All posts by Paul J. McAndrew, Jr.

Against Democracy By Jason Brennan, Princeton University Press (2017) 245 pages

Today’s post was shared by The Jernigan Law Firm and comes from www.jernlaw.com

Today’s post comes from Leonard T. Jernigan, Jr. at the Jernigan Law Firm.

This book contends that the election process in the United States is broken, and that we may want to consider other systems for authorizing leadership. Jason Brennan is careful not to advocate for any particular method, but makes it clear he has distain for the current system. “Asking everyone to vote is like asking everyone to litter.”

He cites studies to show that “… most citizens cannot identify any congressional candidates in their district, … and generally don’t know which party controls Congress. … Forty percent of Americans do not know whom the United States fought in World War II.” Of special interest to lawyers, or anyone who seeks to inform or educate others in order to reach a rational decision (think of a jury, an adjuster, or an administrative law judge) is Brennan’s quote from psychologist Jonathan Haidt that people make decisions that are illogical “… because they systematically strive for arguments that justify their beliefs or their actions.” Brennan calls it motivated reasoning. He argues that people want to arrive at decisions that make them feel good and the way they do that is to conform evidence to support their own beliefs. It is tribalism in its most basic form.

It can be compared to asking rabid basketball fans to be neutral referees in a game involving their favorite team. Under those…

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NFL and Concussion Facts – What About Bicycle Riders?

Today’s post was shared by The Jernigan Law Firm and comes from www.jernlaw.com

Today’s post comes from attorney Leonard T. Jernigan, Jr.

The National Football League (NFL) is concerned about concussions and they should be. I recently attended a program at Duke Law School (https://law.duke.edu/sports/headtrauma/) on Head Trauma in Football that mentioned the concerns parents have about their kids playing football and several of the experts, including Joel Charles Morgenlander, MD, of Duke University School of Medicine and Dale Bass of Duke’s Department of Biomedical Engineering, expressed concern but also emphasized that we should not jump to conclusions. There is a need for more research as to the effects of one-time blows to the head, multiple hits to the head, and whether a player can safely resume play after one or more concussions. There are simply too many unknowns before a physician can state with certainty the answers to many questions parents have about safety.

Dr. Morgenlander stressed the need to make sure any physician making an initial examination for a concussion gets a complete history of the individual, which may require speaking with family members and others who know the patient well. Duke University has started a program that tries to establish a baseline for athletes coming to the school and every athlete, not just football players, gets this examination. Also, although helmets can potentially minimize the impact of a head trauma, if the helmet doesn’t fit properly (and many schools don’t have the resources…

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U.S. Department of Labor

Today’s post was shared by US Dept. of Labor and comes from www.dol.gov

WASHINGTON, DC – U.S. Secretary of Labor Alexander Acosta issued the following statement regarding the August 2018 Employment Situation Report:

"The August jobs report shows continued, strong job growth with 201,000 jobs created and an unemployment rate holding at 3.9%. More than 4 million jobs have been created since November 2016. Since 1970, the unemployment rate has registered below 4% just nine times; four of those months have been recorded during 2018.

"It is remarkable to see steady positive news regarding job growth month after month."

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September Is National Preparedness Month: Is Your Workplace Ready For Severe Weather?

Today’s post was shared by US Dept. of Labor and comes from blog.dol.gov

September is National Preparation Month.
September is National Preparation Month.

This week demonstrates severe weather exposes workers and workplaces across the nation to a variety of hazards.

During National Preparedness Month, the Occupational Safety and Health Administration (OSHA) reminds workers and job creators that the time to prepare for severe weather emergencies is now.

President Donald J. Trump is committed to the health and safety of the American workforce. Workers need to be protected before, during, and after storms to ensure they return home safely at the end of each shift. You can keep workers safe by:

  • Developing emergency plans: Job creators should develop emergency plans and ensure workers know how to execute them. Plans should detail suitable places to take shelter, policies to ensure all personnel are accounted for, and procedures for addressing hazardous materials that are on-site.

  • Staying aware and maintaining supplies: OSHA encourages everyone to stay aware of weather forecasts and keep emergency supplies, including a battery-operated weather radio, on hand to be prepared when severe weather strikes.

These general guidelines apply to all severe weather emergencies; however, preparation for specific hazards may vary by event. OSHA provides resources on workplace preparedness and response for specific severe weather emergencies, including tornadoes, hurricanes, floods, and wildfires. For more information on protecting workers from severe weather events, visit OSHA’s Emergency…

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Has the Bargain in Workers’ Compensation Been Lost?

Today’s post was shared by The Jernigan Law Firm and comes from www.jernlaw.com

Today’s post comes from Leonard T. Jernigan, Jr. at the Jernigan Law Firm.

In creating the workers’ compensation system a grand bargain was created between the employer and the employee. In exchange for a no-fault system that paid limited but speedy benefits to the employee, the employer got complete immunity from civil lawsuits. Some argue that over the past few decades the bargain has shifted too much in favor of the employer, to the detriment of the employee. See Westphal v. City of St. Petersburg, 194 So.3d 311 (Fla. 2016) (Supreme Court of Florida declared 104-week limitation on temporary total disability benefits to be unconstitutional).

Each state has been creating more and more limitations on the rights and remedies of the employee, but the employer has kept his civil immunity rock solid. In one case, that immunity was extended to claims adjusters and potential outrageous conduct in how they handle claims. See Bowden v. Young, 768 S.E.2d 622 (N.C. App. 2015) (even if intentional conduct is shown in processing and handling a claim, there is no civil action outside the exclusive jurisdiction of the Industrial Commission). In another example, in North Carolina if a 35 year old worker becomes totally disabled, benefits will cease after 500 weeks [9.6 years], even though the on the job injury continues to cause disability on all future employment. So what happens when this employee reaches age 45? The inevitable outcome is that the cost of this injury shifts…

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Be Careful When Sending Client Information by Email

Today’s post was shared by The Jernigan Law Firm and comes from www.jernlaw.com

Today’s post comes from Anthony Lucas at the Jernigan Law Firm.

As technology changes and security threats increase, several states, including North Carolina, have modified their rules of professional conduct for lawyers to include a duty of technological competence.

When using email to communicate about client matters, lawyers must “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” (MRPC Rule 1.6). The ABA’s Model Rules of Professional Conduct recommend a factor based approach to assist in determining what constitutes reasonable efforts.

The factor based approach is based on the type of information being communicated, the type of electronic communication used, and the types of available security measures for each method. Some of the factors to consider include:

  • the sensitivity of the information,
  • the likelihood of disclosure if additional safeguards are not employed,
  • the cost of employing additional safeguards,
  • the difficulty of implementing the safeguards, and
  • the extent to which the safeguards adversely affect the lawyer’s ability to represent clients.

As technology changes, the cost of security safeguards decreases, and the availability of security safeguards increases, what constitutes reasonable efforts also changes. For example, the factor base analysis leans in favor of email encryption for sensitive matters as the cost of…

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Safe + Sound Week

Today’s post was shared by US Dept. of Labor and comes from blog.dol.gov

Logo for Safe + Sound Week, August 13-19
Logo for Safe + Sound Week, August 13-19

Across the United States this week and around the world, over 200 organizations – including small businesses, non-profits, and our armed forces – are set to participate in the Occupational Safety and Health Administration’s (OSHA) Safe + Sound campaign (Safe + Sound), an initiative to raise awareness of effective workplace safety and health programs.

Through work-based discussions and activities, Safe + Sound provides an opportunity to demonstrate a strong commitment to safety and to participate in a dialogue focused on finding solutions to workplace safety and health issues. There is a range of ways organizations can participate in Safe + Sound. The 1,800 events worldwide include safety webinars, toolbox talks, roundtable discussions, and more.

Outreach efforts such as Safe + Sound, along with enforcement and compliance assistance, reflect the Trump Administration’s strong commitment to protecting the health and safety of American workers. In addition to the critical goal of preventing workplace injuries and illnesses, establishing a culture of workplace safety benefits job creators and workers by:

  • Increasing worker satisfaction: Safety-conscious job creators can help workers stay engaged in their work, which can lead to other benefits, such as reduced absenteeism, increased productivity, and improved employee retention.
  • Improving productivity: By preventing accidents, workers can stay safe and businesses…

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Arbitration – Beware of Toyota’s Abusive Agreement

Today’s post was shared by The Jernigan Law Firm and comes from www.jernlaw.com

Today’s post comes from Leonard T. Jernigan, Jr. at the Jernigan Law Firm.

Nearly every consumer contract seeks an agreement to use arbitration before going to the civil court of justice (jury trials). Arbitration is supposed to be quick and easy. It isn’t. It can be expensive and unfair, depending on who the arbitrators are and how they are selected.

Toyota has taken arbitration to a new and dangerous level by not only requiring arbitration as the exclusive process to be used, but also requiring that if you lose the claim you could be ordered to pay Toyota’s attorney’s fees. A family member recently bought a car from Toyota (Fred Anderson Raleigh LLC) and I was asked to review the arbitration agreement. The purchaser waives a right to trial by jury (see Seventh Amendment to the U.S. Constitution), agrees to binding arbitration (no appeals), and agrees not to participate in any class action lawsuit. Rules of the American Arbitration Association (AAA) must be used. Each side must pay its own costs, but it’s possible that the prevailing party can be awarded “full costs and attorney’s fees.”

I have a feeling Toyota has some expensive attorneys and at $300 an hour (or more) it would not take many hours to rack up a sizeable bill. Is the average consumer going to be able to take the risk that if the case is lost, for whatever reason, he or she will pay Toyota’s attorney’s fees? Arbitration is bad enough (to be…

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