Author: Kassie McKie Shiffermiller

It is that time of year again: the Sturgis Motorcycle Rally. Although the 80th anniversary of the Rally will be somewhat muted due to the COVID-19 pandemic, there will still be plenty of motorcyclists looking to wheel and deal. With thousands of out-of-state bikers converging upon the motorcycle Mecca of Sturgis, many people will decide that the best time to sell their motorcycle for the best price is during the Rally.

Selling your motorcycle should be a straightforward and relatively simple process. However, if you are not careful, you could end up without a motorcycle and without payment. According to the National Insurance Crime Bureau, in 2017 alone, there were 44,268 motorcycle thefts. Of those thefts, only 42% of those motorcycles were later recovered. There are a few simple reminders that you should keep in mind when selling your motorcycle. Following these basic tips will deter potential thieves and show potential buyers that you are a legitimate seller.

Listing Your Motorcycle

There are countless platforms where you can list your motorcycle for sale. Newspaper classified ads, internet listings, and circulating flyers will all reach different types of buyers. Listing it on multiple platforms may increase your pool of potential buyers, as well as increase your chances that the buyer willing to purchase the motorcycle for the most money sees your listing. However, whichever platform you choose, there is crucial information that should be included in the listing itself. The make, model, year, and price are all helpful to include in your listing, but you should also make it clear that your motorcycle is being sold in “as-is” condition. This means that you will not make any warranties or promises as to the condition of the motorcycle. By including this language in your listing, you are making it clear to potential buyers that any issues arising after the sale of the motorcycle are wholly the buyer’s responsibility.

Dealing With Potential Buyers

Once you have a potential buyer interested in your motorcycle, the buyer will typically want to see the bike in person. You may want to consider allowing the potential buyer to have a mechanic of their choosing inspect the motorcycle. Again, stressing that you are selling the motorcycle in “as-is” condition is important at this point in the sale, too. An inspection might reveal potential issues, but at least the potential buyer is now aware of these potential issues, and will take them into consideration when negotiating a price, or ultimately deciding whether to purchase the bike.

Inevitably, a potential buyer will want to test drive the motorcycle. It is your choice whether to allow it, but if you are going to allow a potential buyer to test drive the bike, verify, at a minimum, that the buyer has a motorcycle license or endorsement. If the potential buyer were to be stopped by law enforcement during their test drive, your motorcycle could be impounded if the rider is not properly licensed. It may also be helpful to inquire as to their riding experience. You may not want to leave your bike in the hands of a rider who has only just received their motorcycle license. Even if the potential buyer seems sober, always ask if the potential buyer has consumed alcoholic beverages, illicit drugs, or any other substance or medication that may impair his or her driving ability. Any potential buyer who is impaired should not be operating your motorcycle. Further, should the potential buyer get into an accident while test-driving the bike, remember that it is the motorcycle owner’s insurance that will be primarily responsible for liability coverage (meaning your insurance).

In addition, you may want to consider having the potential buyer sign a test-drive agreement to include contact information, insurance information, and addressing parameters such as the length of the test drive and limits to places or streets the driver can go. If something goes wrong during the test drive, a well-written agreement should protect you.

Finalizing the Sale

Once you have come to an agreement on the price, you are ready to finalize the sale. You cannot transfer ownership of the motorcycle without a title. Most states permit sellers to sign the title, indicating an intention to transfer legal ownership to the buyer. The second most critical document is the bill of sale. You can think of this document as the sale agreement. It will outline the parties to the sale, the purchase details, and ownership conditions. The buyer will need both the bill of sale and title in order to register the motorcycle with their county or state.

Before you transfer ownership, it is important to establish payment terms and to ensure that the payment is genuine. It is at this point in the sale that you are at the most risk of being scammed. Request the entire payment up front and beware of the buyer who requests to make multiple payments over a period of time. When it comes to methods of payment, cash is king, but not every buyer will be carrying adequate cash in their pocket. Consider limiting payment options to money orders, cashier’s check, or bank wire transfers. These are the safest and most reliable types of payment to ensure that you are actually paid. Failure to verify legitimate payment or trusting that the buyer will pay after you have already transferred ownership may land you without the payment and without the motorcycle. Only when you are satisfied that the payment terms have been met should you release the bike to the buyer. Make sure to keep copies of all documents for your records and for future reference.

Of course, if the process outlined above seems too onerous or tedious, you can opt to trade in your motorcycle with a dealership. Doing so usually won’t result in the highest sales price, but the price of convenience may be worth it. Whether you trade your bike in or sell it yourself, having the extra cash in-hand will enable you to upgrade to that bigger and better bike you have been eyeing.

Whether you need assistance with drafting a test drive agreement or your buyer refuses to make good on their payment, at Lynn Jackson, we have an experienced team of lawyers to help you with the tools you need to safely sell your bike.

How many times have you consulted online customer reviews before booking an appointment at that new salon, ordering a sweater online, or deciding to try a new restaurant? According to a recent BrightLocal survey, roughly 86% of U.S. consumers consult online reviews before patronizing a local business. For good reason, small businesses are becoming protective of positive reviews, while trying to prevent or limit negative online reviews.

Consider the following scenario, based on a client’s real-life experience:

Recently, a local business (let’s call it ABC, Inc.) discovered that a one-star review was posted on Google Reviews. This reviewer alleged that her boyfriend had initially been impressed with the customer service he received at ABC, Inc. However, on his next visit to the business several months later, he claimed that the cashier was very rude to him and unhelpful. The reviewer ended her review stating that she would not recommend doing business at ABC, Inc.

Luckily for ABC, Inc., its marketing director makes it a point to respond to all Google Reviews, regardless of whether they are positive or negative. Since the reviewer did not name her boyfriend, the marketing director was unable to identify the customer and locate his invoice. A few quick clicks on the reviewer’s social media page revealed the name of her boyfriend without much work. However, when the marketing director tried to locate the customer in their database, there was no record that this person had ever done business with ABC, Inc. Further, the reviewer’s social media profile connected an ABC, Inc. former employee to her as her mother. The former employee had just been terminated from employment a few days prior to the review being posted. It did not take long for ABC, Inc. to conclude that the review was fake and posted out of spite.

The beauty of online customer reviews is that the reviewer can post their honest experience with a product or business in a less formal way. However, as any business owner would likely tell you, the flip side of online reviews is that some reviews are sprinkled with hyperbole and can border on defamation, all on public display on the internet. The good news is that, depending on the content of a review, there can be legal recourse available. If a review is blatantly false and spews a completely made-up version of facts, such as the review above, a business may have a basis for a defamation claim. However, it is highly recommended that a business take less drastic measures before seriously considering the legal route. Also, it is important for a business to balance the cost of litigation with the damage done as a result of the negative review. Sometimes, the math simply does not work out. In ABC, Inc.’s case, the marketing director contacted the reviewer privately, confronted her with the information she obtained, and requested that she take the review down – no litigation needed.

Oftentimes, delineating whether an online review is defamatory is not that simple. More often than not, the circumstances a review is based upon are actually true. However, the reviewer’s opinion may be a bit out of proportion, a misunderstanding/miscommunication, or an unsupported interpretation. These types of online reviews are likely not actionable as defamation claims, but if a defamation claim is questionable, an attorney should be consulted.

Online reviews can be both a blessing and a curse. However, a business does not have to tolerate reviews that are flat-out untrue. Knowing your legal rights as a business will benefit your online presence and keep your customers coming.

Workers in South Dakota are employed on an “at will” basis, meaning that employers may terminate an employee for any reason or no reason at all, so long as the reason for termination is not illegal. Some of the more well-known illegal reasons for termination are discrimination on the basis of sex, race, color, and religious affiliation. Terminating an employee because he or she has previously reported discrimination is also illegal.

If you believe that you have been terminated for an illegal reason, what do you do? The following is a basic guide on filing a complaint for discrimination, but you should consult at an attorney for more specific direction:

1. Know your rights – If you believe you have been disciplined or terminated because of your sex, race, color, or religious affiliation (or any other protected category), you have the right to file a complaint with the State of South Dakota and/or the United States of America. However, going straight to a court of law is not an option, initially. You must file with one of these agencies listed below first.

2. Where do I file a complaint? – Most people can file a complaint with the South Dakota Department of Labor’s Division of Human Rights (“SDDHR”) or the United States Equal Employment Opportunity Commission (“EEOC”). However, if you were employed by the federal government, there is a different procedure that must be followed. Federal employees should contact their local Equal Employment Opportunity Compliance Director for more information on filing a complaint. Generally, you can file your complaint with either agency and it is not necessary to file a complaint with both agencies. However, if you were employed with the State of South Dakota, you must file a complaint with the SDDHR.

3. When should I file a complaint? – Generally, it is best to file a complaint with the appropriate agency as soon as possible. That way, the facts are still fresh in your mind and any potential witnesses’ minds. At a minimum, a complaint must be filed with the SDDHR within 180 days of your termination, and with the EEOC within 300 days of your termination. Timeliness of your complaint is imperative and you may lose your ability to file a complaint with the agency and with a court of law if you do not file timely with the SDDHR and/or EEOC.

4. What do I need? — Gathering the appropriate information is key to the success of your claim. Documents such as your job description, discipline history, employment evaluations, and written correspondence (including emails and text messages) with the key players will be necessary as your claim is processed and investigated. If you have these documents, hold on to them and make copies. If you do not have these documents, there will be an opportunity for you to request these documents later in the process.

5. How do I file a complaint? – The SDDHR intake form can be obtained at the South Dakota Department of Labor & Regulation website, www.dlr.sd.gov. Once at the home page, click on the “Find a Form” tab at the top near the center and select “Discrimination Complaints.” From there, select “Charging Party Intake Form (Employment).” If you would prefer to file a charge with the EEOC, the instructions and forms may be obtained at www.eeoc.gov.

6. Next steps – After submitting your complaint, a formal charge of discrimination will be sent to you for your review and signature. You must sign the charge in front of a notary public and send it back to the Department of Labor and Regulation. If you filed a complaint with the EEOC, it will be “cross filed” with the SDDHR, meaning that it is sent to the SDDHR for investigation. An investigator will call you to ask you questions about your complaint. However, keep in mind that a determination will likely take several months.

7. The probable cause determination – Once the investigation is completed, a determination of probable cause will be made. The SDDHR will either find that there is probable cause to believe discrimination occurred, or no probable cause to believe discrimination occurred. If there is a determination that there is probable cause to believe discrimination occurred, the SDDHR may require a hearing and/or mediation to resolve the issue. You also have the option to receive a “right to sue” authorization, which means that you can take the case to court for determination. You have the same right even if it is determined that there is no probable cause to believe discrimination occurred. In most cases, the EEOC will defer to the SDDHR’s determination.

8. The lawsuit – It is your choice to file in state court or federal court. However, it is highly recommended that you consult an attorney at this point to fully inform you of all considerations you should take in making your decision.

As stated above, this is only a brief guide to filing a complaint of discrimination. The bottom line is that you must file your complaint with either the SDDHR or the EEOC before you may do anything else. It is also very important to be mindful of time limits when filing your complaint. While the complaint process is designed for laypersons to file a complaint without an attorney, it is always recommended to consult an attorney when doing so.

In the realm of employment discrimination, there are strict time bars to bringing claims of discrimination to the Equal Employment Opportunity Commission (“EEOC”) or its state equivalent. When those deadlines are missed, employees will sometimes attempt to seek reinstatement in order to reset the time in which they have to file a discrimination complaint. The Eighth Circuit Court of Appeals in Jones v. Douglas County Sheriff’s Department (No. 17-3196), recently held that while a failure to reinstate can constitute an independent employment discrimination action, it cannot independently revive the previous claim.

The Termination
Ms. Jones was a sheriff’s deputy in Douglas County, Nebraska, in the Emergency Services Unit. Ms. Jones used prescription pain medication for migraines and chronic neck and back pain. Her health later deteriorated, and she failed a remedial qualification for her unit.
After failing the remedial qualification, her office attempted to remove Ms. Jones from its Emergency Services Unit, though it had retained a male with health issues. Ms. Jones was eventually placed in the Fugitive Warrants Unit. However, her supervisor there transferred her to another unit, disciplining Ms. Jones for requesting accommodations and objecting to her transfer in the process.

Then, Ms. Jones became pregnant and was assigned to desk duty. Ms. Jones struggled to stay awake at work, and, at her office’s request, was investigated by the Nebraska Attorney General’s office. That investigation concluded that Ms. Jones had acquired a controlled substance through fraud, and she was charged with a felony. Ms. Jones was placed on administrative leave and terminated one month later. A year later, Ms. Jones was acquitted on the criminal charges.

The Reinstatement Request
Four months after her acquittal, Ms. Jones learned of an open position in the Douglas County Sheriff’s Office. Her attorney sent her former office a letter requesting that Ms. Jones “be reinstated with both back pay and the benefits she was denied during her leave.” The Douglas County Sheriff’s Office denied her request on December 18, 2015.

The EEOC Charge
After the reinstatement denial, Ms. Jones dual-filed a charge of employment discrimination with both the EEOC and the Nebraska equivalent. Both offices found no reasonable cause for such a charge.

The Ensuing Court Action
Ms. Jones then filed suit in federal court, but the federal court dismissed her claim, finding that any claim regarding her termination was well past the 300-day charge limitation period and that she could not revive her claim through the refusal to reinstate.
On appeal, the Eighth Circuit Court of Appeals disagreed that the decision to reinstate could not constitute an independent discriminatory act, holding expressly that “[a] reinstatement denial is a discrete employment action.” However, the court continued, “[i]t may be independently discriminatory.” Thus, while Ms. Jones could proceed on a claim for discrimination due to a decision not to reinstate, that claim did not revive the action for potential discrimination in her termination.

Given that Ms. Jones was solely claiming disparate treatment, the Eighth Circuit reiterated, that “[t]o establish a prima facie case, she ‘must show that she is a member of a protected class who was qualified for but was denied reinstatement, while a similarly situated employee outside of her protected class . . . was reinstated.’” Hence, while Ms. Jones’s claim could proceed, she had to prove that the reinstatement decision itself was discriminatory, a burden that she could not overcome.

The Takeaway
While decisions on reinstatement requests can give rise to new charges of employment discrimination, they are just that: new. The reinstatement request itself must be discriminatory in order to pass muster under Title VII. This means that employees could bring a claim that had never been brought before, even if terminated well before the 300-day EEOC charge limit. But, the employee must then prove that the decision not to reinstate was independently discriminatory.