Re: [AFMUG] Mimosa did it again
Ken, The last thing I would advocate is for anyone to lawyer up against their neighbors. The overwhelming majority of these situations are resolved with only behind the scenes work by lawyers. There's a go softly way to do this. Rory, Depends on what exactly you mean by unreasonable. Again, some informed lobbying of the city often takes care of these issues. I've written (or rewritten) many ordinances and policies to help city attorneys get things right, as I'm sure Steve, Jonathan, Rebecca and many others have. -- Original message -- From: Rory Conaway via Af Date: 11/12/2014 9:00 AM To: af@afmug.com; Subject:Re: [AFMUG] Mimosa did it again But what do you do when the city has unreasonable restrictions and the buildings are company buildings on a property such as an RV park? Rory From: Af [mailto:af-boun...@afmug.com] On Behalf Of Ken Hohhof via Af Sent: Wednesday, November 12, 2014 7:36 AM To: af@afmug.com Subject: Re: [AFMUG] Mimosa did it again Well, Open Range has been gone for quite awhile. But people are not looking for us to help them lawyer up and fight their neighbors over an antenna. They are looking for us to fix the problem by providing them service without an outdoor antenna. This is probably more of an issue in town, we are more rural. But HOA covenants aside, many people will be on the opposite side of the building from the tower. And even OTARD doesn’t let you put an antenna on common areas, only the areas for your exclusive use like a balcony. So there will always be some demand for indoor CPE, probably not a ton though. And as people have noted, Mimosa seems optimistic about how well this will work. From: Hass, Douglas A. via Af mailto:af@afmug.com Sent: Wednesday, November 12, 2014 8:27 AM To: mailto:af@afmug.com Subject: Re: [AFMUG] Mimosa did it again ☺ While you certainly can contract away certain rights, this isn’t one of them. It’s like trying to contract with your employee that you will give him a 1099 or not pay him overtime. Your employee an sign it, but you can’t enforce it. OTARD trumps any contract laws that purport to force some other regime. There’s still quite a bit of confusion out there on this among HOAs, surprisingly. A local government, HOA, neighborhood association, etc. can’t enforce a covenant that impairs the installation, maintenance or use of antennas covered by OTARD (and yours are) in “exclusive use” areas. Many (most?) HOAs have long since fixed their covenants so that the restrictions apply only to common areas (like a roof of a multiunit condo building) or only when there’s some common antenna for use. You have to look at the covenant, but I would be very surprised if you couldn’t still service all of those customers who called. Ken—hit me up off list if you are still getting calls like these and we can look at what you have. Doug From: Af [mailto:af-boun...@afmug.com] On Behalf Of Mike Hammett via Af Sent: Wednesday, November 12, 2014 7:55 AM To: af@afmug.commailto:af@afmug.com Subject: Re: [AFMUG] Mimosa did it again Doug Haas's favorite example is that it's illegal to kill somebody. You can't sign a contract to kill somebody and make it legal. - Mike Hammett Intelligent Computing Solutions http://www.ics-il.com [http://www.ics-il.com/images/fbicon.png]https://www.facebook.com/ICSIL[http://www.ics-il.com/images/googleicon.png]https://plus.google.com/+IntelligentComputingSolutionsDeKalb[http://www.ics-il.com/images/linkedinicon.png]https://www.linkedin.com/company/intelligent-computing-solutions[http://www.ics-il.com/images/twittericon.png]https://twitter.com/ICSIL From: Ken Hohhof via Af af@afmug.commailto:af@afmug.com To: af@afmug.commailto:af@afmug.com Sent: Wednesday, November 12, 2014 7:47:00 AM Subject: Re: [AFMUG] Mimosa did it again When Open Range went poof, we got several calls from people in townhomes who really loved their indoor CPEs, their HOA didn’t allow outdoor antennas, and OTARD was no use because they had signed a covenant. From: Rory Conaway via Af mailto:af@afmug.com Sent: Wednesday, November 12, 2014 7:34 AM To: af@afmug.com mailto:af@afmug.com Subject: Re: [AFMUG] Mimosa did it again This is going to have limited use the U.S.. Unfortunately , with tax credits for certain type of windows and window films, most of our windows don’t work well with indoor radios. We did a test one day and found that it was easier to get the signal through red brick than the window it surrounded. However, we have been installing 2.4GHz radios in windows in pre-built homes very successfully since they don’t have tinting. On another note, it’s also why you don’t want to put your radar detector on the top of the windshield. Rory From: Af [mailto:af-boun...@afmug.com] On Behalf Of Mike Hammett via Af Sent: Wednesday, November 12, 2014 6:17 AM To: af@afmug.commailto:af@afmug.com Subject: Re: [AFMUG] Mimosa did it again
Re: [AFMUG] Mimosa did it again
No, it’s not the same thing at all. There’s no federal regulation or ruling that prevents your wife from enforcing that agreement. There is a federal ruling that prevents an HOA from enforcing that same covenant if the area is an exclusive use area. Similarly, there is no federal ruling about purple houses, old cars in the lawn, 17 dogs or free range chickens. It’s not a “choose your battle” issue, either. There’s no “battle” to be had here. The original point is this. You said “OTARD was no use because they had signed a covenant.” Fortunately for homeowners, that isn’t true. An HOA covenant that violates OTARD does not overrule it. There is no legal remedy in a court of law for the HOA, even if you as a homeowner have signed the covenant, just like (going back to Mike’s example) there’s no legal remedy for me if I file suit accusing you of violating your signed agreement to murder someone for me. Doug From: Af [mailto:af-boun...@afmug.com] On Behalf Of Ken Hohhof via Af Sent: Wednesday, November 12, 2014 9:03 AM To: af@afmug.com Subject: Re: [AFMUG] Mimosa did it again That’s like saying I can’t make an agreement with my wife not to put a satellite dish on the roof. You can agree to anything you want. There may be legal remedies in a court of law, but that doesn’t stop you from signing the agreement. And remember in cases like homeowners associations, people may actually want those rules. They don’t want their neighbor painting their house purple or burying an old car in the front lawn as art or having 17 dogs or free range chickens. There is also the wise saying “choose your battles”. I think Rory’s case of city regulations would be a better battle to fight over this. From: Mike Hammett via Afmailto:af@afmug.com Sent: Wednesday, November 12, 2014 8:47 AM To: af@afmug.commailto:af@afmug.com Subject: Re: [AFMUG] Mimosa did it again Great example. The federal government restricts their ability to do that. You can't agree to violate that. - Mike Hammett Intelligent Computing Solutions http://www.ics-il.com [http://www.ics-il.com/images/fbicon.png]https://www.facebook.com/ICSIL[http://www.ics-il.com/images/googleicon.png]https://plus.google.com/+IntelligentComputingSolutionsDeKalb[http://www.ics-il.com/images/linkedinicon.png]https://www.linkedin.com/company/intelligent-computing-solutions[http://www.ics-il.com/images/twittericon.png]https://twitter.com/ICSIL From: Ken Hohhof via Af af@afmug.commailto:af@afmug.com To: af@afmug.commailto:af@afmug.com Sent: Wednesday, November 12, 2014 8:25:18 AM Subject: Re: [AFMUG] Mimosa did it again Bad example. The agreement wasn’t to do something illegal like kill someone. You can agree not to paint your house purple, not to have kids (retirement community), etc. in order to live there. In any case, it’s a “how many angels can dance on the head of the pin” argument, the bottom line is these people wanted an indoor CPE and liked the WiMAX ones they got from Open Range. But I think a mobile hotspot would probably serve the purpose, not sure what kind of usage cap Open Range had. Also I think most of us get the people who don’t want our service because they don’t want an outdoor antenna for whatever reason and can’t understand why we have to put it outside, after all we’re “wireless”. So there is at least some demand for indoor CPE. Whether the Mimosa product actually works as claimed is another matter. And even in 900 MHz, the Canopy indoor CPE was a poor enough seller they discontinued it. From: Mike Hammett via Afmailto:af@afmug.com Sent: Wednesday, November 12, 2014 7:55 AM To: af@afmug.commailto:af@afmug.com Subject: Re: [AFMUG] Mimosa did it again Doug Haas's favorite example is that it's illegal to kill somebody. You can't sign a contract to kill somebody and make it legal. - Mike Hammett Intelligent Computing Solutions http://www.ics-il.com [http://www.ics-il.com/images/fbicon.png]https://www.facebook.com/ICSIL[http://www.ics-il.com/images/googleicon.png]https://plus.google.com/+IntelligentComputingSolutionsDeKalb[http://www.ics-il.com/images/linkedinicon.png]https://www.linkedin.com/company/intelligent-computing-solutions[http://www.ics-il.com/images/twittericon.png]https://twitter.com/ICSIL From: Ken Hohhof via Af af@afmug.commailto:af@afmug.com To: af@afmug.commailto:af@afmug.com Sent: Wednesday, November 12, 2014 7:47:00 AM Subject: Re: [AFMUG] Mimosa did it again When Open Range went poof, we got several calls from people in townhomes who really loved their indoor CPEs, their HOA didn’t allow outdoor antennas, and OTARD was no use because they had signed a covenant. From: Rory Conaway via Afmailto:af@afmug.com Sent: Wednesday, November 12, 2014 7:34 AM To: af@afmug.commailto:af@afmug.com Subject: Re: [AFMUG] Mimosa did it again This is going to have limited use the U.S.. Unfortunately , with tax credits for certain
Re: [AFMUG] Mimosa did it again
An attorney letter isn't the first option. And recommending a meeting isn't good either, as you suggest. There are a world of options, none which involve losing a potential customer or delaying an install. -- Original message -- From: Ken Hohhof via Af Date: 11/12/2014 10:06 AM To: af@afmug.com; Subject:Re: [AFMUG] Mimosa did it again Understood. It’s the letter, not the lawsuit, that does the work. Oh crap, we got a letter from his lawyer, can we just settle this? Just like with Title II regulation, it’s the paperwork, not the actual rules, that would kill us. From a practical standpoint though, many people decide one day to search for Internet service, and start calling around. You may have been sending out flyers for months, but this is your tiny window of opportunity to sell them your service. The window may just be a few hours, we’ve all had the case where you return voicemail in 30 minutes and the customer already ordered from the next ISP they called and signed a 2 year contract, so you lost the sale. So I think the answer “let me meet with the landlord or HOA or city and tell them about OTARD” is not going to be a successful sales technique except in a few situations like: - You are truly the only game in town - There is a large potential customer base that you can open up going forward by overcoming one obstacle now (like a subdivision or apartment complex or even a whole city) - This is a high value (commercial) customer and they are willing to wait a few weeks or months to get your service From: Hass, Douglas A. via Af mailto:af@afmug.com Sent: Wednesday, November 12, 2014 9:11 AM To: Rory Conaway via Af mailto:af@afmug.com Subject: Re: [AFMUG] Mimosa did it again Ken, The last thing I would advocate is for anyone to lawyer up against their neighbors. The overwhelming majority of these situations are resolved with only behind the scenes work by lawyers. There's a go softly way to do this. Rory, Depends on what exactly you mean by unreasonable. Again, some informed lobbying of the city often takes care of these issues. I've written (or rewritten) many ordinances and policies to help city attorneys get things right, as I'm sure Steve, Jonathan, Rebecca and many others have. -- Original message -- From: Rory Conaway via Af Date: 11/12/2014 9:00 AM To: af@afmug.com; Subject:Re: [AFMUG] Mimosa did it again But what do you do when the city has unreasonable restrictions and the buildings are company buildings on a property such as an RV park? Rory From: Af [mailto:af-boun...@afmug.com] On Behalf Of Ken Hohhof via Af Sent: Wednesday, November 12, 2014 7:36 AM To: af@afmug.commailto:af@afmug.com Subject: Re: [AFMUG] Mimosa did it again Well, Open Range has been gone for quite awhile. But people are not looking for us to help them lawyer up and fight their neighbors over an antenna. They are looking for us to fix the problem by providing them service without an outdoor antenna. This is probably more of an issue in town, we are more rural. But HOA covenants aside, many people will be on the opposite side of the building from the tower. And even OTARD doesn’t let you put an antenna on common areas, only the areas for your exclusive use like a balcony. So there will always be some demand for indoor CPE, probably not a ton though. And as people have noted, Mimosa seems optimistic about how well this will work. From: Hass, Douglas A. via Af mailto:af@afmug.com Sent: Wednesday, November 12, 2014 8:27 AM To: mailto:af@afmug.com Subject: Re: [AFMUG] Mimosa did it again ☺ While you certainly can contract away certain rights, this isn’t one of them. It’s like trying to contract with your employee that you will give him a 1099 or not pay him overtime. Your employee an sign it, but you can’t enforce it. OTARD trumps any contract laws that purport to force some other regime. There’s still quite a bit of confusion out there on this among HOAs, surprisingly. A local government, HOA, neighborhood association, etc. can’t enforce a covenant that impairs the installation, maintenance or use of antennas covered by OTARD (and yours are) in “exclusive use” areas. Many (most?) HOAs have long since fixed their covenants so that the restrictions apply only to common areas (like a roof of a multiunit condo building) or only when there’s some common antenna for use. You have to look at the covenant, but I would be very surprised if you couldn’t still service all of those customers who called. Ken—hit me up off list if you are still getting calls like these and we can look at what you have. Doug From: Af [mailto:af-boun...@afmug.com] On Behalf Of Mike Hammett via Af Sent: Wednesday, November 12, 2014 7:55 AM To: af@afmug.commailto:af@afmug.com Subject: Re: [AFMUG] Mimosa did it again Doug Haas's favorite example is that it's illegal to kill somebody. You can't sign a contract to kill somebody and make it legal. - Mike Hammett
Re: [AFMUG] Mimosa did it again
+1 From: Af [mailto:af-boun...@afmug.com] On Behalf Of Sean Heskett via Af Sent: Wednesday, November 12, 2014 10:11 AM To: af@afmug.com Subject: Re: [AFMUG] Mimosa did it again Our installers install the connection per OTARD and if anyone gives the homeowner any blow back we fight the fight for them. Usually a strongly worded letter with a printout of the OTARD rules does the trick. In rare cases the hoa tries to claim that the porch is common area because the hoa has to maintain it...I tell them I'll be over to grill a steak on their bbq this evening ;-) In one case it went past that and I told the hoa that I would sue them for damages and lost revenue for harassing my client and breaking FEDERAL law and I'd win because there is plenty of case law out there. Once they saw I wasn't going to back down their lawyer told them they didn't want to take this to court. They rewrote their covenants and its copacetic now. In Colorado it's rare to find a house that isn't part of an hoa. Don't back down! The fcc wrote the rules to make sure there was competition in the market. 2 cents Sean On Wednesday, November 12, 2014, Ken Hohhof via Af af@afmug.commailto:af@afmug.com wrote: Understood. It’s the letter, not the lawsuit, that does the work. Oh crap, we got a letter from his lawyer, can we just settle this? Just like with Title II regulation, it’s the paperwork, not the actual rules, that would kill us. From a practical standpoint though, many people decide one day to search for Internet service, and start calling around. You may have been sending out flyers for months, but this is your tiny window of opportunity to sell them your service. The window may just be a few hours, we’ve all had the case where you return voicemail in 30 minutes and the customer already ordered from the next ISP they called and signed a 2 year contract, so you lost the sale. So I think the answer “let me meet with the landlord or HOA or city and tell them about OTARD” is not going to be a successful sales technique except in a few situations like: - You are truly the only game in town - There is a large potential customer base that you can open up going forward by overcoming one obstacle now (like a subdivision or apartment complex or even a whole city) - This is a high value (commercial) customer and they are willing to wait a few weeks or months to get your service From: Hass, Douglas A. via Afjavascript:_e(%7B%7D,'cvml','af@afmug.com'); Sent: Wednesday, November 12, 2014 9:11 AM To: Rory Conaway via Afjavascript:_e(%7B%7D,'cvml','af@afmug.com'); Subject: Re: [AFMUG] Mimosa did it again Ken, The last thing I would advocate is for anyone to lawyer up against their neighbors. The overwhelming majority of these situations are resolved with only behind the scenes work by lawyers. There's a go softly way to do this. Rory, Depends on what exactly you mean by unreasonable. Again, some informed lobbying of the city often takes care of these issues. I've written (or rewritten) many ordinances and policies to help city attorneys get things right, as I'm sure Steve, Jonathan, Rebecca and many others have. -- Original message -- From: Rory Conaway via Af Date: 11/12/2014 9:00 AM To: af@afmug.comjavascript:_e(%7B%7D,'cvml','af@afmug.com');; Subject:Re: [AFMUG] Mimosa did it again But what do you do when the city has unreasonable restrictions and the buildings are company buildings on a property such as an RV park? Rory From: Af [mailto:af-boun...@afmug.comjavascript:_e(%7B%7D,'cvml','af-boun...@afmug.com');] On Behalf Of Ken Hohhof via Af Sent: Wednesday, November 12, 2014 7:36 AM To: af@afmug.comjavascript:_e(%7B%7D,'cvml','af@afmug.com'); Subject: Re: [AFMUG] Mimosa did it again Well, Open Range has been gone for quite awhile. But people are not looking for us to help them lawyer up and fight their neighbors over an antenna. They are looking for us to fix the problem by providing them service without an outdoor antenna. This is probably more of an issue in town, we are more rural. But HOA covenants aside, many people will be on the opposite side of the building from the tower. And even OTARD doesn’t let you put an antenna on common areas, only the areas for your exclusive use like a balcony. So there will always be some demand for indoor CPE, probably not a ton though. And as people have noted, Mimosa seems optimistic about how well this will work. From: Hass, Douglas A. via Af mailto:af@afmug.comjavascript:_e(%7B%7D,'cvml','af@afmug.com'); Sent: Wednesday, November 12, 2014 8:27 AM To: mailto:af@afmug.comjavascript:_e(%7B%7D,'cvml','af@afmug.com'); Subject: Re: [AFMUG] Mimosa did it again ☺ While you certainly can contract away certain rights, this isn’t one of them. It’s like trying to contract with your employee that you will give him a 1099 or not pay him overtime. Your employee an sign it, but you can’t enforce it. OTARD trumps any contract laws
Re: [AFMUG] Mimosa did it again
Totally agree—functional, self-installable CPE at a competitive price would be a real game changer because it would give you one more option. Even if the self-install failed, you could then upsell to a professional install and perhaps some maintenance and capture a bit more incremental revenue, just like Verizon, Comcast, etc. and even the power companies do. From: Af [mailto:af-boun...@afmug.com] On Behalf Of Ken Hohhof via Af Sent: Wednesday, November 12, 2014 10:22 AM To: af@afmug.com Subject: Re: [AFMUG] Mimosa did it again Indoor CPE (often called wireless modems) still is kind of the holy grail, except for the small matter of making it work. Like DSL didn’t take off until they made it customer self-install and eliminated the truck roll. If you can mail the customer the device or have them pick it up at a storefront, you eliminate all the expense of installation. And one model is to sell them the modem and then the service is like a prepaid cellphone or a hotspot, you pay online for the coming month or visit the store and it’s like putting more minutes on your phone. You can see the appeal of the business model. If you can make the equipment work reliably indoors with a non professional setting it up. Right now the cellphone companies rule this part of the business with their mobile hotspots and Verizon’s “LTE home router with voice”. From: Hass, Douglas A. via Afmailto:af@afmug.com Sent: Wednesday, November 12, 2014 10:10 AM To: Ken Hohhof via Afmailto:af@afmug.com Subject: Re: [AFMUG] Mimosa did it again An attorney letter isn't the first option. And recommending a meeting isn't good either, as you suggest. There are a world of options, none which involve losing a potential customer or delaying an install. -- Original message -- From: Ken Hohhof via Af Date: 11/12/2014 10:06 AM To: af@afmug.com; Subject:Re: [AFMUG] Mimosa did it again Understood. It’s the letter, not the lawsuit, that does the work. Oh crap, we got a letter from his lawyer, can we just settle this? Just like with Title II regulation, it’s the paperwork, not the actual rules, that would kill us. From a practical standpoint though, many people decide one day to search for Internet service, and start calling around. You may have been sending out flyers for months, but this is your tiny window of opportunity to sell them your service. The window may just be a few hours, we’ve all had the case where you return voicemail in 30 minutes and the customer already ordered from the next ISP they called and signed a 2 year contract, so you lost the sale. So I think the answer “let me meet with the landlord or HOA or city and tell them about OTARD” is not going to be a successful sales technique except in a few situations like: - You are truly the only game in town - There is a large potential customer base that you can open up going forward by overcoming one obstacle now (like a subdivision or apartment complex or even a whole city) - This is a high value (commercial) customer and they are willing to wait a few weeks or months to get your service From: Hass, Douglas A. via Af mailto:af@afmug.com Sent: Wednesday, November 12, 2014 9:11 AM To: Rory Conaway via Af mailto:af@afmug.com Subject: Re: [AFMUG] Mimosa did it again Ken, The last thing I would advocate is for anyone to lawyer up against their neighbors. The overwhelming majority of these situations are resolved with only behind the scenes work by lawyers. There's a go softly way to do this. Rory, Depends on what exactly you mean by unreasonable. Again, some informed lobbying of the city often takes care of these issues. I've written (or rewritten) many ordinances and policies to help city attorneys get things right, as I'm sure Steve, Jonathan, Rebecca and many others have. -- Original message -- From: Rory Conaway via Af Date: 11/12/2014 9:00 AM To: af@afmug.com; Subject:Re: [AFMUG] Mimosa did it again But what do you do when the city has unreasonable restrictions and the buildings are company buildings on a property such as an RV park? Rory From: Af [mailto:af-boun...@afmug.com] On Behalf Of Ken Hohhof via Af Sent: Wednesday, November 12, 2014 7:36 AM To: af@afmug.commailto:af@afmug.com Subject: Re: [AFMUG] Mimosa did it again Well, Open Range has been gone for quite awhile. But people are not looking for us to help them lawyer up and fight their neighbors over an antenna. They are looking for us to fix the problem by providing them service without an outdoor antenna. This is probably more of an issue in town, we are more rural. But HOA covenants aside, many people will be on the opposite side of the building from the tower. And even OTARD doesn’t let you put an antenna on common areas, only the areas for your exclusive use like a balcony. So there will always be some demand for indoor CPE, probably not a ton though. And as people have noted, Mimosa seems optimistic about how well
Re: [AFMUG] Rightscorp Subpoenas, Important Information
The letter is somewhat humorous, and really seems to me like more a veiled advertisement for legal services, but the cases are real. However, what was done in the two cases isn’t particularly novel, new, noteworthy, or special. Actions to quash third party subpoenas are actually very common in state and federal courts and frequently successful when the subpoena is overbroad or otherwise improper, like the ones here. It’s not a particularly expensive process. It’s pretty routine. The key is this: if you get a subpoena, don’t ignore it! Get it into the hands of legal counsel as soon as possible. Even if it is obviously overbroad or improper, you may waive any arguments to contest it if you ignore it! Doug From: Af [mailto:af-boun...@afmug.com] On Behalf Of Jason McKemie via Af Sent: Thursday, October 30, 2014 2:23 PM To: af@afmug.com Subject: Re: [AFMUG] Rightscorp Subpoenas, Important Information Wow, so this is for real? It reads like something you might see in the Onion. On Thu, Oct 30, 2014 at 12:47 PM, Chuck McCown via Af af@afmug.commailto:af@afmug.com wrote: FYI only. We got hit with a bunch of this stuff. From: Rory Conaway via Afmailto:af@afmug.com Sent: Thursday, October 30, 2014 11:40 AM To: af@afmug.commailto:af@afmug.com Subject: Re: [AFMUG] Rightscorp Subpoenas, Important Information Are they taking donations for the legal fight or are you just keeping us informed? Rory From: Af [mailto:af-boun...@afmug.commailto:af-boun...@afmug.com] On Behalf Of Chuck McCown via Af Sent: Thursday, October 30, 2014 10:34 AM To: af@afmug.commailto:af@afmug.com Subject: [AFMUG] Rightscorp Subpoenas, Important Information From: amanda.j.sny...@hushmail.commailto:amanda.j.sny...@hushmail.com Sent: 10/30/2014 7:31 AM Subject: Rightscorp Subpoenas, Important Information THIS MESSAGE PERTAINS TO SUBPOENAS THAT WERE ISSUED TO YOUR COMPANY BY RIGHTSCORP, INC. PLEASE FORWARD THIS TO YOUR ATTORNEY, LEGAL DEPARTMENT, OR HEAD OF BUSINESS. Good Day: You are receiving this message because subpoenas were issued by Rightscorp, Inc. (“Rightscorp”) to your company in 2014. Among other things the subpoenas your company received were seeking personal identifying information of your subscribers including names, addresses, telephone numbers, and email address. Your company has been specifically targeted by Rightscorp because you are a small regional ISP. This year alone, Rightscorp has filed approximately 100 miscellaneous actions trying to force small regional ISPs to disclose personal subscriber information for the purposes of obtaining cash settlements from the aforementioned subscribers. Rightscorp strategy is to target small businesses like your in hopes that you will not be aware of the proper legal procedures, involve an attorney, or file a motion to quash the subpoena. The actions of Rightscorp, including its attorneys and owners is in blatant violation of the rules of civil procedure. This year two ISPs, Birch Communications Inc. f/k/a CBeyond Communications LLC and one by Grande Communications Networks LLC, have filed motions to quash the subpoenas, including motions for attorney’s fees and sanctions against Rightscorp. As a small ISP with limited resources its important for you to know that Rightscorp is specifically targeting you, not big players such as Comcast, Verizon, ATT, WOW, and TWC, and that any time Rightscorp has been challenged they have have retracted the subpoenas immediately. Attached to the message you will find two documents filed in Federal Court in response to Rightscorp. One by Birch Communications Inc. f/k/a CBeyond Communications LLC and one by Grande Communications Networks LLC. These documents can be used as templates and reference points by your attorney in crafting a response or you can contact the attorneys representing Birch Communications Inc. f/k/a CBeyond Communications LLC and Grande Communications Networks LLC directly with the contact details provided herein. Its important for small ISPs to stick together and share information related to these improper Rightscorp cases. Attorney D. Lee Clayton Swift, Currie, McGhee Hiers, LLP 1355 Peachtree Street, NE, Suite 300 Atlanta, GA 30309 Phone: 404-888-6168tel:404-888-6168 Fax: 404-888-6199tel:404-888-6199 lee.clay...@swiftcurrie.commailto:lee.clay...@swiftcurrie.com Attorney Charles M. Salmon Locke Lord LLP 600 Congress, Suite 2200 Austin, Texas 78701 Phone: 512-305-4722tel:512-305-4722 Fax: 512-391-4719tel:512-391-4719 csal...@lockelord.commailto:csal...@lockelord.com Doug Hass Associate 312.786.6502 Franczek Radelet P.C. Celebrating 20 Years | 1994-2014 300 South Wacker Drive Suite 3400 Chicago, IL 60606 312.986.0300 - Main 312.986.9192 - Fax www.franczek.com Circular 230 Disclosure: Under requirements imposed by the Internal Revenue Service, we inform you that, unless specifically stated otherwise, any federal tax advice contained in this communication (including any
Re: [AFMUG] Field Paperwork
What you are describing is a performance/discipline incentive. Those types of merit-based programs are generally going to be ok, at least from a wage and hour standpoint (though they can always raise other issues of their own--implement plans like this only with the benefit of legal advice, including good training for your supervisors). -- Original message -- From: Tushar Patel via Af Date: 10/29/2014 7:00 PM To: af@afmug.com; Subject:Re: [AFMUG] Field Paperwork What about linking lack of paperwork to performance review and raises? Tushar On Oct 29, 2014, at 6:09 PM, Hass, Douglas A. via Af af@afmug.commailto:af@afmug.com wrote: Remember, not turning in paperwork is a disciplinary issue, not a compensation issue. No matter if your employee does a good job, a bad job, turns in all of his paperwork, or turns in absolutely no paperwork, you still MUST pay him for all hours he works. You can discipline him, but even having a no paperwork, no pay policy on the books is going to be unlawful and can be grounds for a very costly to defend wage and hour lawsuit. Even if you have never actually enforced this, good luck proving that if your policy and your public pronouncements suggest otherwise! I am happy to talk with any of you off list about alternatives to messing with paychecks that can legally incentivize employees to do their jobs. -- Original message -- From: CBB - Jay Fuller via Af Date: 10/29/2014 6:02 PM To: af@afmug.commailto:af@afmug.com; Subject:Re: [AFMUG] Field Paperwork We have a three part work order form. Installer keeps a copy, office keeps a copy, office keeps a copy. Basically without this form the installer isn't paid for those hours (not that we've ever had to fight it) - Original Message - From: Ben Royer via Af mailto:af@afmug.com To: af@afmug.commailto:af@afmug.com mailto:af@afmug.com Sent: Wednesday, October 29, 2014 1:51 PM Subject: Re: [AFMUG] Field Paperwork Excellent feedback from everyone, I greatly appreciate it. The concept of the quick PDF is nice, as well as the Google Drive folders. Our agreement is only a couple pages, the install work order is a couple pages as well, but nothing to consuming for someone to read through and then have an email of it. Thanks again for the feedback. Thank you, Ben Royer, Operations Supervisor Royell Communications, Inc. 217-965-3699 www.royell.nethttp://www.royell.net From: That One Guy via Af mailto:af@afmug.com Sent: Wednesday, October 29, 2014 1:41 PM To: af@afmug.commailto:af@afmug.com mailto:af@afmug.com Subject: Re: [AFMUG] Field Paperwork we normally get ours signed ahead of time We used to have a customer sign off form, but when they did get filled out they rarely made it back to the shop We are looking at options through powercode to get customer signatures, even if its just a tablet upload as a file. I dont know why people are so against getting their contracts signed ahead of time as part of the sign up for service, just have part of the terms void the contract if its an unsuccessful installation. On Wed, Oct 29, 2014 at 1:36 PM, Ken Hohhof via Af af@afmug.commailto:af@afmug.commailto:af@afmug.com wrote: I remember an ATT U-Verse installer finishing the job and then wanting me to sign a 7 page agreement on his iPad. He stood there killing time for 154 minutes while I read the agreement. Apparently they count on people not reading what they sign. Also it seems like the time to get it signed was BEFORE he did the work. So my recommendation is to either keep your agreement to 1 page, or provide a copy to the customer ahead of time, or to read while the installer is working (this also gives the customer something to do other than nitpicking your install work). It's a waste of time to have your installer stand there while the customer reads a long agreement. -Original Message- From: Jason Pond via Af Sent: Wednesday, October 29, 2014 12:15 PM To: af@afmug.commailto:af@afmug.commailto:af@afmug.com Subject: Re: [AFMUG] Field Paperwork So the going paperless is way easier than you think. Buy a signature pad like a Topaz Sig Lite (usb) send with installer. Your contract is probably already in PDF form. Create Information boxes and add a signature field. This can be done with Acrobat reader I think. They save on the computer have installer download or e-mail them in at the end of the day. The installer can even e-mail a copy to the customer right there while they are still onsite. (two things good about that. You know you have the right e-mail address and the installer knows that the internet is working). If the customer wants a signed copy they can have one e-mailed to them at the end of the day after the installer gets back to the office. No matter what you do an in-vehicle printer will be problematic forever they were not designed for that environment. (cheaper in the long run to go paperless sooner than later)... Sincerely, Jason Pond On Wed
Re: [AFMUG] Employee damaging equipment
Josh, This is true, as far as it goes, but courts have imposed some restrictions on the written agreement (such as voluntariness), so the analysis isn't quite as simple as the text suggests. Sorry-this one is not an ah-ha moment. In addition, a majority of states have their own laws on deductions like this. Even deductions that are lawful under federal law might STILL violate state laws. We discussed this scenario at WISPAPALOOZA during our HR sessions. Keep compensation and discipline in separate buckets. You pay your employees for the hours they work, period. If they lose or damage something through negligence, that's a disciplinary issue, not a compensation issue. If your employee intentionally damages equipment or steals it, you have a criminal and civil case to pursue. It's still not a compensation question. Before you deduct the cost of ANYTHING from your employee's paycheck, talk to me (or another qualified employment counsel) about the issue FIRST. Travis's approach is a great way to address this issue while lessening the risk of federal or state law violations. Doug From: Af [mailto:af-boun...@afmug.com] On Behalf Of Josh Reynolds via Af Sent: Thursday, October 23, 2014 8:10 PM To: af@afmug.com Subject: Re: [AFMUG] Employee damaging equipment Ah-ha: Found this Federal law. Under the federal Fair Labor Standards Act (FLSA), a deduction for loss or damage may be made if two conditions are met: The employee signed a written agreement prior to the shortage (at the start of employment or when the policy related to deductions is adopted) by which he or she agrees to such a deduction; and The deduction does not bring the employee's hourly rate below the minimum wage. The second criterion clearly applies to nonexempt employees. Employees who meet the dual duties and salary tests are exempt from minimum wage and overtime laws. For exempt employees, this type of wage deduction is not allowed. Josh Reynolds, Chief Information Officer SPITwSPOTS, www.spitwspots.comhttp://www.spitwspots.com On 10/23/2014 04:52 PM, Travis Johnson via Af wrote: This is the exact reason we implemented profit sharing. Our employees received bonuses based on how many installs/fixes/pick-ups they did per month... however, the contract stated we could deduct for any missing tools, damage to vehicles, etc. Amazing that all of those type of problems disappeared almost instantly. :) Travis On 10/23/2014 6:47 PM, Josh Reynolds via Af wrote: Federal labor law says you can't hold employees financial responsible for broken/lost tools. (from my understanding) Josh Reynolds, Chief Information Officer SPITwSPOTS, www.spitwspots.comhttp://www.spitwspots.com On 10/23/2014 04:22 PM, Glen Waldrop via Af wrote: How do you guys handle it when an employee damages or loses equipment? This is my baby brother's first job. He tied the ladder and it fell out of the truck, no where to be found. He said he's going to either get me one or pay me back, just curious how everyone else handles this. I've never run into it yet. � Doug Hass Associate 312.786.6502 Franczek Radelet P.C. Celebrating 20 Years | 1994-2014 300 South Wacker Drive Suite 3400 Chicago, IL 60606 312.986.0300 - Main 312.986.9192 - Fax www.franczek.com Circular 230 Disclosure: Under requirements imposed by the Internal Revenue Service, we inform you that, unless specifically stated otherwise, any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purposes of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or tax-related matter herein. For more information about Franczek Radelet P.C., please visit franczek.com. The information contained in this e-mail message or any attachment may be confidential and/or privileged, and is intended only for the use of the named recipient. If you are not the named recipient of this message, you are hereby notified that any dissemination, distribution, or copying of this message or any attachment thereto, is strictly prohibited. If you have received this message in error, please contact the sender and delete all copies. Franczek Radelet is committed to sustainability - please consider the environment before printing this email
Re: [AFMUG] Employee damaging equipment
Intentional damage does present a different issue. It's still not a payroll/compensation issue, but you have more ability to recover damages caused by intentional actions like these. Doug From: Af [mailto:af-boun...@afmug.com] On Behalf Of Heith Petersen via Af Sent: Thursday, October 23, 2014 8:29 PM To: af@afmug.com Subject: Re: [AFMUG] Employee damaging equipment I assume for intentional damage it would be different. My head tower guy got pissed off at his old dell computer 2 weeks ago due to a common Ethernet issue and proceeded to punch the hell out of it due to his frustrations. I told him we had to find better ways to handle the emotions. I did have a new laptop sitting for him down town. I was mostly upset because I was wanting to take it to the rifle range after he picked up the new laptop, he didn't leave me much to shoot From: Af [mailto:af-boun...@afmug.com] On Behalf Of Josh Reynolds via Af Sent: Thursday, October 23, 2014 8:10 PM To: af@afmug.commailto:af@afmug.com Subject: Re: [AFMUG] Employee damaging equipment Ah-ha: Found this Federal law. Under the federal Fair Labor Standards Act (FLSA), a deduction for loss or damage may be made if two conditions are met: The employee signed a written agreement prior to the shortage (at the start of employment or when the policy related to deductions is adopted) by which he or she agrees to such a deduction; and The deduction does not bring the employee's hourly rate below the minimum wage. The second criterion clearly applies to nonexempt employees. Employees who meet the dual duties and salary tests are exempt from minimum wage and overtime laws. For exempt employees, this type of wage deduction is not allowed. Josh Reynolds, Chief Information Officer SPITwSPOTS, www.spitwspots.comhttp://www.spitwspots.com On 10/23/2014 04:52 PM, Travis Johnson via Af wrote: This is the exact reason we implemented profit sharing. Our employees received bonuses based on how many installs/fixes/pick-ups they did per month... however, the contract stated we could deduct for any missing tools, damage to vehicles, etc. Amazing that all of those type of problems disappeared almost instantly. :) Travis On 10/23/2014 6:47 PM, Josh Reynolds via Af wrote: Federal labor law says you can't hold employees financial responsible for broken/lost tools. (from my understanding) Josh Reynolds, Chief Information Officer SPITwSPOTS, www.spitwspots.comhttp://www.spitwspots.com On 10/23/2014 04:22 PM, Glen Waldrop via Af wrote: How do you guys handle it when an employee damages or loses equipment? This is my baby brother's first job. He tied the ladder and it fell out of the truck, no where to be found. He said he's going to either get me one or pay me back, just curious how everyone else handles this. I've never run into it yet. � Doug Hass Associate 312.786.6502 Franczek Radelet P.C. Celebrating 20 Years | 1994-2014 300 South Wacker Drive Suite 3400 Chicago, IL 60606 312.986.0300 - Main 312.986.9192 - Fax www.franczek.com Circular 230 Disclosure: Under requirements imposed by the Internal Revenue Service, we inform you that, unless specifically stated otherwise, any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purposes of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or tax-related matter herein. For more information about Franczek Radelet P.C., please visit franczek.com. The information contained in this e-mail message or any attachment may be confidential and/or privileged, and is intended only for the use of the named recipient. If you are not the named recipient of this message, you are hereby notified that any dissemination, distribution, or copying of this message or any attachment thereto, is strictly prohibited. If you have received this message in error, please contact the sender and delete all copies. Franczek Radelet is committed to sustainability - please consider the environment before printing this email
Re: [AFMUG] Employee damaging equipment
As I said, the FLSA doesn’t help you here. Travis’s solution is a good one to explore with your attorney to accomplish the same objective. From: Af [mailto:af-boun...@afmug.com] On Behalf Of Jeremy via Af Sent: Thursday, October 23, 2014 9:50 PM To: af@afmug.com Subject: Re: [AFMUG] Employee damaging equipment Well I extremely appreciate the specific FLSA laws on this matter and the creative ways of dealing with the solution (for those employees who are not our brothers). Thanks Josh and Travis. On Thu, Oct 23, 2014 at 8:05 PM, Glen Waldrop via Af af@afmug.commailto:af@afmug.com wrote: I'm not going to screw him over or anything. He offered to pay for the ladder on his own, just the way we were raised. You break it, you bought it. - Original Message - From: Tyson Burris @ Internet Comm. Inc via Afmailto:af@afmug.com To: af@afmug.commailto:af@afmug.com Sent: Thursday, October 23, 2014 8:51 PM Subject: Re: [AFMUG] Employee damaging equipment He said it was his brother right ? Who cares! Your brother is your blood. Sh!t happens Sent from my iPhone On Oct 23, 2014, at 8:47 PM, Josh Reynolds via Af af@afmug.commailto:af@afmug.com wrote: Federal labor law says you can't hold employees financial responsible for broken/lost tools. (from my understanding) Josh Reynolds, Chief Information Officer SPITwSPOTS, www.spitwspots.comhttp://www.spitwspots.com On 10/23/2014 04:22 PM, Glen Waldrop via Af wrote: How do you guys handle it when an employee damages or loses equipment? This is my baby brother's first job. He tied the ladder and it fell out of the truck, no where to be found. He said he's going to either get me one or pay me back, just curious how everyone else handles this. I've never run into it yet. � Doug Hass Associate 312.786.6502 Franczek Radelet P.C. Celebrating 20 Years | 1994-2014 300 South Wacker Drive Suite 3400 Chicago, IL 60606 312.986.0300 - Main 312.986.9192 - Fax www.franczek.com Circular 230 Disclosure: Under requirements imposed by the Internal Revenue Service, we inform you that, unless specifically stated otherwise, any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purposes of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or tax-related matter herein. For more information about Franczek Radelet P.C., please visit franczek.com. The information contained in this e-mail message or any attachment may be confidential and/or privileged, and is intended only for the use of the named recipient. If you are not the named recipient of this message, you are hereby notified that any dissemination, distribution, or copying of this message or any attachment thereto, is strictly prohibited. If you have received this message in error, please contact the sender and delete all copies. Franczek Radelet is committed to sustainability - please consider the environment before printing this email
Re: [AFMUG] Employee damaging equipment
The statute of limitations on claims like these runs for 10 years in many states, so even ancient history can come back to haunt you sometimes. From: Af [mailto:af-boun...@afmug.com] On Behalf Of Cameron Crum via Af Sent: Friday, October 24, 2014 9:18 AM To: af@afmug.com Subject: Re: [AFMUG] Employee damaging equipment Maybe, but of course this was between 11 and 5 years ago. On Fri, Oct 24, 2014 at 5:57 AM, Hass, Douglas A. via Af af@afmug.commailto:af@afmug.com wrote: Cameron--When you owned your WISP, you dodged a bullet. Your installers were quite likely employees, not contractors. ☺ Quick note for everyone on this list: if you have ANYONE that you’re paying on a contract basis to do work for your business (cash, 1099, etc.) and NOT as an employee, hit me up off list. You’re quite likely betting your company’s future existence on it. Some rolls of the dice come out o.k., as with Cameron’s situation. Many times they don’t. If you get a claim, you could lose your WISP. Wage and hour mistakes are that serious. From: Af [mailto:af-boun...@afmug.commailto:af-boun...@afmug.com] On Behalf Of Cameron Crum via Af Sent: Thursday, October 23, 2014 10:21 PM To: af@afmug.commailto:af@afmug.com Subject: Re: [AFMUG] Employee damaging equipment When I owned a wisp my installers were contractors so I made them bring their own tools. I figured they'd take better care if them. Then, while changing a radio on a customers house I found a Dewalt cordless drill on top of the chimney. I asked the owner if it was his, and he said no. I asked my installer the next day. Turns out he left it there almost a year earlier. Go figure. On Oct 23, 2014 10:14 PM, That One Guy via Af af@afmug.commailto:af@afmug.com wrote: I lost a ladder (pretty sure i left it behind a house after a loong full day install) I replaced it, had I not, I would have expected my employer to fire me. I fried a 500 dollar switch because I pulled an old radio off a tower but never disconnected the POE, it shorted out. I offered to pay but the boss wrote it off, I didnt turn in the equivalent amount of overtime to offset the cost. I was not happy I wasnt held accountable. I lost a surveillance camera, so I had them order a replacement and deduct it from my pay, after it arrived, I found the first one on the shelf in the van where I looked three times, I now have a camera, I should have been fired at this point, three substantial items in under 5 years. I had a #10 wrench slide off a roof into the snow never to be seen again, I didnt like that wrench anyway so i went to the hardware store and bough a ratchet wrench on the bosses dime. There is expected loss, the occasional hand tool, broken drill bits, zip ties, etc. but pretty much anything over 50 bucks, unless its a pretty valid reason should be the employees responsibility. You owners pay us to do a job, as with any job the things you provide cost you real money, youre not paying us to spend that money needlessly, when we waste your money we are accountable for the consequences, either financial or job applications. Not holding us accountable creates a dangerous dynamic in a workplace. You let us slide on a 300 dollar ladder, how careful will we be with a 2500 dollar trencher or 5k radio? On Thu, Oct 23, 2014 at 9:50 PM, Jeremy via Af af@afmug.commailto:af@afmug.com wrote: Well I extremely appreciate the specific FLSA laws on this matter and the creative ways of dealing with the solution (for those employees who are not our brothers). Thanks Josh and Travis. On Thu, Oct 23, 2014 at 8:05 PM, Glen Waldrop via Af af@afmug.commailto:af@afmug.com wrote: I'm not going to screw him over or anything. He offered to pay for the ladder on his own, just the way we were raised. You break it, you bought it. - Original Message - From: Tyson Burris @ Internet Comm. Inc via Afmailto:af@afmug.com To: af@afmug.commailto:af@afmug.com Sent: Thursday, October 23, 2014 8:51 PM Subject: Re: [AFMUG] Employee damaging equipment He said it was his brother right ? Who cares! Your brother is your blood. Sh!t happens Sent from my iPhone On Oct 23, 2014, at 8:47 PM, Josh Reynolds via Af af@afmug.commailto:af@afmug.com wrote: Federal labor law says you can't hold employees financial responsible for broken/lost tools. (from my understanding) Josh Reynolds, Chief Information Officer SPITwSPOTS, www.spitwspots.comhttp://www.spitwspots.com On 10/23/2014 04:22 PM, Glen Waldrop via Af wrote: How do you guys handle it when an employee damages or loses equipment? This is my baby brother's first job. He tied the ladder and it fell out of the truck, no where to be found. He said he's going to either get me one or pay me back, just curious how everyone else handles this. I've never run into it yet. � -- All parts should go together without forcing. You must remember that the parts you are reassembling were disassembled by you. Therefore, if you can't get them
Re: [AFMUG] Employee damaging equipment
I have to do something! :-) I hate getting calls from business owners who are trying to figure out how not to file bankruptcy because of the lawsuit they just got. Dealing with these things on the front end is always easier, faster, and less expensive. -Original Message- From: Af [mailto:af-boun...@afmug.com] On Behalf Of Jay Weekley via Af Sent: Friday, October 24, 2014 10:15 AM To: af@afmug.com Subject: Re: [AFMUG] Employee damaging equipment Doug will scare the bejesus out of you. Hass, Douglas A. via Af wrote: Cameron--When you owned your WISP, you dodged a bullet. Your installers were quite likely employees, not contractors. J Quick note for everyone on this list: if you have ANYONE that you’re paying on a contract basis to do work for your business (cash, 1099, etc.) and NOT as an employee, hit me up off list. You’re quite likely betting your company’s future existence on it. Some rolls of the dice come out o.k., as with Cameron’s situation. Many times they don’t. If you get a claim, you could lose your WISP. Wage and hour mistakes are that serious. *From:*Af [mailto:af-boun...@afmug.com] *On Behalf Of *Cameron Crum via Af *Sent:* Thursday, October 23, 2014 10:21 PM *To:* af@afmug.com *Subject:* Re: [AFMUG] Employee damaging equipment When I owned a wisp my installers were contractors so I made them bring their own tools. I figured they'd take better care if them. Then, while changing a radio on a customers house I found a Dewalt cordless drill on top of the chimney. I asked the owner if it was his, and he said no. I asked my installer the next day. Turns out he left it there almost a year earlier. Go figure. On Oct 23, 2014 10:14 PM, That One Guy via Af af@afmug.com mailto:af@afmug.com wrote: I lost a ladder (pretty sure i left it behind a house after a loong full day install) I replaced it, had I not, I would have expected my employer to fire me. I fried a 500 dollar switch because I pulled an old radio off a tower but never disconnected the POE, it shorted out. I offered to pay but the boss wrote it off, I didnt turn in the equivalent amount of overtime to offset the cost. I was not happy I wasnt held accountable. I lost a surveillance camera, so I had them order a replacement and deduct it from my pay, after it arrived, I found the first one on the shelf in the van where I looked three times, I now have a camera, I should have been fired at this point, three substantial items in under 5 years. I had a #10 wrench slide off a roof into the snow never to be seen again, I didnt like that wrench anyway so i went to the hardware store and bough a ratchet wrench on the bosses dime. There is expected loss, the occasional hand tool, broken drill bits, zip ties, etc. but pretty much anything over 50 bucks, unless its a pretty valid reason should be the employees responsibility. You owners pay us to do a job, as with any job the things you provide cost you real money, youre not paying us to spend that money needlessly, when we waste your money we are accountable for the consequences, either financial or job applications. Not holding us accountable creates a dangerous dynamic in a workplace. You let us slide on a 300 dollar ladder, how careful will we be with a 2500 dollar trencher or 5k radio? On Thu, Oct 23, 2014 at 9:50 PM, Jeremy via Af af@afmug.com mailto:af@afmug.com wrote: Well I extremely appreciate the specific FLSA laws on this matter and the creative ways of dealing with the solution (for those employees who are not our brothers). Thanks Josh and Travis. On Thu, Oct 23, 2014 at 8:05 PM, Glen Waldrop via Af af@afmug.com mailto:af@afmug.com wrote: I'm not going to screw him over or anything. He offered to pay for the ladder on his own, just the way we were raised. You break it, you bought it. - Original Message - *From:*Tyson Burris @ Internet Comm. Inc via Af mailto:af@afmug.com *To:*af@afmug.com mailto:af@afmug.com *Sent:*Thursday, October 23, 2014 8:51 PM *Subject:*Re: [AFMUG] Employee damaging equipment He said it was his brother right ? Who cares! Your brother is your blood. Sh!t happens Sent from my iPhone On Oct 23, 2014, at 8:47 PM, Josh Reynolds via Af af@afmug.com mailto:af@afmug.com wrote: Federal labor law says you can't hold employees financial responsible for broken/lost tools. (from my understanding) Josh Reynolds, Chief Information Officer SPITwSPOTS, www.spitwspots.com http://www.spitwspots.com On 10/23/2014 04:22 PM, Glen Waldrop via Af wrote: How do you guys handle it when an employee damages or loses equipment? This is my baby brother's first job. He tied the ladder and it fell out of the truck, no where to be found. He said he's going to either get me one or pay me
Re: [AFMUG] Employee damaging equipment
I love the Vrdolyak ads. They don’t go to trial any more often than anyone else, but it’s a hoot. It is true that most cases don’t go to trial, but defending a frivolous or meritless lawsuit is very different from defending one with merit. In this situation, failing to pay minimum wage and overtime is a matter of facts: either you did and you can prove it or you didn’t and you’re likely on the hook for substantial damages and plaintiff’s attorney fees. When I say it is easier to deal with this on the front end, I mean that classifying employees properly now will help avoid lawsuits, settlements, and trials later. Doug From: Af [mailto:af-boun...@afmug.com] On Behalf Of Ken Hohhof via Af Sent: Friday, October 24, 2014 11:05 AM To: af@afmug.com Subject: Re: [AFMUG] Employee damaging equipment Being wrong never stopped someone from filing a lawsuit. You’d think at least it would keep them from finding a lawyer to take the case on contingency. But most lawsuits are settled out of court anyway. I think some lawyers wouldn’t know what to do if they actually had to go to trial rather than just send threatening letters. There’s a politically connected law firm Vrdolyak Law Group here in Chicago (specializing in personal injury and workmans comp cases) that runs radio ads telling you to ask your law firm when was the last time they actually litigated a case in front of a jury. http://www.vrdolyak.com/?menu=radio From: Hass, Douglas A. via Afmailto:af@afmug.com Sent: Friday, October 24, 2014 10:33 AM To: mailto:af@afmug.com Subject: Re: [AFMUG] Employee damaging equipment I have to do something! :-) I hate getting calls from business owners who are trying to figure out how not to file bankruptcy because of the lawsuit they just got. Dealing with these things on the front end is always easier, faster, and less expensive. -Original Message- From: Af [mailto:af-boun...@afmug.com] On Behalf Of Jay Weekley via Af Sent: Friday, October 24, 2014 10:15 AM To: af@afmug.commailto:af@afmug.com Subject: Re: [AFMUG] Employee damaging equipment Doug will scare the bejesus out of you. Hass, Douglas A. via Af wrote: Cameron--When you owned your WISP, you dodged a bullet. Your installers were quite likely employees, not contractors. J Quick note for everyone on this list: if you have ANYONE that you’re paying on a contract basis to do work for your business (cash, 1099, etc.) and NOT as an employee, hit me up off list. You’re quite likely betting your company’s future existence on it. Some rolls of the dice come out o.k., as with Cameron’s situation. Many times they don’t. If you get a claim, you could lose your WISP. Wage and hour mistakes are that serious. *From:*Af [mailto:af-boun...@afmug.com] *On Behalf Of *Cameron Crum via Af *Sent:* Thursday, October 23, 2014 10:21 PM *To:* af@afmug.commailto:af@afmug.com *Subject:* Re: [AFMUG] Employee damaging equipment When I owned a wisp my installers were contractors so I made them bring their own tools. I figured they'd take better care if them. Then, while changing a radio on a customers house I found a Dewalt cordless drill on top of the chimney. I asked the owner if it was his, and he said no. I asked my installer the next day. Turns out he left it there almost a year earlier. Go figure. On Oct 23, 2014 10:14 PM, That One Guy via Af af@afmug.com mailto:af@afmug.com%20%0b mailto:af@afmug.com wrote: I lost a ladder (pretty sure i left it behind a house after a loong full day install) I replaced it, had I not, I would have expected my employer to fire me. I fried a 500 dollar switch because I pulled an old radio off a tower but never disconnected the POE, it shorted out. I offered to pay but the boss wrote it off, I didnt turn in the equivalent amount of overtime to offset the cost. I was not happy I wasnt held accountable. I lost a surveillance camera, so I had them order a replacement and deduct it from my pay, after it arrived, I found the first one on the shelf in the van where I looked three times, I now have a camera, I should have been fired at this point, three substantial items in under 5 years. I had a #10 wrench slide off a roof into the snow never to be seen again, I didnt like that wrench anyway so i went to the hardware store and bough a ratchet wrench on the bosses dime. There is expected loss, the occasional hand tool, broken drill bits, zip ties, etc. but pretty much anything over 50 bucks, unless its a pretty valid reason should be the employees responsibility. You owners pay us to do a job, as with any job the things you provide cost you real money, youre not paying us to spend that money needlessly, when we waste your money we are accountable for the consequences, either financial or job applications. Not holding us accountable creates a dangerous dynamic in a workplace. You let us slide on a 300 dollar ladder, how careful will we be with a 2500 dollar trencher or 5k
Re: [AFMUG] Employee damaging equipment
Comcast has been embroiled in litigation for many years over their use of contractors, so it’s not like they have been or are getting away with anything. However, you’ve hit the nail on the head: for the most part, Comcast hires subcontractors. The “Comcast contractors” you see are employees of those subs. That STILL doesn’t get Comcast off the hook for everything that the sub does (or doesn’t) do, though. Even if you aren’t THE employer, you can still be responsible as AN employer. It is possible to be employed by more than one entity. In other words: Comcast – Subcontractor X – Some Guy Let’s say that there’s a dispute between Some Guy and Subcontractor X about wage and hour issues. To use a common example, Some Guy doesn’t get paid enough or on time by Subcontractor X because Subcontractor X runs short on cash. Some Guy not only has a remedy against Subcontractor X (obviously), but could also seek a remedy from Comcast directly, if Some Guy can show that Comcast was also his employer under the FLSA and associated case law. This is part of the reason why I say that anyone who is doing work for your business could be your employee. Having a separate corporation is one of approximately twenty different factors, none of which are dispositive on their own. Doug From: Af [mailto:af-boun...@afmug.com] On Behalf Of Ken Hohhof via Af Sent: Friday, October 24, 2014 2:05 PM To: af@afmug.com Subject: Re: [AFMUG] Employee damaging equipment I find one of the toughest things with contractors is getting them to schedule their own time. They may work for several companies, have their own vehicles and tools, but they don’t want to call the customer and set up an appointment. And companies that use contractors extensively (cough, cough ... Comcast) obviously don’t have their contractors setting up customer appointments, they dictate every aspect of their work. I don’t know how they get away with it. Perhaps they are paying a company that in turn hires subcontractors or something like that. But if you’ve ever had a Comcast Business install done, you will have a parade of contractors show up ... the guy with the tape measure, the guy with the shovel, the guy with the drill, the guy with the reel of coax cable, the guy with the modem, etc. Only the last one is likely to be a Comcast employee, and I’m not so sure about him, but he’s the only one with an Xfinity truck and not a magnetic “Comcast contractor” sign slapped on the side of his vehicle. From: Hass, Douglas A. via Afmailto:af@afmug.com Sent: Friday, October 24, 2014 1:01 PM To: mailto:af@afmug.com Subject: Re: [AFMUG] Employee damaging equipment FedEx has essentially had their entire business model upended with the decisions about contractors. That underscores the seriousness about doing something about these issues. If you have people that do work for your business and they are not employees, take 20-30 minutes and invest in an hour or two of an attorney’s time to find out whether you have an issue. This isn’t something that has to derail your whole business or result in massive liability. Be proactive. From: Af [mailto:af-boun...@afmug.com] On Behalf Of Travis Johnson via Af Sent: Friday, October 24, 2014 12:44 PM To: af@afmug.commailto:af@afmug.com Subject: Re: [AFMUG] Employee damaging equipment Even someone as big as FedEx is in serious trouble about their subcontractor people: http://thinkprogress.org/economy/2014/10/07/3576714/fedex-driver-misclassification-kansas/ Travis On 10/24/2014 10:21 AM, Hass, Douglas A. via Af wrote: I love the Vrdolyak ads. They don’t go to trial any more often than anyone else, but it’s a hoot. It is true that most cases don’t go to trial, but defending a frivolous or meritless lawsuit is very different from defending one with merit. In this situation, failing to pay minimum wage and overtime is a matter of facts: either you did and you can prove it or you didn’t and you’re likely on the hook for substantial damages and plaintiff’s attorney fees. When I say it is easier to deal with this on the front end, I mean that classifying employees properly now will help avoid lawsuits, settlements, and trials later. Doug From: Af [mailto:af-boun...@afmug.com] On Behalf Of Ken Hohhof via Af Sent: Friday, October 24, 2014 11:05 AM To: af@afmug.commailto:af@afmug.com Subject: Re: [AFMUG] Employee damaging equipment Being wrong never stopped someone from filing a lawsuit. You’d think at least it would keep them from finding a lawyer to take the case on contingency. But most lawsuits are settled out of court anyway. I think some lawyers wouldn’t know what to do if they actually had to go to trial rather than just send threatening letters. There’s a politically connected law firm Vrdolyak Law Group here in Chicago (specializing in personal injury and workmans comp cases) that runs radio ads telling you to ask your law firm when was the last time
Re: [AFMUG] credit checks
Be careful with credit checks, everyone. Running credit checks (or any other type of consumer report) on customers, employees, and job applicants likely will trigger the provisions of the Fair Credit Reporting Act. There are a number of requirements that you MUST follow under the FCRA in order to have any kind of report run on your customers. For those of you who use background check providers for these purposes, you still have to have very specific consents and disclosures and you can't just take the forms they give you as-is. There are specific changes and edits you have to make to them (no matter what they might tell you). If you're running any kind of check on customers, employees, and job applicants, hit me up off-list so we can chat about what you're doing. FCRA violations are easy to rack up, extremely difficult to defend against if your practices are wrong, and very expensive. However, at the same time, they are easy to avoid. If you get the right forms to the customer/employee/applicant and get them signed first, it's pretty simple. It's a 1-2 hour investment in time up front to save you tens of thousands of dollars later. Doug -Original Message- From: Af [mailto:af-boun...@afmug.com] On Behalf Of Keefe John via Af Sent: Tuesday, October 07, 2014 9:46 AM To: af@afmug.com Subject: Re: [AFMUG] credit checks You could start by looking up their circuit court case history. Then you could look at the federal court case history to see if they have any bankruptcies. Keefe On 10/7/2014 9:35 AM, Adam Moffett via Af wrote: My mission this morning is to figure out how I'm going to do credit checks on potential new customers. While I'm on hold with Experian, I wonder if anybody else is doing credit checks who can share what they're doing. What company are you using? How much does it cost? How hard was it to get set up? Doug Hass Associate 312.786.6502 Franczek Radelet P.C. Celebrating 20 Years | 1994-2014 300 South Wacker Drive Suite 3400 Chicago, IL 60606 312.986.0300 - Main 312.986.9192 - Fax www.franczek.com Circular 230 Disclosure: Under requirements imposed by the Internal Revenue Service, we inform you that, unless specifically stated otherwise, any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purposes of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or tax-related matter herein. For more information about Franczek Radelet P.C., please visit franczek.com. The information contained in this e-mail message or any attachment may be confidential and/or privileged, and is intended only for the use of the named recipient. If you are not the named recipient of this message, you are hereby notified that any dissemination, distribution, or copying of this message or any attachment thereto, is strictly prohibited. If you have received this message in error, please contact the sender and delete all copies. Franczek Radelet is committed to sustainability - please consider the environment before printing this email
Re: [AFMUG] credit checks
Credit checks aren’t as expensive or bothersome as they used to be, but this is a good approach, too. One suggestion from a business standpoint is to give customers the option to pay the install costs up front or over time, with some small discount for doing it up front. Getting paid up front for the month, rather than in arrears, is pretty easy, even for existing customers. Doug From: Af [mailto:af-boun...@afmug.com] On Behalf Of Sean Heskett via Af Sent: Tuesday, October 07, 2014 10:01 AM To: af@afmug.com Subject: Re: [AFMUG] credit checks meh too much work. get payment upfront for as much as possible (install and first month) bill ahead for the month instead of behind and turn off service quickly for non-payment. credit checks are too expensive and bothersome. 2 cents -sean On Tue, Oct 7, 2014 at 8:35 AM, Adam Moffett via Af af@afmug.commailto:af@afmug.com wrote: My mission this morning is to figure out how I'm going to do credit checks on potential new customers. While I'm on hold with Experian, I wonder if anybody else is doing credit checks who can share what they're doing. What company are you using? How much does it cost? How hard was it to get set up? Doug Hass Associate 312.786.6502 Franczek Radelet P.C. Celebrating 20 Years | 1994-2014 300 South Wacker Drive Suite 3400 Chicago, IL 60606 312.986.0300 - Main 312.986.9192 - Fax www.franczek.com Circular 230 Disclosure: Under requirements imposed by the Internal Revenue Service, we inform you that, unless specifically stated otherwise, any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purposes of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or tax-related matter herein. For more information about Franczek Radelet P.C., please visit franczek.com. The information contained in this e-mail message or any attachment may be confidential and/or privileged, and is intended only for the use of the named recipient. If you are not the named recipient of this message, you are hereby notified that any dissemination, distribution, or copying of this message or any attachment thereto, is strictly prohibited. If you have received this message in error, please contact the sender and delete all copies. Franczek Radelet is committed to sustainability - please consider the environment before printing this email
Re: [AFMUG] Efax and Security
For the record, background checks don't make me any happier than security checks at the airport. Neither of them really tells you anything that isn't obvious and both are invitations to discriminate. To answer Nate's question below, security is an issue in the same way it is for your other services. This should be addressed in your terms of service, if they don't already cover them. Is there potential liability? Of course. It is somewhat remote, but it isn't non-existent. Signing a waiver isn't a cure-all, either. You can't always waive your own negligence, recklessness, or intentional acts. A court could find any waiver you sign to be ineffective. Having disclaimers/waivers (in your terms of service or elsewhere) is a good idea, but should not be viewed as something ironclad. Happy to discuss with Nate or anyone else in detail off-list. Doug -Original Message- From: Af [mailto:af-boun...@afmug.com] On Behalf Of Ken Hohhof via Af Sent: Monday, October 06, 2014 10:04 AM To: af@afmug.com Subject: Re: [AFMUG] Efax and Security rant Oh, right, background checks. That's why I stopped being a Cub Scout leader, volunteering with my kids choir group, etc., the assumption that any guy who volunteers to work with kids must be a pervert or prove otherwise. That and the helicopter parents who feared that the little Cub Scouts would experience something dangerous like how to care for a pocket knife or use a soldering iron or a tour of the village police department and jail. Meanwhile Dennis Rader the BTK killer was an ADT alarm installer, Cub Scout leader, and a deacon of his church. But those background checks make the lawyers happy. /rant -Original Message- From: Nate Burke via Af Sent: Monday, October 06, 2014 9:51 AM To: af@afmug.com Subject: Re: [AFMUG] Efax and Security The reason that It popped into my head is that I'm working with running background checks for people that work with the kids at our church. I have physical copies of the forms people filled out with all kinds of personal information, so I was like, I'll just scan them and email them into the church office for processing. Then I decided that sending info like that via email probably wasn't a good idea, so I should fax them. Then I realized that it's basically the same thing since all my faxing is through email. So that got me thinking, how would I know if my personal information is just being sent out via a plain email on the receiving side? If something were to happen, do we have have any liability for not making it 'secure' or do we need to be telling customers up front that the security is only as good as email, and have them sign a wavier that we don't get sued if their email is hacked and peoples identities are stolen? On 10/6/2014 9:33 AM, Ken Hohhof via Af wrote: I use Ring Central for eFAX, and you can send from an application on your computer and read messages via a password protected HTTPS site. So you don't have to use email. You could, for example, have an email alert you to a FAX but not attach a PDF. I just have it email the PDF though. Who cares if someone sees the junk FAX messages I get for cruises and roofing. I don't think I've received a real FAX in 3 years. Maybe 2-3 times a year someone wants me to send them a FAX, but at their end I assume it is going to an actual FAX machine. Unless it is going to the shared multifunction copier and everyone sees it or picks it up by mistake. I think the illusion that FAX is secure is just that, an illusion. There also appear to be secure eFAX solutions that are probably more secure than traditional FAX machines: http://enterprise.efax.com/online-fax-services/secure-fax -Original Message- From: Nate Burke via Af Sent: Monday, October 06, 2014 9:11 AM To: Animal Farm Subject: [AFMUG] Efax and Security So I'm asking the question before one of my customers asks it of me. Faxing has always been a secure transport medium, someone could intercept your fax only if they had a wiretap running on your phone line. With Efax services where everything is done via Email (I use the Voip Innovations Efax Service), are there more security concerns/risks since everything is just emailed in the clear? We've always told people, don't put your SS# or CC# in an email, but if they go to fax a credit app or a payment authorization slip through the email to fax service, isn't that the same thing? I know someone is going to bring this up one day, and I want to make sure I have an answer ready to go for them. Nate Doug Hass Associate 312.786.6502 Franczek Radelet P.C. Celebrating 20 Years | 1994-2014 300 South Wacker Drive Suite 3400 Chicago, IL 60606 312.986.0300 - Main 312.986.9192 - Fax www.franczek.com Circular 230 Disclosure: Under requirements imposed by the Internal Revenue Service, we inform you that, unless specifically stated otherwise, any federal tax
