BizLawBuz …. The Power of Know

In 2004, Michigan enacted the Identity Theft Protection Act to address theft and illicit use of personal, financial, or other sensitive information. In 2006, and again in 2010, the Legislature amended the Act to address new schemes designed to obtain personal information under false pretenses. The most recent amendments took effect April 1, 2011, and aim at addressing actions such as “phishing” (using emails and false websites to obtain personal information) and imposing harsher penalties for violators.

The Act specifically prohibits an individual from doing the following with the purpose of inducing a user to provide personal identifying information:

• Using email or other form of communication under false pretenses purporting to be by or on behalf of a business, without authority or approval of the business
• Creating a website that represents itself as belonging to or being associated with a business, without the authority or approval of that business
• Altering settings on a user’s computer, device, or software program that would cause any user of the internet to view a communication as belonging to or being associated with a business without the authority or approval of that business

The Act also criminalizes obtaining, attempting to obtain, selling, transferring, or attempting to sell or transfer personal identifying information with the intent to commit a criminal act, and imposes harsh penalties for violating the Act’s provisions, including imprisonment and fines up to $75,000. A civil right of action has also been created bearing penalties that begin at $5,000 per violation or $250,000 per day that a violation occurs.

Julie Pfitzenmaier Cotant

Wright, Penning & Beamer is pleased to announce its sponsorship of the Music at the Market series for the upcoming 2011 season of the Farmington Farmers & Artisans Market. In doing so, Wright, Penning & Beamer, with offices in both Farmington Hills and Suttons Bay, continues its heritage of serving not only our clients, but the communities in which we practice, in the firmly held belief that our success as a firm is inextricably tied to the success of our clients and the communities we serve.

The Farmington Farmers and Artisans Market is located in the Walter E. Sundquist Pavilion and George F. Riley Park, situated on the south side of Grand River, just east of Farmington Road, in downtown Farmington. The Market, which takes place from 9 AM to 2 PM, every Saturday from May 7 through November 19, has become a Saturday morning fixture and weekly destination for many throughout the region. Offerings include an abundance of fresh Michigan produce, plants, and baked goods, as well as a wide variety of hand-crafted artisan made products, including soaps, fine art, jewelry and photography. This season’s offerings will also include classes on select Saturdays on topics such as gardening, cooking and fitness.

Complete Information concerning the Market, as well as anything and everything happening in Downtown Farmington, can be found on the website for the Farmington Downtown Development Authority.

Information concerning the musicians who will be appearing each Saturday from 10 AM until 2 PM as part of the Music at the Market series, can also be found on the Farmington Downtown Development Authority website.

Duane L. Reynolds

It’s occasionally a good idea to review the fundamentals. I did that just yesterday after learning that my client’s landlord wanted to withhold money from her security deposit to repaint the walls after she vacated her space.

The landlord agrees that my client left the space in good condition. He takes issue, however, with the fact that she did not repaint the walls after filling in the nail holes created when she took down her wall decorations. As the landlord’s attorney was not willing to take my word that his client could not use the security deposit to repaint the walls, I was forced to back it up with a quick review of landlord-tenant case law. In essence,

Unless a lease requires otherwise, premises must be surrendered in essentially the same condition they were at the start of the lease, “reasonable” or “ordinary” wear and tear excepted. As you can imagine, the battles usually arise over what is “reasonable” or “ordinary.” The distinction is important because a landlord may only use the security deposit to repair damages that are beyond “reasonable” or “ordinary.”

In deciding what is “ordinary,” courts consider the intended use of the premises. For example, the deterioration caused by a manufacturer will be quite different from the deterioration caused by a warehouser or a dry cleaner. In each case, the landlord must bear the cost of the wear and tear if it can be reasonably anticipated from the tenant’s intended use. The landlord must also bear the cost of the wear and tear if the damage is exacerbated by the landlord’s delay in complaining about damage that was otherwise the tenant’s responsibility to repair.

In deciding what is “ordinary,” courts also consider the condition of the property at the start of the lease. If the building was run down to begin with, then the fact that it’s even more run down at lease end may not hurt the tenant. On the other hand, tenants still need to exercise caution. A departing tenant will be held liable for repairs if the tenant undertakes improvements that enhance the value of the property, yet fails to otherwise properly maintain it.

In all disputes over the disposition of a security deposit, the landlord bears the burden of proving the damage to the property. If a landlord believes he or she may have a claim, it is crucial to determine the extent of the damage and the cost of repair before another tenant takes possession.

Lee Flaherty

With all the buzz about health care reform, few are aware of a provision within the Patient Protection and Affordable Care Act (”PPACA”) that requires an employer to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has a need to express the milk.” In addition, employers must provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by [a nursing mother.]”

I’m an employer – how do I interpret this provision?
Nursing employees should be given a “reasonable” amount of break time as frequently as needed, requiring employers to be flexible. Unfortunately, there is not much guidance as to what is reasonable, and the frequency and length of time will likely vary between individuals. One source says nursing mothers need roughly one half-hour break for every four hours worked.

As mentioned above, a bathroom is not sufficient even if it is private, but an employer is not required to provide a dedicated lactation center. Temporary spaces are acceptable, as long as the space is functional for the nursing mother’s use, shielded from view, and free from any intrusion from coworkers and the public.

You do not need to compensate the mothers for breaks taken under this provision, although employers must ensure that the employee is completely relieved from duty during the break in order to avoid paying compensation during that time. Please note, if you are already providing compensated breaks to other employees, nursing mothers must be compensated in the same way as the other employees.

Does this apply to my company?
If you have fewer than 50 employees, this provision may not apply if compliance would impose an undue hardship. Undue hardship is determined by looking at the difficulty or expense of compliance in comparison to size, financial resources, nature, and structure of the employer’s business.

Please contact Wright Penning & Beamer for any additional questions related to PPACA and how it applies to your business.

Julie Pfitzenmaier