Law & Society

Each state has its own set of statute of limitations, which set forth the maximum time frame allowed, after an event occurs (such as an accident), for an injured party to start legal action, such as a lawsuit. Statute of limitations differs for bodily injury claims, property damage claims, breach of contract claims, medical malpractice claims, and claims related to fraud and misrepresentation. This article strictly discusses claims against public and government entities. In California, the statute of limitations for bodily injury claims is generally two (2) years from the date of the injury causing event. However, there are exceptions to this rule and the statute of limitations is different when it comes to minors (who have been injured) or incapacitated individuals (who have been injured). Another exception is claims against public and government entities.
If you have a personal (bodily) injury claim or a wrongful death claim against a public or government entity, you have six (6) months from the date of the injury causing event to serve a written claim with the public or government entity. The service of the written claim is generally mandatory and the six (6) months statute is generally binding and enforceable. Again, there are some exceptions.

If you fail to serve the public or government entity with a written claim within six (6) months, you can seek permission from the public or government entity to serve a late written claim. However, your petition, seeking permission to serve a late claim, must be served within one (1) year from the date of the injury causing event. Additionally, you must show that you failed to serve a timely claim because of mistake, inadvertence, surprise, or excusable neglect. Other grounds for seeking relief include minority, physical or mental incapacity, or death. The public or government entity can then give you permission to serve your late claim or reject your request. If the public or government entity rejects your request, you must then petition the court for relief. The court may grant relief unless it finds that the public or government entity will be prejudiced.
After the public or government entity is served with your written claim, it has forty-five (45) days to either accept or reject your claim. Written claims are usually rejected by public or government entities. Once rejected, then the injured party must start legal proceedings, such a filing a lawsuit or seek arbitration, within six (6) months from the date of rejection.

Remember that a claim against an employee of a public or government entity may also fall under the notice requirement if the employee was under the course and scope of his employment. For example, a bus driver employed by a particular city or municipality would fall under this category if the driver causes an accident during the course and scope of his/her employment and you wish to assert a claim against his/her employer. However, same bus driver may not fall under the notice requirement if he/she was driving his/her private automobile at the time of the accident. Additionally, claims against public schools fall under the notice requirement.

Needless to say, it is important that you contact an attorney immediately if you have a claim against a public or government entity, even if your claim may be late. Also, remember that if you have a claim against a private entity, who would not be subject to the above described restrictions. This article strictly talks about California law. If you have a claim against a public or government entity outside of California, or the Federal government, you should immediately contact an attorney to discuss your case because laws may differ. This article is for educational purposes only and is not meant to serve as legal advice. You should always contact an attorney to discuss any legal matter.

How to get your maid a US visa so she can continue to work and stay with you while you are temporary in the US. The same process is applied for a Nanny Visa, where you have to be US citizens petitioning a foreign national to come to the US to assist you. Obtaining a domestic employee visa (B1 visa) for a maid or nanny is an arduous task because the documentary evidence required is stringent, however, it does not mean that it is impossible to obtain a US visa for your maid or nanny!

Permanent Visa or Temporary Visa
Keep in mind that if you are moving back to the US permanently then you can’t bring your maid with you. Requesting a B1 Tourist Visa for a maid or for a nanny has to be for a temporary stay in the US. By regulation, neither domestic employees of U.S. citizens who permanently reside in or are resuming permanent residence in the United States, nor domestic employees of U.S. Legal Permanent Residents, can obtain non-immigrant domestic employee visas. If the employer of the domestic servant is a U.S. citizen who is moving back to the U.S. on a permanent basis, the employer cannot bring a domestic employee back to the U.S. Therefore, if the employer is moving back on a temporary basis then the employer can qualify to petition the maid or nanny back to the U.S.
US Citizens Applying for Maid or Nanny
Both spouses have to be eligible employers, meaning both have to be US citizens or you’re entering the US on the B, E, F, H, I, J, L, M, O, P, or Q non-immigrant status. If only one spouse is a US citizen then may not be eligible to assist your maid or nanny with her temporary visa.

Paying your Maid
The employer must be able to show that the maid will be paid the market rate for the average maid in the U.S. The most likely scenario is the prevailing wage the entire time the worker is in the U.S. Additionally, you may have to withhold from your domestic employee’s wages the amount due for federal and state taxes. At the end of the year, you should give her a W-2 form and help her file income taxes as required.

Health and Medical Insurance for your Maid
You will need to obtain health and medical insurance for your maid. Some states require workmen’s compensation for employees. You may also be liable for unemployment compensation taxes. You must fulfill the terms of the employment contract presented to the Embassy at the time of the visa application.

Visa Denial for your Maid
A common reason for visa denial is the legal presumption that each person applying for a visa to enter the United States is an intending immigrant or that the person is coming for an impermissible or illegal purpose. In order to overcome this legal presumption, maid visa applicants must prove to the satisfaction of the Consular Officer that the domestic employee has a residence abroad which she has no intention of abandoning. Please bear in mind that this presumption is a difficult one to overcome. Normally this is referred to as “strong ties” to the home country or residence.

Hawaii employment law, HRS Chapter 378, expressly prohibits employment discrimination and harassment because of sexual orientation. However, transsexuals, transgendered individuals or transvestites are generally not protected by Hawaii employment law. Under Hawaii State law, HRS Chapter 378, sexual orientation is defined as having a preference for heterosexuality, homosexuality, or bisexuality; having a history of any one or more of these preferences; or being identified with any one or more of these preferences. Hawaii employment law expressly prohibits employment discrimination and harassment because of sexual orientation. Transsexuals, transgendered individuals or transvestites are generally not protected by Hawaii employment law.

Title VII does not address discrimination based on sexual orientation. This has not precluded employees from raising discrimination claims on other discrimination theories, including discrimination "because of sex." For example. the United States Court of Appeals for the Ninth Circuit has held that an openly gay employee had a viable claim of sex discrimination "because of sex" under Title VII. In so doing, the Court did not determine that sexual orientation is covered by Title VII, but instead stated that the employee's sexual orientation was irrelevant. The Court reasoned that a Title VII claim was viable because the employee was subjected to offensive sexual touching that created a hostile work environment, regardless of the reason the harassment was perpetrated.
The Ninth Circuit's refusal to openly state that sexual orientation discrimination claims are covered by Title VII comports with conclusions reached by other jurisdictions, which have generally refused to allow employees to bring a sexual orientation discrimination or harassment claim under Title VII until the federal legislature amends the statute. This approach does not preclude employees from bringing same-sex harassment claims, however, as the U.S. Supreme Court has held that such claims can violate Title VII where discrimination occurred "because of sex".

In 2006, the Hawaii Legislature passed legislation to prohibit discrimination in housing and public accommodation on the basis of sexual orientation, gender identity or expression. The provision defines "gender identity or expression" is defined as a person's "actual or perceived gender, as well as a person's gender identity, gender-related self-image, gender-related appearance, or gender-related expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person's sex at birth. The term includes transvestites, transsexuals, hermaphrodites, and other individuals who spend portions of their time in a gender other than that of birth.

The housing and public accommodation law also provides that patrons who perceive they have been discriminated against may file claims with the Hawaii Civil Rights Commission. Remedies available for this type of claim include: (a) a sum not less than $1,000 or threefold damages by the plaintiff sustained, whichever sum is greater; (b) reasonable attorneys fees and costs; (c) injunctive relief; and (d) a civil penalty of $500.00 to $10,000.00 for each violation.

While it is protected within the context of public accommodation and housing, gender identity is not a protected category under Hawai'i employment discrimination law. Further, in considering discrimination claims raised by transsexuals under federal law, many courts have reasoned that "[w]hile Title VII' s prohibition of discrimination on the basis of sex includes sexual stereotypes the phrase 'sex' has not been interpreted to include sexual identity or gender identity disorders." This area of law is continues to evolve, however, and it should be noted that other jurisdictions have allowed transgendered individuals to bring claims of sex discrimination under a sex stereotyping theory.

Quite often, people charged with Theft Under are accused of stealing inexpensive item(s) worth under $100. Though inexpensive, property offences are taken seriously by the Courts. If found guilty, the result could be a criminal record.
Whether you are charged in Newmarket, Brampton, Toronto, or anywhere else in Ontario, the circumstances of the case and the person charged are often looked at by the Crown.

The personal circumstances of the individual (i.e.criminal record, whether the person worked at the store, and the value of the item stolen) are often considered in determining whether the charge may be eligible to be diverted.

Depending on the circumstances around the theft, you may be viewed with a sympathetic mind. The judge will consider why an item was stolen and what the item was when considering the potential penalty if a person is found guilty.
Even if you don't actually remove the item from the store, you could still be charged with theft. The Crown must establish that when the item was taken by you, it was done with the intention to deprive the owner of it (either temporarily or permanently) and that it was done deliberately when you had no legal right to take it for yourself. A theft may be defended by raising a reasonable doubt on the basis of a mistake being made.
If you have been charged with shoplifting or a theft of any kind, you should consult a lawyer to discuss your case. Contact Jeff Hershberg at (416)428-7360 for a free consultation or visit his website at www.thebestdefence.

China has not issued a special Privacy Law or Data Protection Law so far. However, there are several PRC laws and regulations including privacy or data protection articles which consist of the current legal basis of privacy and data protection and infringement prohibition and punishment, including:

- Article 38 and Article 40 of the PRC Constitution – under which the personal dignity and the freedom and privacy of correspondence of citizens of the PRC are recognized and protected, although an express constitutional right to privacy is not established by these provisions.

- Article 120 of the General Principles of the PRC Civil Law – which recognizes the right to identity and the right to protection of a person’s name, portrait, reputation or honor.
- Article 253 of the PRC Criminal Law – which was amended by the Chinese legislature on 28 February 2009, to make working personnel of state agencies and organizations in the fields of finance, telecom, transportation, education or healthcare, potentially subject to criminal liability if they sell or illegally provide to others, the personal information of citizens obtained during the course of such organization’s performance of their official duties or provision of services.

- Article 1 of the Interpretation of the Supreme People’s Court on Issues Regarding the Ascertainment of Liability for Compensation for Psychological Damages in Civil Torts – which grants a person whose privacy has been infringed, a right to claim for psychological damages.
A Recent Landmark Criminal Case in China

On 5 August 2010, the Shanghai Pudong New District Court heard a case involving 10 respondents who were suspected of the crime of illegal obtaining personal information. After 3.5 hours’ of testimony and argument, the court decided that all 10 respondents had committed the crime of illegal obtaining personal information. The court sentenced 9 of the defendants to jail terms of six months with a six-month reprieve for two years and imposed fines of RMB10,000 to 40,000. One defendant was exempted from criminal punishment by the court.

Case History

In February 2005, Zhou Juan registered Shanghai Taimeng Information Technology Co., Ltd. (“Taimeng company”), and hired some of her relatives, including Li Zhizhao, Zhang Wei, Hu Meizhen, Li Xuehua, Zhang Xiu, Wang Kaisheng, etc. to buy and sell company information and personal information via the internet.

Zhou Juan got someone to create the company websites and posted topics on the net to solicit business. Unexpectedly, she was overwhelmed with clients. Zhou Juan always “sold goods” on the net, negotiated the price with her clients via phone or QQ and then sent the “goods” to her clients – this was all aimed at gathering personal information about the clients. At the same time, she always “bought goods”, to update the personal information of companies and managers.

Zhou Juan did not open an account using her own ID card, so as to not remain anonymous, but opened accounts in the name of Hu Meizhen, Wang Kaisheng, etc to collect money. Her colleague, Li Zhizhao was in charge of the sale of personal information associated with property owners, car owners, credit card users, and independently “bought goods” and “sold goods” on the internet, for the purposes of gathering personal information for selling. Zhang Wei was in charge of the collection of payment for goods sold by Li Zhizhao, and then passed the money to Zhou Juan for distribution. Zhou Juan told the public security authorities that she had made a profit from her activities in the vicinity of RMB1, 000,000 since 2005.

In June 2008, Li Zhizhao, along with Zhang Wei and Zhang Xiu left Taimeng company and started a competitive business. They set up offices in Shanghai and Hubei, and bought and sold personal information on the internet, in the name of “Shanghai OK Information” and “Shanghai Yitong Information”. Zhang Xiu was in charge of sending goods and collecting payment for goods. Zhang Wei was in charge of starting topics on the net and contacting buyers. Evidence was located on their computers and USB devices, showing they had collected more than 30,000,000 items of personal information including investor data, car owner information from Changsha and Beijing, bank client lists, security client lists and lists identifying people with high income.

A tremendous amount of information owned by Li Zhizhao attracted many buyers, including Zhang Yiyu – he spent RMB2,000 buying more than 3,000,000 items of personal information regarding Shanghai property owners from Li, and then spent RMB2,000 buying more than 200,000 items of information regarding Shanghai credit card clients, investor information and details as to the parents of newborns – in total, he purchased more than 10,000,000 items of personal information.

Furthermore, in order to increase profits, Yu Yinhua and Chen Zunlong who worked at a recruitment company, issued false employment vacancy advertisements on free recruitment websites, to attract job seekers and solicit personal resumes - they then sold the resumes for between RMB0.10 – RMB0.50 each.

When arrested, Chen Zunlong was adamant that he had obtained legal advice regarding their business to the effect that what he was doing was not a crime and was legal in China.

Case Analysis

Article 253 of the PRC Criminal Law states:

“Working personnel of state agencies, or of organizations in particular financial, telecom, transportation, education or health sectors who sell or illegally provide to other persons individual information of citizens obtained during the course of such organization’s performance of official duties or provision of services shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and concurrently or independently, to a fine, if the circumstance is serious.
Anyone who illegally obtains the above information by means of stealing or others shall be sentenced in accordance with the provisions of the preceding paragraph.
If an organization commits a crime under the preceding two paragraphs, the organization shall be sentenced to a fine and concurrently, the person-in-charge directly responsible and other persons directly responsible of it shall be sentenced in accordance with the provisions of the preceding two paragraphs.”

The court declared that only personnel at state agencies or organizations in particular industry sectors, can potentially commit the crime of illegal sale or supply of personal information. However, the charge of illegally obtaining personal information (ie. the second sentence of Article 253) does not have this limitation, so these individuals were all correctly charged with this crime and found guilty of the contravention of Article 253.

Conclusion

Given the recent amendments to the PRC Criminal Law and the courts decision in this case, it is clear that China is paying more attention to privacy protection. Given societies constantly increasing use of the Internet and computers, the speed and ease at which valuable personal information can be gathered and sold, is frightening. Some commentators believe that it is imperative for China to enact a special privacy law which will provide more effective and complete protection for privacy and personal information.