Unwonk - Episode 2: Neighborly Neighbors
We learn about how angry dog poop can improve your social skills, exactly how tight your former employer can screw your shackles, and how to make sure the heroin-like rush of rewards points doesn't go to your head.
Listen with the player below, subscribe in iTunes or Stitcher (links above), or with your favorite podcast app.
Please enjoy the links to additional information relating to the questions on this episode:
"Love your neighbor - yet, don't pull down your hedge." - Benjamin Franklin
- At least you're not neighbors with Charles Crocker.
- Or living next to a serial killer.
- Asking the most relevant question here.
"[Insert meaningless prattle about employer/employee relationships that will make the rounds on LinkedIn just because Richard Branson said it.]" - Richard Branson
- This law firm has a pretty good chart of non-compete enforceability by state. Remember to always check with an expert for the most up-to-date information.
- Orientation day. Welcome to your new job!
- Bitter, yet harmless.
"...And secondarily, I am making this voyage because I was able to use my business Amex to purchase the plane, thereby rewarding me with a soul-tingling buttload of sinful, luscious points." - Amelia Earhart
- Technically credit card fraud. Here's a good wiki piece about all sorts of credit card fraud.
- We wanted to include a link to a credit card review page that would tell you which cards give the best points for what, but all those pages appear to have sponsored content and aren't specific about which bits are sponsored and which bits are not, but, hey, that's life on the internet. [NOTE: This bullet point sponsored by the preceding bullet point.]
[Episode keywords: neighbor trespass & nuisance, employee non-complete, credit card fraud & points]
UNWONK PODCAST - EPISODE 2: NEIGHBORLY NEIGHBORS
Hi, friend. This is a rough transcript of this episode of Unwonk. What's that mean? It means that we're just pasting the original script for the show plus unvetted transcripts of any interviews. So, you're likely to see content that maybe didn't make the final cut, maybe not see some content that was in the episode but not the original script, and run across a few typos.
As with everything on Unwonk, the transcript below is for general informational purposes only - this is not legal advice - if you need to have a legal question answered, please seek legit legal representation.
On this episode of Unwonk, we learn:
• How angry dog poop can make you a better person,
• What is the worst kind of pudding, and
• How credit cards let the spice flow with rewards points.
This is Unwonk. We respond to your questions with relevant, useful and comforting information. If you would like to submit a question, please visit our site at Unwonk.com.
Even though the information on this podcast is provided by actual attorneys, you’d be an idiot to think it is actual legal advice, and you’d also be the type of person who checks the coinslot of every payphone you pass, even though nobody has used it since 1997.
And now, our first question.
My neighbor's dog continues to poop in my yard after I've issued numerous warnings, including written letters. Can I sue them?
I’m sure you’ve heard the expression, “You can sue anyone for anything.” Reading the litigation tea leaves here, I’m seeing a health code violation, a nuisance claim, some kind of trespass issue, damages for ruined grass and foliage, and maybe even a harassment charge, intentional infliction of emotional distress and malicious panty twisting.
So the answer to your question is a resounding “Yes.” You can sue them, big man.
If you want the grown-up answer, read on.
I’m sure you’ve also heard an expression about people being so preoccupied with whether or not they could do something that they didn't stop to think if they should do it. I’m sure you’ve heard this because it’s from Jurassic Park, and based on my calculations, this film has been seen by 147% of the world’s population.
Look, everyone has bad neighbor stories. Loud music, loud pets, loud sex (though that could be a plus depending on who/what is involved) – these are all common neighbor issues that start with friendly but passive-aggressive notes taped to doors and end with surreptitious calls to the police for a noise complaint, if not kneejerk behavior like leaving your loud music on all day in retaliation. Step up the nuisance to something more physical, like trash blowing onto your lawn or, in your case, poop, and the stakes understandably go up.
While we are perceived as being a litigation happy society, suing someone is still the ultimate legal escalation, and it has a ripple effect through everything else. When you press the lawsuit button, you’re not only skipping a bunch of intermediate steps that could have kept things civil, it’s also something that you can’t take back even if you drop the lawsuit. We’re so accustomed to getting angry about inconvenient things that we forget we still live side-by-side with other people who have their own issues and needs.
So, unless your neighbor’s dog is destroying your lawn, it’s in your best interest to approach your neighbor for a conversation. Maybe he didn’t get how concerned you are. Maybe he didn’t read the letter. If things escalate and you’ve exhausted all peaceful remedies, sure, take him to small claims court for… something. But realize that until you’ve tried everything amicable, this has more to do with you and how you deal with things than it does about your neighbor and his dog.
And as far as written letters and warnings, make sure you document all communication. And make sure that if you issue a warning, you know that you will follow through with the consequences. Just like training a dog. And if it finally has to escalate, so be it. But at least you’ve taken the adult approach. Also, a video camera that records the incidents wouldn’t hurt. Don’t forget you can also try calling your town’s health department, animal control or other agencies.
All that said, you are flinging the dog’s turds directly onto your neighbor’s stoop, right? Because I think that would be OK, too.
I left my job a few weeks ago to go work at new company. A lawyer for my last company sent me a cease-and-desist letter, claiming that I'm breaching my agreement with them. It's a bit of a nail-biter of a situation, since I don't make a lot of money and don't want to hire a lawyer. What should I do?
Totally off the subject, but speaking of nail-biting, I’m now on day 58 of not biting my fingernails. Day 58. That’s 58 days after decades of constant, unthinking, nail mastication, leaving me with with perpetually ragged nails and bloody fingertips. Few things, by the way, bring you more esteem and respect at a business meeting more than the slow wind-down of all conversation so everyone can watch you silently chew on your fingernails. So, instead of biting my nails, I’ve been reflecting on when the nail-biting started. Memories are often vague and slippery - a lot of my childhood memories are lost to the void of time. I don’t remember the first time I brushed my teeth on my own, I can’t recall tying my shoes on my own for the first time. Totally unable to recall the first movie I went to.
But, I do remember that one day, in Mrs. Brown’s 3rd grade classroom (yes, her name really was Mrs. Brown, I’m not making that up even though it sounds like the kind of name you’d make up), I had been accused of a crime. Accused of slamming my desktop loudly with Mrs. Brown’s back turned during class. It wasn’t me. It was Brian Smith (yes, his name really was Brian Smith, I’m not making that up, either. Although it does sound made up.). But she saw me laughing as she spun back around - she really didn’t like loud noises - and I was convicted by the time her feet had finished their 180 degree pivot. I hated getting into trouble - it filled me with a cold dread, the kind that weighs on and hangs the edges of your mouth down, forcing a frown that usually precipitates tears. This time, though, I was innocent and in trouble. Which made the frown more intense.
Everyone else left to go to recess. Once the lights were off, I was to stay in the room, head down. I was very good at putting my head down, apparently, because my fat arms created a near airtight seal, trapping my face in a pocket of me-created humid heat, the cold dread in my stomach still churning. In order to breath, I moved my hands closer to my face, opening a crack under my arms so the air could come through. My thumbnail came in contact with my mouth. And I bit it. And that’s how it started, in the humid and dark space between my head and a scratched up desk top, I became a nailbiter.
Turns out, Mrs. Brown only meant for me to have my head down for five minutes. After recess, the class had gone to the school library, and then to lunch. I had my head down for nearly 2 and a half hours. Fingernails obliterated for the next several decades, always an association of fear and stress manifested on my hands - the second most expressive part of the body, art teachers are fond of saying… art teachers clearly unfamiliar with my soulful kneecaps. Had Mrs. Brown been a better communicator - she wasn’t the best teacher - maybe it never would have started. Or maybe it was always going to start, just waiting for the right traumatic moment.
Then, a few months ago, I bought the stuff for your fingernails that you paint on and then choke at the horrible flavor if you try to bite. It works. It doesn’t smell like garbage - I expected some kind of rotten meat or durian fruit vibe - it’s got a chemical taste, what I imagine the break room smells like at the iPhone factory.
At first, life with fingernails was amazing. A very low level version of a blind man gaining sight - head scratching feels fantastic, I can wiggle open things with little crevices, like lids on partially opened cans… and lids on partially opened cans. It’s like gaining very unremarkable superpower. But nobody warned me about the maintenance. These things get dirty. And they don’t grow into little perfect crescent moon shapes. You actually have to clean and form them. And possibly the most horrific sound on earth - aside from the sound of anyone chewing audibly - was always the sound of fingernail clippers, especially on the subway or any other public place. Nobody told me that it would be just as irritating when I was clipping my own nails.
But it’s worth it so far. And, for now, they give me some comfort knowing that I have a back up coping mechanism in case things get really stressful, like if I’m convicted of another classroom crime I didn’t commit.
Now, back to your question. Unlucky for you, there aren’t a lot of facts here to help provide useful information. Lucky for you, there one thing that could.
In the US, employees - or, as you’re known to your overlords, the shambling riff-raff that fucks around all day on social media, are employed “at will.” That means that, absent an actual employment agreement, you can be terminated for any reason (except for discrimination, or whatnot) at any time. This also means that you can quit upon notice. Of course, the expediency of at will employment usually works in favor of the employer, who can replace you in an instant with another shambling riff-raff that fucks around all day on social media.
Now, a lot of employers have employees sign agreements that have some restrictions during and after their employment. These are known as covenant agreements, not employment agreements. Employment agreements generally imply some benefit to the employee. Covenant agreements are generally all about the employer.
First, there’s something called a non-compete. This often means that the employee can’t work for a business that is competitive with the employer during the employment anr for a certain period of time after the employment. States vary wildly on this. In California, non-competes are famously not enforceable at all on the grounds that you can’t contract away your right to make a living. A lot of states have various reasonableness tests on this - meaning that the non-compete has to be to a specific line of business, in a specific geographic area, and for a limited period of time - (that’s an important legal word you should know, by the way - reasonableness) . For example, you can’t enforce a non-compete that prevents an employee from working in the pudding business throughout the universe for all time. That would be cruel. And unreasonable. Because the pudding business is amazing. And let’s not forget, delicious. If it’s limited restriction, though, some states might let it fly. For example, if the person can’t work for a pistachio pudding company within 30 miles of the original employer for one year, this might work. Which would be OK, because - and I think we can all agree on this - pistachio is the worst pudding.
In many of these states, a judge can actually rewrite restrictions if they’re too onerous, scaling them back to what the state would deem reasonable. This is called blue penciling. There are many stories about where the phrase “blue pencilng” comes from, and like many legal things, they are boring stories and nobody cares.
Note that sometimes there are circumstances where a non-compete that normally wouldn’t be enforceable can be. This can be seen with a non-compete in connection with the sale of a business. You wouldn’t want the owner of a business you just acquired to run off and start a competing business. So the law assumes that the former owner got enough cash that he or she just won’t give a shit about working for awhile.
Next: Non-solicitation. This usually means you promise not to solicit your employer’s employees, clients, vendors, etc. after you leave the company. Non-solicitation provisions are generally enforceable. This has nothing to do with the more salacious version of solicitation, by the way. It’s assumed you’re not going to do that anyway.
And then we have non-disclosure obligations. This covers all confidential information you picked up at your former employer. Private client lists, processes, pretty much anything they kept secret. Also enforceable. This is particularly important in the realm of trade secrets.
So, your question doesn’t tell me where you are located or what your former employer is concerned about. However, because you went into a different line of business, they are likely not concerned about the non-compete because, well, if the business is entirely different, there’s nothing to compete against.
So this leaves non-solicitation concerns or confidentiality issues. At this point, only you and your former employer can answer what the worry is - if it’s a different industry, would client lists and such really matter? Are they worried you’re going to take a team from a fairly industry-neutral group, like the finance department?
If I were you, I would call the head of HR from the former employer, or your old boss, and ask what’s going on, being very aware that anything you say can be used as evidence. It may just have been a mistake, it may have been based on a rumor about something you said - these things get sent out all the time. There are lawyers who go through piles of cease and desist letters faster than they go through Kleenex (sorry, facial tissue - we’ll talk about that another time). Lawyers love writing letters telling people to stop things. It’s like the nailbiting of the legal profession - they don’t even realize they’re doing it and everyone just stands around in silence while they feverishly dash off tone deaf correspondence.
If it continues to get weird - and things often do - go talk to an employment lawyer. Employment law is a sticky area with a lot of tiny crevisses (some of which are small enough to barely wiggle a fingernail into) where the most nuanced facts can make a big difference.
An employment lawyer can also be useful as a personal diplomat if you have to bring your current employer into the mix. Always an awkward situation.
Or don’t talk to a lawyer. You’re an adult, your choice.
Either way, stop fucking around during the workday so much. Especially on social media.
My wife and I got a credit card way back 2008, because it had the best points, and we’ve had it ever since. It gets the best points because it’s a Business card. And so when the credit card company asked us what our Business was, we put down “Super Great Partners,” which of course is a joke because doesn’t even exist. Is this legal?
Every line of work has its frequently repeated client phrases. For house contractors, it’s “How quick and cheap can I get this done?” For dentists, the question is “Can you do this so it doesn’t hurt?” And for strippers, it’s “So, how many years of medical school do you have left?”
As a lawyer, “Is this legal?” is definitely up there. And this is because the attorney answer to “Is it legal” is rarely yes or no. The reason for this is that most of the time, people can figure out on their own whether something is legal. By the time it gets to an attorney, the “is it legal” question is going be mired in a gray area so ambiguous, foggy and dark, you usually can see the outline of the loch ness monster moping across the surface.
The answer is usually, “it depends,” followed on by a series of facts, assumptions and sparkling oratory leading to various possibilities.
This can be infuriating to clients.
This answer is as vague as one of the best ever sentences ever uttered by a lawyer who happened to be the US president: which was “It depends on what the meaning of the word 'is' is.” Or Donald Rumsfeld’s plinko machine known-unknowns answer. Both statements are accurate but practically vague and meaningless at the same time.
I can do a little better than that here. The answer is a little better than “it depends.” There is a right answer, which I will give you.
But, the right answer, is wrong.
So, there’s good news, and bad news, but then neutral news.
Your credit card account is governed by public and private rules. The public rules - these are real laws and regulations - apply mostly to your card issuer and are there to protect you. So, hurrah for regulations. The private rules are established by the contract between you and your card issuer, completely to your satisfaction, and you most assuredly had equal negotiating power in the drafting of the agreement.
Wait, sorry, that contract was to your card issuer’s satisfaction. Your decision was whether to tick a box and click “I agree.” Keep in mind, too, that the bank generally has the ability to change the terms whenever it wants. Though in 2013, a Russian court backed a man who wrote in his own changes to terms on his credit card application, including no interest rate or credit limit, and a 3 million ruble fine for breaches by the bank - the bank had to honor the terms. Of course, this comes from a nation where beer was legally classified as a soft drink until 2012, and the footage from dash cams reflects a bizarre parallel universe where someone like Biff Tannen has taken control. So this is not a surprise. Also, the main US news reporting I can find on that comes from the NY Daily News. So that’s a grain of salt.
Anyway, your obligations to the issuer are largely based in a private contract, including not only use of the account, but those precious tender rewards points.
Let’s start where you began. The application for your credit card requires you to submit a legal business name. In your case, you entered Super Great Partners. Normally, to start a company, you need to file something with the secretary of state that officially creates your business entity. This is ostensibly for the public good, but it’s also so the state can start raking in more cash off of corporate franchise fees. However, there are two business forms that usually don’t need formal filings: the sole proprietorship andr the general partnership. This is great news, because you don’t need a formal filing to show that you and your spouse have a general partnership.
We hit an obstacle next, though, when the application requires a tax ID number for all partnerships - and, bear with me through the tax stuff. So, even though there’s no state filing required for partnerships, the IRS does require a tax ID of all businesses. This may not have been a requirement on the application when you applied. It very well could have been implemented as a gentle way to deter cases like yours.
So, technically, even though you could try to claim that you and your spouse have a partnership called Super Great Partners, it’s not really true - as you said, it is a joke - and would be very hard to prove in court. But, hey, whatever keeps the flood of serotonin juicing rewards points flowing.
This is where the private contract bit comes in. You promise that all information on the application is accurate. You lied. That’s a breach.
So technically, there’s the whiff of something “not legal” about it. You’re breaching a private contract.
Let’s look at the difference between something not being strictly “legal” and a party not enforcing its legal rights. If you were using your card account in a fraudulent, abusive or otherwise untoward way, it might catch the eye of the credit card company, and they may very well take action against you. But, in this case, if you’re a good customer, slightly gaming the system to get more points, you may be breaching your agreement, but think about (a) what damages the credit card company may have against you and (b) whether it’s worth their time. They could just look the other way. They could cancel your card. Those are best case scenarios. They could, however, decide to make an example out of you. Maybe not a high chance of that happening, th ough.
So, in the broad universe of the phrase “Is it legal,” I’m going to say, not really, in the sense that breaching a contract is not the 100% legally compliant way to live. There are potential claims of facial breach, fraud, misrepresentation, unjust enrichment and other possibilities. The right answer is “No, it is not legal.” (and we won’t start on the difference between “is it legal” or “is it against the law” here).
The right answer, though, is wrong on a practical basis.
Can you tell me that there is a single week where you have been 100% compliant with everything in your life? I, for one, changed lanes in an intersection this morning. Not my whole car, mind you, but just enough where I’m pretty sure it wasn’t legal. And I was kind of a dick about it, but that’s just a personal choice to do things with panache.
Further, part of the acceptance of whether something is “legal” is the decision of whether to live with it, and that becomes part of your own special risk assessment. This is the right answer for most people - it’s not that they’re asking “is it legal” in a black and white sense - they know it’s not entirely legal. What they’re really asking is “will I get caught and will I get away with it.” That’s really your decision. And, frankly, there’s isn’t much I wouldn’t do for r thick flowing rivulets of sweet honey reward points. r
When I was a kid, by the way, I thought that credit cards were the top level of sophistication. The ability to pull a plastic rectangle out of your wallet and - with a jerky kerchunking of a large imprinting device and a carbon slip later - be able to acquire goods and services. It was magical. But, I also loved technology, so no love lost for those days. As everything continues to move towards wireless and contactless technology, I’m waiting for some hipster (do we still use that word? hipster?) to launch a kickstarter to retrofit obsolete card imprinters with wireless technology, to give your purchase of thoughtfully and locally made artisinal goods a true analog rotary dial feel.
A few notes while we’re on this subject, because I care about you:
Most credit cards require arbitration instead of going to court. While most people say that this is more cost-effective and efficient, there’s a common belief that this is to stave off class action lawsuits from individual cardholders. At least Amex and Discover appear to allow you to opt out of arbitration within a certain period of time after opening an account and if you follow very specific written notice procedures. Amex, for example, a company with a New York image, requires in its contract governed by Utah law, that you send an opt-out notice to somewhere in Texas. Note that corporate card accounts likely can’t opt-out of Amex arbitration.
Another important thing to keep in mind - and I’m sure you aren’t using a business account to avoid personal responsibility - just to get the bubbling dark nectar of reward points - many cards require joint and several liability between the business on the account and at least one real human being. That means that if the account goes delinquent, your issuer could pursue either the business (which, in your case, doesn’t exist) or the human being (which is you or or spouse).
So, you need to ask yourself what you mean by “is it legal.” In the meantime, get in your tub and bathe yourself in your midas-flecked ingot hoards of shimmering, lovely rewards points.
Seriously, though, I love my Starwood Amex and you can pry it from my cold dead, Gold member upgraded hands.
Thanks for listening to this episode of Unwonk.
Please visit our site at Unwonk.com to submit your questions, and to learn more about the topics discussed on today’s episode.
On the next episode, we learn about:
- How a bar-room bet that led to the creation of non-toxic schoolroom paste,
- Why schoolroom paste tastes like mint, even though it’s something kids clearly shouldn’t be eating, and
- The Supreme Court decision that forced a five-star general to admit that he enjoyed eating paste, regardless of flavor.