Many Employers Must Order a Pre-Employment Screening, But Many Others Choose To Be Prepared

Certain professions require pre-employment screenings before the hiring process can be completed. Medical professionals, teachers, law enforcement officers, bank tellers and many other employment opportunities require a pre-employment screening. Federal regulations are in place regarding some of these positions, and pre-employment screening is not optional on the part of the prospective employee or the employer. The reasoning behind these mandatory screenings has to do with the access to privileged information and the potential abuse of power.
Medical professionals have access to information that has been deemed private by the federal government. Medical records are only accessible via a warrant or with patient permission. Because of that access, medical professionals must be beyond reproach. They also have access to people in a vulnerable state. A doctor or nurse could take advantage of patients, when they have little physical mobility. This is particularly true with the elderly, children and psychiatric patients.
Teachers are in a position of power with children. Because of this they are subject to the most stringent level of pre-employment screening and must be fingerprinted before they can start working in a classroom. Fingerprinting is the most effective way to find out information about prior criminal records. Law enforcement officers face the same level of scrutiny because the level of public trust placed in them is tremendous. Courts value officer testimony above civilian testimony, making it essential that they be worthy of that trust.
Bank tellers have access to private financial information. The temptation to steal or embezzle is present on a daily basis. Those with financial crimes in their background are not suitable for employment at a financial institution. Poor credit history may also negatively affect potential employment at bank. Pre-employment screening for those entering the financial industry usually includes a credit assessment. Those that have poor credit are more likely to be tempted by illicit financial gain.
These employers are required to perform pre-employment screening, but it is becoming common place in many industries. While only information pertinent to a job is supposed to be considered, many hiring officials find it difficult to separate that information. A conviction for dumping large amounts of trash may show up as a felony, but it has nothing to do with a person's ability to sell home improvement products. Unfortunately, many hiring managers only see the felony conviction, not the fact that it is for glorified littering. Consider ordering a pre-employment screening for yourself before applying for any position, not just those forced to require a background check.

BackgroundChecks.com is the leader in background check and employment screening. We maintain the largest Criminal Records database with 345 million criminal records nationwide.

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Are You an Employee or Self Employed?

The answer to this question will affect a lot more than PAYE and tax returns. Employees have a number of employment rights and protections which self employed workers to do not. For example employees are entitled to statutory redundancy payments, to claim for unfair dismissal, maternity and paternity rights and a number of other rights which do not cover contractors and self employed individuals.
What if the contract says that you are self employed?
It is of little importance, from a legal viewpoint, what if anything the contract between an individual and his client or employer says about his status. The courts and tribunals are interested in what the 'actual' relationship is and not what the parties have tried to label it. An employer cannot contract out of his obligations to employees by simply giving them a contract which states that they are self employed.
If the contract is not decisive then what is the test for whether a worker is an employee?
Unfortunately, despite hundreds (if not thousands) of legal cases being heard on this very issue, there is no clear or definitive test. The courts or tribunals have to consider a number of issues in order to draw a conclusion taking into account the overall picture and all of the circumstances in each case. The factors which are considered are:
Mutuality of obligation
Is the 'employer' obliged to provide work for the 'employee' and if so is the 'employee' obliged to do that work? This would clearly indicate that the relationship is indeed that of employer and employee.
Personal service
Can the 'employee' send someone else to do the work on his behalf? If so, this would clearly indicate that he is in fact self employed as he is simply providing a service rather than being personally employed to carry out his employer's instructions.
Control
Can the 'employer' dictate when, how and by what means the work or job is to be carried out? Again this would clearly be indicative of a contract of employment.
Other factors
The courts and tribunal will look at all the other factors in the relationship to establish whether they are consistent with a contract of employment or not.
Despite hundreds of cases being heard on this topic each case will turn on its own facts and there is no set formula. You may wish to ask yourself the following questions:
Do you work exclusively for one client?
Do you invoice them for work or do they just pay you?
Do they pay you regularly or by direct debit?
Do you use your own tools or are they provided for you?
Can you send other people in to do your work or are you expected to do it personally? For example if you fancied a day off could you arrange for another person to do the job?
Do you have a regular and consistent work from them?
Do they exercise control over you as to when and how you are to work?
If after asking the above questions you are still unsure about your employment status you should consider taking legal advice and possibly advice on your tax liability position.

Gustav Patrick

Article Source: http://EzineArticles.com/?expert=Gustav_Patrick

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Independent Contractors: Taxation and Liability - Most Common Issues

With almost one in ten people still jobless in the U. S. , many unemployed workers are turning to independent contractor work, bringing new opportunities - and challenges - to American workplaces.
These alternative arrangements offer both employers and contractors added flexibility and oftentimes financial benefits they couldn't derive through traditional employer-employee relationships. But they also bring some challenges that need to be addressed in order to protect both parties. The majority of those issues center on taxation and liability.
Employers must withhold income taxes on employees' compensation and pay 50 percent of the employees' payroll taxes. Independent contractors pay their own income tax and 100 percent of their payroll taxes. If a person fails to pay these taxes, the Internal Revenue Service will seek payment from the business if they perceive the person to be an employee. But if it's clear that the worker is an independent contractor, the business can't be held responsible.
Likewise, businesses may be liable for the actions of employees when acting on behalf of employers; whereas independent contractors are liable for their own actions. That means if someone causes injury or property damage on the job and he or she is your employee, your business can be held liable and the injured party can seek reimbursement or damages from you and your insurance company.
But if that person is an independent contractor, he or she - and his or her insurance company - will be responsible for damages.
Further, if an employee is injured on the job, the company may be responsible for any worker's compensation claims as a result of the injury. That's not the case if the worker is an independent contractor.
Clearly, it's important to understand the differences between employees and independent contractors, and respect the delineation. The IRS and courts primarily look at three factors when distinguishing the difference: behavior, finances and nature of relationship.
Workers are more likely to be viewed as independent contractors when they have

• a separate business entity such as a corporation;
• a written contract with the company that defines the relationship (not an employment agreement); and
• other accounts in addition to the subject company.
• Conversely, workers are more likely to be viewed as employees when the company
• requires the worker comply with instructions about when, where and how the work is to be performed;
• the company provides training for the worker;
• the company requires the worker to perform services personally as opposed to subcontracting labor; and
• the company provides compensation or benefits that look like those of an employee's.

When you consider hiring someone, it's safest to decide up front whether that person will be an employee or an independent contractor based upon the true nature of his or her relationship with your company. Then stick with that decision.

Robert P. Smyth is an attorney with Johns, Flaherty & Collins, SC, ( http://www.johnsflaherty.com/ ), a full-service law firm based in La Crosse, Wis. According to the Martindale-Hubbell Law Directory, Johns, Flaherty & Collins, SC, has more top-rated lawyers than any other La Crosse law firm.

Article Source: http://EzineArticles.com/?expert=Robert_P._Smyth


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Understand The Difference Between An Injury Eligible for Workers Compensation Vs Disability

When you file a workers compensation claim you often make the assumption that you have been hurt while performing your duties at work. This is true and not to be confused with a disability claim that happens when you an injury occurring outside of work makes it impossible for you to do your job.
Disability insurance is designed to cover an injury that is considered short term or long term. Disability insurance is not something that is held by your employer. It is most typically part of your health benefits. Disability will pay you a portion of your regular pay for the time that you are out sick or injured. Once you get better the payments stop and you go back to work.
Disability is also commonly used to give new mothers time off from work after the birth of a baby. The insurance gives the mom partial compensation while they recover from birth and adapt to their new family.
The physical location of the injury as well as how it was caused is the major deciding factor between disability and workers compensation. However there are some other things to consider. Sometimes, a major injury occurs and although it happens outside the workplace it could happen as a result of a minor work injury that occurred earlier. At the time of the injury it may not require major medical treatment. Perhaps a visit to the doctor or chiropractor and the injury heals without the employee missing work. However the injury may leave you more likely to suffer from that kind of injury again or to further aggravate the old injury. If a month later your back is injured outside the work place, it is possible that the new injury still falls under workers compensation and not disability despite the location.
This gray area makes it vital that you visit your physician immediately after suffering from an injury at work. You also need to report it to your employer so that the incident can be properly documented.
These details make it so important to hire a work injury attorney to protect your rights as an injured worker. Disability is only a fraction of your pay. If your injury entitles you to full pay under workers compensation you would want to go with that option.
Speaking with a qualified attorney about your workers compensation claim can help you better understand the process as you work to get the compensation you deserve.

At the Law Offices of Dworkin & Maciariello we specialize in Illinois workers compensation cases. Speak with a Chicago workers compensation lawyer and learn how you are protected under the workmans comp laws in Illinois. Suffering from an injury at work can be stressful. Working with an Illinois work injury lawyers can help you get through and get you the compensation you deserve.

Article Source: http://EzineArticles.com/?expert=Bradley_LaSalle

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Work Related Accidents: How the Law Impacts a Workplace Environment

When it comes to workers who have sustained injuries as a result of an on-the-job accident, injury, or occupational disease, there are several things they can do to increase the chances of successfully proving liability. First, it's important to find an attorney that is experienced in handling work related accidents and the injuries associated with them. They will assist you in preserving any evidence related to the case that will also prove useful to ensuring proper justice.
Employer Responsibility
Although the law is always subject to changes and new interpretations, there are legal processes that help ensure the liable party is held accountable in work related accident cases. It's required, by law, that every employer must report serious work-related accidents, diseases and dangerous incidents to the Health Safety Executive (HSE). Your employer has to follow certain guidelines and carry out a risk assessment to best take care of the health and safety of employees and visitors. This includes deciding how many first-aid personnel are needed, and what kind of first-aid equipment and facilities should be provided. First-aiders have no statutory right to extra pay, but some employers do offer this. Employees must also take reasonable care over their own health and safety.
Things that must be kept in mind while undergoing a dispute related to worker's compensation include: disability payments, returning to work after an injury, medical treatment, physician changes, vocational rehabilitation, and permanent partial disability benefits and will guide our client's towards the outcome they desire.
Recording Accidents
Any injury at work - including minor injuries - should be recorded in your employer's 'accident book'. All employers (except for very small companies) must keep an accident book. It's mainly for the benefit of employees, as it provides a useful record of what happened in case you need time off work or need to claim compensation later on. But recording accidents also helps your employer to see what's going wrong and take action to stop accidents in future.
Making an Injury Claim
If you have been injured in an accident at work and you think your employer is at fault, you may want to make a claim for compensation. Any claim must be made within three years of the date of the accident, and you will normally need a lawyer to represent you. If you belong to a trade union, you may be able to use their legal services. Otherwise, you should speak to a specialist personal injury lawyer.
By law, your employer must be insured to cover a successful claim. Your employer should place a certificate with the name of their employer's insurance company where it can be seen at work. If not, they must give you the details if you need them.
If you are considering suing your employer, remember that the aim of legal damages is to put you in the position you would be in had the accident not happened - it's not about getting hold of some 'free' money.
Determining Liability
Worker's compensation laws prevent injured workers from filing personal injury lawsuits against their employers for certain work related accidents; so determining liability in those cases are unnecessary. However, if the accident occurred on the actual job site due to the negligence of a non-company related individual, then a possible claim could be filed against the third party. The third party could be more than just an individual, as it is often the designers and manufacturers of defective machines and equipment. Other third party examples that could be held liable include subcontractors, negligent drivers, property owners, maintenance companies or even safety consultants.

This article was written by Roger Brent Hatcher, an attorney at Smith, Gilliam, Williams & Miles, a leading Atlanta Law Firm since 1928.

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Employment and Support Allowance - Claims and Appeals - The View of a Professional

The quality of the medical assessments carried out on behalf of the Department of Work and Pensions (DWP) to determine entitlement to Employment & Support Allowance (ESA) still leaves much to be desired, based on the cases that I see.
To be eligible for ESA the applicant should pass 15 points threshold. Those that have been denied usually seek advice to appeal their case yet still fail. However, it is very seldom as far as my experience is concerned not to find the needed 15 points whenever I assist my clients in going through the test.
Although the decision still lies with the tribunal there are a few aspects which can be considered in improving the chances of approval. First, I deem that it is not advantageous to squeeze out every possible point instead I advise my client to be honest and be realistic when taking the test. It is also of great essence that I believe in the authenticity of my client. If on my part I already find even a hint of doubt, what more with the tribunal? It will also help if relevant medical evidence can be presented although securing them will need a combination of luck and skill. Further, it is worth going through the ESA50 enquiry form and the "health care professional" (HCP) report with the client. Analyze what the client wrote in his application with the HCP and what the remarks of the latter were. Finding factual inaccuracies and correcting it can be helpful in persuading the tribunal that they should reconsider the application.
Meanwhile, I find that majority of the clients who have scored nil points can pass the separate test to be placed in the "support group". If it gets approved, the client will be spared of "work-focused interviews" and other requirements to carry out "work-related activity" thus avoiding financial sanction. Actually being in the support group marks a financial advantage as opposed to "work related activity group" as the latter will only have 12 months entitlement effective April 2012. After which, they can avail means-tested benefits such as income related ESA, housing benefit or council tax benefit which they might not be able to qualify either if their spouse or they have other sources of income such as pension or other earnings.
My concern in most of the appeals is to move the case into a support group and it is quite gratifying when the decision maker will accept the medical evidence submitted by my client without the need for tribunal hearing.
At any rate, an element of luck can still be considered if the case is recommended to be place in front of the tribunal where it will be heard by 2 panels comprising a judge and a doctor. As the tribunal is also human, both may have a different approach to the evidence presented to them. Some members may be more even-handed than others and the chance of a favourable outcome increases. On the other hand, some may struggle with "giving benefit of the doubt" and this can consequently affect the outcome of the case.
Since I always attend hearings, I've noticed that some representatives prefer to just make a submission before the tribunal. This may help as it is possible to irritate the tribunal easily if the representative speaks too much. But based on my experience, I prefer not to send submission. Judges usually ask question not presented to them in writing and answers to which should be as specific and detailed to convince them totally. I don't believe in "trying it on" and recommend claims. Instead, I pursue appeals which I believe have merit.

If you would like professional esa tribunal representation at competitive rates, then contact South Wales Disability Matters now.

Article Source: http://EzineArticles.com/?expert=Kathie_R._Dionisio


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Constitutional Limitations on Labour Laws

Although labour policy seeks to create high minimum standards of employment, the choice of the legislature in seeking to achieve the objective are not unqualified. Minimum standard legislation is subject to various limitations. To begin with, in order to guarantee the fundamental rights, the Indian Constitution imposes certain limitations on the legislations on the legislature and the executive. To the extent it is inconsistent with or derogatory to a fundamental right, the legislation is void. Fundamental rights are enforceable by the courts under Article 32 and 226.
The fundamental rights are enumerated in Part-III of the Constitution. The whole object of Part-III is to provide protection for the freedom and rights mentioned therein against arbitrary actions by the State. Of particular relevance is Article 14, which provides that "the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India". In addition to this, Article 16 guarantees equality of opportunity in matters public employment. Further, Article 19 guarantees "the right to freedom of speech and expression, to assemble peaceably and without arms, to form associations or unions to practice any profession, and to carry on any occupation, trade or business." These constitutional guarantees are of great practical significance in the area of labour law, including minimum standard legislation. Equal protection constitutes a limitation on the legislative power to select or decide which business or industry must achieve minimum standards. The right to carry on trade profession or business limits the burden which the legislation may place on business in the interests of workers. The freedom of speech, assembly, association and unionisation protect workers in their efforts to achieve their objectives through self in organising, picketing or striking.
Article 21, provide protection of life and personal liberty. It provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 23, prohibits traffic in human beings and forced labour. It says (i) Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. Life, in Article 21, has been interpreted by the Supreme Court as including Livelihood and the Court has held in several cases that any employment below minimum wage levels is impermissible as it accounts to slavery as understood in Article23. Holding a person in bondage is a Constitutional crime. Article 24, places a ban on employment below the age of 14 in any factory or mine or engaged in any other hazardous employment.


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Municipal Pension Holders at Risk As Chapter 9 Bankruptcy Filings Increase

Jefferson County, Alabama filed the biggest Chapter 9 bankruptcy in United States history on November 9, 2011. The $4 billion filing covering the city of Birmingham and 658,000 county residents far surpassed Orange County, California, the previous record holder, which filed for Chapter 9 bankruptcy in 1994 with $1.7 in debt.
The filing raises issues about a local government's inherent obligation and guarantee to pay its creditors on time. As a result of filing Chapter 9, Jefferson County was relieved at least temporarily from paying most debt obligations and in fact stopped paying general debt holders. This situation raises a new and grave concern for public employees, mainly whether their pensions are safe from Chapter 9 bankruptcy.
The purpose of Chapter 9 is to provide a financially distressed municipality with protection from its creditors while it develops and negotiates a plan for adjusting its debts.
Underfunded pension plans for firefighters, teachers, police, and other municipal employees are increasingly a major consideration in a municipality's ability to repay its debt. Pensions are considered to be underfunded when the accrued liabilities of the plan exceed the actuarial value of the plan's assets.
Nationwide, the Pew Center on the States estimates a $1.26 trillion funding gap, as of 2009, between the promises states have made for public employees' retirement benefits and the money set aside to pay for them. The situation is much worse for retiree health care benefits, since states have saved only about $31 billion, or 5 percent, toward these obligations. As is true for the private sector, public employee retiree health benefits are "pay as you go" obligations of the employer.
Municipal plan sponsors may take various steps to reduce this unfunded liability going forward without requiring immediate additional employer contributions to the plan. Ultimately, however, if the plan does not have sufficient funds to fund pension benefits for current retirees, then the municipal plan sponsor will have to raise revenues, cut spending, or face a default on its obligations to retired employees. Because Chapter 9 has been used so rarely, there are many unanswered questions about what can and cannot be achieved in a Chapter 9 bankruptcy.
(Realizing the financial risk inherent in unfunded pension liabilities, many municipalities are moving as quickly as possible to adopt 401(k)-type defined contribution plans in place of traditional defined benefit plans that obligate the municipality to these high future payments.)
Chapter 9 offers a potentially powerful mechanism to assist municipalities in obtaining relief from creditors and adjusting their debts. The commencement of a Chapter 9 bankruptcy case operates as a stay, applicable to all creditors, of most efforts to collect prepetition claims, including attempts to gain possession of property or enforce contractual rights.
Some jurisdictions view public employee retirement benefits as a property interest and some view them as contractual rights, both of which may be constitutionally protected. Accordingly, while the automatic stay is in effect, a municipal debtor may assert that it cannot be compelled to honor its obligations to retirees. Finally, the stay may require that pensioners assert their rights in the bankruptcy forum, which often is perceived as more "debtor friendly."
In the Chapter 9 bankruptcy case commenced by the City of Prichard, Alabama, in October 2009, the stay initially prohibited the pensioners from prosecuting their preexisting lawsuit that sought, among other things, to hold certain of the City's officials liable for breach of fiduciary duty for the poor financial performance of the City's pension fund.
In the Chapter 9 case involving the City of Vallejo, California, the automatic stay allowed the City to reduce retiree health benefits. One of the City's arguments was that retirees had no vested rights in the health benefits since they were negotiated as part of a collective bargaining agreement.
While Chapter 9 is somewhat similar to Chapters 7 and 11, it is significantly different in that there is no provision for the liquidation of the assets of the municipality and distribution of the proceeds to creditors.
Of course, not all municipalities have the opportunity to avoid their pension obligations. Many states require special authorization for a Chapter 9 filing. As a result, Chapter 9 will not be available to all municipalities in all states. Even where it is available, Chapter 9 does not provide municipalities with all of the bankruptcy tools that practitioners are familiar with in corporate bankruptcies. When bankruptcy is an alternative, Chapter 9 does not necessarily provide a struggling municipality full immunity from its pension obligations. However, very little experience exists in this area. As a result, how effective these bankruptcy tools will be in addressing a municipality's pension debt is far from clear.
January 2012

Mark Johnson, Ph.D., J.D., a highly experienced ERISA expert, is founder of ERISA Benefits Consulting Inc. http://www.erisa-benefits.com/ As a former ERISA Plan Managing Director and plan fiduciary for a Fortune 500 company, Dr. Johnson has practical knowledge of plan documents as well as an in-depth understanding of ERISA obligations. He works as an expert consultant and witness on 401(k), ESOP and pension fiduciary liability; retiree medical benefit coverage; third party administrator disputes; individual benefit claims; pension benefits in bankruptcy; long term disability benefits; and cash conversion balances. He can be reached at 817-909-0778. ERISA Benefits Consulting, Inc by Mark Johnson provides benefit consulting and advisory services and does not engage in the practice of law.

Article Source: http://EzineArticles.com/?expert=Mark_Johnson,_Ph.D.,_J.D.

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Handling Racial Discrimination in the Workplace

Racial Discrimination is the Workplace is Common. Unfortunately, there are still individuals who have to deal with racial discrimination in the workplace. A study at Rutgers University in 2002 determined that workplace discrimination is a common phenomenon. Twenty eight per cent of African American workers have experienced discrimination in the workplace. This is compared to six percent of whites. Discrimination lawyers point out that of all the forms of discrimination, discrimination in the workplace is a particularly insidious. This is because of its ongoing nature and the mental and emotional toll it takes on the worker. It is much harder to walk away from or turn your back on racial discrimination when it exists in the workplace. When your livelihood is at stake, you are more likely to try to ignore the discrimination and suppress the negative feelings involved. This inevitably leads to anger and bitterness, which then inevitably leads to poorer job performance. Discrimination lawyers will tell you that while overt acts discrimination are usually more obvious and direct, workplace discrimination is often subtle, harder to detect and more challenging to deal with.
The Challenge of Coming Forward. You may know that you are being discriminated against, but proving it is an entirely different matter. It is unlikely that an employer will specifically admit to racial discrimination. The difficulty in proving it adds to the frustration, isolation, withdrawal, self-doubt and lack of self-confidence that you are already experiencing. The resulting stress can spill over into family relationships and other aspects of your life. All people, especially African Americans, want to appear strong and are hesitant to talk about such personal things with therapist and other strangers. Nevertheless, when your job and your life is being impacted in a negative way, employers have to take notice. One viable and effective solution is to talk to discrimination lawyers. Besides being able to determine if you have a legal claim against an employer, discrimination lawyers will have the resources to help you cope with the emotional stress created by racial bias in the workplace. These resources might include networking and support groups, professional organizations, therapy or counseling, and job coaching.
Rights of Employees in the Workplace. All employees enjoy certain basic rights in the workplace. Among these basic rights is freedom from discrimination. This freedom from discrimination is even before being hired. As a job candidate and applicant, you have certain rights. In addition to race, you have the right to be free from discrimination because of age, sex, ethnic or national origin and religion. If you feel you have been discriminated against in the workplace, contact discrimination lawyers to schedule a consultation.

If you found this article helpful and would like to learn more about racial discrimination contact a New York employment attorney to better understand your rights.

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Employment Background Checks: Don't Be Left In The Dark

More and more people are learning that failure to get an employment background check is the first - and last - mistake they make in their business.
It would be great if everyone in the employment pool was trustworthy, but the facts are that this is one of the most competitive economies in some time, and people will do anything to get a steady paycheck. A whopping 85 percent of resumes have errors, omissions, or fraudulent statements. Most of these errors are innocuous, genuine mistakes made by someone looking to finish up as quickly as possible.
But some of them are malicious, and that hidden information can kill your business.
In the state of California, for example, companies that don't perform a pre-employment background check can be held legally liable for the actions of their employees, if they interact with customers in an untoward way. Could one of your employees reach out from behind the counter and sock a mouthy customer? What about your other employees? Could a heated confrontation put one of them at risk? It's impossible to know for sure, and that's why smart companies are looking to employment background checks to protect their reputation and their livelihood.
Past employment can tell a lot about an employee, but it's rare to get the full picture from a couple of black and white lines on a resume. And references are rarely instructive - applicants can cherry-pick people they get along with, people who are more than willing to tell you whatever they think you want to hear in order to give their friends a leg up. But it doesn't have to be that way. If you want to know more about what a good employee background check entails, read on.
Driving History
If you're hiring someone to make vital deliveries or transport material from a warehouse, isn't it important to know about their driving history? Whether it's something as serious as a hit and run or DUI or something as harmless as a flood of unpaid tickets, driving history can impact viability as an employee.
Financial Integrity
Where money goes, fraud tends to follow. And it doesn't mean a thing whether it's a multi-million dollar services contract or petty cash at a register, an employee that skims off the top can damage your bottom line and your reputation. So when the stakes are highest, a good private investigator should do everything in his power to investigate the financial history and integrity of your employees.
The assets of your employees might have weird blips in their accounts that point to a sudden influx of cash. Most importantly, an investigator can talk to the real people who see them on a day to day basis - the simplest thing to do is ask about recent flashy purchases, but you'd be surprised how often slackwitted criminals brag about what they've done to anybody willing to listen.
Education
Plenty of people falsify or exaggerate information to get their foot in the door. It's tempting and easy to say you got a diploma when you were really "a few credits away" or "dropped out for financial reasons". Whatever the case might be, most employers don't have the time or resources to check on this stuff. Hire a private investigator and we'll let you know all about their academic credits, achievement and history in an attempt to unearth any deception.
This three pronged approach can help a great deal, but employment background screening doesn't just extend to protecting you from liability. Employment background checks can stop the never ending carousel of employment. If you've had a problem bringing in and letting go guys who are in for a quick paycheck and lack the commitment to see things through, why not hire a private investigator to support your hiring efforts?

Whether you need military records, drug history, or any other kind of information on an employee, you MUST get some professional assistance with your employment background check instead of taking your hiring process for granted. Huntting PI will provide you with a no-cost, no-pressure consultation to help you make a plan of action for your business!
Click the link and visit us at http://www.privateinvestigatorservices.org/ right now.

Article Source: http://EzineArticles.com/?expert=Don_Huntting


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5 Inquiries Before Turning Your Business Into a Franchise

1. Do you have a "franchisable" business?
There are quite a few qualities that a good franchise should have when compared to that of your typical standalone restaurant or business. A quality franchise will likely portray a highly unique business model that can be duplicated time and again by franchisees relatively easily. The main business model behind any business that wishes to become a franchise must contain a number of defining traits that can serve to set it apart from other businesses in a given market. Finally, starting a franchise is not easy, but having a business plan that carries appeal to the masses will make things a whole lot easier. If you think you have a great idea with these qualities, you may want to consider franchising.
2. Have you opened your business or restaurant in multiple locations?
Before you decide to franchise your restaurant or business consider the idea of having multiple locations by opening up another storefront. With a second location that you run yourself, you will be able to learn about whether or not your restaurant is actually capable of maintaining business in other places. Keep in mind how the challenges you face will pop up when you start to franchise your restaurant or business.
3. Can you support your franchisees?
It is clear that your franchisees will be relying on you and your business model. You have to be prepared to train them uniformly so that you might keep the idea behind your business or restaurant once you begin franchising. Make sure to consider how you might be able to keep your franchisees happy and coming back. Also, do not forget to think about how you will keep at consistent atmosphere across separate locations.
4. Have you thought about how you will market and advertise your franchise?
A successful franchise will need a way to market itself both to the general public as well as to potential franchisees. Without thorough and executable marketing and advertising plans, it will be difficult for franchisees and their customers to find reasons to do business with you. Do your research and know what you have in mind when it comes to advertising as well as marketing your business.
5. Have you taken necessary legal actions?
Because franchising is regulated by the Federal Trade Commission, before you get to far you will be required to take legal considerations. Get things like trademarks and legal documents in place, and consult with a franchise lawyer to make sure all of the proper documents and procedures are in place.

The franchise lawyers at Fahey Schultz Burzych Rhodes PLC are experts in the field of franchised businesses

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Use Of Living Trusts To Avoid Probate And Minimize Taxes

Proper estate planning involving living trusts can help avoid the necessity of probate. "Probate" is a legal procedure in which a deceased person's will (if they have one) is validated and his estate is administered. In Illinois, probate is generally required by law when the deceased person owned real estate in his or her own name and/or had assets valued in excess of $100,000. These parameters cover a lot of people! The probate process takes at least six months and is often significantly longer. Since the probate process is overseen by the courts, all documents filed in probate proceedings are public record. Probate can also be quite costly, especially if it involves contested matters. By establishing a living trust and titling your assets in the name of the trust, the trust technically "owns" your property and you retain control over it. Since the trust (not you) owns the property, probate can often be avoided. It is crucial to have the assistance of a qualified attorney when establishing a living trust.
The trust must be first be properly drafted. Once the trust is established, the trust must be "funded". This means that actual title to the assets is transferred into the name of the trust. In most cases, you would be named as the trustee of the trust with the power to deal with the trust assets. There are potential pitfalls to relying on internet documents or non-lawyers to draft a trust for you. A trust that is not carefully tailored to your specific situation can result in your estate being probated anyway, despite your efforts to avoid it.
One of the primary reasons to engage in estate planning is to preserve your assets for your heirs. It can be emotionally and financially damaging for the heirs of people who worked hard to build up their assets for the benefit of their families to have those assets significantly depleted at death by federal and state estate tax obligations. The remainder of this article will discuss the current status of the Illinois and federal estate tax, planning techniques to take advantage of the current and possible future estate tax exemption levels, and what the future may hold.
Unfortunately, estate planning for married couples has been in a state of uncertainty over the past few years. The current federal estate tax exclusion level is $5 million for the years 2011 and 2012. The Illinois estate tax exclusion level is $2 million, which presents some planning difficulties when considered with the federal exemption level. Without further action by Congress, the federal estate tax exclusion will revert back to $1 million in the year 2013. You should contact your attorney to seek assistance with planning your estate to avoid and/or minimize the effect of federal and Illinois estate taxes upon your death.
This article is intended to present general information for educational purposes, is not legal advice and should not be relied upon in connection with any particular matter. The reader is advised to immediately retain their own separate legal counsel with respect to any specific legal issue. Rights to bring a claim will expire through the passage of time by the applicable statute of limitations.

Ralph E. Elliott practices law at Law Offices of Ralph E. Elliott, A Professional Corporation which is comprised of Lawyers in Freeport Illinois who have over 34 years of experience including an Estate Planning and an Estate and Trust Administration practice. The firm is situated at 1005 W. Loras Drive, Freeport, IL 61032 which serves business, individuals and the agriculture community in Northwest Illinois.

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Writing Your Last Will and Testament

Not long ago, my husband and I had the conversation about setting up last wills. Now that we have a family, we realize it's become more important now than ever to have a plan in place should either or both of us die while our children are still minors. Regardless of your age, it's important to draw up a last will and testament and instruct the executor to handle your final wishes and disbursement of your assets. If you or your spouse should die before these legal documents are written and verified, you or your family could experience any number of problems with regards to inheritance of your property.
In short, it is important to have a last will written because:

• It can outline who will become the guardian(s) of any minor children who survive you.
• It will instruct your survivors with regards to any charitable bequests you want made after you die.
• Surviving relatives and friends are less likely to contest your last wishes with a legal document in place. Your financial and property bequests will be made as you have wished.

Once you have set aside time to write the will, you must then figure out who will receive what, but more specifically what you have to bequeath. Just a few things you need to consider are:

• Taxes. Those who inherit anything typically have to pay an inheritance tax. If you have assets of great value, you may wish to consider transfer of ownership while you are still alive so as not to burden anybody with taxes.
• Property. Do you own land, a home, or an office building? Who will receive ownership when you are gone?
• Custody of minor children. Hopefully this will not become a concern for you, but it's important to have somebody in mind should you pass away before your children reach adulthood. You may wish to talk to respective guardians and make sure they are able to raise your children as you would wish.
• Charitable bequests. Non-profits, schools, and churches, often receive property, stocks, and other annuities from people who remembered them in their wills. If you wish to leave behind such a legacy, you may wish to consult with somebody first. They may have a process that makes it easier for you to give.

You may also consider, too, talking with somebody close to you about your plans for your last will. This way, there are few surprises when your will is read - people will have known your intentions. If you need assistance with your will, consult with a law firm with a concentration in elder law and wills.

Kathryn Lively is a freelance writer specializing in articles on North Carolina lawyers and Camden County lawyers.

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Elder Financial Abuse: What It Is and How to Stop It

Elder financial abuse - it's an issue that 's been around as long as the elderly have had property and money. Normally, an elderly person is sixty-five years or older, and is also known as a senior citizen. The crime is a term for the misuse of the funds acquired by them. Along with funds, exploitation of a person's property and resources also can be considered abuse.
Even though the crime has been around for several years, it had been only given nationwide attention in recent times. In 2011, famous Hollywood actor Mickey Rooney sued a stepson for alleged abuse. Public awareness grew after the revelation of his case.
A study carried out by a primary international insurance provider said that close to three billion dollars a year is lost thanks to the crime. This is due to the many various tactics utilized by the bad guys to steal from senior citizens. Recognizing the abuse is fairly easy. However, a number of cases happen within families. And unless other parties get involved, instances wouldn't see the light of day.
What is regarded as elder financial abuse and who is guilty of it?
The term is actually a blanket term for a wide range of criminal activities. These crimes involve the use of trickery, deception, and coercion to access the funds, resources, and properties of a senior citizen. People that are typically found guilty are caregivers, fraudsters, and sorry to say, family members. Examples of exploitation committed by these folks include:
- Misuse of personal checks, credit cards, and other financial accounts - It's usually performed by forging the signature of an elderly person.
- Stealing of cash, pension checks, and other prized possessions.
- Identity theft - Senile individuals often become a victim of this kind of attack. Devious people take advantage of the fact that the elderly are confined to homes or nursing facilities. Thankfully, bank fraud lawyers take the necessary actions to fight such problems
You cannot assume all sinister acts are done by singular individuals, however. You can find cases when even healthcare is used as a tool to extort income from the elderly. These companies take advantage of an elderly person's fragile state of mind. Healthcare provider and other scams include:
- Special "prizes" for senior citizens that must be purchased.
- Charging excessively for healthcare that isn't provided.
Elder financial abuse takes place simply because of a senior citizen's lagging mental capacity, especially those that are senile. Isolation also plays a role in the abuse. Typically, victims are widows or widowers. Statistically, women are especially vulnerable to abuse. Research has shown that women live longer than men. The elderly women that live longer than their companions typically belong to a generation where the male was the one who handled the finances.
When you know somebody who may be a victim of this kind of abuse, it would be best to tell the authorities. In instances where you personally know the family and are concerned about being called an intruder in family issues, you can find anonymous hotlines you could call.

Abbie Kirby is colleagues with a bank fraud lawyer dedicated to elder financial abuse cases.

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Living Trusts Can Avoid The Necessity Of A Probate Proceeding After Death

There are many difficulties and stressed which will be experienced by your loved ones upon your death. Probate does not need to be added to the list. It is a common fallacy that signing a will avoids the need for a probate proceeding. Yet, even with a will, an executor must begin a court proceeding following the decedent's death in order to properly distribute all of the decedent's property. In the state of Illinois, probate lasts at least six months and is required if the decedent had at least $100,000 in assets or owns any real estate in his or her own name alone.
While probate requires a court proceeding to ensure that the estate is properly distributed, the existence of a living trust can allow a decedent's survivors to avoid the courtroom altogether. This is because a living trust exists as a separate legal entity from the person who creates it. A living trust is similar to a box into which a person puts his or her property. Once that person puts his or her property into the box, he or she no longer legally owns the property. The box, or trust, does. Still, as the trustee of the trust, the creator can control the property in the trust and choose what property goes into the trust. Upon death, assuming the trust has been properly funded, the decedent does not directly own any property in his own name which requires distribution via the probate process as the property is legally owned by the trust. After death, a successor trustee named in the trust takes over the role of trustees.
While a living trust may simplify the process of property distribution following death, the creation of a living trust can require some effort. The title of all assets and/or beneficiary designations must be transferred to the trust. If the trust is not properly funded, any property left out of the trust may trigger the need for probate.
For example, real estate is typically transferred to a living trust whereby the individual or couple sign and properly file a deed. A new signature card for bank accounts and certificates of deposit are executed with the bank which show the living trust as the owner. Ownership of investment accounts are transferred into the name of the trust and the trust can be named as beneficiary of life insurance policies. Your attorney should review tax protected assets such as IRAs and annuities to determine the proper way that the beneficiaries on such instruments should be designated.
A living trust is revocable, meaning that it can be amended or revoked at any time before you die. Usually the costs of creating and funding a living trust are many times less than the cost of a court-ordered probate proceeding. Consult with your attorney if you have any questions regarding use of a living trust to avoid probate.
This article is intended to present general information for educational purposes, is not legal advice and should not be relied upon in connection with any particular matter. The reader is advised to immediately retain their own separate legal counsel with respect to any specific legal issue. Rights to bring a claim will expire through the passage of time by the applicable statute of limitations.

Ralph E. Elliott practices law at Law Offices of Ralph E. Elliott, A Professional Corporation which is comprised of Attorneys Freeport Illinois who have over 34 years of experience including an Estate Planning, Elder Law, Business and Personal Injury Law practice.
The firm is situated at 1005 W. Loras Drive, Freeport, IL 61032 which serves business, individuals and the agriculture community in Northwest Illinois.
©Law Offices of Ralph E. Elliott, A Professional Corporation 2011.

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Stop Elder Financial Abuse Now

What could be more despicable than stealing and deceiving the elderly for their money? Elder financial abuse, an issue that was recently brought to the spotlight by Hollywood actor Mickey Rooney, is a crime of exploiting senior citizens for monetary gain. Rooney sued his stepson and others for tricking him into thinking he was on the brink of poverty and forcing him to continue working while they swindle millions using his name.
After the case was settled, people were suddenly more aware of this urgent matter. So, how do you recognize this crime and stop it?
Elder Financial Abuse 101
This crime involves illegal and improper use of a senior citizen's funds, resources and property. Recognizing this crime is easy, however, they mostly happen within the family. Unless other parties observe and get involved, these crimes will go unnoticed.
The crimes involved in elder financial abuse involve trickery, deception, forceful access to funds and properties of a senior citizen. Most people who are guilty of this are caregivers, fraudsters and, sadly, family members.
Here are examples of the exploitations these fraudsters commit:
-Forging the signature of an elderly to access personal checks, credit cards and other financial accounts.
-Stealing prized possessions, cash, and pension checks
-Theft of identity- Most victims of this are senile elderly. Fraudsters take advantage of the elderly's confinement in a nursing facility and use his identity for personal or business transactions. Sometimes, even healthcare companies are guilty of this crime. Some charge excessively for unnecessary healthcare services. While there are those that offer special "prizes", which in the end forces the elderly to purchase. It is a good thing there are many vigilant bank fraud lawyers who take necessary measures to fight against these problems.
How to fight elder financial abuse
Hiring a good bank fraud lawyer to investigate how an elderly's money is being spent is one way of fighting elder financial abuse.
Look for a firm that specializes on elder financial abuse cases. There are many who investigate and litigate fraud actions involving insurance and banking claims. A bank fraud lawyer in this firm will even investigate wrongful death cases.
Here are some other ways you can prevent this abuse from happening:
-Keep your communication lines open with your elderly relatives. Check up on them from time to time.
-Observe, observe, observe! Be perceptive about any behavioral or physical change.
-Do a thorough research on the background of your caregiver! It is unadvisable to choose one through an advertisement. Look for licensed and bonded agency. You may also hire an investigator to examine the credentials of your caregiver. This ensures that your relative is in good hands and the caregiver is not a convicted felon of some sort.
-Keep an inventory of all jewelry, expensive gadgets, and properties. Make sure all the valuables are stored in a safe place.
When you know somebody who may be a victim of this kind of crime, it would be best to tell the authorities or refer a good bank fraud lawyer who can help them. If you know the family and do not wish to be called as someone who meddles in family affairs, you can search the internet and find anonymous hotlines you can call.

Abbie Kirby is a Senior CEO who knows a good bank fraud lawyer who is knowledgeable in elder financial abuse

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Cookies, FTC and Privacy - Why You Should Care About Them

Cookies have attracted lots of attention recently. I mean the tracking kind, not the edible kind in Christmas patterns and colors.
ScanScout, an on-line advertiser, recently settled a FTC enforcement action regarding the language in their privacy policy ("PP") about cookies. ScanScout's PP claimed that users could configure their browsers to block the cookies they use to gather information about users in order to send them targeted advertising. Turns out, however, the tracking cookies they were using were flash cookies that could not be blocked as stated. FTC found this to be deceptive and the enforcement action ensued.
What does this mean to you or your business?
Use of cookies
Consider not using flash cookies if you are currently doing so or considering so. Many people consider flash cookies deceptive and invasive. In fact, a primer on flash cookies by the Electronic Privacy Information Center shows that the breadth of information gathered by these cookies to probably be beyond the comfort zone of today's privacy-conscious consumers.
Have a Privacy Policy
Yes, it might be tempting to resolve this issue by simply not having a PP. After all, if you don't have a PP, you can't be found to be violating it right? Maybe, but you create other risks by deciding not to have a PP. First, consumers have increasingly shown themselves to be skeptical about having anything to do with websites that do not have privacy policies, so you might be losing business. Second, not having a PP will prevent you from using certain useful services (such as Google Analytics, which requires users to post a privacy policy) and conducting promotions or contests using many social media platforms.
Reference cookies practices in your Privacy Policy
Make sure that you have a full understanding of your cookies practices and that of any third party (such as Google Analytics) who provides apps or tools you use in your interface with users. Your PP should spell out exactly what cookies are used, whether they are persistent, whether you use flash cookies, how you use information gleaned from cookies (e.g. do you utilize information for targeted internal or external marketing), whether you share gathered information with third parties, and how users can block cookies (including providing a mechanism to block flash cookies - a key requirement of the ScanScout consent decree). Finally, if you use third-party services that utilize cookies, consider referencing the third-party service's cookies policy in your PP.
Finally, if you are going to be making any changes to your website privacy policy, make sure it is properly publicized to your clients, customers and/or users, ideally with a click-through mechanism where they must accept the new privacy policy before accessing your site.
What are your thoughts on use of cookies for marketing?

ERIC HSU is a Legal Success Strategist, accomplished speaker, and owner of Clear Focus Law.
The mission of Clear Focus Law is to show entrepreneurs, small biz and social marketing professionals how to use the law as a tool for empowering innovation and achieving success, both by building strong legal foundations to support the innovation and by establishing an effective and legally successful social media and web 2.0 presence to grow their business.
In addition to advising clients, Eric also speaks on social media legal topics, writes legal guides and blogs, and provides on-going training solutions.
Visit Clear Focus Law's website to learn how you can start to get a handle on how social media law affects your business.

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Defamation Liability Can Devastate Your Business - How to Recognize and Avoid It

Have you or your employees defamed anyone lately? Are you sure?
Is the prevention of defamation liability part of your social media policy or protocols? If not it should be. Recently an Oregon blogger found out the hard way with a $2.5 million defamation judgment. Luckily, defamation liability can be easily minimized by knowing what it is (and is not) and by using some easily implemented best practices.
What it is
Defamation liability results when you publicize false, purported facts about someone when these purported facts would subject the person to hatred, ridicule or shame, and you knew or should have known that the purported facts were false. Since social media is, by its nature, public, the "publicizing" prong of defamation is always satisfied as soon as you (or your employees) post your blog, update, tweet, etc.
Just the Facts
Defamation requires that the publicized information be in the form of purported facts. For example, posting that someone has AIDS, has been convicted of a crime, or is a cheat, are all purported facts and would be potentially defamatory if false. On the other hand, stating that someone was not pleasant to deal with is an opinion, as is stating that the writer simply does not like someone. Defamation liability generally cannot arise out of these opinion statements, caution is advised since many statements can straddle the gray area between fact and opinion. For example the statement that someone is "not ethical" or is "greedy" might sound like an opinion, but can easily be twisted around to be factual enough to be the basis of a defamation lawsuit.
Truth
The purported facts must be actually false. Truth, it is said, is the ultimate defense against a defamation lawsuit. If a person really does have AIDS, has been convicted of a crime, or is a cheat, then saying so through social media channels should not be the basis for defamation liability. Of course, there may be other reasons, including privacy liability why saying so may not be wise.
Negligent
Finally, even if the publicized information was in fact false, it must be shown that you either knew or should have known (with reasonable inquiry) that the facts were false. In other words, you must be shown to be malicious (knew it was false and posted anyway) or negligent (did not take the reasonable steps a reasonable person would have taken to verify the facts before posting).
Best practices
1) Have a Social Media Policy or protocol. This is critical, whether you have 500 employees or are a solo practitioner. The importance of having guidelines in place that everyone agrees to follow every time they post on social media for your business cannot be overstated. This is especially the case when defamation liability avoidance is concerned.
2) Be Professional. Regardless of how ugly things get with competitors, customers or anyone else, resist, at all costs, the urge to use your social media networks as a giant megaphone to air your differences. Nothing good ever comes out of this practice and usually you are just inviting trouble. Social Media should be used for purposes that advance your business' mission and goals. Period.
3) Report Facts through Links. If part of your social media strategy involves reporting on news or facts related to your business, consider using links to established, trustworthy media outlets, instead of being a reporter yourself. The federal court in the Portland blogger case made it very clear that bloggers don't have the same protections that traditional news media enjoys. By linking (and commenting on the news without adding or implying any additional facts if you need to) you let the pros take on the risk of defamation while still being able to get the facts out as needed.
4) Research if you Need to Report. If you simply must break a story yourself or put a different factual spin on an existing story, you simply must make sure that you have researched your facts and have a reasonable basis to believe they are true. Make sure to also keep good records of your research.
5) Make sure You are Insured. Finally, if worst comes to worst, make sure you are insured. While most of us are not going to have sufficient insurance to cover the $2.5 million verdict in the Portland blogger case, at least make sure that the commercial general liability coverage covers defamation liability. When I say "make sure" I mean to not only ask your insurance agent, but to find it in your policy!

ERIC HSU is a Legal Success Strategist, accomplished speaker, and owner of Clear Focus Law.
The mission of Clear Focus Law is to show entrepreneurs, small biz and social marketing professionals how to use the law as a tool for empowering innovation and achieving success, both by building strong legal foundations to support the innovation and by establishing an effective and legally successful social media and web 2.0 presence to grow their business.
In addition to advising clients, Eric also speaks on social media legal topics, writes legal guides and blogs, and provides on-going training solutions.
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Internet Crimes: Definition and Penalties

An internet crime, or cybercrime, refers to any illegal practice that involves the use of a computer or network, or targets a computer or network. According to the Federal Bureau of Investigation, their key priorities in regards to cybercrimes are: computer intrusion, online predators, piracy, and fraud. Computer intrusion costs individuals and companies billions of dollars every year. By breaking into personal computers, laptops, and networks, hackers can disrupt and sometimes permanently damage vital computer systems. The reasons for computer intrusion vary from the theft of personal information to illegal business practices to terrorism.
Child pornography and online predators are another important focus of the FBI. The Innocent Images National Initiative is part of their Cyber Crimes Program and is dedicated to fighting the spread of child pornography online. It is against federal and state laws to make, own, sell, or distribute any pornographic materials that contain minors. Although each state is different, even the possession of one picture can lead to five years in prison. As one of the fastest growing crimes on the internet, it can be used for a number of purposes. Pedophiles view it, but others use it to prepare children for child prostitution, an act known as child grooming. 18 U.S.C. Chapter 110, Sexual Exploitation and Other Abuse of Children, states that violators can be punished by fifteen years in federal prison.
A crime that has garnered a mass amount of media attention is that of piracy: intellectual property theft. Intellectual property includes: music, books, movies, art, inventions, phrases, designs, and more. Materials that are protected by copyright or trademarks are illegal to copy or distribute without permission. Penalties for piracy vary based on the amount copies or distributed. The FBI has been working on educating the public regarding the seriousness of this crime and the fact that it is theft.
Lastly, another widespread internet crime is fraud. Fraud is a broad category of crimes that involve dishonest acts. When misrepresentation occurs on the internet, it becomes a cybercrime. The most common reason for fraud is monetary gain and can be civil or criminal in nature, depending on the law of the state. The main types of fraud are: identity theft, credit card fraud, bankruptcy fraud, and securities fraud.
If you have been accused of any type of internet crime, it is highly encouraged that you speak with a legal professional as soon as possible. As these crimes can be investigated by government agencies, you need a strong legal representative to be on your side. Time is crucial, so do not wait to get the help you need.

The Miller Law Firm has over twenty years of experience in criminal defense law. With a former assistant state prosecutor on their team, they have the skill and ability to handle even the most complex and serious criminal cases. By speaking to a Sarasota criminal attorney from their team, you could receive the strong legal representation you need to get your case dismissed. From drug crimes to DUI to sex crimes and theft crimes, they have handled hundreds of criminal cases. You deserve professional and high-quality legal defense and they could be able to help you get your life back on track and retain your freedom. To learn more about how they can help you, contact a Sarasota criminal lawyer from their firm. They are available twenty-four hours a day, seven days a week, so call today or visit their website at http://www.sarasotacriminaldefenselawfirm.com/.

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Preparing Open Source Software Compliance Guidelines

Purpose:
The purpose of these Open Source Software Compliance Guidelines (Guidelines) is to provide guidance in the development of procedures designed to verify compliance with the license requirements of various open source software applications and code (OSS) used internally or included in products for distribution. Technology lawyers, advisors and consultants need to be aware of issues surrounding open source software in order to properly advise their clients.
The output of these Guidelines should be (1) an Open Source Software Compliance Policy (OSS Policy) that describes the policies and procedures applicable to the company's use of OSS, and (2) an inventory (OSS Inventory) of all OSS approved for use within the company.
The OSS Policy must be designed with the company's culture and specific way of operating in mind in order to be effective. The OSS Policy should also be reviewed and updated on a regular basis.
The OSS Inventory is the ultimate output of these Guidelines and the OSS Policy. However, it will also serve as a ready document, in modified form, that can be provided to customers that may request a listing of OSS contained in distributed products and to a potential partner or acquirer which is performing due diligence.
It is important to note that 3rd party proprietary software will often contain OSS components. Therefore, particularly when such software is being included in a distributed product, it is necessary to have the vendor identify all OSS components so that they can be considered along the lines as set forth below.
Designated Gatekeeper:
A person or committee should be designated for approval of all OSS proposed to be used internally or included in products for distribution. In order for this procedure to be effective, notice must be provided to relevant company personnel that the company requires prior approval of all OSS utilized in any manner within the company. Such notice must be conspicuous and repeated at regular intervals. In addition, supervisors must also be instructed to reinforce this requirement. Special attention must be paid to development teams which are accustomed to pulling OSS from various places, and usually operate subject to tight deadlines.
Request for Approval:
1. Requests for approval should be submitted within the amount of time prior to use/implementation as stated in the OSS Policy. The approval process should be initiated with the submission of a document that contains at least the following information:
2. Name/Version Number/Source of Open Source Software
3. Name of Applicable License (e.g., GNU General Public License v.2, zlib, BSD), and Source Address for the License
4. Name of Entity/Person Granting License
5. Source Address from which OSS will be Obtained
6. Description of How OSS will be Used (e.g., internally, as a development tool, embedded in distributed product, etc.)
7. If included in distributed product, description of the manner in which these OSS will interact with the company's proprietary source code (i.e., will the OSS be compiled and/or linked statically or dynamically with the company's proprietary source code?)
8. The manner in which the OSS will be implemented (e.g., modified vs. unmodified, standalone, statically linked, dynamically linked, etc.).
9. Description of whether the OSS will be modified
10. Statement as to whether the OSS is a key product component
11. Statement as to whether the OSS well-known and widely used
12. Target date for OSS use/implementation
Approval Process:
The approval process involves examining risk areas relating to using the particular OSS. Risk areas may include:
1. Does the OSS license require making modified source code publicly available?
2. Does the OSS license require that source code for company's proprietary software be made publicly available? (e.g., will there be static linking of GPL code with company's proprietary software?)
3. Has there been litigation or other issues relating to the subject OSS?
4. Does the OSS license contain ambiguous terms, thereby potentially placing a cloud on company's rights to use the OSS in a certain manner?
5. Will lack of warranties and intellectual property indemnification pose a risk to company vis-à-vis customer expectation and demands?
It is important that the approval process be conducted quickly, and the expected time period for approval should be set forth in the OSS Policy. Otherwise, users and developers are likely to get frustrated and find ways to get around the procedures as deadlines approach.
When new versions of approved OSS are used, an expedited approval process should take place. This allows the OSS Inventory to be kept up to date, and will prevent gaps forming in the inventory that could end up becoming large holes.
Compliance:
The goal of an OSS Policy is to achieve compliance with each OSS license. Depending upon the licenses involved, compliance may include any of the following:
1. Inclusion in appropriate documentation of warranty disclaimers, liability exclusions, author attribution, and proprietary rights notices.
2. Inclusion in appropriate documentation of the applicable OSS end user license agreement.
3. Public delivery or availability of source code for the unmodified version or the modified version.
4. Public delivery or availability of source code for company's proprietary software if linked to a "copyleft" open source software code in a manner that requires this result.
5. Marking of modifications made to the OSS source code.
Audits:
On a periodic basis, at least annually, an audit should take place to verify that the OSS Inventory is accurate and up to date. The audit process can be as simple as distributing the OSS Inventory to key personnel who will sign off on it, or as complex as installing monitoring software that will identify OSS on the company's computer system. The extent of the audit will depend upon company's needs and the volume of open source OSS in use.
OSS Training:
Current and new employees should participate in an OSS Policy training session to ensure that they are aware of the company's procedures and requirements in this area.

William Galkin, Esq. is an Internet lawyer who has dedicated his legal practice to representing Internet, website, e-commerce, computer technology and new media businesses in the U.S. and around the world. Learn more about agreements needed by websites.

Article Source: http://EzineArticles.com/?expert=William_Galkin


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How to Write Website Terms of Service (AKA Terms of Use or Terms and Conditions)?

Terms: The Background
Why do we care about a web site's Terms and Conditions? Everyone knows that a site needs to have legal Terms. Few people think about the obvious question: Why?
While our statutes, regulations and past cases are full of laws and their applications when it comes to everyday interactions, few laws and cases exists with respect to online interactions. Why? Our cyber universe, as a mature legal arena, has existed for only some ten or fifteen years. When compared to the hundreds of years of "real world" interactions, its easy to see why many legal "holes" exists in our system.
Under US law, these legal "holes" are filled up with with either judge-made interpretations or privately drafted contract law. Given that on any single day, a judge reviewing an online case may have come from family, criminal or juvenile courts, we would rather leave as little for judges to decide on their on as possible. We achieve this through proper negotiation, drafting and implementation of site Terms.
Luckily for us, the US, as opposed to many civil code jurisdictions, respects privately negotiated contracts. Web site Terms are nothing more than privately negotiated contracts. Unless you realize this important point, you will end up leaving too much for judges to decide.
Three Common Mistakes
Failing to realize that web Terms are privately negotiated agreements, most web site operators make three common mistakes.
They Copy Other Sites' Terms: The most common way for site administrators to "draft" site Terms is by copying it from other sites. Worse, they copy it from some site touting its Terms as a standard that once edited can be used by anyone. Why? because, few administrators understand how important these Terms are. Fewer still understand the impact Terms have on each and every future online dispute.
They fail to Negotiate the Terms: The most common mistakes made by site administrators is believing that if they post Terms on the internet, they will bind visitors. That is equivalent to posting mortgage papers on the wall of a bank and believing that everyone who enters will be bound by those documents. Web site Terms must be negotiated to be valid. This is a critical component of online compliance; few, however, understand how online negotiations take place.
They Don't Change with the Times: Internet laws "develop" or "mature" through case law on a daily basis. Since so few cyber laws are codified through statutes, compliance can only be reached through Terms amendments reflecting these latest rulings. Many site Terms, however, were drafted 6 months to 3 years ago. Administrators must start thinking about making key changes to Terms on a regular basis.
The Risk of Non-Compliant Terms
In our representation of online companies, we see four main areas of risks faced by clients. These risks are easily avoidable; however, due to a lack of understanding risks often mature into costly if not destructive forces for a young company.
Many online companies unknowingly make promises to online users that they never intend. I've seen clients with subscription based pricing models having copied Terms relevant only to one time charge sites. As a result, they were liable for wrongful charges. Some clients with upstart e-tail sites, ended up making consumer support promises which only the like of Amazon or Buy.com could make.
Important contract provisions get struck down. When online companies fail to understand that Terms must be "negotiated" with users, they end up surprised when judges strike down provisions that are employed by countless other sites. The typical response is, "How could a judge do this? It is Standard industry practice."
The Company assumes unnecessary levels of liability. When Terms are not properly drafted and negotiated, incorrect provisions can result in substantial corporate liability. There are countless class-action websites run by attorneys soliciting clients for class action law suits against online companies. Having the wrong Terms can be devastating.
Administrators facing personal liability. Hard to believe, but when Terms are drafted improperly the owners and operators of sites can face liability personally, not just as a corporation.
Step 1: Define Your Goals
It may sound strange, but before you can start drafting any Terms you need to figure out what your goals are. The Terms must reflect your goals. More importantly, they need to avoid saddling you with unnecessary obligations.
If you are building an affiliate marketing campaign and deploying squeeze pages, what are your goals? You want to build a mailing list, that's obvious. But what are the Terms of the transaction? You may want to give them a free gift or service in exchange for information. Alternatively, you may want them to read product descriptions. Either way, what do you want you customers to do?
If you are building a forum or soliciting product reviews, what do you want users to do? You want them to post comments but you want them to behave in accordance with the law. What does that mean? How can their behavior make you liable to third parties?
If you are building an e-tail site, what do you want to accomplish? You obviously want to make sales, but you also don't want to be liable for faulty products, lost shipments or false advertising.
What if you are designing software that runs on the internet? You want to make sure it is deployed in accordance with legal allowances. You also want to make sure that its not distributed without your consent. What about a dating site? Here you want to make sure that members are truthful and that people interact safely.
Every online product or service is unique. Start by defining your goals. There can never be too many. The mistake is to just ignore this stage.
Step 2: Where is Your Liability?
Once you figure out what your goals are, you need to think about where potential liability can come from.
If you're developing an affiliate marketing campaign, you face liability from potential false advertising and product liability.
If you you built a widget that runs off of tweeter, you face potential trademark and copyright violations in redisplaying tweets.
If you run a forum, you face publisher liability for comments made by users.
If you developed software that automates posting to Craigslist, you face liability for enabling your users' unintentional violation of that site's terms of service.
If you develop a squeeze page you may face privacy concerns due to follow up advertising.
If you develop a digital entertainment download site, you may face liability due to copyright infringement for ringtones and games.
If you build a social network site, you face liability for intellectual property infringements for users' posting.
There is unlimited forms of liability faced by online companies. The trick is to give some thought to all potential issues that can arise in the future, however remote. Always ask, what can someone end up being unhappy about? Even a $2.99 download product can result in millions of dollars in liability.
Step 3: Define Your Customer's View
It's one thing to figure out what you want. It's quite another thing to figure out what your customer wants to achieve. Don't forget what we said earlier on: A web site's Terms is a negotiated agreement. It can never be one sided or it risks being thrown out by a judge. So what do your customer want?
A customer who clicked on an advertisement to an affiliate marketing site, wants truth in advertising regarding the product.
A visitor to a squeeze page wants an exchange of his information for value. The e-product must be delivered as promised.
A subscriber to a newsletter wants his information kept confidential from 3rd party marketers.
A member to a dating site wants his personal information kept confidential from other members unless he wishes them revealed.
A customer of a digital entertainment site wants his digital game to operate properly.
A customer downloading a ringtone wants to make sure that he is paying for one download and not paying for a subscription.
A buyer from an e-tail site wants to know who to return the product to in the event of a complaint.
A client posting a review wants to make sure you keep his identity confidential.
If you haven't given thought to what your customers want, a judge will. The negotiation starts by you thinking about your customers needs.
Step 4: Enable through Negotiation
So how do we put everything together? How do we enable our goals, while minimizing potential liability and allowing for customer wishes? We negotiate with the customer. I know this sounds strange. How can you ever negotiate with a visitor to a splash page?
Terms of service are worth little if a court is likely to later dismiss many of the key provisions. Courts over the past few years have struck down many important sections of leading sites' Terms as being too one sided. How do you avoid it?
Focus on the best form of "consent". Most web sites at best offer a link at the bottom of a page to the site's Terms. Others go a little further by requiring the users to check a box as having "agreed" to the site's Terms. However, if you have a provision that you "must" make sure that a court will uphold you can do better. There are countless options available to make sure that a client reads and consents to important terms (e.g. displaying summarized terms of service).
For some key issues, like dispute resolution, afford the user options. Most attorneys, inexperienced in online law, draft straight forward terms. As they try to bind users, they fail to understand that unless they build options into the Terms (like how to best resolve disputes) judges are likely to strike the provisions down.
Don't fail this step. Negotiate fair Terms with your customers by giving them ample chance to consent to important provisions and providing them with options on how to best implement the Terms.
Step 5: How to Make Changes?
You can be assured of one thing. You'll have to make ongoing changes to your Terms. Not only are your business practices likely to change over time, online laws change on a regular basis. As online legal cases make it through the court system, we must incorporate into existing Terms any new legal interpretations and findings. Failing to do so, assures us of stale and irrelevant Terms. Basically, absent amendments to our Terms, the goals we set up earlier while minimizing liability will be ineffective.
But how do we make changes? If we look at the typical terms of service agreement, we are likely to see a statement such as this: "XYZ reserves the right to amend these terms of service at any time, with or without notice to the users. It is the user's obligation to check this page from time to time to see if any changes to the terms were made."
Does this provision seem strange? How often have you heard of a contract that can be amended unilaterally by one side without notice or the option to back out? Not often! That's because, in our normal daily lives we would never agree to such a contract. So why should such a contract apply online?
Courts have, in online cases, consistently rejected contract provisions which were deemed too onerous when one side did not have the opportunity to choose among alternatives, negotiate or withdraw. From cases concerning arbitration clauses to subscription pricing, courts have rejected provisions that are too one sided.
While this provision is widely accepted in the industry, I would not advise building an online business based on the broad application of unproven and legally weak provisions. Avoid the risk of a court rejecting your Terms. The solution: NOTICE. Go out of your way to provide your users with notifications of any changes made to your policies. Send out email and txt messages. Post notices of revisions to your site. Have members "re-accept" the new Terms.
You can never do too much when it comes to providing notice of changes.
Step 6: How to Control Liability
So by now, we negotiated compliant Terms for our online business. Is that enough to control our liability. No! To assure that any potential future liability is contained, you must follow these three steps:
Follow the Terms: This may seem so simple, but so few actually follow it. You need to know your Terms and you need to follow the Terms. If you made promises, keep them. If you provided customers with procedures they need to follow, respect them. Don't create a situation where you actually create liability for yourself by having drafted compliant Terms but having failed to follow them. Remember, since there are many "holes" in the online legal system, judges rely on privately negotiated contracts such as Terms. Your failure to follow your own Terms will be read against you. You would have effectively breached your agreement with your clients.
Teach your Clients: So you "negotiated" your Terms through proper usage of the "acceptance" procedure. But do your clients know what to do? Often you liability is tied to your clients' behavior. So go out of your way to teach them proper and lawful behavior. From support forums to seminars, from conference calls to newsletters - Build a culture of education by teaching your clients the lessons that are important to you.
AND... Build Liability Proof Domestic and Offshore Corporate Structures.
Build Liability Proof Corporate Structure
After all is said and done, don't forget that your best ally when it comes to managing potential liability is the corporate structure that you've set up.
Basic corporate structures, if properly set up and managed over the years, will provide you with some liability protection. That might be enough for some simple online businesses such as squeeze page powered affiliate marketing campaigns and e-tailers.
For other online businesses, a more sophisticated form of domestic and offshore corporate structure is needed. Believe it or not, your greatest risk will not come from government. It will come from competitors. Everyday, large tech companies compete with smaller more nimble companies using the court system. And why not? In court, the larger companies have an advantage - money.
Many entrepreneurial companies have gone out of businesses after being dragged into court by larger companies. For many online and software companies, compliant Terms will not suffice. They need to supplement those Terms with a structure that evens out the odds in court.
This is a topic too large for this eGuide. Speak with an attorney about the design of domestic and offshore networks of online compliant corporate businesses.
Where Do We Go Next?
Sit back and start designing your site's Terms. The more questions you have, the better it will end up. And remember what we said in the beginning of this eGuide: A Site's Terms is only one component of its overall online compliance.
Make sure your Terms integrate and support your business' overall online compliance strategy including:
Online Privacy Software Compliance Mobile Compliance Direct Marketing (email and txt) Intellectual Property Compliance (trademark and copyright) Online Advertising Online Promotions (contests and sweepstakes).
Once you design an overall compliance strategy, examine your business' liability exposure and the ability to incorporate an online liability management system based on both domestic and offshore corporate structures.

By: Lior Leser, Esq. - Web 2.0 Lawyer
http://web20lawyer.com/
Lior Leser counsels Internet, mobile and software companies as a head of the LYL Law Group. Mr. Leser earned his J.D. at Stanford Law School (Stanford, CA). He also attended Sophia University (Japan) and the London School of Economics (London, UK) for advanced studies in Finance. He attended Brandeis University (Waltham, MA), where he earned an M.A in International Economics and Finance and a B.A. in Economics.

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