Tuesday, June 30, 2009

Bravo Supreme Court

The Supreme Court released a decision yesterday regarding reverse discrimination. The "ruling that New Haven, Conn., wrongly discriminated against a group of mostly white firefighters who lost out when a promotion exam was scrapped because no blacks scored well enough to advance". Interestingly enough, there seems to be a great deal of debate on whether this ruling creates new problems for businesses or whether the new ruling provides clarity in relation to civil rights practices by employers. The decision shows that employers must be on solid ground before they make a decisions that discriminate against a certain group of employees irregardless of whether the group is a protected minority.

In the opinion of this author, Monday's ruling is a clear indicator that race cannot be the trump card in making employment decisions -- even in regards to protected groups. I hope that this ruling remedies some of the perceived and in certain cases actual perverse results of affirmative action laws. Since affirmative action was enacted there has been legitimate gripes that affirmative actions mandates reverse discrimination in order to counter-balance the history of gross racial inequality in the US. Affirmative action has major problems; it has left reverse-discriminated individuals with racially charged grievances, and it has added an unnecessary concern for businesses in employment matters. This ruling seems to say, as long as the business is doing all it can to make sure employment and advancement policies are fair to all employees, businesses should hire and advance employees by the employers normal policies irregardless of whether or not targeted/protected minorities are among those who qualify for employment and advancement. This is a ruling that clarifies affirmative action, and says it is okay for businesses to hire based of merit and qualification, and (should overtime) remove the incorrect perception that companies must reverse-discriminate in order to be compliant with Civil Rights statutes.

There is one problem. This ruling says that a company can ignore race as an employment factor if the company can show that it made sufficient effort to ensure employment decisions and policies are fair to all groups and races. How does a company prove that their employment policies and practices are fair to all races and groups? I think many employers will have to review their hiring and advancement practices to make sure they have policies in place that not only are fair to protected minorities, but policies that promote and hire qualified employees without using race as the determining factor. This will be difficult for for many entities that have history of reverse discrimination policies as a fail safe method to maintain the appearance of being compliant with affirmative action.

Friday, June 26, 2009

Utah Rental Law -- Mitigating Damages and Written Terminations

I was in Small Claims Court a couple of nights ago, because of a disputed cleaning bill from an old landlord. I have a few questions for the real lawyers out there. I'm going to provide the basic arguments of my case below and I would like to know if I have a case for an appeal:


I terminated my rental agreement by phone on 2/13/2009. The landlord, who travels a great deal, said he couldn't take the time out of his busy schedule to make arrangements to get the rental re-rented and required that I list and show the home until I either rented it or he found the time to take responsibility for showing and renting the property. I ended up showing the home until March 20th after which point he finally returned to the area, cleaned the property and rented it within days.

The landlord kept a 1,400 security deposit which he accrued to March's rent. When he cleaned and made repairs, he charged over 1500 dollars for his time, water bills that accrued after I vacated, and for supplies. The majority of the bill was for his and his wife's time.


The Plaintiff Failed to Provide a Written Itemization within 30 days

Under Utah Code Annotated § 57-17-3 requires that the landlord provide “a written itemization of any deductions from the deposit, and reasons therefore, shall be delivered or mailed to the renter within 30 days after termination of the tenancy or within 15 days after receipt of the renter's new mailing address, whichever is later.” The contract was terminated on February 13th when we notified the landlord that we were going to terminate the lease. As far as the new address requirement is concerned, Landlord received the address long before the date we terminated the contract. Weeks prior to this he asked for the address claiming he’d like to drive by the property whereas he “claimed” he might be interested in purchasing our home. Notwithstanding, the landlord is an experienced landlord (with 2 rental properties on the Wasatch Front and one 2 blocks from my home in St. George) who knows, or should know that property information is public record and easily attainable from any web browser. Landlord knew that we would be moving back to our home in Saint George and had access to the address at any time.

Failure to Mitigate Damages of the Defendant’s Contract Breach

Under Utah State Law, upon premature termination of a rental agreement, the landlord is required to make reasonable efforts find a new renter for the dwelling. During the period from Feb. 20th to March 20th, the plaintiff did not make reasonable attempts to rent the unit. When we notified the Plaintiff on or near February 13th that we were going to terminate the contract, Landlord required us to advertise and show the home to prospective renters. He said he didn’t have time to, and would not, list and show the home. He gave us an implied ultimatum regarding our deposit (i.e. if we could get it rented quickly we might be able to get a portion of the deposit back)

During February and March, Landlord was unavailable to get a new contract executed on multiple occasions due to his travels – he was in Hawaii on one occasion and Las Vegas or Pennsylvania on another. Although he claimed he would be cooperative in showing the home, Landlord never made a good faith effort to do so until March 20th – after he had accrued the majority of the deposit to March’s rent leaving no deposit monies available to cover the plaintiff’s excessive cleaning and repair fees.

As a direct result of plaintiffs’ apathy towards their legal requirement to find a new tenant, defendants were denied recovery of the 1400 dollar security deposit. On account of the plaintiffs’ failure to take mitigating actions after the defendants breach, defendants liability to the plaintiff should be limited to the 1400 security deposit already paid to the plaintiff.

The Security Deposit

The opening line in paragraph 16 states that “the security deposit set forth shall secure the performance of the resident’s obligations”. This is a protection to the defendant limiting costs of vacating the residence to the required deposit. In the contract, the security deposit is broadly defined as being usable for rent, repairs, cleaning, other contractual fees, etc. The plaintiffs’ contract clearly sets forth that the deposit secures the defendant’s obligation, and the shortfall is the fault of the plaintiffs’ for not requiring a larger deposit. The contract makes no provision for additional excess costs to be collected beyond the security deposit, and Utah Code Annotated §57-17 does not provide for collection of excess costs beyond the security deposit. Any ambiguity in the contract is the fault of the plaintiffs who presented the contract to the defendants as a requirement to rent their property.

The Judgment

The judge decision was in favor of the plaintiff because the contract requires that written notification of contract termination must be given and notification was given verbally. The landlord admitted to receiving verbal notification on 2/13 over the telephone, and verbal notification that we moved out the 21st of February. All other arguments that I made were apparently considered moot.

If anyone would like to opine on this matter feel free. As a warning to anyone renting, never ever communicate with your landlord by phone, and negotiate a early termination contingency plan. The judge was on her way to ruling in my favor over the first argument, until the written termination provision was brought up.

I'm just curious

Monday, June 22, 2009

Cell Phones -- Its about time!

IRS Commissioner released this statement about laws related to personal and business use of employer provided cellular phones. The current rules require a business use log of cell phone calls:

Statement of IRS Commissioner Doug Shulman

This month, the Internal Revenue Service asked for comments on ways to simplify compliance with rules related to employer-provided cellular telephones. The current law, which has been on the books for many years, is burdensome, poorly understood by taxpayers, and difficult for the IRS to administer consistently. Some have incorrectly implied that the IRS is "cracking down" on employee use of employer-provided cell phones. To the contrary, the IRS is attempting to simplify the rules and eliminate uncertainty for businesses and individuals.

Although some of the proposed changes would add clarity, the current law will inevitably leave widespread confusion among employees and businesses. Therefore, Secretary Geithner and I ask that Congress act to make clear that there will be no tax consequence to employers or employees for personal use of work-related devices such as cell phones provided by employers. The passage of time, advances in technology, and the nature of communication in the modern workplace have rendered this law obsolete.

It's about time!

Thursday, June 11, 2009

Universal Healthcare -- Why and how?

Universal health care, one the socialist ills that Ronald Regan spoke out against is currently one of the hot button issues in Congress this year. There is draft legislation circulating to create a national health insurance through medicare, expanded SCHIP, and Medicaid. Due to the fact, the final bill hasn't been presented yet, I would like to discuss the ideology of this issue.

The free market is the best catalyst for innovation and scientific advancement. There is no other system that provides the incentive needed to continually do bigger and better things. Having made this statement, I am immediately going to contradict myself in stating that I am fully (but cautiously) in support of universal health care.


There is nothing as counter-productive to proper preventative health care in America as the inaccessibility of affordable health insurance. The only people who are not in this boat are those who are lucky enough to land jobs in large corporations, organizations, or government -- otherwise millions of Americans are either forced to take unnecessary health risks if their financial situation is poor, shell out exorbitant premiums for plans with good coverage, or make due with lower premiums for plans that cover virtually no common health problems. This is a poor catalyst for encouraging people to take care of themselves. Aches and pains are ignored, little ailments often grow, and these people risk seeking preventative care after it is too late.

Our current health system is a disincentive for small business entrepreneurship. Without having any actual statistics I'm sure there are a large number of Americans who may hate the job they have now, may have wonderfully innovative entrepreneurial ideas, but will not turn innovative entrepreneurial ideas into productive businesses because the thought of leaving group employer provided health coverage is unacceptable.

Some may argue that universal health care is one step too close to Stalin-ism. I would agree with you if it weren't for the fact that we, as a nation, have had and accepted numerous socialist-esque programs for over 100 years. Here in Utah, for example, we fought off the evil capitalist ideals of competition in education. Our protection from fire, crime, foreign enemies, and libraries are all provided at the expense of taxpayer dollars. Why are we so unwilling to get together and make sure that everyone has unfettered access to medical care? No one would be afraid to call the police if they were becoming victims of a crime, and no American should have to fear seeking medical attention because of an inability to pay. To be honest, I now believe the need for universal health care for all Americans should trump the right to free education, or the right to social security when we retire.

How can we the people uphold the values of life, liberty, and the pursuit of happiness if we have to bind ourselves to jobs we don't like because of health benefits, or fear seeking necessary health care because we may not be able to afford it. The truth is we can't.


This is where we must be cautious, and I'm afraid there are no easy answers. Our national debt is out of control and ballooning, the tax code is abused and incomprehensible, and our economy is still floundering. The prospect of Congress or the President developing an hasty, under planned Social Security-esque regime is frightening. There are also other questions:

-- Would employers continue to provide coverage, or have any incentive to do so?
-- How high would effective tax rates rise in order to responsibly finance a National Healthcare System?
-- More frightening, would all US hospitals, and clinics become federally owned and operated?

However, I think is important to make affordable health care for everyone a reality. The how is a daunting question for men who are smarter than I, and one I hope can be answered.

Some of my random ideas -

-- Phase Social Security out and phase in Health care security (over several decades -- America's addiction to not saving for their own retirement is a habit that will be hard to break)
-- Force Americans to save/invest for retirement and make those invested funds sacred and untouchable until retirement. (for the lower/middle classes the EIC and/or ACTC could be forced into savings or investment accounts)
-- Phase down public funding for education (maybe making education more of a privilege will make our system better) (probably too radical an idea, even for this writer)

Anyways, I believe in this. I just wish I could believe our elected officials could make it happen with out bankrupting the nation.