Antispam bill clears U.S. House

H.R. 3113, approved by the House and forwarded to the Senate, mandates the inclusion of valid email addresses on unsolicited commercial email and prohibits sending commercial email to individuals who have requested removal of their names from the sender's distribution lists.

With the July passage of the Unsolicited Electronic Mail Act of 2000 (H.R. 3113), the U.S. House of Representatives took a step toward enabling consumers to say "no" to junk electronic mail (email) or spam that can waste time, computer disk space, and Internet access providers' (ISPs') resources.

If passed by the Senate and enacted as federal law, H.R. 3113 would prohibit sending commercial email to individuals who have requested removal of their names from the sender's distribution lists. The measure also would make it unlawful to send unsolicited commercial email messages unless they contain a valid email address, conspicuously displayed, that recipients can use to decline subsequent messages. H.R. 3113 further requires that unsolicited commercial email be labeled and allows ISPs to set and enforce spam policies. Introduced almost a year ago by Rep. Heather Wilson (R-N.M.), the bill had strong bipartisan support, amassing 50 cosponsors and passing in the House by a vote of 426-1. "With regular mail, we have rights under federal law to say, 'I do not want any more of that sent to my mailbox'... But we do not have that right with Internet communications and with email," said Wilson. "This [bill] gives us that right, as consumers and as parents, to say, 'There are some things I do not want to see in my in-box.'"

H.R. 3113 is pending action in the Senate. House proponents of the bill say there have been indications the Senate may move quickly and are hopeful of September enactment.

"H.R. 3113 can be viewed as the codification of common sense; most reputable, competent organizations that use email for solicitation purposes are already in compliance with the proposed statute," notes Green Bay attorney Mark Pennow, a member of the Bar's Electronic Bar Services Committee. "However, the bill also creates a private right of action and allows lawyers to sue for injunction and or actual monetary damages in federal court if there is no applicable state statute."

Other bills pending. A companion bill, Controlling the Assault of Non-Solicited Pornography and Marketing (CAN SPAM) Act of 2000 (S. 2542), requiring unsolicited bulk commercial email messages to include opt-out instructions and their senders to honor opt-out requests, and prohibiting the sale and senders' use of false routing information, is actively pending in Congress.

In March 1999, the Wisconsin State Senate approved a bill (S.B. 33) extending current law restricting transmittal of unsolicited faxes encouraging recipients to purchase property, goods, or services to include transmittal of unsolicited email; however, the bill failed to see action in the assembly.

Collaborative divorce comes to Wisconsin

No formal discovery, contested court hearings, threats, or intimidation? What kind of a divorce is that? A good kind, and one that often makes more sense than traditional adversarial proceedings, contend a growing number of attorneys, including those who recently formed The Collaborative Family Law Council of Wisconsin Inc. (CFLCW), a nonprofit corporation dedicated to nonadversarial, cooperative divorce.

"Collaborative divorce uses negotiation and cooperation to achieve a settlement with minimal acrimony between the parties involved," explains attorney Gregg Herman, whose firm, Loeb & Herman, is promoting the process in Wisconsin. "Ultimately, this reduces the financial and emotional costs of divorce to clients, lessens stress for everyone, and results in more satisfied clients."

In collaborative divorce:

• both parties and their attorneys make a written commitment to settle the case rather than contest it. If the case cannot be settled, both attorneys must withdraw;
• there is no formal discovery; both sides make full and complete disclosures and comply with reasonable discovery requests on an informal basis;
• all appraisals are joint;
• there are no contested court hearings; even temporary arrangements are negotiated. When the issues are resolved, the case is scheduled as an uncontested hearing.

"The collaborative divorce process merely formalizes what many lawyers already try to do before going to court," says Herman.

Wisconsin's collaborative divorce group joins those already established in California, Connecticut, Minnesota, Ohio, and other states.

CFLCW initially plans to establish chapters in Madison, La Crosse, and the Fox Valley, with the goal of expanding the program statewide. The group's first training program is Nov. 17, 2000, from 1 to 4:30 p.m. at the Country Inn in Pewaukee. For further information, contact Gregg Herman at (414) 272-5632.

National Labor Relations Board extends union employee rights to nonunion employees

Employers planning a one-on-one talk with an employee may need to bring in an extra chair, following a recent National Labor Relations Board (NLRB) decision giving nonunion employees the same rights as union employees to a coworker's presence in certain interview situations.

On July 10, 2000, the NLRB issued Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92 (2000), extending rights provided to union employees in NLRB v. J. Weingarten, 420 U.S. 251 (1975), to nonunion employees. In Epilepsy Foundation, the NLRB held that employees in a nonunion setting have the right to have a coworker present at an investigatory interview that the employee reasonably believes might result in disciplinary action. In this decision, the NLRB reversed its long-standing position that such a right applies only to union-represented employees.

"Despite contrary NLRB precedent, the current board has now granted rights to nonunion employees upon its finding that previous NLRB precedent was inconsistent with the Weingarten decision and the purpose of the National Labor Relations Act," notes Stacie Andritsch, labor attorney with Michael Best & Friedrich LLP. "Weingarten held that the right of union-represented employees to representation is grounded in Section 7 of the Act, which grants employees the right to engage in 'concerted activities for the purpose of mutual aid or protection.'"

"By extending the Weingarten decision to nonunion employees, the NLRB seemingly has eroded an employer's ability to deal with its nonunion employees on a one-on-one basis," says Andritsch.

Until the courts can review this decision, she says employers must be mindful of its implications. Andritsch offers the following reminders:

1. The nonunion employee must request that a coworker be present at an investigatory interview; an employer, however, is not required to offer that a coworker be present.
2. The investigatory interview must be an interview where the employee reasonably fears discipline.
3. An employee is not entitled to the presence of a coworker when the purpose of the meeting is only to present the discipline being imposed.
4. An employer can cancel the interview if the employee refuses to participate without the presence of a coworker, and continue the investigation without the employee's input; it cannot, however, take any disciplinary action based on the employee's request.

For further information, contact Stacie J. Andritsch at (414) 223-2509.

State Law Library Web site features automated catalog

The Wisconsin State Law Library's (WSLL's) recently redesigned Web site offers a wealth of legal resources and links to many law-related sites. Accessible at www.wsll.state.wi.us or via WisBar, it provides quick access to state and federal law-related materials, including the WSLL, Milwaukee Legal Resource Center, and Dane County Law Library collections.

Visitors start their search by clicking on one of seven broad categories on the site's revised home page. "Wisconsin Law" and "Federal & State Government Resources" provide links grouped into legislative, executive, and judicial subcategories. All state and federal primary legal sources are accessible, as well as decisions of Wisconsin officials and agencies, state and federal agency sites, information on pending federal and state legislation, and state and federal court directories.

"Law Reviews & Newspapers," "Self-Help Guides," "Directories & Reference Tools," and "Law Search Tools" provide links to secondary legal information of interest to the bench, bar, and public.

The "Wisconsin Topics" category links to sites of interest to Wisconsin legal consumers on topics from alternative dispute resolution to wills.

Search three libraries. This Web site also features the library's automated catalog, WISOLL (Wisconsin State Online Law Library), which covers Wisconsin State Law Library, Milwaukee Legal Resource Center, and Dane County Law Library materials. The catalog includes specialized sublists of the WSLL Video Collection; State Bar Young Lawyers Division Collection, featuring career, professional development, and management, as well as substantive titles; and more than 800 "Electronic Texts" of library titles available on the Internet, many in full text, with hyperlinks for direct connections.

Registered borrowers can click on View Your Patron Record to review and renew materials on loan, and any viewer can submit suggestions at "Titles the Library Should Acquire." Other home page links allow email inquiries to WSLL Reference Services and connect to other Wisconsin library catalogs. Contact Amy Crowder or Elaine Sharp at (800) 322-9755, with comments regarding the WSLL Web site.

Wisconsin Lawyer