Is Social Security Really Broke?Created: April 28, 2008
Type: Social Security Disability
The Truth about Social Security Financing
When Kathleen Casey-Kirschling, the nation's first baby boomer, received her retirement benefits a few months ago, skeptics believe that was the signal. For people who are under the impression that social security is failing, this is an indication that the program will go bankrupt, as more baby boomers will start claiming their benefits and the funds will run out. These people believed that as a result, the agency would be unable to fulfill its promise to other claimants.
Is it true?
Contrary to this belief, as early as the 1980s, the government has already taken steps to strengthen Social Security and prepare for other adjustments, not only for the boomers. In 2001, President Bush had even created a federal commission to look into ways on how to undertake necessary changes in social security system to address future problems.
According to the 2008 Trustee Report, changes made on the program have paid off as it showed steady improvement in the program’s long-term financial status.
The agency may be facing challenges today but these are problems brought about by the reforms being undertaken within the system.
“Social Security is at a crossroads. We face enormous challenges to shore up the system,” said Commissioner Michael J. Astrue in the agency’s press release. “I will continue to work with President Bush, Congress and our stakeholders to develop policy solutions. I also look forward to working with the next administration, since the challenges that face the Social Security system will undoubtedly require a bipartisan and multi-year effort.”
The report also highlighted the following accomplishments:
- Income including interest to the combined Old Age and Survivors, and Disability Insurance (OASDI) Trust Funds amounted to $785 billion ($656 billion in net contributions, $19 billion from taxation of benefits and $110 billion in interest) in 2007.
- Total expenditures from the combined OASDI Trust Funds amounted to $595 billion in 2007.
- The assets of the combined OASDI Trust Funds increased by about $190 billion in 2007 to a total of $2.2 trillion
- During 2007, an estimated 163 million people had earnings covered by Social Security and paid payroll taxes.
- Social Security paid benefits of $585 billion in calendar year 2007. There were almost 50 million beneficiaries at the end of the calendar year.
- The cost of $5.5 billion to administer the program in 2007 was a very low 0.9 percent of total expenditures.
- The combined Trust Fund assets earned interest at an effective annual rate of 5.3 percent in 2007.
How is that possible?
The estimated 65 million boomers have actually paid into the system and together with the 89 million other employed Americans, have helped build a reserve. In addition, nearly one in three retired Americans are contributing to the trust funds by paying taxes on their Social Security.
Others may argue that the worker-to-retiree ratio is declining and that life expectancy is increasing, which place a strain on social security funds. However, these factors – including those of the boomers – have long been thought of. The issues of changing demographics and immigration have also been taken into account before the projections were made.
In fact considering all these factors, and granting that there will be no changes, Social Security can still pay 100 percent of promised benefits until 2040 and more than 70 percent of benefits after that.
Now perhaps it would be fair to say that social security income will grow and continue to pay for benefits of the claimants. Through income earned from the trust funds, the agency can earmark enough funds for benefits and administrative costs. Whatever amount remains from the income after benefits and other expenses are deducted will be treated as surplus and added to the trust funds.
One of the big reasons why the country’s social security system will not fail is because of the treasury bonds. The Social Security trust funds buy interest-earning special Treasury Bonds, similar to the government bonds pension funds and private investors buy. By law, all income to the trust funds not immediately needed to pay expenses, is invested in bonds guaranteed by the government.
The Trustees invest Social Security surplus by buying special Treasury Bonds that are earning interest in the trust funds. When claimants need to use them or it reaches maturity, the treasury bonds can be cashed. These bonds are not only safe; it also earns approximately 7 percent in annual interest.
Setting the Limits to Corporate BloggingCreated: April 28, 2008
Type: Business / Corporate Law
How far can one go in posting information on blogs?
As soon as blogging was introduced into the business world as a new means to interact with colleagues, business clients and suppliers, many companies have embraced the idea of giving their employees and workers the new voice of freedom.
Top corporations have even formally made blogging a part of their business marketing strategies. Some companies have also established a blog network for their employees and executives.
Blogging has become a very effective business tool. Proof of this is the Internet popularity of some corporate "spokesbloggers" like Microsoft's Robert Scoble.
However, just recently, the corporate blogging world was rocked with controversy when a libel suit was filed against a popular company over one of its employees’ personal blogs. The trouble ensued from the blog allegedly hosted by one of the company’s executive in the intellectual property department.
The executive who later revealed his identity posted blogs as a way for the company to advocate for new federal laws on patents and patent litigation. However, since the company has a pending patent case, two lawyers of the concerned party filed a libel lawsuit against the executive for “tarnishing their good names and disparaging a patent case their client had filed against them, while allegedly concealing his affiliation with the company”.
This incident brought up the issue of how far blogging must be tolerated by companies in expressing views publicly.
While blogging policies may vary from company to company, some have already adopted so-called “common sense” rules on blogging. Sun Microsystems, Yahoo, Google, Dell and BBC, to name a few, have their own blogging policies. Some of their rules may not be strict but it somehow defines and guides a blogger on what information to posts on his blogsite. Most important of all, the rule tells a blogger to identify himself and disclose his corporate affiliation before giving out any information related to his work.
Although personal blogging is mostly allowed by a number of companies, the “common sense” rule often applies to information related to the company such as vital corporate policies, confidential matter, and other delicate legal information.
As a result, this incident drove many companies to review their policies on corporate blogging about disclosure of company-related information.
Punitive Damages Award: How Much is Enough?Created: June 16, 2008
Type: Personal Injury Law
Punitive damages award in personal injury claims is perhaps one of the most controversial legal issues being debated on for a long time.
Why is that so?
Just look at these figures: almost $3 million in punitive damages for a spilled cup of McDonald's coffee, $5 billion for the Exxon Valdez oil spill, and $145 billion for a Florida tobacco class action.
These are only some of the startling amounts given as punitive damages in some of the most popular cases in recent history. Because of this, punitive damages has become of the most controversial aspect of the tort system.
Are punitive damages awards too high?
According to the Tort Reform Association, only about twenty-one states have passed limits on punitive damages. Some of the states with punitive damages limit include Alabama, Alaska, Colorado, Connecticut, Florida, Georgia, Indiana, Kansas, Nevada, New Jersey, North Carolina, North Dakota, Oklahoma, Texas, and Virginia.
However, in some states, like California, punitive damages in a lawsuit may also be awarded based on a “clear and convincing evidence standard”.
How much really is enough as punitive damages? How are punitive damages determined?
Typically, the award of punitive damages depends on the case and is often determined by the capacity of the defendant to pay, the defendant’s status, how the damage or harm done will affect the defendant’s image or social standing, and the gravity of the injury, among others. In most cases, like in a personal injury, the awarding of punitive damages in a claim is usually based on a statute.
In response to the award of high punitive damages verdicts, the Supreme Court has made several decisions, which limit awards of punitive damages through the due process of law clauses of the Fifth and Fourteenth Amendments to the Constitution.
According to the US Supreme Court, a number of cases indicated that a 4:1 ratio between punitive and compensatory damages is broad enough to “lead to a finding of constitutional impropriety”, and that any ratio of 10:1 or higher is almost certainly unconstitutional.
Here are some cases involving punitive damages issues where the Supreme Court has mediated:
- In BMW of North America, Inc. v. Gore (1996), where the Court ruled that punitive damages must be, “reasonable, as determined based on the degree of reprehensibility of the conduct, the ratio of punitive damages to compensatory damages, and any criminal or civil penalties applicable to the conduct”.
- In State Farm Auto. Ins. v. Campbell (2003), the Court held that punitive damages might only be based on the acts of the defendants, which harmed the plaintiffs.
- Most recently, in Philip Morris USA v. Williams (2007), the Court ruled that punitive damage awards could not be imposed “for the direct harm that the misconduct caused others, but may consider harm to others as a function of determining how reprehensible it was”. Misconduct therefore that is more reprehensible justifies a larger punitive damage award.
And how did this staggering amount in punitive damages award came about?
There is a clash of opinion on the matter. Some years ago, Amy Kolz presented this differing opinion from two widely respected Ivy League academics, Harvard Law School's W. Kip Viscusi and Cornell Law School's Theodore Eisenberg on this controversial issue.
Kolz cited Viscusi, an economist, who said that juries are more likely to grant punitive awards and grant them at a higher level. Although he pointed out that juries are also almost exclusively responsible for the growth of the $100 million-plus so-called "blockbuster" awards, he, however, did not call for its abolition. Instead, he favored that more guidance be given to jurors in the determination of the awards. In addition to this, he also called for a “regulatory compliance defense option” as a means to eliminate punitive damages for parties that passed government regulatory standards.
On the other hand, Eisenberg opposed Viscusi’s opinions. On the contrary, he finds that juries and judges award punitive damages in approximately the same ratio to compensatory damages, and that the level of punitive damages has not increased over time. He argues that there is no reason for dramatic change. According to Eisenberg, the punitive damages problem is created by self-interested groups to change the tort system.
The two scholars’ study and conclusions were apparently based "on empirical premises about punitive damages, understanding of applicable legal rules, and statistical methodology."
The data used was taken from court records of 18 years involving punitive damages award and data provided by the Civil Justice Survey of State Courts for 45 of the 75 most populous U.S. counties. The data compared the compensatory and punitive damages of individual cases and finds that there is a strong relationship between the two in both judge and jury trials.
The argument about the issue was made a few years ago yet the questions raised still need answers today. Since punitive awards have a predictable relationship to compensatory damages, and compensatory awards are a measure of harm, this does not show that the tort system as a whole is irrational or unbalanced.
In fact, fewer than 11 percent of the state court cases that are included in the study were in excess of $1 million, which is hardly evidence of a broader problem – of course, with the exception of a few high-profile cases like McDonald’s or Philip Morris’.
In short, for the state of California, for instance, the determining factor in the award of punitive damages in a lawsuit would always depend on the merit of the case, which would be a fair enough deal for both plaintiff and defendant.
Genetic Identification: Potential Cause of Employment Discrimination?Created: June 16, 2008
Type: Employment Law
Recent strides in genetic engineering and technology have made possible the early identification of diseases and other potential health risks to humans. Incidentally, this also stirred up debates on the legality of the information gathered from this method. Can anyone have access to information from this data? What is the limit to the use of this information? Can law prevent abuse of one’s genetic information? Can this be a potential cause for discrimination in the workplace?
Genetic discrimination could possibly be a potential cause for employment discrimination. Because data derived from genetic identification might also reveal one’s medical condition such as one’s genetic susceptibility to certain diseases, this could increase the possibility of abuse.
Many fear that with this information, a health company or an employer may discriminate anyone. People who undergo genetic testing may also be at risk for genetic discrimination. For example, a health insurer might refuse to give coverage to a woman who has a DNA difference that raises her odds of getting breast cancer. Employers could also use DNA information to decide whether to hire or fire an employee or worker.
The results of a genetic test are normally included in a person’s medical records. When a person applies for life, disability, or health insurance, the insurance company may first ask to look at one’s records before making a decision about coverage. An employer may also have the right to look at an employee’s medical records.
As a result, genetic test results could affect a person’s insurance coverage or employment. People making decisions about genetic testing should be aware that when test results are placed in their medical records, the results might not be kept private.
However, under the new law, discrimination based on one’s medical information from genetic identification sources is prohibited.
According to law, genetic discrimination occurs “when people are treated differently or unfairly by their employer or insurance company because they have a gene mutation that causes or increases the risk of an inherited disorder”.
Fear of discrimination is a common concern among people who had undergone genetic testing. Several laws at the federal and state levels help protect people against genetic discrimination.
On May 21, 2008, President George W. Bush signed the Genetic Information Nondiscrimination Act of 2008, also referred to as GINA, a new federal law that protects people from this type of discrimination. The law also prevents possible discriminatory acts by health insurers and employers.
Part of this law, which relates to health insurers, will take effect next year while those relating to employers will be implemented on November 2009. However, the law does not cover members of the military and does not include life insurance, disability insurance, and long-term care insurance.
Before the federal law was passed, many states had already enacted laws against genetic discrimination, which vary according to the degree of protection among the different states. The federal law sets a minimum standard of protection met in all states and strengthens the protections provided by any of the state law.
Laws Regarding Genetic Discrimination
At the national level, nine bills were under consideration in the 105th Congress that directly address genetic discrimination. These are the following:
- H.R. 306 - health insurance –sponsored by Representative Louise Slaughter (D-NY)
- H.R. 328 - health insurance Representative Gerald Solomon (R-NY) is sponsoring bill
- H.R. 2198 - health insurance sponsored by Representative Clifford Stearns (R-FL)
- H.R. 2215 - employment sponsored by Representative Joseph Kennedy (D-MA)
- H.R. 2216 - life and disability insurance sponsored by Representative Joseph Kennedy (D-MA)
- H.R. 2275 - employment sponsored by Representative Nita Lowey (D-NY)
- S. 89 (companion to H.R. 306) - health insurance by Senator Olympia Snowe (R-ME)
- S. 422 - health, life and disability insurance by Senator Pete Domenici (R-NM)
- S. 1045 (companion to H.R. 2275) - employment by Senator Tom Daschle (D-SD)
In addition, two bills under consideration that include genetic issues as part of their focus are:
- H.R. 1815 - medical privacy, insurance sponsored by Representative Jim McDermott (D-WA)
- S. 346 - patient's rights, health insurance sponsored by Senator Paul Wellstone (D-MN)
At the state level, twenty-four states, including California, have enacted laws that either provide protection against genetic discrimination or prohibit genetic testing in either the insurance or employment setting.
- Arizona, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Illinois, Maryland, Minnesota, Nevada, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oregon, Virginia, Tennessee, Texas and Wisconsin have legislative protections against genetic discrimination in health insurance.
In states like Illinois, Iowa, New Hampshire, New Jersey, New York, North Carolina, Oregon, Rhode Island, Texas and Wisconsin legislative protections against genetic discrimination in the workplace have been enacted.
On the other hand, Arizona and Colorado have legislative protections against genetic discrimination in disability insurance. In addition, Arizona, New Jersey, Maryland and Montana have limited legislative protections against genetic discrimination in life insurance.
At least sixty bills are pending in eighteen state legislatures that would provide protection against genetic discrimination in either the insurance or employment setting.
These bills are in the states of Alabama, California, Hawaii, Iowa, Kansas, Maine, Massachusetts, Michigan, New Jersey, New York, Pennsylvania, Rhode Island, South Carolina, Texas, Vermont Virginia, Washington and Wisconsin.
Laws against genetic discrimination are needed to help ease concerns about this type of discrimination and help those getting genetic tests that could benefit their health or affect how society would treat them. The law would also enable people to take part in research studies without fear that their DNA information might be used against them in health insurance or the workplace.
In the end, how we make good use of genetic information will ultimately determine how we have evolved as a truly civilized society.
How Disability Insurance Can Save You from BankruptcyCreated: June 16, 2008
Type: Employment Law
For people who have gone through some illness, injury, disability or medical condition that requires him to leave work, the loss of earning is perhaps the worst situation that one can experience.
What happens when you become seriously injured or sick and you cannot perform your job? If you do not have any insurance protecting that loss of income, it can be devastating to your finances.
How long could you go without income? The loss of income undermines one’s ability to obtain and maintain all of his other financial needs.
For those who have not been involved in a workplace injury or disability, consider this information:
- Employers reported that slightly more than 60 million workdays are lost from occupational injuries and illnesses.
- Three out of 10 working individuals between the ages of 35 and 65 were disabled for 90 days or longer.
- Almost one in five individuals between the ages of 35 and 65 will become disabled for five years or more prior to turning 65.
- For people under age 65, the probability of disability is higher than the probability of death.
How can you avoid bankruptcy in your time of need? One way is by investing in disability insurance.
Disability income insurance is designed to indemnify the insured for income lost when he cannot work. If you suffer a prolonged illness or injury that prevents you from doing your job, this insurance is meant to supplement the income that you otherwise cannot earn. These policies can be found through group employer coverage or a stand-alone individual policy.
For most employees and workers who are injured while at work, they may get compensation for their work-related injuries through workers compensation benefits. But this may not be enough to sustain his expenses. In this case, a disability insurance benefit can supplement that expenses that a worker may incur while being injured and unemployed.
Most employers offer disability insurance coverage with short-term and long-term benefits to workers. Short-term policies usually provide benefits from six months to one year while long-term disability benefits cover long period of disability.
Aside from providing medical benefits, disability insurance also compensates a worker for lost income due to his illness or injury, thereby saving him from total loss or bankruptcy.
Discrimination Charges Disputed by DWP officialCreated: June 16, 2008
Type: Employment Law
June 15, 2008
LOS ANGELES - Raman Raj, Los Angeles Department of Water and Power (DWP) executive, has dismissed accusations that he left the agency seven years ago not because of the discrimination cases but due to his closeness to Mayor Antonio Villaraigosa.
Raj, then DWP Assistant General Manager, had allegedly shielded union employees from disciplinary action, interfered in investigations, and discouraged employee complaints. The report also said Raj manipulated severance packages to remove managers who disagreed with him. Eventually, the DWP spent $ 3.3 million settling discriminatory cases.
A law firm hired by the agency to look into the allegations recommended that Raj should leave for the good of the agency
However, in a recent LA Times interview, Raman Raj said the report was just a “charade” and was merely staged to justify his removal. He said he left the DWP in August 2001 not because of the discrimination cases but because a representative of then-Mayor James K. Hahn thought he was too close to Villaraigosa, who had just lost his bid for mayor.
Raj said neither case had a connection to his departure from the DWP in August 2001, when, while undergoing treatment for cancer, he negotiated a $145,000 severance to cover his health benefits.
Raj said he left the utility because DWP Commissioner Dominick Rubalcava viewed him as being too close to Villaraigosa, D'Arcy and former DWP General Manager S. David Freeman.
Raj served at the DWP from 1999 to 2001, holding the title of assistant general manager and overseeing such issues as human resources and labor relations.
Why is Signing False Work Hours IllegalCreated: September 01, 2008
Type: Employment Law
AB 2075 Makes this Common Practice a Misdemeanor
In many workplaces around the state, several employers require employees to sign a false statement of hours worked as a condition for the release of their salaries or wages.
Congressional committee hearings have documented several instances of these violations. In Tulare County, for example, several hundred employees of a company were routinely required to sign a false statement of work hours as a “precondition to being paid, to fill out their time sheets as instructed by the employer's staff” and then to sign it with this false declaration.
During the Congressional hearing on the issue, one worker testified that: "The hours represented above are the actual hours that I worked during the indicated dates. I received a meal period for at least thirty minutes every day that I worked and a rest period in the morning and afternoon of at least 10 minutes every day for every day I worked"
In Los Angeles County, the owner of a landscaping company required his 90 employees to return to the business office at the end of the day to sign “pre-prepared false time cards” that reflect an 8 hour work day, even though employees often work 9.5 hours per day.
In some cases, the situation could worsen, as in Stanislaus County where employees of one company who refused to sign this false statement were fired.
The signing of AB 2075 into law has put a stop to this illegal practice. Earlier last August, Governor Arnold Schwarzenegger signed AB 2075 into law. The new statute amends California Labor Code section 206.5 and makes it a misdemeanor for an employer to require an employee, as a condition of payment of wages or to sign a statement of hours worked that the employer knows is false. The new law will take effect January 1, 2009.
The amendment also includes a subsection (b), which redefines “execution of a release” as follows:
“For the purpose of this section, ‘execution of a release’ includes requiring an employee, as a condition of being paid to execute a statement of hours he or she worked during a pay period which the employer knows to be false.”
And why does this practice prevail?
According to testimonies of some employees, the practice of having false pay records and timekeeping system is one way for unscrupulous employers to protect themselves from litigation over underpayment of wages or meal and rest period violations.
Proponents of the legislation said that the new law would actually help guard against attempts to violate wage and hour laws and prevent false claims, which do not accurately reflect overtime, and other hours worked.
Prior to the amendment, Labor Code section 206.5 prohibited employers from requiring an employee to execute a release of wage claims, unless payment of the wages has been made.
Under Labor Code Section 206.5, an employer is prohibited from requiring the “execution of a release” of a claim or right on account of wages due, or to become due, or made as an advance on wages to be earned unless payment of those wages has been made.
The amendment extends this protection by defining “execution of a release” to expressly include requiring an employee to execute a statement of hours worked during a pay period which the employer knows to be false.
In other words, an employer cannot condition payment of earned wages on an employee’s execution of a release, and an employee cannot waive wages owed by an employer, unless all wages have already been paid.
With the implementation of the new law next year, California employers who require their employees to certify their timesheets each pay period in order to be paid are likely to evaluate these practices. Otherwise, they may be subject to new risks and liability under California law.
To be sure, employers should closely review their employee release agreements, time recording documents and processes in light of a new California law. In addition, they should also review their release agreements and time keeping records for compliance to the law.
What are the Employees' Rights to Compete in Post-Employment ScenarioCreated: September 05, 2008
Type: Employment Law
August 7, 2008
Employees and workers sign numerous documents and contracts in the course of their employment. One of these employment contracts include non-compete agreements, which has become a pre-employment requisite for many employers.
Non-compete agreements are often applied to protect an employer against unfair competition from former employees and prevent dismissed or terminated workers from taking away clients from its employers. In most cases, a non compete agreement is often signed with a nondisclosure agreement, which is meant to protect trade secrets and confidential information from being used against the company when an employee is terminated.
In many states, including California, non compete agreements are considered one of the most reliable safeguard against unfair competition. This agreement says that a company’s employees cannot work for or start a competing company, usually for a certain time. The rationale is that employees should not be able to take a company’s secrets and put them to use for someone else.
However, in August 7, 2008, the state Supreme Court made a landmark, much-anticipated decision when it unanimously declared that the non-compete clause of the state law is illegal. Specifically, the high court based its decision on the California law that prohibits employee non-compete agreements unless the agreement involves the sale of a business.
The ruling arose from a lawsuit filed by tax manager Raymond Edwards II against his former employer Arthur Andersen, an accounting firm. According to records, after Andersen shut down in 2002, Edwards tried to get a job with a subsidiary. However, Edwards needed to be released from his non compete agreement in order to work for another company. Andersen would only agree to the release after Edwards signed away his right to bring future claims against the company; Edwards refused and filed suit.
The court said that “to the extent Andersen demanded Edwards execute the [termination of non compete agreement] as consideration for release of the invalid provisions of the non competition agreement, it could be considered a wrongful act for purposes of his claim of interference with prospective economic advantage.”
The Supreme Court based its controversial decision on the “plain meaning” of California Business and Professions Code section 16600, which states that “an employer cannot by contract restrain a former employee from engaging in his or her profession, trade, or business unless the agreement falls within one of the exceptions to the rule” [referring to statutory exceptions that allow non-compete agreements in the context of a sale or dissolution of a corporation, partnership, or limited liability company].
Based on this interpretation of section 16600, the Court held that the non compete agreement Arthur Andersen required Edwards to sign was invalid. The agreement at issue prohibited Edwards from performing professional services for certain clients of Arthur Andersen for a period of 18 months post-termination. The Court explained that this provision clearly restrained Edwards’ ability to practice his professions and was, therefore, invalid under section 16600.
What This Means for Employers
Many practitioners were eagerly anticipating the court's decision in Edwards. Indeed, had the court adopted the Ninth Circuit's "narrow restraint" doctrine, this would have been a watershed event for California law governing post-employment covenants not to compete.
However, the court's rejection of that doctrine means that there is no change in the law except that the Ninth Circuit and federal cases, which established and applied the narrow restraint doctrine no longer are valid and should not be relied upon in California in the future.
Furthermore, employers should promptly engage in a top-to-bottom review of all existing employment agreements, confidentiality agreements and employment policies and forms to ensure that not all such documents contain language that might constitute even a "narrow restraint" on lawful post-employment competition, which would now be invalid under Edwards.
California employers who require employees to sign “non-interference” and/or “non-compete” type agreements should ensure that such agreements do not run afoul of section 16600, as strictly interpreted by the California Supreme Court.
The Impact of the New Federal Disability Discrimination LawCreated: October 10, 2008
Type: Employment Law
With the signing of S 3406 into law, significant changes are expected to take place regarding disability discrimination issues in the workplace as the law introduces amendments to the old federal Americans with Disabilities Act (ADA).
Although the basic definition of “disability” as an “impairment that substantially limits one or more major life activities” is retained, the new law may change the way these statutory terms will be interpreted. Among the significant changes would include the following:
- It emphasizes a broader definition of disability
- To revise the portion of the EEOC regulations defining the term “substantially limits”
- To expand the definition of “major life activities” to include two non-exhaustive lists such as some activities that the EEOC recognized and unrecognized before and major bodily function
- To exclude mitigating measures other than “ordinary glasses or contact lenses” in assessing disability
- It states that an impairment that is episodic or in remission is a disability if it substantially limits a major life activity when active
- It provides that an individual prohibited by the ADA (e.g., failure to hire) because of an actual or perceived impairment will meet the "regarded as" definition of disability, unless the impairment is transitory and minor
- It provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation
- “Regarded as disabled” does not include employees with a “minor” impairment, or a “transitory” impairment defined as lasting 6 months or less. In addition, an employee who says he or she is being regarded as disabled is not entitled to a reasonable accommodation.
With these changes, ADA-related claims and lawsuits are expected to increase hence employers are encouraged to prepare and make the necessary changes in workplace set-up and policies before its implementation on January 1, 2009.
Aside from broadening the protection for disabled workers, the new law has also rejected past Supreme Court rulings, which are deemed too restrictive of disabled employees’ rights.
As these amendments will take effect, it is expected that more employees will fit within the definition of disabled under the ADA hence the increase in claims and lawsuits.
How will this affect the employers?
Initially, the impact of these amendments may not be felt quickly. However, it can be expected that certain policies and practices in the workplace have to be modified. Some employees who were not previously protected may find themselves covered by the broader definition. This will result in increase number of claims. Hence, employers will need to document and engage in discussions to determine if reasonable accommodations are necessary.
The amendments will also be critical for employers, as they will be compelled to establish policies and procedures for supervisors in handling situations related to disability discrimination. In this case, training supervisors on this matter will be required.
To anticipate the effects of the amendments, an employer may do the following:
- Revise policies related to the ADA, discrimination, and complaint procedure
- Make sure job descriptions spell out essential job functions
- Establish procedures for responding to requests for reasonable accommodations and to document the interactive process
- Revise medical certification forms
- Train supervisors and managers on the new law and how to handle requests for accommodation
- To consider diversity training that includes disability issues for all employees
- Anticipate the detailed regulations during implementation in 2009
California Driving Violations and Driver’s License IssuesCreated: October 10, 2008
Type: Personal Injury Law
It’s all over the papers – the news about pop idol Britney Spears rejecting a plea offer in her misdemeanor driver’s license case, that would have placed her on probation with a penalty of $ 150 fine.
According to an Associated Press report, Spear’s attorney announced that they will try “to reduce the charge to an infraction” wherein the celebrity would only be required to pay a $ 10 fine. The lawyer also said they would appeal any conviction on the case.
This is the latest and the remaining charge in a criminal case involving Spears after she figured in a collision accident in August 2007 where she left the accident scene without notifying the car owner.
Leaving the scene of an accident, especially in a hit and run incident, is considered a major traffic violation in California and penalized by revocation or suspension of driving license. (California Vehicle Code Sections 20000 – 20018)
Under the law, the state has power to suspend or revoke a driver’s license of those who behave irresponsibly on the road. In most states, one’s driving privileges may be suspended due to the following reasons:
- Reckless driving
- Using a mobile phone while driving
- Failure to pass the required tests
- Caught driving under the influence of alcohol or drugs
- driving without liability insurance
- refusing to take a blood-alcohol test
- leaving the scene of an injury accident
- failure to pay a driving-related fine
- failure to answer a traffic summons
- failure to file an accident report
Other states apply a type of “point” system to keep track of driver’s violation. In this way, each violation is assigned a certain number of points. A driver who accumulates too many points over a period of time may face license suspension from the Department of Motor Vehicle.
On the other hand, the state often revokes licenses of erring drivers who have too many serious problems while a few states also revoke or refuse to renew drivers' licenses of parents who owe back child support.
Here are some of the most common traffic offenses in California and the corresponding laws that apply to them:
- Drinking & Driving Violations (California Vehicle Code Sections 23152 - 23229.1)
- Driving Without a License / With a Suspended License, Violation of License Provisions (California Vehicle Code Sections 14600 - 14611)
- Driving Without Insurance / With Insufficient Insurance Division 7 - Financial Responsibility Laws (California Vehicle Code)
- Driving Without Registration / With Expired Registration Division 3 - Registration of Vehicles and Certificates of Title (California Vehicle Code)
- Illegal U-Turn Turning and Stopping and Turning Signals (California Vehicle Code Sections 22100 - 22113)
- Leaving the Scene of an Accident / Hit & Run Accidents and Accident Reports (California Vehicle Code Sections 20000 - 20018)
- Mechanical Violations Division 12 - Equipment of Vehicles (California Vehicle Code)
- Reckless Driving (California Vehicle Code Section 23103)
- Reckless Driving: Bodily Injury (California Vehicle Code Section 23104)
- Running a Red Light / Stop Sign Offenses Relating to Traffic Devices (California Vehicle Code Sections 21450 - 21468)
- Seat Belt / Child Restraint Violations Safety Belts and Inflatable Restraint Systems (California Vehicle Code Sections 27302 - 27317)
- Child Safety Belt and Passenger Restraint Requirements (California Vehicle Code Sections 27360 - 27368)
- Speeding (California Vehicle Code Sections 22348 - 22366)
- Other Speed Laws (California Vehicle Code Sections 22400 - 22413)
- Unlawful Vehicle Modifications, Division 12 - Equipment of Vehicles (California Vehicle Code)
Why a Wrongful Termination Claim Will Not Apply to an Independent ContractorCreated: October 10, 2008
Type: Employment Law
Under the law, a worker who is illegally discharged can file a wrongful termination lawsuit against an employer. The law defines the acts, which constitute wrongful termination of an employee.
However, not all employees or workers may file claim. A worker who is classified as independent contractor has no legal standing to file a wrongful termination lawsuit, or other causes of action that are dependent of his employee status such as certain discrimination claims.
Hence, a worker improperly classified as an independent contractor can refute the classification during litigation and may succeed in enforcing his rights.
Take the recent case (Varisco v. Gateway Science and Engineering, Inc.) decided by the California Fourth District Court of Appeal wherein an independent contractor sued a construction consulting firm for wrongful termination claims.
Based on case records, Gateway, a professional firm engaged in project management, planning and design management, inspection, and quality assurance to the construction industry, hired Varisco as project inspector.
Varisco was assigned with the Los Angeles Unified School District. After about 11 months, Gateway offered Varisco a new contract, but he refused to sign. Gateway terminated Varisco, and he sued for wrongful termination.
During litigation, Gateway filed a motion for summary judgment, arguing that as an independent contractor, Varisco could not assert employee claims. The trial court found that Varisco had no evidence that he was an employee and it granted the motion in favor of Gateway.
On appeal, the Fourth District Court of Appeal agreed with the trial court.
Factors in Determining Who is an Employee or Independent Contractor
- Control is a primary element in determining whether an individual worker is an employee or an independent contractor. According to the court, “an independent contractor is ‘one who renders service in the course of an independent employment or occupation, following his employer's desires only in the results of the work, and not the means whereby it is to be accomplished.”
Other factors depend of the nature of the relationship and these includes the following:
- the length of time for which the services are to be rendered or performed
- the method of wage payment, whether by the time or by the job
- whether the worker performing services is engaged in a distinct occupation or business
- whether the kind of occupation is done under the direction of the principal or by a specialist without supervision
- the skill required in the particular occupation
- whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work
- whether or not the work is a part of the regular business of the principal
- whether or not the parties believe they are creating the relationship of employer-employee
The appellate court determined that Varisco was an independent contractor. It considered the following factors:
In addition, the courts also consider and place increased importance on one’s skills. In this case, Varisco is engaged in skilled work, in a distinct occupation.
Further, he supplied his own clothes and equipment. He did not receive incentives and benefits from the company and therefore cannot be considered an employee.
Varisco also testified that he believed he was an independent contractor. This information and the fact that Varisco was paid an hourly rate did not make him an employee led the court to conclude that Varisco was an independent contractor. The court noted that these days it is common for independent contractors to work by the hour, not by the job.
The court therefore ruled that under these circumstances, Varisno cannot file a wrongful termination claim because he is considered as an independent contractor under the law.
LITIGATION PLAN: The Smart Alternative to a Tight Litigation BudgetCreated: October 10, 2008
Type: Legal Profession
Litigation budget is a key factor in client representation. A sound litigation budget makes it possible for lawyers to articulate a client’s goals and reach desired goals successfully.
There are several ways how a representation budget is prepared. Preparation is an essential part of litigation and strategy planning is the most important part of preparation. To reduce litigation cost, the budget must be prepared and planned by both the litigator and the counsel or the client.
Litigation budgets formulated at the beginning should be revised throughout the representation to reflect changes in the strategy. This is often done to make predicted costs more accurate however; it may limit the legal work needed for a quality legal representation.
But is quality representation always equal to high litigation cost? Not necessarily.
An alternative to the litigation budget is a written litigation plan. When making a plan, a client or corporate counsel should reduce those objectives to writing. The plan should state any particular legal issues that could have “precedential effect” for the client and the case (or a different case). It also should specify whether an early resolution is desirable, and if so, the plan to reach such an early resolution.
Alternative modes of dispute resolution should be considered (i.e., arbitration, settlement conference, mediation, etc.), in consideration of cost-effective measures and for litigation matter purposes.
In litigation, there are three basic cost points:
- legal research
The litigation plan should reduce to writing how these cost points will be managed consistent with the client's objectives.
A client should be required to approved costs of additional research or opt to limit motion practice while acknowledging other methods of resolving the case. Similarly, a client could elect to minimize the amount of discovery taken.
In addition, a well-designed plan should also include the total projected cost of litigation as well as projected costs of the basic cost points. The projection of cost has two purposes:
- To identify the area of high cost, thereby allowing strategies to reduce those costs
- to encourage an analysis of cost-effective business solutions
In short, we should consider whether litigation costs are more effective through strategy planning or through the financial budgeting process. Careful litigation planning guided by clients and counsel should be considered as an alternative method in reducing litigation costs.
ADA Amendments and Better Protection for the DisabledCreated: October 10, 2008
Type: Employment Law
The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) was signed by President George W. Bush last September 25, 2008. This law translates to better protections for Americans with disabilities and the strengthening of present protection given by the existing Americans with Disabilities Act (ADA). The ADA, as amended, also makes it clearer that the term “disability” should be interpreted more broadly by employers as well as courts.
The Americans with Disabilities Act was enacted back in 1990, and was geared towards the prevention of discrimination against people with disability. In effect, giving the disabled protection in terms of employment and public accommodations.
What changes were made by the ADAAA?
The ADA’s definition of disability is a “physical or mental impairment that substantially limits one or more of the major life activities of such individual”. The words “substantially limits” cause much debate in court and a lot of times results to rulings that are not favorable to the people for whom the ADA was written for.
The ADA Amendment Act still retains ADA’s definition of disability. However, it broadens the scope of the phrase “substantially limits” to cover individuals under the ADA to the maximum extent permissible by this Act.
The ADA Amendment Act also expanded the definition of “major life activities” to include major bodily functions such as the proper function of the major systems in the body. This includes cell growth, immune system, brain functions, respiratory systems and the likes. This makes sure that the law extends protection to people who have serious internal conditions that have not manifested as physical symptoms. A good example is some types of cancer or neurological conditions that slowly damage the body internally in its early stages without showing outward manifestations. Similar impairments will now be covered by the ADA AMENDMENT ACT when, prior to its enactment, some courts will not interpret this as a disability.
The ADA, as amended, also extends protection to those who have diseases that are “episodic” in nature or diseases that go into remission once in a while. The ADA Amendment Act will protect people who have diseases that wax and wane, even if the disease is not currently active.
The ADA did not cover impairments that are temporary. A broken arm, for example, will not be covered by the ADA. The ADA Amendment Act, on the other hand, defines this clearly by stating that disabilities that last for only 6 months or less will be considered as “transitory” and will not qualify as a disability under its definition.
The ADA Amendment Act now prohibits courts from considering corrective or mitigating measures such as prosthetics, medication, and the use of assistive devices when considering if a person has a disability. It clarifies that except for prescription glasses and the likes, corrective/mitigating measures may not be used to determine whether an employee is disabled or not.
The ADA also defined a disabled person as somebody who is “being regarded as having such impairment.” This means that the ADA extends protection not only to those who do have a disability, but also those who have a history of such a disability and those who employers perceive as having such a disability. In simple terms, this was meant to protect disabled individuals from stereotypes that go with their disability. For example, if a person with a limp was discriminated against because of the perception that he or she cannot do a job function that requires him or her to walk.
The ADA, as amended, clarifies that a disabled employee only needs to show that their employer had regarded him or her as someone who has a physical or mental disability to be protected by the law. Unlike before, the employer doesn’t need to show anymore that he or she believed that the disability substantially limited a major life activity. Furthermore, the ADA Amendment Act makes it clear that an employee making a claim that he or she was “regarded as having a disability” will not be entitled to reasonable accommodation.
It is likely that the new law will find more employees to be legally disabled once it goes into effect. How this will translate into the reality of workplace conditions still remains to be seen.
Does Filing for Bankruptcy a Good Option?Created: November 25, 2008
Type: Business / Corporate Law
In the face of economic hardship and the global crisis, does filing for bankruptcy a sound decision for one’s business?
Bankruptcy is a federal court process designed to help consumers and businesses eliminate their debts or repay them under the protection of the bankruptcy court. In short, it also allows someone a fresh start.
The most common among types of bankruptcy are chapter 7 and chapter 13 bankruptcy. Chapter 7 bankruptcy is the type where property is sold (liquidated) to pay off as much of your debts as possible, while leaving you with enough property to make a fresh start. On the other hand, Chapter 13 bankruptcy, allows you to repay your debts over three to five years or a repayment plan.
When contemplating on filing for bankruptcy, here are some things to consider:
- Filing for bankruptcy should be your last resort. Make sure that there are no other alternatives. A bankruptcy will remain on your credit file for up to ten years. Under the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), before filing, an individual must obtain some consumer credit counseling from an entity approved by the U.S. Trustee within 180 days of the date of the filing of a bankruptcy case.
- Choose the type of bankruptcy to file and hire a lawyer. Try to find a firm in which you have direct contact with your lawyer.
- When thinking about filing a bankruptcy case, do not use your credit cards. If you do so with the intent to file, a creditor can challenge the discharge of the debt owed or even your right to discharge any debt. If you obtained the debt knowing that you could not repay it, you may not be able to discharge that debt if the creditor challenges it through a lawsuit, or adversary proceeding, in your bankruptcy case.
- Ask or consult with your lawyer regarding the type of bankruptcy to file. A lawyer will determine which chapter is best for you, based on your financial affairs. He will also assist you with completing the BAPCPA's means test.
- List all your assets. This will help your lawyer determine which type of bankruptcy to file and what your alternatives are.
- Know your case through your lawyer and anticipate the cost of filing and other fees. Filing fees are varied so are attorneys’ fees. Negotiate with your lawyer regarding arrangement of payments.
- Once you have retained a lawyer, you can refer your creditors to your lawyer’s office. When a case is filed, an “automatic stay” will be imposed or enforced on creditors who will not be allowed to contact you about your debt.
- A business lawyer will arrange a meeting with your creditors ( so-called as the 341 meeting, named after the Bankruptcy Code section). This meeting allows the trustee to ensure that you have given truthful answers on your bankruptcy petition, and that you understand and agree to filing for bankruptcy. Your lawyer should have met with you prior to this meeting to go over all of your debt to ensure that it is all listed.
- The methods of repayment of debts vary according to the type of bankruptcy you file. In a chapter 7 case, you may never have to pay a creditor back. In a chapter 13, you will be required to enter into a 3 to 5 year plan, in which you will pay creditors as much as you can over time, taking into consideration the BAPCPA means test.
- Typically, the 60th day after your meeting of creditors which is first set is the deadline for creditors to file lawsuits to challenge the discharge of a particular debt or your entire discharge. If no such lawsuits are filed, shortly after that 60th day you will receive notification of a discharge of debt if you filed chapter 7. A discharges means that you have no further obligation to repay the discharged debt (the existence of that discharged debt may still appear in your credit reports), and that your creditors can never collect the debt from you. If you filed chapter 13 case, you will receive the notice of discharge approximately 30 to 60 days after your final payment has been made and the trustee ensures your payment plan has been followed and completed.
- Not all debt is discharged in a chapter 7 or 13 case, including student loans and certain taxes, so you may not be completely relieved of the obligation to repay all debt. Whether or not a debt is discharged depends upon certain Bankruptcy Code provisions, and with respect to some debts, whether or not a creditor succeeded in convincing a judge that your debt to that creditor should not be discharged.
Weighing your options before deciding on filing for a bankruptcy case would be a smart thing to do. To be able to decide better on this, it is best to consult with a business lawyer who will help you decide on what alternatives to take.
New Employment Laws Expected to Make Changes in the WorkplaceCreated: November 27, 2008
Type: Employment Law
Conditions in the workplace are sometimes dictated by employment laws being implemented by most employers. These laws govern the policies and regulations that employers enforce in their offices, companies and in various workplaces.
In another aspect, the global economic crisis has also affected many businesses, with far-ranging implications on banks and financial institutions. As a result, some businesses were forced to shut down or downsize, as part of their cost-cutting measures.
Consequently, a number of employment bills, which are awaiting Congress approval, could also make an impact on future employer and employee relationship.
Among these various laws that are expected to be enacted include the following:
- Employment Non-Discrimination Act — This law would make sexual orientation a protected class.
- Fair Pay Restoration Act — this bill is meant to reverse the U.S. Supreme Court’s decision in Ledbetter v. Goodyear - sometimes referred to as the Lilly Ledbetter Act. The Supreme Court in Ledbetter dealt with the claim that an employee should be able to recover for gender discrimination going back for 20 years or so. The Court ruled that under Title VII, an employee had 180 days to file a discrimination charge with the Equal Employment Opportunity Commission. If she failed to meet that deadline for each act of discrimination, she could not reach back and combine a number of acts of discrimination into one. If this proposed law passes, it could dramatically affect the liability an employer has for past discrimination.
- Employee Free Choice Act — this law allows a union to be recognized if enough employees sign union authorization cards. It eliminates the union election. It makes it possible for a collective bargaining agreement to be decided by arbitrators instead of being negotiated between the employer and the union.
- Healthy Families Act —this law would require employers with 15 or more employees to provide seven paid sick days to employees.
- FOREWARN Act– This bill would amend the Worker Adjustment and Retraining Notification Act, better known as WARN. It would apply to employers with 50 or more employees instead of the current 100 or more. It would require a covered employer to give employees involved in a plant closing or mass layoff 90 days notice instead of the current 60 days. It would double the amount of back pay an employer would owe employees if the notice requirement were not met.
- 6. Civil Rights Act of 2008 — The main objective of this law is to remove the damage caps presently imposed on federal discrimination lawsuits. Presently, victims can recover $500,000 in a maximum claim and that would be against an employer having over 500 employees.
These are the new laws that one can expect to bring changes in the workplace. Whether or not these bills will pass legislation, however, would depend much on how our lawmakers see the current conditions of our workers and employers.
Ways to Safeguard Yourself from Identity TheftCreated: December 19, 2008
Type: Business / Corporate Law
December 17, 2008
Identity theft is one of the most common cyber crimes today. The Federal Trade Commission estimates that nearly 9 million Americans have their identities stolen every year. This accounts for millions of dollars lost in fraudulent transactions using personal information that have been stolen from another person’s account by hacking on databank on the web.
Identity theft is not necessarily virtual; it can be done by physical or tangible means. For instance, a thief goes through one's garbage and obtains various personal information such as name, birth date, age, birthplace, address, social security number, employment record, credit record, credit card number, among others.
Personal information are not the only ones being stolen by cyber thieves today - even commercial information and trade secrets have also become targets of cyber criminals.
These vital personal information may also be secured when one's personal items are physically stolen or lost. When one’s wallet containing identification cards is stolen, these items can also be used by a thief for many identity theft purposes.
Information may also be obtained by browsing through personal websites that have sprouted in the past years such as Friendster, Multiply, Facebook, MySpace, Blogspot, etc. This information can also be obtained en masse. For instance, when a database of an employment agency which contains information together with the medical records of individuals is hacked, an identity thief may used them for his personal gain such as committing insurance fraud, credit card fraud, bank fraud and criminal avoidance.
And how can one combat identity theft?
First, by making sure that one’s identification cards and personal information details are secured. It can also be prevented by making sure that one does not throw out personal documents, or if disposal cannot be avoided, one should make sure that these documents are shredded before being thrown away in order to guarantee security and confidentiality.
With respect to the virtual means of obtaining information, one can use software that will prevent hackers and identity thieves access to your personal files and information.
To address rampant identity theft in the web, the Federal Trade Commission have recently asked private entities such as companies and business, including schools, to find new ways to authenticate the identities of customers, employees and students without using social security numbers. The request was also as part of its recommendations to fight identity theft.
The agency also asked companies to establish appropriate, risk-based consumer authentication programs that could “reduce the misuse of consumer data and the prevalence of identity theft," especially in private entities and companies.
The commission also asked businesses that still use social security numbers to be more discreet. The agency noted that some organizations continue to display social security numbers on account statements, paychecks, applications and other documents, putting consumers at risk for identity theft.
Further, the commission also urged Congress to enact laws that will define the standards for notifying the public in the case of data breaches and called for efforts to educate businesses and consumers on how best to safeguard social security numbers.
Collision-Safe Car: What’s in it for Future MotoristsCreated: December 25, 2008
Type: Personal Injury Law
December 11, 2008
Car safety mechanisms have evolved through years. From the simple seat belt and air bags to skid-free tires – the cars of the future may be equipped with more innovative and effective safety design mechanisms.
Future motorists will soon drive smart cars – cars that can detect and avoid accidents such as collisions. The Swedish carmaker, Volvo, for example, has a new sport utility vehicle fitted with airbags, rollover and side-impact protection, aside from an automated braking system, that could take care of passengers during collisions.
In addition, future cars may have safety features that can assist drivers during dangerous situations or even take control of the car. One of the Volvo’s safety features include a system called City Safety Safety uses a laser sensor fitted behind the windscreen to scan the road ahead, calculating relative speeds and distances. It applies the brakes if a collision cannot be avoided. The system switches off at very low speeds, so that drivers can park close to other vehicles.
On the other hand, Germany’s Daimler uses a radar-based one in some of its Mercedes-Benz vehicles. Called Distronic, it also operates at high speed and adjusts both braking and acceleration to maintain a constant distance from other cars.
It gives the driver a warning if a collision is likely to happen. When the driver puts his foot on the brake pedal the system automatically applies the optimum pressure required to avoid hitting the car in front. If the driver fails to respond, the brakes will come on automatically.
According to the international research organization, VTT Research Centre, so-called “intelligent” vehicle-safety systems have the potential to make roads a lot safer. Cars equipped with electronic stability-control, and modern safety mechanism can improve a car’s handling by detecting and helping to prevent an accident, thereby reduce the number of people killed on the roads by nearly 17%.
Warning devices in cars could help drivers about speed limits and other hazards that would cut fatalities by 13%.
Eventually these safety systems will make their way from expensive cars to most models, just as anti-lock brakes have. Many of today’s modern car manufacturers believe it is be possible to build a car in which people will not be killed or injured.
However, accidents do occur and in some instances when a vehicle accident occurs due to design defects or malfunction, it is more likely that a driver or motorist will need the assistance of a knowledgeable accident attorney.
New Laws Greet Californians at the Start of the New YearCreated: January 23, 2009
Type: Other Legal
Many Californians will be surprised to find changes especially in the new laws that took effect January 1. Definitely, many areas will be affected by these new laws – and some of these laws come with tougher penalties too.
While laws banning electronic bingo machines and bidding on state contracts by companies that do business with the government of Sudan (which the U.S. has accused of genocide) are now in effect, two other new laws gained more prominence.
The laws creating a new state office that will investigate and impose penalties on hospital workers who "snoop without permission in patient medical records" was approved after newspaper reports revealed that some hospital employees peeked at the confidential files of celebrities including Farrah Fawcett, pop star Britney Spears, and California First Lady Maria Shriver.
Beginning this year, messaging motorists will be penalized. The ban on text messaging while driving applies not only to cellphones, but extends to the use of such devices as Blackberrys and laptop computers, as well.
In addition to this, another law raised the price of traffic tickets. Traffic infractions will carry a new $35 assessment and the fee to process a request to attend traffic school and the fee to keep the ticket off the driver’s record was increased from $24 to $49. An additional $30 assessment fine will be imposed on convictions of misdemeanors or felonies. These fines will go to the $5-billion fund that will be used to repair or replace 40 court facilities in California.
A handful of other new laws will confront motorists and car owners this year. Here are some of them:
- Alternative fuel - Allows drivers who run their vehicles on restaurant kitchen grease to skip most of a $300 fee previously required of anyone who hauled used vegetable oil or other grease away from an eatery. Veggie-oil users will now have to pay $75 for a license.
- Carpool lanes - Makes it a crime to forge, counterfeit or falsify a clean air sticker issued by the DMV to certain low-emission vehicles, allowing them to be driven in high occupancy vehicle lanes. A separate law permits drivers of fully enclosed three-wheel motor vehicles to use carpool lanes.
- Drunk driving - Drivers on probation for DUI convictions face suspension of their license and towing of their vehicle if they drive on California highways with a blood or breath alcohol level of .01% or higher.
- GPS devices - Allows a global positioning system device to be mounted on the windshield of a motor vehicle only in the 7-inch square in the lower corner farthest from the driver or in the 5-inch square in the lower corner nearest the driver.
- License plates - Creates a California Gold Star Family license plate for families who have lost loved ones in wars.
- Taxis - Allows local agencies to disconnect the telephone service of a taxicab operator that fails to obtain proper permits and insurance if other enforcement remedies have failed.
- Toll roads - Allows local transit agencies to create carpool lanes that can be used by lone motorists willing to pay a toll on stretches of the 15 Freeway in Riverside County and portions of the 10 and 110 freeways in Los Angeles County.
- Used cars - Allows police officers to impound vehicles of anyone cited for acting as a car dealer without a license.
To address issues of the changing times, lawmakers have also adopted measures such as the following:
- Tax breaks - Allows taxpayers to exclude forgiven mortgage debt from their incomes for state income tax purposes.
- Real estate - Allows the state Department of Real Estate to suspend or bar a person who has committed a violation of real estate laws.
- Foreclosure consultants - Provides a registration and bonding process for foreclosure consultants and bars such consultants from entering into certain agreements with homeowners.
Some laws have contrasting goals:
- Green jobs - Requires the state to develop a comprehensive approach to the needs of California's workforce associated with its budding "green" economy.
- Oil drilling - Permits development of additional oil reserves beneath submerged lands of the Wilmington oil field.
For the consumers, there are significant laws for them:
- Medical insurance - Requires that when insurers cancel someone's coverage, they allow other members of the family to keep theirs. Another law prevents insurers from refusing to pay the medical bills of customers injured while under the influence of alcohol or drugs. A third new law requires insurers to pay for HIV screening.
- Emergency calls - Increases penalties for people who knowingly use 911 emergency lines for calls other than emergencies. The penalty is a written warning on first offense, $50 on second, $100 on third.
- Phone cards - Requires refund within 60 days to any holder of a card if the provider's services fail to operate in a commercially reasonable manner. It also mandates that phone-card firms maintain a toll-free customer service number.
There are also new laws that deal with safety and welfare:
- Computer bullying - Allows school officials to suspend or recommend expulsion for pupils who engage in bullying by electronic means, including over the Internet.
- Dangerous chemicals - Requires the Department of Toxic Substances Control to adopt a plan to identify and evaluate dangerous chemicals in consumer products.
- Fire prevention - Improves measures to prevent damage from wildfires, including a requirement that homeowners clear brush from a 100-foot perimeter around their houses.
- Another law requires California forests to be better managed against tree-killing pests and to make it easier for fire departments to access firefighting equipment.
- Pets - Provides for enforcement of "pet trusts" set up by animal owners to pay for continuing care of their pets after the human owners die.
- Nutrition law – (for restaurant chains with 20 or more outlets) Requires brochures to be supplied to diners beginning July 1 and calorie counts on menus starting in 2011.
- Another measure requires that fruity beverages known as "alcopops" be prominently labeled as containing alcohol, starting July 1.
- Hospital infections - Requires hospitals to develop more comprehensive policies and procedures to ensure that patients are not infected in medical facilities.
- Meat safety - Makes it a misdemeanor to buy, sell or butcher sick and some disabled animals for human consumption.
- Mobile homes - Requires, at time of sale, all mobile homes and manufactured housing to have smoke detectors in all rooms designed for sleeping and to have seismic braces on gas-fired water heaters.
- Privacy - Makes it a misdemeanor to use radio waves, without consent, to remotely read another person's identifying information. This is in response to the practice of having personal identification information included on government-issued identification cards that can be read with radio-frequency identification devices.
- Smoking - Allows the state director of the Department of Mental Health to prohibit the possession or use of tobacco products on the grounds of state mental hospitals.
- Wave pools - Requires operators of wave pools at amusement parks to increase safety steps, including assignment of lifeguards, provision of life vests and restrictions on children shorter than 42 inches.
Some laws were addressed to the elderly, the students and the school system, and other sectors of society:
- Senior homes - Assisted-living homes are required to show potential customers their history of rate hikes, tell local prosecutors about suspected abuse and plan for emergencies such as blackouts.
- Veterans- Requires the state Department of Veterans Affairs to develop plans to reach out to National Guard members or veterans returning to California from combat, and assist them in obtaining a screening for post-traumatic stress disorder and traumatic brain injury.
- Another law authorizes, after local approval, veterans whose vehicles display one of a number of special-recognition license plates to park free in metered spaces.
- National Guard - Authorizes a state employee who is a member of the National Guard or reserves to receive government benefits for four additional years, if they were ordered to serve on or after Sept. 11, 2001, as a result of the war on terrorism.
- Medical techs - Requires California's Emergency Medical Services Authority to establish and maintain a statewide registry of the status of emergency medical technician licenses; It also mandates that beginning July 1, 2010, all EMTs undergo mandatory criminal background checks.
- Schools - Allows Los Angeles Unified School District and other districts to continue tapping state funds even as they withdraw from a program to fund multi-track, year-round schools.
- Campus Press freedom - Prohibits discipline of high school and college journalism advisors for the content in a student newspaper.
- Teacher crimes - Includes "no contest" pleas in the definition of convictions when the Commission on Teacher Credentialing decides whether to suspend or revoke teaching credentials.
- Human trafficking - prohibits any provision of a contract that purports to allow a deduction from a person's wages for the cost of the person immigrating and being transported to the United States.
- Spousal abuse - Prohibits jailing of alleged victims of domestic violence for refusing to testify against their abusers.
Recession’s After-Effects: More Uninsured MotoristsCreated: January 23, 2009
Type: Personal Injury Law
The economic downturn has resulted not only in an increased number of unemployed but also in a growing number of uninsured motorists.
Statistics by the Insurance Research Council, an independent property-casualty insurance research group, revealed a strong correlation between unemployment and uninsured drivers. And these number are expected to increase further until 2010.
According to the research group study, if the unemployment rate goes up by 1 percent, the uninsured would go up by three-fourths of that percentage.
The five states with the lowest uninsured driver estimates were Massachusetts (1 percent), Maine (4 percent), North Dakota (5 percent), New York (5 percent) and Vermont (6 percent).
Based on current national unemployment rate projections, the study says, the percentage of uninsured motorists is expected to rise from 13.8 percent in 2007 to 16.1 in 2010.
The five states with the highest unemployment rates were Michigan, Rhode Island, South Carolina, California and Oregon. All ranked higher than New Mexico and Mississippi in unemployment in November 2008.
However the group cautioned against comparing data from state to state, saying the trends in unemployment and uninsured motorists vary in each state.
In contrast, the study also did not look at state car insurance laws as some states have laws but do not enforce them and other states have weak car insurance laws, although the states enforce them very vigorously.
The group examined data collected from nine insurers, representing approximately 50 percent of the nation's auto insurance market.
The study contains recent statistics by state on uninsured motorists claim frequency, bodily injury liability claim frequency and the ratio of uninsured motorists to bodily injury claim frequencies.
A rise in the uninsured, as a result, would mean increased premiums for insured drivers.
Most people who are insured have uninsured motorists coverage and that protects them during a car accident when they are hit by someone who does not have insurance, thereby increasing the cost of insurance for those who are insured.
California Labor and Employment Laws: Legal Issues in Mandated FurloughsCreated: February 23, 2009
Type: Employment Law
Because of the present economic meltdown, many industries in private sector have been forced to close down or retrench some of their employees. Others resort to other means to survive the economic crunch, like implementing furloughs or mandatory leaves.
On February 6, the state of California, which is in fiscal trouble since the start of the global crisis, began to impose mandated furloughs as a means to save money. This means that the state will shut down for business for two days per month and state employees will be forced to take these days off without pay. This is a plan by the state government to help rid of the 40 billion dollar deficit, which it hope to carry out by saving 1.3 billion over 18 months.
Furloughs have been lauded as one way to fight the recession. Employees who agree to a furlough in an effort to avoid layoffs are helping protect jobs for their fellow workers. President Barack Obama even remarked about "the selflessness of workers who would rather cut their hours than see a friend lose their job."
As a result, many companies have adopted furloughs or mandatory leaves as an option for survival. Some employers look at furloughs not only as a means to save money but also as a way to save their companies from trouble or bankruptcy.
But some labor unions and employees say that many employers have been applying furloughs for some time, under a different name: shutdown. For example, manufacturers would often shutdown the assembly line for a week or two during Christmas when inventory is high. This practice is common.
But today, the idea of furloughs has spread to the non-manufacturing sectors as well. For instance, early this year, the newspaper- publishing giant Gannett required all its employees to take a week’s furlough within the first quarter of the year. The week long furlough is a week off without pay for the employees. And for some employees, like single mothers, taking the mandatory leaves may not be good at all while some companies, who are obviously healthy and profitable, take furloughs as an excuse not to spend on employees’ salaries and reap profits, at the expense of those who cannot afford the loss of income.
In California, this could trigger violations in state labor laws. A problem may arise when the furlough affects a salaried employee who is typically exempt from overtime. In fact, the state of California has lowered the exemption threshold for computer workers, for example, to an annual salary of $ 75,000.
Many of the employees in this level, who have written contracts, may complain if their salary falls below that amount as a result of the mandatory leave. Conversely, the employer may lose his overtime-exempt status for that employee, who will have an overtime claim for the rest of the year in this case.
For salaried, overtime-exempt employees, they cannot be required to work or do even a few hours of work from home to make up for the furloughed time; otherwise the worker must be paid for the services he rendered.
Thus, employers who wanted to implement furlough must carefully study the effects of the idea on their businesses. It would help to know some applicable California labor employment law before taking advantage of this option. Those who would not like to expect lawsuits from disgruntled employees must consult with a lawyer knowledgeable in California state labor law.
The Impact of the Economic Crisis on the Legal SystemCreated: February 23, 2009
Type: Legal Profession
The economic slump has affected not only the way people conduct their business but also on the services that the legal system, especially the courts, normally extend to people.
Because of the budget emergency that most state governments face, courts are on the brink of funding cuts, a move that could threaten the legal services in the country.
According to the National Center for State Courts, a research and advocacy organization, at least 25 state court systems face budget shortfalls this year. As this crisis developed, state senator Scott McCoy (Utah-D) warned this: “You have to remember that the courts are a coequal branch of government…It is of an entirely different magnitude in our constitutional structure”.
And not only this – some lawyers, or chief justices, also warned that the poor could go without lawyers and the lay-off of court employees could lead to the slower delivery of justice.
In some states, the effects of the court funding problems have already surfaced.
In New Hampshire, jury trials have been suspended for a month to save an estimated $ 73,000 while in Utah, the Chief Justice warned that 1,000 court employees could be furloughed or laid off for 26 days starting February.
In Minnesota, the state’s chief justice has gone on a publicity tour to call attention to the court funding problems.
“Our state courts are in crisis,” Massachusetts Chief Justice Margaret Marshall told the American Bar Association recently.
In Florida, 280 court workers were laid off or nearly 10 percent of its 3,100 court employees. Business groups said the court system is so overworked and under-funded — and civil cases are delayed. It is estimated that Florida faces more than $17 billion in lost economic output each year because of extensive civil case delays.
Besides Florida and Utah, court workers in Iowa and Vermont also have been ordered to take unpaid leave to cut costs.
Utah’s chief justice warned , in her annual speech to the Legislature January 26, that under- funded courts would have an adverse effect on the state’s economy — a warning that McCoy, the Democratic state legislator, brought up to the Senate floor.
Public defenders in Minnesota and Rhode Island and county-funded systems in Arizona, Florida, Nebraska, Tennessee, have also cut back on the services they provide, according to the National Legal Aid and Defender Association (NLADA), which advocates for public defenders.
Other groups have also complained about court funding shortfalls. Many drug court professionals worry that state funding will be slashed for the courts, which provide alternatives to incarceration for low-risk drug offenders.
Legal aid groups, which provide civil legal services to the poor, have also experienced reduced funding not only from states but through little-known programs — known as Interest on Lawyers Trust Accounts (IOLTAs) — that are dependent on the interest rate set by the Federal Reserve.
The programs, which exist in all 50 states, take the interest earned on some escrow accounts lawyers keep for their clients and earmark it for legal services for the poor. As the Federal Reserve has slashed the interest rate in an effort to help the economy, the IOLTAs have lost millions in value. Thus, legal aid groups are urging states not to enact further cuts.
Among the states that have seen the sharpest decline in funding for legal aid efforts are California, Connecticut and New York.
According to the National Center for State Court, personnel costs account for about 90 percent of state spending on courts. Thus, experts say, any cut made on its budget will have tremendous effect on the service the courts render.
When courts are forced to lay off workers, “there’s an immediate hit on services,” one analyst said. “You can’t cut courts so deep that they can’t resolve disputes,” he said, “because then it starts to get at the fabric of our society.”
Legal Issues involving Furloughs in an At-Will SettingCreated: April 30, 2009
Type: Employment Law
In these hard economic times, many companies resort to several cost-cutting measures to survive the tough times.
Some employers take several options such as pay reduction, downsizing and laying-off of workers to stay afloat during the crisis. To avoid layoffs or pay cuts, other companies turn to furlough or the granting of leave to an employee.
A furlough may also mean the cutting down of one’s working hours. For instance, an employer may reduce the amount of hours an employee spends working in a week, cutting it back to four days one’s regular five-day work week. Or in some cases, an employer may ask for a reduction in pay or salary.
One of the most prominent instances questioning the legality of furloughs happened when Governor Arnold Schwarzenegger tried to impose mandated furloughs for many state employees, which resulted in lawsuits.
Furloughs and At Will Employment
Are furloughs legal in an at-will employment setting?
In most cases, an employer has a right to ask his worker to cut back on pay or work hours. And for someone who works as an at will employee when anybody can end a working relationship anytime, a furlough is an issue in contradiction. Some people opined that an at-will worker who disagrees with the terms of furlough may quit anytime and find another job. Otherwise, he/ she can stay and obey the rules.
Generally, furloughs are not illegal, even in at will states like California, provided there are logical or economic reasons for its implementation. However, there are exceptions to whom an employer can furlough:
- A worker may not be furloughed on the basis of his race or gender.
- A worker is exempted from furlough if he has H-1B non immigrant professional visa, a union contract or an individual employment contract which specifies one’s annual salary.
- An employer who fails to pay the full amount in the contract can be liable for breach of contract.
Hence, for companies who are contemplating on implementing furloughs, here are some things to consider:
- A company must ensure that furloughed workers are not working. They can check workers’ activities by sending a business e-mail.
- In some states, furloughed workers are entitled to collect unemployment compensation. Inform workers and employees about it.
- Workers must also be informed if working hour reductions would affect health care plans, for example.
- An employer should require “pre-approval” of furlough days. Nonexempt workers are legally allowed to take furlough days one day at a time, rather than in blocks or groups.
Employment issues such as furloughs and leaves can be properly addressed if one can consult with an experienced and credible employment lawyer. An employment lawyer can also help you with other issues involving violations of employment and labor laws.
National Safety Council Says 1 in 4 Crashes Linked to Cell Phone UseCreated: January 27, 2010
Type: Personal Injury Law
Personal Injury Law January 12, 2010
Washington - At least one in four crashes or about 1.6 million accidents are caused by cell phone use every year, the National Safety Council said Tuesday.
In a conference with other safety groups, organization’s senior director of transportation strategic initiatives David Teater, said that every year, almost 1.4 million accidents are caused by drivers talking on phone while 20,000 crashes are caused by texting while driving.
Meanwhile, some analysts believe that the statistics may be higher as people have the tendency to lie if the crash involves cell phone distraction.
In an effort to spread awareness on the dangers of using cell phones behind the wheel, the organization, together with the US Department of Transportation Secretary, has announced its new advocacy group called “FocusDriven”. This advocacy group aims “to make cell phone distraction socially unacceptable just like drunk driving.”
Currently, six states and the District of Columbia ban the use of handheld phones when driving while 19 states outlaw texting behind the wheel, according to the Governors Highway Safety Association.
However, there is no federal law that prohibits the use of communication device while driving.
In a recent study conducted by the University of Utah, drivers who are talking on phone are four times more like to encounter accidents while those who are texting increase their chance of crashing by eightfold.
World’s Slowest Train Derails, 1 Dead, 42 InjuredCreated: July 29, 2010
Type: Other Legal
Personal Injury Law – (Other Legal) July 23, 2010
Geneva, Switzerland – Glacier Express, a tourist train in Switzerland, which is more popularly known as the slowest express train in the world, was derailed, resulting in the death of one person and injuring 42 others during its journey between Zermatt and St. Moritz.
Investigators said most of the injured victims were Japanese tourists who were flown by medical helicopters for treatment in undisclosed hospitals in Lausanne and Geneva. The police did not release the name of the lone fatality.
Valais police said the train accident occurred as two of the train cars drove off and the third tipped over. The derailment took place near Fiesch and near Aletsch glacier, Europe’s largest ice mass.
Rail accidents seldom occur in Switzerland and Glacier Express’s derailment is considered as the country’s worst rail mishap since 2006 where two men had died when a runaway train without brakes crashed into another train.
The 80-year old Glacier Express runs several times a day all year round, carrying nearly 250,000 passengers a year. It is known for its majestic Alpine climbs at the average speed of about 18 mph (30 kph).
How to Sail Away Boating AccidentsCreated: February 29, 2012
Type: Personal Injury Law
Many people engage into water activities every now and then for several reasons. Some do it for fun, thrill, and excitement; while others do it for the love of sports and adventure. As such, something eventful or extraordinary may happen while enjoying the pleasure brought by such activity – may it be a fun-filled experience, or a terrible one.
Sailing, for one, can be a whole lot of fun, especially when the feeling binds with the wind that makes the boat sail and glide on water. However, the lack of precaution and attention may lead to a boating accident. In this event, it is important to seek legal help from Los Angeles lawyers specializing in boating accident cases.
Meanwhile, here are the fine points to consider in avoiding boating accidents:
1. Know the Navigation Rules. Be wary of your responsibility of keeping the safety of your boat and your crew.
2. Wear a proper Coast Guard-approved life jacket. Make sure that the life jacket you chose or purchased suits you well and does not have any defect. It can help you keep afloat in the event that you got injured or were unable to swim due to an accident.
3. Know which boat has the right of way when approaching another boat in order to avoid collision. It is also important to know who must give way. You have to have verbal communication with the other sailor to confirm your plans.
4. Regardless of whoever has the right of way, it is always your duty to avoid a collision. Do not forget to slow down or stop when nearing another boat. Nevertheless, do everything to avoid collision.
5. Here’s the right of way rule: When you pass another vessel, yours is the give-way vessel. When your boat comes near a motor boat, the latter is the give-way vessel.
6. Avoid crashing into the dock. Approach the area or your anchor by steering your boat away from the prohibited zone. Move slowly to make a stop. If your glide zone becomes unclear, you may circle around and approach again.
Common Causes of Motorcycle AccidentsCreated: February 29, 2012
Type: Personal Injury Law
In the United States and in other countries, it’s not uncommon to hear news stories about motorcycle riders being involved in terrible, and oftentimes fatal, road accidents.
In fact, the National Highway Traffic Safety Administration (NHTSA) revealed that fatal accidents involving bikers have actually gone as high as 35% compared to car or truck drivers during the past few years.
The NHTSA also said that the number of deaths involving motorcycle riders rose by as much as 25% in just seven years—from 55.3 for every 100,000 riders in 1997, to 69.33 per 100,000 in the year 2004.
However, despite such alarming data, a lot of people still prefer motorcycles as mode of transportation due to their mobility, fuel economy, and relative ease and affordability of owning one.
In the light of such startling information, it’s important to zero in on the reasons behind most motorcycle-related accidents. Here are some of them:•Inexperienced riders.
Most first-time motorcycle riders have little or no regard to standard traffic safety procedures. Most of the time, they push their motorcycles far beyond the operating limits, like going way past the specified speed limit imposed by manufacturers and by traffic laws. They also tend to commit serious driving errors as a result of their inexperience and lack of proper driving training, which often lead to debilitating or fatal road accidents.•Reckless fellow drivers.
There have been countless incidents where a motorcycle rider was struck by a car or truck driver who is too arrogant to respect the former’s lane. Such recklessness on the part of other drivers is one reason for tragic accidents involving motorcycle riders.•Incomplete, or non-wearing of, protective gears.
Most rider deaths and disabilities are traceable to non-wearing of, or having incomplete, protective riding gears such as crash helmet, knee and shin guards, riding boots, and armored jackets.•Uneven road surface.
There have been a lot of cases where riders accidentally crash due to a bump or a hole on the road. Since motorcycles only have two wheels, motorcycle drivers are much more likely to figure in an accident where roads are not well-paved.
In such a case when a motorcycle rider figured in an accident involving another driver, he or she may file for personal injury claims to receive just compensations. Also, it’s important to hire the services of an experienced los angeles personal injury attorney to speed up the process and to ensure favorable results.