With recent advances in technology, many companies are considering the use of Global Positioning System (GPS) technology to assist in tracking company assets, which can affect employees and broach invasion of privacy issues. In this blog post, partner Ken Joyce sheds some light on the legality of monitoring employee whereabouts using GPS devices.

Is it legal to monitor employees’ whereabouts through GPS technology?
GPS tracking provides businesses real time monitoring that can insure better logistical performance and accuracy in gauging time spent in the field. While there is rarely a concern when using GPS technology to track company equipment and vehicles, use of GPS devices to monitor employees’ whereabouts can pose a problem. There is no outright prohibition to the use of GPS to track employees; however, the situation becomes hazier as an employer’s monitoring of employees extends to capture non-work related activities.

For example, a company could have an employee who regularly made doctor visits for medical treatment during his or her lunch hour. The employee did not disclose these doctor visits and had no intention of allowing the employer to know about these visits. Discovery of this information through non-consensual monitoring could make the employer susceptible to a claim of invasion of privacy.

When does GPS invade employees’ privacy?
Whether you are implementing a GPS tracking system to monitor company assets or employees, including, but not limited to, asking an employee to carry a personal GPS unit, smart phone GPS application or connection to their personal vehicle, there are legal concerns that you must be aware of and guard against. A primary concern is invasion of privacy claims. The law will protect employees from an employer’s invasion through the use of GPS technology when an employee has a reasonable expectation of privacy, including their off-duty whereabouts and other off-duty activities.

How can companies avoid invading employees’ privacy?
There are certain actions employers can take to help minimize company risk. For instance, new GPS devices permit employees to disconnect from the system so that they can control their privacy when off-duty.

Even if employers are utilizing GPS devices that have the ability to turn off, companies still should develop a sound policy to address the scope and parameters of GPS tracking. Additionally, employers should notify all affected employees and have employees sign an acknowledgement of the GPS tracking. An informed consent may serve as a defense to a claim of invasion of privacy, but the employer would still need to prove that the employee consented to the GPS tracking at the time and place alleged to have been an invasion of privacy.

It is important to disclose the use of GPS tracking to all affected employees, so that they are on notice that the system is capable of tracking their movement, including during off-duty time, if GPS is not disconnected. A legitimate business reason to track employees, coupled with a written acknowledgement, can help establish that there is no expectation of privacy while performing during work hours.

To help minimize company risk when using GPS technology, it is recommended that employers seek specific advice from legal counsel of their choice.

Kenneth J. Joyce’s practice focuses on representing businesses and individuals in business litigation. Ken has extensive experience handling contract disputes, complex corporate litigation, business torts, shareholder and partner disputes, and employment law litigation.  Ken is rated AV® Preeminent® by Martindale Hubbell and selected as Florida Legal Elite® by Florida Trend (July 2011) and Florida Super Lawyer® (July 2011) He is admitted to practice before all Florida state courts, the U.S. District Court for the Southern and Middle Districts of Florida and the U.S. Court of Appeals, Eleventh Circuit. You can reach Ken at ken.joyce@brinkleymorgan.com.

The material appearing on this blog is meant to provide general information only and is not a substitute for nor is it legal advice to you. With regard to specific law issues, readers of this article should seek specific advice from legal counsel of their choice. Articles may not be reprinted without the express permission of Brinkley Morgan.
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Kenneth J. Joyce is a partner in Brinkley Morgan’s business litigation practice where he represents businesses and individuals in a abroad array of commercial matters. In this post, Ken outlines basic areas of warranty laws that sellers of  products should know.

A warranty can be an excellent tool to promote your product; however, to be effective, your warranty must comply with the law.  The failure to comply with warranty laws can have serious consequences for sellers and void warranty limitations you rely on to protect your business.  This article addresses areas of warranty law that sellers should consider when issuing a warranty for a product or engaging in regular sale of a product.

A warranty is a manufacturer’s or seller’s promise to stand behind a product and correct problems if the product fails.  A warranty can relate to any aspect of the product, including materials, workmanship, performance or remedial measures.  It is not necessary to use the words “warranty” or “guaranty” to make an affirmation of warranty, nor is it required to be in writing.  However, if you do provide a written warranty for a product costing more than $15.00, that promise is regulated by a federal law known as the Magnuson-Moss Warranty Act (“MMWA”).  The stated purpose of the MMWA is to establish standards for written warranties on consumer goods with its goal to make warranties easier to understand and more readily enforceable.  It also provides the Federal Trade Commission (“FTC”) with the means to protect consumers.  Additionally, each state has their own laws on warranties.

The law recognizes two kinds of warranties – implied warranties and express warranties.  Sellers need to be familiar with both in order to maximize your opportunities and understand your exposure.

Implied Warranties

Implied warranties are promises that arise by operation of law. There are two particular implied warranties that deserve a seller’s attention:  1) the implied warranty of merchantability, and 2) the implied warranty of fitness for a particular purpose.

The implied warranty of merchantability is the seller’s promise that the products sold have nothing wrong with them, are fit for their ordinary purpose, adequately packaged or labeled and will conform to any promises as labeled.  For sellers who regularly sell a product, the warranty of merchantability is implied each time they sell the product.

The implied warranty of fitness for a particular purpose is a promise you make when your customer relies on your advice that a product can be used for some specific purpose. For example, suppose you are a retailer of paint and a customer asks for a paint that will adhere to plastic.  If you recommend a specific paint and the customer buys that paint precisely because of your recommendation, the law says you have made a warranty of fitness for a particular purpose. If the paint recommended turns out to be inappropriate for the use, you have breached an implied warranty of fitness for a particular purpose.

If you do not offer a written warranty, the law in some states may allow you to disclaim implied warranties.  However, specific disclosure must occur before an implied warranty can be disclaimed.  In other states, implied warranty obligations cannot be avoided.  Implied warranties can be problematic and impose substantial economic consequences.  Make sure you review all warranties offered with legal counsel familiar with the law of warranties so you know your exposure and plan accordingly.

Express Warranties

Express warranties are the seller’s spoken or written descriptions or promises regarding the goods which become part of the basis for the sale.  Typically, express warranties include promises of quality, materials, workmanship, performance and available remedies in the event of product failure.

Express warranties may be offered in various forms, including formal warranty certificates and claims made in advertising.  They may be presented in writing or orally; however only written warranties on consumer products are covered by the MMWA.

The MMWA requires all written warranty provisions be “fully and conspicuously” labeled.  The FTC mandates disclosure of the following information in all warranties on consumer products costing more than $15.00 at retail:  (1) an explanation of warranty coverage; (2) a statement of warranty remedy; (3) a statement of how long the warranty lasts; (4) an explanation of how a customer gets warranty service; and (5) a prescribed statement concerning legal rights.

Under the MMWA, a warranty can be designated as “Full” of “Limited”.  These are the only designations permitted under the MMWA.

If a warranty meets the “federal minimum standards” for warranty, then it is to be designated a “Full” warranty.  Conversely, if a warranty does not meet the “federal minimum standards”, then it must be conspicuously designated a “Limited” warranty.

The federal minimum standards for warranty can be summarized as follows:

(1) The seller must, as a minimum, remedy such product within a reasonable time and without charge, in the case of a defect, malfunction, or failure to conform with a written warranty;

(2) The seller may not impose any limitation on the duration of any implied warranty on the product;

(3) The seller may not exclude or limit consequential damages for breach of any written or implied warranty on such product, unless such exclusion or limitation conspicuously appears on the face of the warranty; and

(4) If the product (or a component part thereof) contains a defect or malfunction after a reasonable number of attempts by the seller to remedy defects or malfunctions in such product, the seller must permit the consumer to elect either a refund for, or replacement without charge of, the product or part (as the case may be).

If your warranty does not meet these minimum standards, it must be clearly designated as “Limited”.  Covered warranties must also contain other applicable information if relevant, including:  limitations on who is covered; availability of an informal dispute settlement mechanism; any limitations on the duration of implied warranties; or any limitations or exclusion of incidental or consequential damages.

Understanding the complexities of warranties is smart business.  Every seller should know what implied and express warranties are offered, how to properly disclaim warranties, if applicable, and what limitations or conditions can be imposed in a warranty.  This article raises important topics for manufacturers and sellers, but is not a substitute for seeking legal counsel.  Consulting a business attorney can help you learn how to best use warranties to strengthen your product.

Contact Ken Joyce at (954) 522-2200
ken.joyce@brinkleymorgan.com

The material appearing on this blog is meant to provide general information only and is not a substitute for nor is it legal advice to you. With regard to specific law issues, readers of this article should seek specific advice from legal counsel of their choice. Articles may not be reprinted without the express permission of Brinkley Morgan.

Remember that the hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience.

Shayna Reitman is a member of Brinkley Morgan’s business law practice with special emphasis on business and real property litigation and representing clients in the buying and selling of businesses, the formation of corporations, partnerships and limited liability companies, contracts and tax matters.  In this blog post, Shayna outlines recent changes to the Florida Power of Attorney Act.

Many new laws went into effect in the State of Florida on October 1, 2011, including a new version of the Florida Power of Attorney Act.

A power of attorney is a document that grants authority to another person, called an agent, to act in the place of the principal – the person executing the document.  The Legislature enacted an updated version of Chapter 709 in an effort to address what some perceived as defects in the previous version of the law.  The new version differs significantly in some respects, and applies to any power of attorney signed on or after October 1, 2011.

Here is a general overview of some basic  but noteworthy differences:

1.  Execution of the Power of Attorney:  The new law contains stricter execution requirements than previous versions.  Under the new law, in order for a power of attorney to be effective, it must be signed before two witnesses and acknowledged in front of a notary.

2.  Springing Powers of Attorney No Longer Recognized:  Springing powers of attorney are no longer recognized if executed on or after October 1, 2011.  Prior to the new Florida Power of Attorney Act, powers of attorney could be written to “spring” into effect at a predetermined time or upon the occurrence of a specific event (such as incapacity).  This usually was done to prevent the attorney-in-fact from using the powers while the principal was able to exercise them on his or her own.  These springing powers are no longer permitted, and powers of attorney must now be effective as of the time they are executed.

3.  Agents: The principal can designate a single agent or two or more persons to act as co-agents.  Under the previous version of Chapter 709, there was a default rule that when co-agents were designated, a majority of co-agents was required to act in exercise of the power.  Now, unless the power of attorney provides otherwise, each co-agent may exercise their authority independently.

4.  Duties of Agents: The duties of agents are also more specifically delineated in the new statute.  The new version of Chapter 709 divides the duties of agents into two categories.  The first are mandatory duties – those duties that apply notwithstanding a contrary provision in the power of attorney.  The others are default duties – ones that apply absent a contrary provision in the power of attorney.

5.  Authority of Agents: There are also changes with respect to what authority can be exercised by the agent.  Under the new law, the agent can only exercise the authority specifically granted by the Power of Attorney, which also  can include underlying powers that would be reasonably necessary to carry out the authority delegated by the principal.  Further, certain powers and authorities require the principal’s signature or initials next to the specific enumeration of the authority, or else they are ineffective.

What do these changes mean for existing powers of attorney executed before October 1, 2011?  They will remain valid as long as the execution complied with the laws of Florida at the time the document was executed.  However, there may be some practical reasons to consider updating your existing documents.

Versions executed prior to October 1, 2011, may cause some to encounter hurdles, including delays in determining whether the document was properly executed in accordance with Florida law at the time of execution.  Further, under the new statute, it is more difficult for a third party to refuse to honor the power of attorney if executed after October 1, 2011.  This is because the new version of Chapter 709 sets forth a specific process requiring a third party to specify the reason for not honoring the power of attorney.  If that reason is not legally sufficient, the agent can file a legal action challenging the third party’s refusal to honor the power of attorney, and if they prevail, the court is given the authority to award damages (including attorney’s fees) to be paid by the third party for causing the need for legal action.

Contact Shayna M. Reitman at 954.522.2200
shayna.reitman@brinkleymorgan.com

The material appearing on this blog is meant to provide general information only and is not a substitute for nor is it legal advice to you. With regard to specific law issues, readers of this article should seek specific advice from legal counsel of their choice. Articles may not be reprinted without the express permission of Brinkley Morgan.
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Remember that the hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience.