Poor Performance and Unemployment?

If you have fired an employee for the reason of poor performance, they may still be eligible to receive unemployment. Depending upon the state that you live in, most states consider workers who are terminated because of performance issue to still be eligible in many instances, provided they meet other work requirements.

What Does Poor Performance Mean?

Poor performance can be considered a catch-all term for several different reasons why an employee has been separated from their job. It is often defined as the employee’s inability to meet the standards set for their particular position provided that this inability was not deliberate.

Examples of why you would fire an employee because of poor performance may include that he or she:

  • Is a poor fit for the position in which they were hired
  • Does not have the proper skills or training for the position in which they were hired
  • Has been unable to perform to the standards for the position as expected by the employer
  • Made honest mistakes that cannot be considered willful misconduct

However, if you can prove that the employee has intentionally acted in any of these circumstances, it is possible that their unemployment benefits may be completely denied or delayed for a period of time.

For example, if the employee has intentionally shown misconduct or has acted recklessly against the best interests of your business, it is important not to label their dismissal as due to poor performance. This could be that they have previously performed their job as required, but have now stopped doing so intentionally. Keep in mind this does not include instances where the employee’s skills have declined because of infirmity or other declines.

Reasons Why an Employee May be Ruled Ineligible for Unemployment Benefits

It is important to protect your rights as an employer and help keep your costs for unemployment in check. The most important way is to understand the circumstances in which you would fire an employee under the guise of poor performance versus misconduct. For example, if after repeated warnings your employee has not corrected their behavior or performance to adhere to company policy; this may be grounds for being terminated for reasons of misconduct.

Instances of misconduct may include:

  • Excessive tardiness or unexcused absences
  • Insubordination or causing dissension among other employees
  • Dishonesty or stealing
  • Sexual harassment
  • Violating safety rules
  • Intoxication or failing a drug or alcohol test

The severity of the willful misconduct of the employee will be taken into consideration when determining if and when they will be eligible to collect unemployment benefits.

What is a Third Party Claim?

A third party claim is also known as a third party proceeding, and this type of claim involves someone attempting to bring a third party into litigation. Perhaps providing an example of a third-party claim and contrasting a third party claim with a first party claim will help give you a fuller idea of what a third party claim is.

First-Party Claim Vs. Third-Party Claim

The terms first-party claim and third-party claim are both pieces of terminology within insurance law and personal injury law. Under insurance contracts, the insured person is considered the first party and the insurance company itself is considered the second party.

So, where does the third party enter the picture? A third party is someone foreign to the insurance policy covering the insured (first party) and the insurance company (second party).

For example, if person A is insured by Acme Insurance Company, then person A is the first party and Acme Insurance Company is the second party. To continue the example, a third party would be someone trying to engage the Acme Insurance Company in litigation.

Perhaps a more concrete example would help. If your home gets wrecked by a hurricane, then the owner of the homeowner’s insurance policy (the first party) contacts the insurance company (second party) to provide first-party coverage and help the homeowner recover financially from the property damage.

Third-Party Claims and Insurance Claims

A third party, then, is someone outside of the contract between the first party and the second party. Third-party claims are the most frequent type of car insurance claim made within the United States.

Filing a claim against another driver’s car insurance company following a car accident is a third-party claim. You are seeking to bring the other person’s insurance company (a third party from your perspective) into litigation, and this kind of litigation is normally a liability claim.

A third-party claim is sometimes necessary to take following a car accident because you may have suffered a personal injury or damage to your car, yet the other person’s insurance company doesn’t have a contract with you per se.

The insurance contract is between the person that hit you (first party) and their insurance company (second party), so you (the third party) need to bring the other person’s insurance company into litigation in order to receive compensation for possible personal injuries or pain and suffering sustained during or after the accident.

Examples of Third-Party Claims

If, say, you were driving a company car on a work-related assignment and you got into a car accident, then you might be able to receive compensation for your medical expenses by filing a third-party claim against the insurance company that your employer has.

Lost wages as well as pain and suffering could be compensated for by the other person’s insurance policy if the other person was deemed at fault in the accident. These kinds of third-party claims are often liability claims because another party is at least partially responsible for your personal injury or possible pain and suffering.

Under rare circumstances, someone could file both a first-party claim and a third-party claim against an insurance company. If, say, you were a passenger if your own car and your friend driving the vehicle got into an accident. You could, then, file a first-party claim with your own insurance company and file a third-party claim.

Summing Up

First-party claims are between a policy holder (first party) and an insurance company (second party) whereas a third-party claim is filed by an outsider to that insurance contract. Third-party claims are usually associated with car insurance claims and typically involve a liability claim.

What is a Prenup?

A prenup, or prenuptial agreement, is a legal document created before entering into a marriage. A prenup can include many provisions, but usually it provides for the division of property and spousal support in the event of the legal dissolution of a marriage. In some states, prenups also include provisions for the forfeiture of assets if the marriage ends in divorce because of adultery, and conditions of guardianship in the event of divorce. Prenups affect alimony payments, property rights, and other assets after a marriage ends. Prenups are also made in the event of death of one partner in a marriage.

Properly Drafted and Executed Prenups

In the US, some prenuptial agreements can be circumvented if it is found that they are not properly drafted and executed. In the state of California, a properly drafted and executed prenup is very powerful. There are five factors that constitute a valid prenup in most jurisdictions in the US:

  1. Must be in writing. Some couples make oral prenups, but they are mostly unenforceable in a court of law. Any marriage lawyer will strongly urge both parties to draft a prenuptial agreement in writing, signed by both parties.
  2. Must be entered into and executed voluntarily. Couples should take steps to prove that the agreement was voluntary. Some couples retain a private judge present during the signing to ensure that neither party has been coerced, and, to show proof of this.
  3. Full and/or fair disclosure when the agreement is officially entered into.
  4. Cannot be deemed unconscionable. This provision typically involves the guardianship of children, who are very often negatively affected by divorce.
  5. Must be officially executed by both parties, as opposed to their attorneys. Both parties must agree to a legal acknowledgement before a notary public for the prenup to be valid.

Prenups in California

Prenuptial law in California varies slightly from other states because it does not recognize penalties for adultery or using recreational drugs that are common in many prenups in other states. Californian courts will also refuse to enforce requirements that children be raised in a certain religion and other requirements written into a prenuptial contract. Couples can waive their rights to share communal property in California, and prenups can limit spousal support to one party or another unless a court rules that support limitations are unconscionable.

Why You Need a Lawyer

There can be many legal pitfalls surrounding prenups, especially in California, where these agreements are considered very powerful. Any contract that you sign, prenup or otherwise, should be read first by a lawyer who can watch for any improprieties and ensure that the contract is legal and benefits you. In California, there are special requirements for those signing prenups without legal representation. You cannot limit spousal support without a lawyer present at the signing, for example. If you wish to call for the payment of a lump sum at the time of divorce, Californian courts may deem the agreement null and void. Lump sum payments at the outset of divorce have come under attack recently in Californian courts because it has been ruled that it promotes divorce. There are many small nuances to prenups that most lay people miss.

Divorce Attorneys

Divorce attorneys help negotiate the terms of a divorce in accordance with the prenuptial agreement. Make sure that you get the best legal counsel when negotiating such a personal and sensitive legal issue. Both parties are encouraged to have legal help when navigating the legal terms of a divorce settlement. Figuring out where the prenup fits into those negotiations is the key to an amicable settlement for both parties.

Mediation and Arbitration

A good lawyer always wants what’s best for the client and, in many cases, that involves alternative dispute resolution processes that keep client fees more manageable and prevents clients from having to step foot in a courtroom. Mediation and arbitration have helped thousands of couples to navigate their divorce agreements as peacefully as possible, keeps families from going to court over child custody issues or entering the agonizing probate process, and they have helped corporate clients resolve any number of disputes.

Work With an  Arbitration Lawyer for Win-Win Resolutions

Most people automatically envision “going to the courthouse” when they think about legal disputes. In fact, the courtroom should always be the last alternative. By the time you get to court, you have spent quite a bit of time, energy and money – and more will continue to be spent as long as the case is being worked out in front of a judge. Instead, we recommend alternative dispute resolution (ADR) as a means of saving your money, time and precious life energy. In best case scenarios, ADR will also help to preserve your personal and professional relationships, which is a win-win situation for all.

What is Mediation?

A lawyer specializing in mediation can help you to resolve a multitude of disputes ranging from personal injury claims, conflicts with employees and management, small claims issues to disputes between neighbors or divorce and child custody agreements. Both parties must be in agreement regarding the mediator who oversees the process. The mediator remains an entirely neutral facilitator; he is not there to agree or disagree with either party, assess blame, or in any way affect the final outcome of the mediation process other than to act as a resource in regards to California law. However, it is the mediator’s job to facilitate concessions from either side when things are at a stand-still in order to avoid further conflict, dispute or a potential trial.

In our experience, the vast majority of clients who use mediation as a means of settling their claims are successful in resolving their dispute(s). If, for some reason, both parties are unable to come to a resolution, then you have the right to proceed with a trial and we can help you to prepare for the next step.

What is Arbitration?

Typically, the arbitration process is more formal than mediation. In most cases, arbitration occurs as the result of a pre-dispute contract that stipulates both parties must seek arbitration before any conflict or dispute can be taken to court. There are two different forms of arbitration: Binding and Non-Binding.

Binding arbitration means that the arbitrator’s decision is final and cannot be overturned or reversed except for extremely limited circumstances. If the arbitration is non-binding, either party can reject the arbitrator’s decision and pursue a trial.

An Employers Responsibility When it Comes to Sexual Harassment

As an employer, you understand that fear of judgment and backlash can make opening up about sexual harassment tough for an employee. When a victim finally decides to speak up, you must be ready and willing to get to the bottom of the situation immediately.

Keep in mind that as the boss, you’re indirectly responsible for the on-the-job actions of your employees. If you choose to kick allegations of sexual harassment under the rug, it could lead to resentment, reduced productivity and high turnover rates among your employees.

Even worse, if you don’t take action, you could end up with a business-crippling lawsuit on your hands. The entire situation could turn into a chain reaction. Once one employee decides to sue, past victims might come out of the woodwork and fan the flames. Although 6 out of 10 lawsuits, according to information by the Equal Employment Opportunity Commission (EEOC), never see the light of day, why would you want to take that chance?

Interview the parties

Speak to the victim, and then to the accused to get both sides of the story. Get the names of anyone who may have witnessed the incident. There should be two people in management present during both interviews so there is an extra witness just in case the issue spills over to court.

Have the victim sign a statement confirming his or her version of what happened. Document the date and time you spoke with the accuser and the alleged perpetrator. To keep down trouble and confusion, request that the victim avoid speaking to anyone on the job about what happened.

Investigate the matter

Gather all of the information and conduct an investigation via an in-house manager or a lawyer. It’s best to assign at least two people to the investigation to make sure it’s fair and unbiased. Also, document every step of the investigation process, as well as the basis for the outcome.

Take appropriate disciplinary action

If your investigation reveals that the accused did in fact sexually harass a coworker, take disciplinary action. The nature of the action will depend on what happened. If the infraction is small, a written warning may suffice. If the harassment is ongoing and severe, you may have to send the person packing to prevent a lawsuit.

Having a written, anti-harassment policy in place shows you took measures to prevent employee harassment and can protect you legally. Give everyone in the workplace a copy of the manual and have them sign a form indicating they received it. To ensure you cover all the bases, have the handbook drafted by an employment attorney. In addition, go over the handbook annually and update it as needed.

What is a Personal Injury Lawyer?

A personal injury lawyer is just like other types of lawyers who advises, represents and advocates on behalf on their clients. What makes this type of lawyer different from a criminal or entertainment lawyer is the area of law he or she specializes.

Tort Law

Tort law includes civil or private injuries or wrongs such as breach of contract, automobile accidents, dog bites, or defamation. Tort law has two goals:

  • To make the injured party “whole” again.
  • To discourage other people from doing the same offense.

Under tort law, a personal injury lawyer can represent a plaintiff or defendant in a personal injury case. If the personal injury lawyer represent a plaintiff, he or she is fighting for compensation such as:

  • Past reasonable medical expenses.
  • Future medical expenses.
  • Emotional distress.
  • Legal costs.
  • Loss of earning capacity.
  • Attorney fees.
  • Pain and suffering.
  • Loss of companionship or consortium.
  • Receiving a fair settlement from defendant or insurance companies.

Personal Injury Lawyer’s Duties

Personal injury lawyers often handle more than one case at a time. Regardless of the number of cases, he or she has, the duties are still the same. He or she:

  • Investigates claims.
  • Talk with potential clients.
  • Accept or decline to represent clients based on evaluating the merits of a case.
  • Gather evidence.
  • Build a case based on a legal theory.
  • Research a particular case law.
  • Writes a letter to opposing parties to inform them about the intent to sue.
  • Draft and file any lawsuits.
  • Conduct discovery. This is where a lawyer exchanges information with opposing counsel. The purpose is to gather additional evidence. It also includes deposing and interviewing witnesses and parties to the case.
  • Draft and file any motions and pleadings.
  • Prepare for trial.
  • Present evidence at trial.
  • Counsel clients.
  • Negotiate settlements.

Typically, a personal injury lawyer completes all these tasks on a contingency basis. This means they work for free until the case is resolved. If the lawyer wins the case, he or she receives a payment. The payment could be anywhere from 20 to 40 percent of the award. A “win” can be a jury verdict or a negotiated settlement. However, if a personal injury lawyer doesn’t win or settle the case, he or she doesn’t receive any money.

Cases that Require a Personal Injury Lawyer

Some cases that are considered simple may not require the assistance of a personal injury lawyer. However, there are many situations where having a lawyer is vital to a client’s case. These cases include, but aren’t limited to:

  • Medical malpractice.
  • An insurance company that refuses to pay a client.
  • Premise liability cases.
  • Wrongful death lawsuits.
  • Libel, defamation and slander lawsuits.
  • Product liability cases.
  • Cases involving permanent injuries and emotional distress.

In many situations, what begins as a simple personal injury case can become very complex. However, a personal injury lawyer’s job is to represent his or her client and find the best way to resolve the legal dispute.

How is Spousal Support Determined in California?

During the divorce process you might encounter a petition for spousal support. Spousal support, sometimes called alimony, is not an uncommon request and may be granted, along with child support (or in the absence of child support) for a number of reasons. The court decides what the appropriate spousal support is for each particular case, by taking into consideration the specifics of the case, the marriage, the length of the marriage as well as other circumstances.

Spousal Support in California

Spousal support, often a hot button issue, is decided in California by considering many different aspects of the marriage, and the life that will be led by both parties after the marriage is dissolved. The length of the marriage often comes into play when a court is ruling on spousal support. The length of the marriage greatly impacts whether or not spousal support will be granted, often times.

A judge will also consider whether or not the person who is asking for spousal support can support themselves with marketable skills. For example, if a 20 year marriage dissolves in which the wife has never worked, she is unlikely to have marketable skills, and, thus will require support until marketable skills or necessary education is achieved.

A court will also take into account whether or not the party asking for spousal support has had their income potential impaired by their time spent outside the workforce because of the marriage. The court will decide whether or not the supported party was removed from the workforce to devote time to their marriage and domestic work, as well.

The supporting party’s needs are also taken into account when dealing with spousal support in court. For example, a judge will consider the lifestyle that both parties have become accustom to in the marriage, and he or she will also look at the monetary obligations of both parties. The supporting party must be able to sustain their own lifestyle appropriately while paying spousal support, and the court will not impose a financial hardship on one party in the interest of the other.

How Does Child Support Impact Spousal Support

Spousal support can be granted regardless of whether or not children were conceived during the marriage, however, many courts rule more favorably for spousal support if there are children involved, specifically, if the supported individual gave up their employment in the interest of caring for children. In many cases, the court agrees that the supported party should not take time away from the raising of children, as they had done during the marriage, for gainful employment and will rule in favor of spousal support to keep the children in a lifestyle they are both familiar and comfortable with. With that being said, however, spousal support can have an end date, and in cases were raising children is a deciding factor, the spousal support may end when the children involved in the case reach an age in which they can reasonably care for themselves.

The Length of Spousal Support

Many people think of spousal support as a never ending agreement. That simply is not the case. In the state of California, most spousal support decrees are for no longer than half the length of the marriage. This is considered enough time for the supported party to gain the skills they need to support their own lifestyle and interests. The length of the marriage, the age and the health of the parties, and other previsions may alter that time frame, however.

What is Wrongful Death?

What are wrongful death lawsuits and when might they be brought against another person? A wrongful death lawsuit is a type of civil action that can be brought against a company or person responsible for another’s death.

Wrongful Death and Negligence

Normally, wrongful death lawsuits are filed by surviving family and brought against, for instance, a car company for selling a faulty vehicle or a liquor store owner for selling alcohol to a minor that lead to a roadside fatality.

Wrongful death claims usually involve wrongdoing or some form of negligence. A wrongful death lawsuit can be brought against anyone from a doctor or highway engineer to car manufacturer.

If a car manufacture, for example, knowingly ships out vehicles with faulty parts, then the car manufacturer might face a wrongful death lawsuit subsequent to a fatal accident tied to those faulty parts.

Alternatively, a physician who prescribes too high a dose that ultimately leads to a wrongful death could face a wrongful death lawsuit.

Although some cases of wrongful death are indeed murder, many cases of wrongful death involve simple negligence.

Civil Damages in Wrongful Death Lawsuit

In most cases a close family member or spouse can file a wrongful death lawsuit on behalf of the deceased. If found guilty of wrongful death, the defendant bringing the wrongful death lawsuit will be “made whole” and awarded civil damages.

Civil damages are simply monetary awards given to the plaintiff from a guilty defendant. Civil damages can be general or special – general damages are typically more intangible and include compensations for emotional distress as well as pain and suffering.

Special damages include more quantifiable payments. Lost wages and even future income that would have been generated by that family member had s/he not suffered a wrongful death could both be considered special damages.

Before contacting a law firm, make sure that you document all of the facts surrounding the timing and circumstances of the wrongful death. Contact any witnesses who could help strengthen your wrongful death lawsuit as well.

Individual circumstances and the amount of negligence largely dictate how much compensation in civil damages the surviving kin receive for a wrongful death.

Wrongful Death Lawsuits in California

In California, hospital and funeral bills are part of the special damages that are paid to the surviving kin. Future financial support that would have been generated had the wrongful death not occurred also constitute civil damages payable to surviving kin.

A very common rationale behind filing a wrongful death lawsuit is to address medical malpractice that resulted in wrongful death. Medical malpractice is a form of negligence and, if proven in court and linked to a wrongful death, could entitle surviving kin to general and special civil damages.

In California, if the wrongful death occurred in a patient who had less than a 50-50 chance of survival, then the wrongful death lawsuit has a much worse chance of standing up in court. The reasoning behind this is that negligence by a physician would be harder to link to a wrongful death if the patient were already in a poor state of health.

Also, since the California Supreme Court has ruled that a fetus is not a person, wrongful death lawsuits are not applicable in this area.

Finally, California has a statute of limitations for wrongful death cases. This means that if surviving kin or a spouse fails to file a wrongful death lawsuit in the two year timeframe following the wrongful death, then the California civil court system might not hear the case.

What is Pre-Divorce Legal Counseling?

Maintaining a healthy, vibrant marriage can be difficult. Even under the best of circumstances, marriage is a stressful and complex world. Some of these stresses and complexities can cause your marriage to become strained, forcing you to consider divorce as your only option. But, there is a way to protect yourself when going down that costly and often emotionally devastating route.

If you feel that your marriage is beyond repair and divorce is the only option, pre-divorce counseling can help to minimize the often negative impacts associated with these proceedings. Marriages can fail for many reasons, whether you think it’s your partner’s fault or not, your irreconcilable differences could end up requiring pre-divorce counseling before all is said and done.

Counseling

Although many states do not require counseling by law, you may still want to inform yourself of these services once your relationship gets to this point. Counseling could help you with attempts for the reconciliation of your marriage, or if that’s not an option, it will provide you with resources you can rely on when your divorce goes to litigation hearings. Divorces can be ugly for all parties involved. Pre-divorce counseling can help prepare you for the emotional aspects of what is to come regarding the circumstances of your divorce.

Counseling can also show you and your spouse how to develop the necessary skills for separating practical issues with emotional ones. This is extremely important when dealing with decisions on dividing personal assets, acquired debt, and in many cases, children responsibilities. Counseling can assist you and your spouse when it comes to engaging with one another in a more productive environment so that all parties’ best interests are protected.

Counseling should be your attempt to navigate the separation process while going through the divorce in the most amicable way for both you and your spouse. This will result in the least collateral damage during the process, and will protect you, and possibly your children as well.

Is Pre-Divorce Counseling In The Best Interest For All Parties Involved?

If there are children involved, take a deeper look into the issues of your problems. You at least owe this to them and this may give you one last chance to keep your marriage together. If you have a good marriage counselor, and aren’t too far gone within your own relationship, you may be able to get back that strong bond your marriage once had. But, if you still feel like divorce is the best option, at least you will now have the added benefit of going through the process and you will come out much stronger because of it.

When choosing a pre-divorce counselor, it’s important to remember that they are not all alike. Some may be good, while others may not be as educated and experienced. If you and your spouse feel like your marital issues are not being addressed properly or being recognized at all, go to another counselor and see if they are able to help you better. Every counselor brings their own unique perspective to a situation. Healing a marriage can be a daunting task, and not all counselors may be up to that task when it comes to your circumstances.

Lastly

On the other hand, if you find that you’re continuously bouncing from one counselor to another, maybe it’s time to take a good, long look at yourself and see if you are the one being resistant to what they are offering. Divorce can cause you many unwanted stresses. Counseling doesn’t have to be one of those stresses.

Do You Need a Restraining Order?

A restraining order is a court order or injunction to do or cease doing particular acts. In practical terms, a restraining order is normally used in cases involving domestic violence, assault, stalking and harassment.

Within the United States, every individual state has some restraining order related to domestic violence cases. Most states have their own rules for restraining orders related to sexual assault and stalking.

Most restraining orders in California have an expiration date. This basically means that in the state of California, the day that your restraining order ends you are no longer protected legally.

If you continue to be concerned about your safety or the safety of your loved ones, you may file for renewal in your restraining order. A renewal of a restraining order can sometimes render the restraining order permanent.

Purpose of a Restraining Order

Normally a restraining order is used to put distance between someone being harassed and the person supposedly doing the harassing.

Thus, by court injunction, an abuser may be ordered to remain a certain distance from the school, home or workplace of the person who successfully filed the restraining order.

It is important to bear in mind that a restraining order is a civil order that does not result in dirtying up the criminal record of the supposed abuser.

Domestic Violence Victims

Victims of domestic violence frequently file restraining orders against their abusers. Domestic violence can include a whole range of actions, including: harassment, kidnapping, burglary, threats of violence, stalking, and assault.

If you have been subjected to any of these actions, you might be eligible to file for a restraining order against your abuser. A restraining order is a court injunction in which the judge will sign an order of protection that forces the abuser to comply with the law.

Consequences of a Restraining Order

A restraining order can prevent the abuser from contacting you or your family by phone or direct contact. Further, a restraining order could also force the abuser to leave a shared residence. A judge may decide to tell an abuser to leave even when the abuser owns the deed to the home.

If you are a parent and the victim of domestic violence, through a restraining order you may be awarded custody of minor children under your care. In addition, a restraining order can affect child support payments as well as visitation rights.

Depending on the state in which the restraining order is filed, the abuser may have to pay for things like utility bills, doctor’s appointments and even a loss of earnings related to the incident that brought about the restraining order.

In cases of extreme domestic violence, a judge could order the abuser seek treatment or order a police escort to come along with an abuser as he removes his personal possessions from the place of residence.

Signs that You Need a Restraining Order

Of course, it’s only natural to get a restraining order if you are the victim of domestic violence, assault, stalking or harassment. Sometimes, however, things aren’t as clear-cut.

The primary purpose of a restraining order is to keep the abused party safe from future harm. If you are concerned about the safety of yourself or your family members, it might be time to look into getting a restraining order.

Especially if the abuser has a long history of abuse, getting a restraining order and going through the right judicial channels and possibly police protection, could be the deciding factor in keeping you and your loved ones safe.

What Does an Elder Law Attorney Do?

If you are a person of an age that is considered “senior”, or if you care for or care about such a person, you know that there are many confusing issues that impact the lives of seniors. Having someone with knowledge and experience to help you deal with these issues can bring real peace of mind. Many of the problems that seniors deal with are related to health and medical care; some involve finances; some have to do with government programs; and some are purely legal in scope. For legal issues and, in fact, for many of the other problems as well, you may benefit from the services of an elder law attorney.

Elder law

Elder law has been growing as a specialized field of practice over the last fifty years, since Medicare was first created in 1965. Elder law attorneys help clients navigate the many Federal, state and local laws, the numerous rules and regulations, and the various programs and institutions specific to older persons:

  • Healthcare decisions and advance directives
  • Medicaid, Medicare and Medigap options
  • Long-term care insurance
  • Nursing homes, assisted living and other care options
  • Elder housing issues, including reverse mortgages
  • Social Security, pension plans and other income
  • Guardianship and its alternatives
  • Age discrimination
  • Elder abuse and neglect

Of all these topics, those dealing with financial matters—from sources of retirement income to ways to pay for medical care—will have to be dealt with by most people, whether planning for their own senior years or caring for elderly loved ones.

Elder law attorneys help their clients in many ways. They provide guidance in understanding the legal aspects of making decisions regarding health care: What is informed consent? What is an advance health care directive and when does a person need one? What is a living will?

Elder law attorneys help their clients understand government programs, such as Medicare and Medicaid: How can these programs help the client? How does one go about getting the most help out of them?

Attorneys specializing in elder law are able to represent their clients’ interests if any problems should arise regarding income from Social Security or pension plans.

The client can rely on an elder law attorney to be an advocate when there are problems regarding nursing home care, assisted living facilities, or other aspects of housing for the elderly.

Elder law attorneys are dedicated to helping seniors stay in control of their lives to the greatest extent possible as they enjoy more years of life.

When should you seek the services of an elder law attorney?

  • When you are planning for your own senior years and would like clarification about any aspect of retirement income, healthcare decisions, government programs, or senior legal issues.
  • When you are caring for a senior family member and problems arise that you just don’t feel capable of handling on your own.
  • When you need the help of an advocate to deal with issues such as age discrimination or elder abuse.

In short, you will benefit from the knowledge and experience of an elder law attorney whenever you have to deal with issues regarding the comfort and self-determination of the elderly. Living longer is a wonderful aspect of modern life, but with our modern longevity come problems that were not encountered by previous generations. Elder law attorneys are available to help.

Can I Sue My Employer for Workplace Stress?

Each year thousands of lawsuits are brought against employers by their employees across the country. There are a plethora of laws currently on the books that aim at protecting employees from their employers, and give employees grounds for suit if the laws are violated. While many of these lawsuits never make the news, they happen each and everyday. For example, in 2013 Walmart was the defendant in 5,000 employee lawsuits, alone. That is about 17 lawsuits a day. The company currently employs about 1.3 million workers.

So Can I Sue My Employer?

Employees can sue their employers for many reasons. While most people are aware they can sue over negligence, injury and sexual harassment, many people wonder “can I sue my employer for stress?” There isn’t exactly a simply answer to the question, the answer is actually yes, because, technically you can bring a suit against an employer for an injury that occurs during the working hours, but winning such lawsuits is another story all together.

Workplace Laws

Under federal and state laws employees are protected from undue stress, harassment and unsafe working environments. That means an employer must provide all employees with a workplace that is physically and emotionally safe. They must meet basic workplace standards, and must have a policy pertaining to harassment and other negative workplace cultures that could cause undue emotional stress for their employees. Additionally, workplace laws require that employers ensure harassment, both sexual and otherwise, is dealt with appropriately and swiftly. That is not to say that all employers follow the laws to the letter, but the laws due exist to protect employees.

Additionally, the Fair Employment and Housing Act protects individuals from harassment and unfair treatment based on their age (over the age of 40), race, religious beliefs, military and veteran status, martial status, gender, and sexual orientation. The FEHA makes it illegal for an employee to be singled out and treated inappropriately because of any of the above listed protected attributes. .

While there is no law that specifically states that an employer can not cause emotional distress, emotional stress would generally be considered an injury if it can be proven to be directly due to the workplace environment, or if an employee can prove they have been harassed or singled out as a member of a protected groups.

Lawsuit Requirements

In most lawsuits alleging the infliction of emotional stress, the plaintiff has attempted to prove the employer intentionally attempted to inflict emotional stress upon the victim. In all of such cases courts will require that the stress and resulting injury from the stress be severe. For example, an individual claiming emotional stress from their job would need to prove they have required medical intervention because of the stress or that a medical condition is directly attributed to the stress they suffered at the hands of the employer.

Workplace Laws

Most courts will require the plaintiff to prove that the actions of their employer was intentional or reckless, that the conduct was extreme and outrageous, severe emotional distress was caused by an ongoing situation, and that the employer failed to fix the issue after a formal complain was filed within the company.

So, in short, yes, an employee can file suit against an employer for stress the have endured on the job, but winning can be an uphill battle. In most cases, emotional distress is an outcome of another violation of either FEHA or workplaces laws, not the sole reason an employment lawsuit is brought about.

Can I Be Fired for What I Post on Facebook?

Facebook has quickly grown into more than just a social media website, in many ways it has become a way of life and a lifeline of sorts. With over a billion users, the site has seen its fair share of inappropriate comments, pictures and status updates. As more and more of our lives move online, many people are beginning to wonder if the line between the online world and our real lives have blurred. The simple answer is yes. According to a recent report about 33% of divorce proceedings include the word “Facebook” in them, and over 50% of companies admit to checking out the social media feeds of prospective hires before they extend a job offer. The buck doesn’t stop there, either. Many companies monitor Facebook feeds and they can and do utilize the material they see online to discipline or even fire current employees.

People Who Have Been Fired For Facebook Comments

Employees can terminate “at will” employees for a variety of reasons, and that includes what they post on Facebook. More than a few people have been asked to leave a company after disparaging remarks about the company or clients on Facebook. In fact, Virgin Airlines took disciplinary actions against 13 employees after they took part in a Facebook post that insulted passengers and suggested the airline had less-than-stellar safety standards.

An employee at a pizza joint was fired after posting about “cheap” customers who stayed passed closing and left a bad tip. Four employees were fired from a non-profit after a Facebook thread called out a fellow co-worker and criticized the clientele they served.

A teacher came under fire from her boss and was asked to resign after racy pictures of her appeared no her Facebook feed. The teacher, however, is appealing the decision and suing the school she worked for, claiming the pictures and her private Facebook page do not interfere with her ability to do her job.

Post on Facebook

Is Firing Over Facebook Legal?

Many people assume that they are protected under the first amendment when they take to Facebook, but that is not the case. The first amendment protects the freedom of speech against government interference. So, you can say you think the government is doing a poor job at budgeting taxpayers money wherever and whenever you feel the urge, however, the private sector is a different story. Companies are completely within their rights to fire an employee they feel is poorly representing the company.

In the case of the non-profit incident calling out a co-worker, whether face-to-face or online is considered harassment. Whenever an online forum is used for the purpose of harassing another individual a person can be fired because of workplace harassment and safety regulations.

These are not the only reasons people are fired because of what they post on Facebook. Every private company has the right to fire an employee, any employee, they feel is reflecting poorly on the company, as it could be considered potentially disparaging to the company. Just like you could get fired for showing up late on a regular basis, or being rude to customers in the retail sector, you can be fired for making remarks with a similar tone on Facebook, or any other social media site for that matter.

While many “Facebook firings” are perfectly legal, there have been a slew of individuals who have fought their terminations. Several cases have gone before judges, many of those fired claiming that their private pages do not interfere with their job performances.

Have You Been Ordered to Use an Ignition Interlock Device?

If you have been ordered to install an ignition interlock device (IID) in your car because of a DUI, did you know that you can choose which device to have installed based on a number of options available, all approved by the California Department of Motor Vehicles (DMV)? You must beware, however, as the state does not regulate fees for installation and maintenance, which means companies that provide these services can charge anything they like.

This doesn’t mean you have no control. You can still make the best of a not-so-desirable situation. With a little research, you can make the choice that is right for you. Here are some of the fees to ask about when choosing an IID.

Installation and Monitoring Fees

Depending on your location, fees for monitoring an ignition interlock device can vary. You can expect to pay anywhere between $50 and $200. These fees can include the cost for downloading software and updates. Having a luxury vehicle or a difficult installation can prolong the procedure and drive up fees even more.

Monthly Rental Fee

You do not own the IID, which means that you will have to pay anywhere between $50 and $100.

  • Often, companies that provide monthly fees will waive installation costs. You won’t know if you don’t ask.

You will need to calibrate your ignition interlock device periodically.

This is important, as a device that is left to decalibrate could register false positives. In plain English, the device could think you are not fit to drive even though you had one drink three hours before you blew. California law requires that you do not go more than sixty days without calibrating. However, different manufacturers have different specifications, and may recommend a monthly calibration appointment. It doesn’t take a mathematician to realize that six times a year is better than twelve times a year.

Violation Fee

IID manufacturers realize that some drivers who know that they are in violation may get a friend to blow into the device and start the car for them. They’ve safeguarded against this possibility by installing a random “running retest” function in the device. This means that the device will without warning ask you to blow into it while you are in the middle of driving, or else run the risk of shutting down. If you blow an unacceptable level, this constitutes a violation. Some manufactures will charge you for every violation. Some have a flat rate. Others have rates dependent on the time of violation–that is, whether they have to reset after hours.

Removal fee

They charged you for putting it in, they might charge you for taking it out too.

  • It is also important to remember that some devices are more sensitive than others. Ask the manufacturer if any other substance on the breath (e.g. mouthwash, breath mints, etc.) is capable of registering a false positive.

It’s no picnic having to drive around with an Ignition Interlock Device

The unexpected breakdown of your vehicle, an accident, or any other pitfall only makes matters more difficult. Nevertheless, understanding your right to choose the device that best suits your bank account can make all the difference in the world.

What is the Purpose of an Estate Planning Attorney?

When you think of an estate planning attorney, your mind likely jumps to the drafting of a will. While it is true that estate planning attorneys draft wills, their responsibilities are much broader in scope. Aside from advising clients about how to plan the distribution of their assets, estate planning attorneys also offer advice to a decedent’s personal representatives and estate beneficiaries.  He’ll provide unique insight on how to properly resolve the decedent’s affairs. These matters are typically referred to as the probate process.

Wills and Trusts

When crafting a will for a client, an estate planning attorney will offer valuable advice regarding the tax ramifications of the client’s desired arrangements. Once the client considers the estate planning attorney’s advice, he will modify the disposition of his properties and assets in a more economically efficient manner. If a will is not written with the proper language, there is the possibility that the decedent’s assets will not be distributed as he instructed.

Each jurisdiction has unique rules about the disposition of property. These rules carry significant tax consequences for the client and his benefactors. The attorney must write wills with carefully crafted language that minimizes the amount of tax dollars  paid to the government, while maximizing the money that is to be distributed to the benefactors.

Along with writing wills, estate planning attorneys will also establish trusts on behalf of the client. Some trusts are straightforward while others are more complex. Many clients will benefit from a testamentary trust. This style of trust contains stipulations designed to release money to benefactors at a certain point in time for specifically identified purposes. For example, an estate planning attorney can establish a testamentary trust for a client who desires that her grandchild receives money that is to be used toward college expenses.  The release of this money is conditional on his successful completion of high school and his enrollment in college.

Managing the Probate Process

The probate process requires an estate planning attorney’s knowledge of complex inheritance and tax laws. Estate planning attorneys re-title assets to beneficiaries, coordinate the collection of life insurance, resolve income tax issues, identify and securing the decedent’s assets, determine the value of any properties owned by the decedent and calculate and pay the decedent’s remaining bills. He’ll also calculate and pay both gift and real estate taxes and offer advice regarding the sale of estate property.

Formalities

Aside from the rather complex issues listed above, estate planning attorneys also handle much more simple matters. He’ll be charged with filing documents required by the probate court and requesting court permission for various actions.  He’ll also manage client retirement accounts as well as the estate checking account.

Conflict Resolution

Oftentimes, disputes arise between beneficiaries and personal representatives of the decedent. The estate planning attorney is responsible to act as a mediator between the parties and settle the conflict to the satisfaction of both parties. These are delicate matters that require both the client and his beneficiaries to place a high level of trust in the estate planning attorney.