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Matt’s Safe School Law

March 28, 2012 / in Written by Mike Gibbons

Anti-Bullying Law Requires School Policy by June


Under Matt’s Safe School Law, HB 4163, public, charter and Intermediate school districts will have six months from the law’s effective date to adopt anti-bullying policies. Michigan was one of only three states without an anti-bullying law before this legislation was enacted in early December 2011.

Controversial language exempting the prohibition of “a statement of a sincerely held belief or moral conviction” of a student or school worker was not included in the final legislation. The law now demands that bullying is equally prohibited without regard to its subject matter or motivating animus.

Under Matt’s Safe School Law, a school’s policy must not only prohibit bullying, but also work to ban retaliation against a witness, informant or target of the bullying. Along with required reporting, publicizing and investigation procedures, the proposed law also demands that schools identify who at the school is responsible for ensuring policy implementation. Additionally, schools must notify the parents of the perpetrator of bullying.

The law stops short of mandating that boards require any type of staff training for the prevention of bullying, but does encourage boards to include the following in their policies:

  • Provisions to form bullying prevention task forces, programs, teen courts, and other initiatives involving staff, pupils, clubs/groups, volunteers, parents, law enforcement and the community.
  • A requirement for annual training for admins, employees and volunteers who have significant contact with pupils to prevent, identify and respond to bullying.
  • A requirement to establish educational programs for pupils and parents.
  • Immunity from a cause of action for damages arising out of the reporting itself or any failure to remedy the reported incident, excluding the school official designated for remedying the bullying.

Off-Premises and Telecommunications

It is important to note that the law defines “at school” to include buses, school sponsored activities off-premises, and conduct using a telecommunications access device or service provider if the device/provider is under control of school district. Students using school email addresses to send messaged intended to harm another pupil would be included under this law.

Bullying is defined as “any written, verbal or physical act, or electronic communication, that is intended or that a reasonable person would know is likely to harm 1 or more pupils either directly or indirectly by doing the following:”

  • Substantially interfering with educational opportunities, benefits or programs of 1 or more pupils.
  • Adversely affecting the ability…to participate in education /activities by placing the pupil in “reasonable fear of physical harm or by causing substantial emotional distress.”
  • Having actual and substantial detrimental effect on a pupil’s physical or mental health.

Schools must report on status of the implementation of the policies one year later.

Matt’s Safe School Law is named after Matt Epling, a freshman from East Lansing who killed himself after a bullying incident by upperclassmen in 2002.

Beier Howlett attorneys have the expertise and experience in school law to draft a comprehensive anti-bullying policy which will comply with the new proposed law. For details, please contact one of the following Beier Howlett attorneys or call (248) 645-9400:

This publication is distributed with the understanding that Beier Howlett, P.C. is not rendering legal or other professional advice or opinions on specific facts or matters and, accordingly, assumes no liability whatsoever in connection with its use. Forward your comments, change of address, or additions to our mailing list at feedback@bhlaw.us.com.

 

Is Your Liability Waiver Unenforceable?

March 23, 2012 / in

Toss out the liability waivers and replace them with an increased insurance policy? According to a recent decision by the Michigan Supreme Court, the traditional pre-injury liability waiver, signed by parents to allow their child’s participation in a range of activities, will no longer hold up in court.

Although the liability waiver has long been the accepted release form for organization hosting activities from day camp to travel sports, on June 18, 2010, the Michigan Supreme Court held that a pre-injury waiver is unenforceable under Michigan’s common law.  The Court noted that a parent or guardian has no authority to bind his child by contract (absent special circumstances), and a parental pre-injury waiver is a contract.  Michigan’s common law rule is that a minor also lacks the capacity to contract for his or herself.  The court also held that it is clear a minor cannot empower an agent or attorney to act for him in Michigan.
The case, Woodman v Kera LLC, 2010 Mich LEXIS 1125, involved a five-year-old child who was injured after falling off an inflatable at a birthday party held in a Bounce facility.  Although the parents signed a waiver before the child engaged in the activity, they were able to successfully sue the facility for negligence after the injury.
Ramifications of this decision are expected to be far-reaching, as organizations of all types are left open to liability.  From school districts hosting field trips to soccer teams traveling to games, the hosting organization is no longer protected by a parent’s signature on the pre-injury waiver.
Although a 2009 Estates and Protected Individuals Code (EPIC) proposed parents be allowed to sign enforceable waivers, the code was adopted without this provision.  A child can be bound by a parent’s act when a statute grants that authority to a parent.  Legislation to modify the common law rule at issue was introduced into the Legislature on May 19, 2009 – HB 4970.  On March 10, 2010 the House Judiciary Committee reported the bill with a substitute and recommended that the House of Representatives adopt the statute.  The HB 4970 would add Section 5109 to the EPIC.  However, as of July 26, 2010 the statute has not been adopted.
Justice Young, in dicta, suggested that perhaps an alternative to the pre-injury liability waiver is a parental indemnity. However, the other Justices commented that such issue was not before the Court and would likely be held to directly contravene the compelling policy reasons that exist for the historic common law rule.  Furthermore, courts in a number of States have held that such indemnity agreements are unenforceable because they produce the same effect as parental pre-injury liability waivers.

Currently, with no clear solution to the liability issue at hand, organizations hosting activities for minors should consult with their attorneys and insurance providers to determine how best to protect themselves from claims of negligence, whether it be through additional safety measures or insurance coverage. Liability waivers should continue to be used in the interim to inform your clients of the risks involved in participation. Beier Howlett will keep you informed of any updates to the EPIC that would offer solid legal protection to your organization.

For more information, contact Victor Veprauskas at Beier Howlett, P.C. (248) 645-9400, or email vveprauskas@bhlaw.us.com.

The L3C

Michigan’s New Business Hybrid Offers Benefits of Non-Profit Status With Reduced Regulatory Structure

Michigan is one of only six states that currently offers a new, legal form of business entity: the low-profit limited liability company, or L3C. The new structure is gaining momentum nationwide, yet many have never heard of the advantages afforded by this hybrid between a non-profit and for-profit venture. The designation was created in Michigan in 2009 to help spur business and advance socially beneficial ventures.

Designed specifically to bridge the gap between for-profit and charitable sectors, the L3C is similar to a traditional limited liability corporation, or LLC.  However, its primary purpose is not to make a profit, but to achieve a socially beneficial objective.  (Though making a profit is allowed.)  The L3C must follow these requirements:

  1. The company must “significantly further the accomplishment of one or more charitable or educational purposes,” and would not have been formed but for its relationship to the accomplishment of such purpose(s);
  2. “No significant purpose of the company is the production of income or the appreciation of property” (though the company is permitted to earn a profit); and
  3. The company must not be organized “to accomplish any political or legislative purposes.”

Importantly, these three requirements closely mirror those of the IRS rules for “Program Related Investments,” making L3C businesses eligible to receive PRIs – a distinct advantage designed to spur economic growth.  However, L3C entities do not qualify as charities and therefore are not exempt from taxes, nor are investments in an L3C tax deductible, as they would be for a 501c3 non-profit.


The L3C legal structure is similar to the LLC in many ways:

  • The L3C offers a flexible ownership structure, wherein each member’s management responsibility and financial stake may vary according to individual needs.
  • The L3C’s members enjoy limited liability for the actions and debts of the company.
  • The L3C is classified as a “pass-through entity” for federal tax purposes, like a partnership or sole proprietorship, so no federal income tax is imposed on the L3C itself.

Of the many advantages an L3C offers, perhaps the most attractive is that it offers the operating efficiencies of a for-profit along with a reduced regulatory structure. As an LLC, it can bring together foundations, trusts, endowment funds, pension funds, individuals, corporations, other for-profits and government entities into an organization designed to achieve social objectives while also operating according to for-profit metrics. Importantly, a foundation or business owner retains ownership and management rights, as opposed to the board-managed, non-profit operating status requirements.

What types of businesses would best qualify as an L3C?  It may provide a new structure for museums, concert halls, recreational facilities and the hundreds of thousands of nonprofits that perform service for the government under contract.  It may possibly help the flagging newspaper industry as well, as the designation is tested under this arrangement.

What types of businesses would best qualify as an L3C? It may provide a new structure for museums, concert halls, recreational facilities and the hundreds of thousands of nonprofits that perform service for the government under contract. It may possibly help the flagging newspaper industry as well, as the designation is tested under this arrangement.

For more  information on the L3C designation, contact Peter Gojcaj at pgojcaj@bhlaw.us.com.

 

News From The Community

Marsh 22, 2012 / in Municipal Law

Gilda’s Club Benefits From MSU, UofM Rivalry

Beier Howlett hosted a tailgate fundraiser for the University of Michigan and Michigan State game last fall. The firm hosted the event to help sponsor “Gilda’s Club,” an organization that offers free network and support groups, workshops, education and social activities for those with cancer. Beier Howlett was able to raise money as well as kitchen supplies to help them host their meetings.

The firm also supported the Raise the Roof for Affordable Housing event recently, donating U of M football tickets for the live auction and participating in the fundraising dinner. As a result of the event, Community Housing Network supporters contributed more than $67,000 to help people with disabilities and those who are homeless get into long-term, successful housing.

 

Social Media Policy

March 22, 2012 / in Bussiness Law, Written by Mike Gibbons

As employees of a company, we are all accountable for how we speak about that company’s products, services, and operations, whether in person, on the phone, in print or online.

The following sample Social Media Policy is a valuable employer reference when reviewing any company’s Employee Manual. The policy serves to remind employees that before they post information online that relates in any way to their employer, it pays to consider some guidelines. It also attempts to draw a line between protected speech and speech that could subject the employee to discipline or discharge.

OVERVIEW

“Social media” is also called “social networking,” but this Policy will use the term “social media” only. The purpose of this Policy is to provide guidance on the expectations of [Company Name] (the “Company”) regarding the use of social media by its employees in an appropriate manner.

While the Company respects your privacy and your right to free speech, you also have responsibilities when you voluntarily put information into the public domain. If you engage in conduct while using social media (as defined below) that violates the Company’s policies, you could be subject to disciplinary action up to and including termination, even if the conduct occurs off the Company’s premises or on your personal, non-work time.

According to two recent surveys from Technisource and its parent company, SFN Group.

DEFINITION

Social media refers to activities that integrate technology, social interaction, and the sharing of words, pictures, videos, and audio, such as:

  • multimedia and social networking sites like Myspace, Facebook, Twitter, flickr, and YouTube;
  • social networking sites with an emphasis on professional exchange of information and development of business, such as LinkedIn;
  • blogs, microblogs, wikis, message boards, social bookmarking Web sites, and other community-based sites or collaboration tools;
  • social commerce postings, like product or experience reviews; and
  • any other site where information (test, images, video, sound, or other files) can be uploaded or posted.

GUIDELINES

As employees of the Company, we are accountable for how we speak about the Company’s products, services, and operations, whether in person, on the phone, in print, or online. Before you post information online that relates in any way to the Company, become familiar with and consider the following guidelines.

Think before you “send.” Always remember to think about what you plan to say, and how you plan to say it, before composing information and sending it out via social media. Once your thoughts are “out there,” it is difficult, if not impossible, to take them back. Do not communicate information when you are excited or angry. You may not like what you sent when your mood has passed.

  1. Keep confidential information confidential. Any statement, whether made online or offline or though images, videos, or sound files, related to or referencing Company products, services, operations, customer, vendors, or other employees, regardless of the media or form used, must strictly comply with the Company’s practices, policies, and procedures. Keep any Internet-based conversation about the Company focused on publicly known information. If you are not sure whether something is appropriate to post, double-check what you have composed and get a second opinion from your supervisor before sending.
  2. Be accurate, truthful, and considerate in your posts. Be constructive, provide appropriate context, and think about the impact of your comments on our customers, vendors, other employees, and board members. Words matter, especially when employees discuss business-related topics. Anyone, including customers, vendors, competitors, your supervisor, and other Company employees can find and see postings put out in the public domain. Be thoughtful about what you share and how you share it—just as you would at home.
  3. Be respectful. Respect for others is mandatory. Do not use ethnic slurs, personal insults, or obscenity, or engage in any conduct that would not be acceptable in the workplace, at least where those comments relate to the Company in any way.
  4. No privacy exists. The Internet is fully searchable, which means that anyone with an Internet connection, including your co-workers, our customers, vendors and competitors can find even the most obscure information. Be careful about posting personal information online, whether it is information about you, other employees, or customers. Personal information can include photos, addresses and telephone numbers, information about where and when you work, or anything else that could compromise your safety or that of your team members or our customers.
  5. Possible legal ramifications. Remember that individuals can be held legally accountable for comments deemed to be defamatory, slanderous, libelous, obscene, or proprietary, whether they pertain to the Company, another organization, or an individual person.
  6. Identify yourself. You must make it clear that you are speaking for yourself and not on behalf of the Company. Speech that appears to represent the Company, even remotely, takes on the appearance of an official position statement and is not permitted in any circumstance. Use a personal e-mail address as your primary means of identification. You may use your Company e-mail to convey information on the Internet only in accordance with Company policy. The Company’s intellectual property, logos, trademarks, and copyrights may not be used in any manner.
  7. Communicating during working hours. While the Company does not prohibit minimal communication with friends and family during working hours, we expect you to use good judgment and not allow your social media activity to interfere with your work commitments, in accordance with Company policy.

For more information on Social Media Policies for your company, contact Michael Gibbons or call (248) 645-9400.

 

News From The Firm

March 21, 2012 / in Municipal Law

Beier Howlett is proud to announce Mary Kucharek as a partner in the firm.  Mary is a member of the firm’s municipal practice group.  Specializing in prosecutions and criminal law, she frequently speaks to community groups about under-age substance abuse.

Congratulations to attorneys Tim Currier, Stephen Jones and Jeff Haynes, named to the Best Lawyers in America for 2012.