In a recent case, the California Appellate Court ruled that an arbitation agreement between an employer and employee cannot be modified after the employer believes the employer may file a lawsuit, even if the arbitration agreement expressly allows the employer to modify the arbitration agreement. The Court held that allowing the employer to make changes to its arbitration agreement after the employer learns of a complaint by its employee makes the agreement illusory, and thus unenforceable. As the Court stated, ..."Were it otherwise, the employer could amend the contract in anticipation of a specific claim, altering the arbitration process to the employee‘s detriment and making it more likely the employer would prevail." See Amir Peleg v Neiman Marcus Group, Inc.
(by Attorney Angelo F. Campano at acampano@campanolaw.com)
Wednesday, April 18, 2012
Help maybe on the way for business owners from negative online reviews.
(written by Angelo F. Campano, owner/Campano Law Group, http://www.campanolaw.com/)
Is your name or business reputation important to you? Have you or your business been negatively criticized on line by someone? Been told there is nothing you can do to stop it from happening? Well, there may be some alternatives available to help you... protect your name, your business and reputation from those anonymous online reviews that seem to pop up out of nowhere.
When a negative review is posted on line, it is almost impossible to find out who posted it. The person posting the review is allowed to hide their true name or even if they were a customer of the person/business they are criticizing. This is blatantly unfair to the business owner who has worked so hard and long to build their reputation, all to have it reviewed negatively by someone who may never have even stepped foot into your business. The other day I recently watched a “reality” television (I won’t disclose which show from the east coast) show where a person who blogged badly about the business turned out to never had been to the business or bought anything from that business. How is that fair to the business? It’s not. Yet, the law seems to give greater protection to the negative posters.
The law generally protects the actual website that hosts these reviews. That protection, however, may be changing since that protection is more and more taken advantage of by the websites. As for the people that post these anonymous reviews, the law is not as protective as one would think or like. The websites themselves, that allow you to post your review, are not in a rush to protect the people posting anonymous reviews. Ever read the “terms and conditions” you agreed to before you posted your review? If not, then read it because you will likely see that you, as the poster of the anonymous review, could end up having to pay back the very same website that allowed you to post your negative review. The very website you post your negative review on can end up being your enemy.
In the case of Wong v. Jing (2010) 189 Cal.App.4th 1354, the plaintiff, a dentist, received a bad review on line by a former patient’s parents. The dentist believed it to be defaming and sued both the patient’s parents who wrote the story and Yelp for posting it on its website. At some point in the case, Yelp was dismissed by the person suing. But, the people who wrote the story were not as lucky in having the entire case dismissed despite trying hard to do so. The defendants filed an anti-slapp motion claiming their stories were based on their right to speak. An anti-slapp motion can be very powerful device if sued for speaking out on certain subjects. The appeals court agreed that part of the lawsuit arose from protected speech but also ruled that the story was potentially defaming to the dentist and allowed that part of the lawsuit to go forward. The law does not protect defamation. That meant that the people who wrote the story could end up having to pay a lot of money for writing a story that falsely harmed the dentist’s reputation and business.
One aspect of the appellate court’s ruling that was very briefly discussed but of interest (well, maybe just of interest to those who like to read appellate court cases) and maybe of help to businesses, is that the appellate court made a distinction between equitable relief and causes of action and the use of anti-slapp motions. The appellate court ruled that that the anti-slapp motion, used often by the defense, does not apply to equitable relief. Rather, the motion only applies to causes of action.”…Specific performance and injunctive relief are equitable remedies and not causes of action for injuries”. See Wong v. Jing citing Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 618 [129 Cal. Rptr. 2d 546]. So, the conclusion one can draw is that a business owner may prevail in its lawsuit against negative reviews by seeking equitable relief (e.g. removal of the negative review) rather than by just asking for monetary compensation.
To many business owners, the business becomes part of your family, which you want to protect. If you, as a business owner working hard to promote and protect your business and reputation, receive a negative anonymous online review, help may be on the way. The Wong v. Jing case helps suggests an alternative way for the business owner to protect itself from the anonymous online reviews that you, the business owner, may have thought that nothing can be done.
Is your name or business reputation important to you? Have you or your business been negatively criticized on line by someone? Been told there is nothing you can do to stop it from happening? Well, there may be some alternatives available to help you... protect your name, your business and reputation from those anonymous online reviews that seem to pop up out of nowhere.
When a negative review is posted on line, it is almost impossible to find out who posted it. The person posting the review is allowed to hide their true name or even if they were a customer of the person/business they are criticizing. This is blatantly unfair to the business owner who has worked so hard and long to build their reputation, all to have it reviewed negatively by someone who may never have even stepped foot into your business. The other day I recently watched a “reality” television (I won’t disclose which show from the east coast) show where a person who blogged badly about the business turned out to never had been to the business or bought anything from that business. How is that fair to the business? It’s not. Yet, the law seems to give greater protection to the negative posters.
The law generally protects the actual website that hosts these reviews. That protection, however, may be changing since that protection is more and more taken advantage of by the websites. As for the people that post these anonymous reviews, the law is not as protective as one would think or like. The websites themselves, that allow you to post your review, are not in a rush to protect the people posting anonymous reviews. Ever read the “terms and conditions” you agreed to before you posted your review? If not, then read it because you will likely see that you, as the poster of the anonymous review, could end up having to pay back the very same website that allowed you to post your negative review. The very website you post your negative review on can end up being your enemy.
In the case of Wong v. Jing (2010) 189 Cal.App.4th 1354, the plaintiff, a dentist, received a bad review on line by a former patient’s parents. The dentist believed it to be defaming and sued both the patient’s parents who wrote the story and Yelp for posting it on its website. At some point in the case, Yelp was dismissed by the person suing. But, the people who wrote the story were not as lucky in having the entire case dismissed despite trying hard to do so. The defendants filed an anti-slapp motion claiming their stories were based on their right to speak. An anti-slapp motion can be very powerful device if sued for speaking out on certain subjects. The appeals court agreed that part of the lawsuit arose from protected speech but also ruled that the story was potentially defaming to the dentist and allowed that part of the lawsuit to go forward. The law does not protect defamation. That meant that the people who wrote the story could end up having to pay a lot of money for writing a story that falsely harmed the dentist’s reputation and business.
One aspect of the appellate court’s ruling that was very briefly discussed but of interest (well, maybe just of interest to those who like to read appellate court cases) and maybe of help to businesses, is that the appellate court made a distinction between equitable relief and causes of action and the use of anti-slapp motions. The appellate court ruled that that the anti-slapp motion, used often by the defense, does not apply to equitable relief. Rather, the motion only applies to causes of action.”…Specific performance and injunctive relief are equitable remedies and not causes of action for injuries”. See Wong v. Jing citing Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 618 [129 Cal. Rptr. 2d 546]. So, the conclusion one can draw is that a business owner may prevail in its lawsuit against negative reviews by seeking equitable relief (e.g. removal of the negative review) rather than by just asking for monetary compensation.
To many business owners, the business becomes part of your family, which you want to protect. If you, as a business owner working hard to promote and protect your business and reputation, receive a negative anonymous online review, help may be on the way. The Wong v. Jing case helps suggests an alternative way for the business owner to protect itself from the anonymous online reviews that you, the business owner, may have thought that nothing can be done.
Employer has to pay again, maybe.
Who bears the loss when a settlement check is supposedly lost and cashed by forger? According to Court, the employer must pay another settlement check to former employee who claims original settlement check was stolen and cashed by thief. See Barrett Business Services, Inc. v. Workers Compensation Appeals Board
California employment law update: Who needs lunch anyway?
In a very closely watched employment case, California Supreme Court rules that employers no longer have to ensure that employees stop working for their lunch breaks. Employees are free to work through lunch. Per the Court, ..."The employer is not obligated to police meal breaks." See Brinker Restaurant Corp. v. Super. Ct.
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