as there's no likely confusion.

In this case, Bell's has been using the "innovation in brewing" slogan for quite a long time before Innovation Brewery started. I would imagine that it would have been possible to find that phrase before they started.

Register it

Authoritative recognition. That's what you get if you've registered with the U.S. Patent and Trademark Office. 

1. Any one looking for a name will, or should, start at uspto.gov. No one can argue that they didn't know about it, if you had it registered. 
2. You get nationwide protection, even if you're not (yet) using it outside of your home town. 
3. You have proof that you own that trademark as of the registration date. No one can argue that they weren't at fault for using the same name after that date.
4. It's easy to protect yourself if you can just point to the registration number. This usually makes it possible to avoid lawsuits with one quick letter.
5. The ability to get international protection. These days, if your business has any presence online, you're automatically dealing with an international market. Especially if you're selling goods overseas, you need this to protect your name, and stop counterfeiters.
6. And many more good reasons that are too boring and technical to go into...

If Bell's had actually registered its "Bottling innovation since 1985" slogan at some point since 1985, this whole kerfuffle could have been avoided.

Use it

Find the perfect name or slogan, and registering it with the US government doesn't help you at all if you don't actually use it widely. One of the requirements of USPTO registration is to provide proof that you are using it, and are still using it after 5 years. 

Even if you have it registered, if you can't show that the public associates the word or phrase or logo with your business, you're going to have a hard time arguing that you're being hurt by someone else's use.

Even if you forgot to register it, if you've used it widely and people think of you when they hear that phrase or see that logo, you can still win in a dispute.

Those Bell's bumper stickers are pretty common here in Michigan. I don't know if people in North Carolina would have seen them.

Based on what I've seen, I couldn't predict whether Bell's would win in a lawsuit. But I can predict that if it comes to a lawsuit, it will be very expensive for everyone.

Help is available

That's why you need to think about this stuff first. An attorney can help in many ways when you're starting your business. Picking a name you can protect, getting your company legally registered with the state and federal government, hiring employees, signing leases, preparing contracts and service agreements; these are all areas where a little legal help at the beginning can avoid a lot of legal expense later on.

Your customer's identity is your responsibility

Whether you're a small business owner, a manager at a large corporation, or a solo contractor, you are responsible for protecting your customer's information.

Plan

Michigan, like most other states, has an identity theft protection law that requires anyone who keeps personal information to protect it, and properly notify people if their information is released in a security breach.

You need to talk to an attorney first

You don't want to try figuring out what to do after a security breach. It's too easy to miss something or make a mistake. Come up with a plan. An attorney experienced in this field can make sure you're ready when something goes wrong. They will show you what to protect, how to protect it, and what needs to be done.

Personal Information

What kind of information do you need to worry about? Anything that can connect someone to a bank account or credit card. Names, bank account numbers, credit card numbers, PINs and passwords, social security numbers, driver licenses, even mother's maiden names.

How do you know you're protecting the right stuff?

You want an attorney who understands the law AND the technology and security systems involved. The right attorney can help you find better systems, and create safer procedures for keeping your customer's information safe.

Security Breach

What is a security breach? Any time an unauthorized person takes personal information, you have a security breach. Even if the information was encrypted, it is still a breach if they have the password or key to unlock that information. 

Leaving a computer on a bus, or an ex-employee downloading files from company email or backups are obvious security breaches. But even throwing out printouts with names and account numbers could be a breach if there's reason to think someone may be going through the trash. (And believe me, that happens regularly.) Proper destruction of customer information is also a requirement.

How do you know when you've had a security breach?

You're not going to be told by someone when they take your customer's information without permission. The right attorney can show you not just which information you need to protect, but also what to look for so you know when you've had a security breach

Notifying your Customers

The law has complex rules about who must be notified, when you notify, how you send the notice, and what needs to be in the notice. Just the loss of one person's information triggers this law. The rules for proper notice are a bit too complex to lay out completely in a blog post. There are rules for providing the notice through postal mail, email, phone calls, websites, or news media. There are different rules based on your industry, such as for financial or medical businesses. 

There are specific requirements about what needs to be in the notice. You may also be required to notify all credit reporting agencies for each customer.

This is not to be taken lightly. Failing to give proper notice can make you liable for civil fines up to $750,000 from the state, in addition to possible lawsuits by angry customers.

How Can I Help?

My years of experience in computer software, security, and small business mean that I can help you understand the law AND prepare your business for the possibility of a security breach and what to do to keep your customer's information safe.

This isn't something you can ignore. You shouldn't do this just because of the law, but also because it's just bad business to not protect your customer's privacy and finances.