Lawyers.com Blog

Family loyalty out the window

nospam@example.com (Joseph E. Deering) — Mon, 06 Oct 2008 19:27:55 -0400

So what do you think?

In Mr. Condon’s Living Trust, he provided that his grandson, Jeff, would get $150,000 on his death if the grandson had reached age 25. He also provided that if his grandson was not 25 at the time of his death, his son, Milton, would be appointed as the after-death agent to manage the $150,000 and deliver it to Jeff when he reached that age.

Jeff was 19 when his grandfather died. In accordance with his grandfather’s Living Trust instructions, his father, Milton, secured the funds.

Fast-forward to six years later when Jeff finally turned 25, I noticed in my appointment book that Jeff had made an appointment to see me. In reviewing his grandfather’s trust, I was reminded about the gift provision to him. Therefore, I assumed that Jeff wanted to meet with me for advice on the transfer of that gift to him. As I met Jeff in my waiting room, I said, “Happy Birthday! What’s the first thing you are going to do with your gift?

He responded, “Sue my father!”

In my office, Jeff explained what he had meant by such a shocking statement. Upon turning 25, he approached his father for the money. When he did, his father said, “Hey, son, since my money is family money, your money is family money. You’ve been receiving your distribution all along in the form of food, clothing, and shelter.”

Mr. Condon wanted his grandson to have that bequest to help him get a leg up in life: to start that family, buy that home, establish that business. What his grandson got instead was a lesson in the school of hard knocks. When it comes to money, family loyalty goes out the window.

Continue reading "Family loyalty out the window"

Federal Disability Retirement & the economy

nospam@example.com (Robert R. McGill) — Sat, 04 Oct 2008 23:29:27 -0400

I have been asked, via multiple emails, of my opinion concerning the right time to file for disability retirement, given the state of the current economy. I am not an economist; I am an attorney who specializes in obtaining disability retirement benefits for Federal and Postal employees under FERS & CSRS. With that prefatory caution, let me state that I am an optimist, and always see the glass as "half full" as opposed to "half empty". First, if a Federal or Postal employee can no longer perform the essential elements of one's job, then it is probably time to file for disability retirement. Second, while disability retirement does not pay a great amount of money, it is a base annuity which allows one to go out and start a "second career", and make up to 80% of what a person's former position presently pays, on top of the disability annuity. Further, because disability retirement allows one to retain one's health insurance benefits, such an individual can be an attractive candidate to a private employer, because of the lack of need to insure the person in the course of his/her the second career. Third, in a tough economy, part-time employment is often more available, and so it is often a good economy for individuals who have a base annuity to rely upon, and who are looking for supplemental income. In any event, one should always look at disability retirement benefits as an opportunity to preserve one's deteriorating health, and move on to pursue other avenues of opportunities.

Sincerely, Robert R. McGill, Esquire

Obesity & Social Security Disability

nospam@example.com (Gerald G. Lutkenhaus) — Fri, 03 Oct 2008 13:13:11 -0400

Social Security has a set of Impairment Listings. At one time "obesity" had an impairment listing. Thus, if the applicant was of a certain height and weight, then the applicant received Disability. For example, if you were 5'2" and 300 pounds, then you were well on your way to winning a Disability Case if you had any impairments in addition to your "obesity".

In 1999, Social Security changed the Rules and deleted the Impairment Listing for "obesity". Social Security did say it would consider the effects of "obesity" with regard to other listed impairments such as respiratory impairments, cardiovascular impairments, and muscoloskeletal impairments (back problems).

In a recent case I had a young lady who was 400 pounds and had spinal stenosis. Prior to 1999, she probably would have met the Impairment Listing for "obesity". Since the rules have changed, we had to go to a hearing before a judge and demonstrate the severity of her back problem. We won but the primary focus of the decision was on the back problem and not her "obesity."

In another case I had the applicant was a man who was over 375 pounds with congestive heart failure. Again, prior to 1999 he would have met the "obesity" listing. Instead, we had the hearing and the judge denied the claim on the grounds he had not done enough to lose weight. The United States District Court reversed the social security judge and we were granted a new hearing. We won this time with an on the record decision. But again, this case shows the rules have changed and "obesity" no longer is the "slam dunk" winner it once was.

This may be considered AN ADVERTISEMENT or Advertising Material under the Rules of Professional Conduct governing lawyers in Virginia. This note is designed for general information only. The information presented in this note should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Gerald G. Lutkenhaus, has been representing Social Security Disability claimants for 30 years in the Central Richmond Area in Virginia. He was given Martindale Hubbell's highest rating in 2003, for more information check our websites at http://www.virginiadisabilitylawyer.com or http://www.geraldlutkenhaus.com.

Continue reading "Obesity & Social Security Disability"

Virginia Workers Compensation & A Brain Injury: Significant Pitfalls

nospam@example.com (Gerald G. Lutkenhaus) — Fri, 03 Oct 2008 13:06:00 -0400

There are some significant pitfalls in a Virginia Workers Compensation Case when it concerns a brain injury. These are the factors the claimant needs to know.

FIRST, if you suffer a head injury while working in Virginia and you start receiving workers' compensation benefits (weekly wage replacement checks and medical care) for this work place injury, it would appear you have no problems but things are not always what they seem for your comp claim in Virginia.

SECOND
THIRD
FOURTH
FIFTH
SIXTH
SEVENTH
EIGHTH
In summary, if one has a serious head injury in Virginia, it is critical to always file a Claim for Benefits within two (2) years to add a "brain injury" claim. This is so because the ill effects of any head injury could develop later and could always involve a brain injury. You should not lose your rights because of this "technicality."
This may be considered AN ADVERTISEMENT or Advertising Material under the Rules of Professional Conduct governing lawyers in Virginia. This note is designed for general information only. The information presented in this note should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.
Gerald G. Lutkenhaus has been representing claimants in Virginia for over 30 years. In the July 1999 issue of Richmond Magazine he was rated one of the Best Workers' Compensation Lawyers in Central Virginia. In 2003 he received the "AV" rating from Martindale-Hubbell, its highest rating for lawyers. In 2005 he was selected for the Bar Register of Preeminent Lawyers. You can get more information from http://www.virginiadisabilitylawyer.com or http://www.geraldlutkenhaus.com or call for a free consultation at 804-358-4766.

, thus if one has had one's injury listed as a "head injury" and not a "brain injury" and 500 weeks of compensation have elapsed and one is still "disabled," you would want to extend benefits under the 500 week "brain injury" exception in Virginia. However, because you never amended the Agreement to Pay form to add "brain injury" you would likely be barred from having your compensation extended beyond 500 weeks by the Commission., if the Agreement to Pay only says "head injury," then a major problem is created after the claimant has been paid 500 weeks of compensation. Normally, the cap on workers' compensation in Virginia is 500 weeks of compensation for almost all injuries. However, there are a few exceptions to the 500 week cap. One of those exceptions is a "brain injury" but not a head injury., the remedy is to file a Claim for Benefits with the Virginia Workers' Compensation Commission within two (2) years of the date of one's accident and add "brain injury" to your claim., the next problem is that the Commission and the Court of Appeals has decided that you only receive compensation for the injuries you have listed on the Agreement to Pay form and you only have two (2) years from the date of your accident to amend the Agreement to Pay form to add new injuries (such as a brain injury) if this was not inserted on the original Agreement to Pay form)., the problem that arises is that the Virginia Workers' Compensation Commission (which regulates workers' compensation in Virginia) and the Virginia Court of Appeals which hears appeals from the Commission have decided that "head injury" on the Agreement to Pay form does not include "brain injury" even if the "brain" has been injured when the head injury occurred at the time of the original accident., the important thing to note is the paragraph on the form that describes your injury. Most of the time if you have had a head injury, the form will say only "head injury." When you sign the form, it is your agreement that this is the only injury you have., the usual procedure is when you suffer the head injury, the insurance company for your employer will send you a form to sign which will be filed with the Virginia Workers' Compensation Commission. The Commission will then enter an award based on that form. The insurance form is called "An Agreement to Pay" form.
Continue reading "Virginia Workers Compensation & A Brain Injury: Significant Pitfalls"

New Terms for Custody and Visitation Rights in Florida

nospam@example.com (Sandy T. Fox) — Fri, 03 Oct 2008 10:31:46 -0400

Most divorces are accompanied by stress and emotional pain. The process is even more difficult for spouses with children. Two terms in Florida statutes have been changed to help reduce the emotional conflicts and trauma of divorce. Child custody will be known as shared parental responsibility and visitation will be called time-sharing. The changes will take effect October 1, 2008.

To safeguard the child's best interest, parental plans have become more detailed, covering children’s daily activities, the level of interaction with parents, religious practices, and wishes of the child.

Parental plans, as laid out in the statute, will act as a framework mapping out the rights and responsibilities of both the parents in the raising of their children. This will help attorneys guide parents toward what will be best for a child's welfare. Shared parental responsibility and time-sharing take the emotion out of establishing visitation rights for many parents.

It is hard for many parents to accept that they must petition for the right to visit their own child or that their legal custody is for a limited time. The terms child custody and visitation were perceived as negative for parents undergoing the stress of marriage dissolution. These changes will essentially help spouses to cooperate more with each other and think about the benefits of their child.

If you need more information about parental plans, shared parental responsibility, or time-sharing laws, we can help you resolve your divorce or family law cases. Contact Miami-Dade Florida lawyer Sandy T. Fox at 888-217-7526 for immediate legal assistance to resolve your divorce case in Miami or Fort Lauderdale, Florida.

Important Homestead News

nospam@example.com (James R. Modrall) — Fri, 03 Oct 2008 09:14:54 -0400

Good News From Lansing. These days it is hard to find good news in Lansing or Washington when it comes to taxes. However, in 2008 Public Acts 96 and 198, the Michigan legislature addressed the dilemma of homeowners who have put their houses up for sale and moved out.

Homestead Status. Michigan taxpayers are familiar with a Homestead exemption for their principal residence, which usually is worth a savings of 18 mils on their property tax bills - approximately half of the total potential tax burden for most taxpayers. We deal regularly with questions from clients about Homestead status, who can claim it and how. Most homeowners are familiar with the Homestead Affidavit, filed with the local assessor, to establish the Homestead exemption - sometimes called the Principal Residence Exemption (PRE).

Homestead Rescission. Michigan law requires that a property owner is required to rescind the PRE within 90 days after the property is no longer used as a principal residence, i.e when the owner moves out. Homestead status is determined on a calendar year basis. Normally, the PRE will be in effect for the taxable year in which the property is transferred or is no longer the principal residence. So, if a person moves out and/or rescinds the PRE during 2008, for example, the PRE status is generally maintained for the 2008 tax year. Prior to the 2008 amendments, an owner moving out of a home listed for sale in 2008 would lose the homestead exemption for the tax year 2009. If the owner failed to file the Notice of Rescission, continuing the exemption for 2009, the owner could be liable for penalties. For example, clients moving to a smaller residence or moving out of state in 2008 could be on the hook for a much large tax bill in 2009 and subsequent years until the property sells. (If a person moved out of their home in 2007, the PRE would be lost for 2008.)

Conditional Rescission. The 2008 statutory amendments to MCL 211.7cc.(5) are now permitted to file a Conditional Rescission Notice affirming that PRE property is not occupied, is for sale, is not leased and is not used for a business or commercial purpose. A new Department of Treasury form 4640 has been issued for this purpose. The statute requires it to be filed annually prior to December 31 in order to maintain the PRE for the next tax year. The statutory amendments states that an owner may retain an exemption "for not more than 3 tax years on property previously exempt ...".

While it is not completely clear how the 3 tax years are determined, it would appear that a homeowner moving out in 2008 and filing a conditional rescission prior to December 31, 2008, would be able to keep the PRE in effect for tax years, 2009, 2010 and 2011, if the property is unoccupied, listed for sale, and not leased during that period of time. (Let’s hope that the property owner in question has priced the property at a reasonable enough level to sell within that period of time.) Similarly, an owner who moved out in 2007 can get retroactive relief for 2008 under the new law, but the owner needs to act promptly.

Conclusion. The conditional rescission and continuation of the homestead exemption is a great tax break for the many Michigan residents who have been forced to move as a result of a lay-off or transfer. It also benefits retired property owners who have moved and have their residences listed for sale. It can be especially beneficial if the client has moved within the State of Michigan and can now claim two properties for the PRE, pending the sale of a previous homestead property. The new law has a critical time element for owners seeking relief for 2008. Relief should be sought before the December Board of Review meeting.

©BRANDT, FISHER, ALWARD & ROY, P.C.
This newsletter is provided for informational purposes and should not be acted upon without professional
advice.

Continue reading "Important Homestead News"

FERS & CSRS disability retirement: Beyond the MSPB

nospam@example.com (Robert R. McGill) — Sun, 21 Sep 2008 22:23:38 -0400

Not all cases that should be won, are won. No one can win 100% of the time; think about it -- even the best Major League Baseball players strike out at least 2 out of every 3 at-bats. Most strike out every 3 out of 4 times. Fortunately, I am able to pass through a high percentage of my clients at Stages 1 or 2 of the Disability Retirement process, and that is how it should be. Every now and again, however, a case must go to the Merit Systems Protection Board; and out of the small number that must get to that point, an even smaller number goes before an Administrative Judge who is clearly anti-employee, and ignores the law and sides with the Office of Personnel Management. Fortunately, most MSPB judges are fair and understand that disability retirement laws favor, for the most part, approval of disability retirement benefits. In those instances where, for whatever reason, a case has been denied at Stages 1 & 2, and the MSPB Judge completely ignores the strong and unequivocal testimony of the doctor, then there is still a good shot at winning the case at the 4th level -- a Petition for Full Review. Such a Stage must be approached by pointing out the legal deficiencies and, indeed, the Hearing Judge's complete mis-application of the law. It must be done delicately and respectfully, however, because you are essentially asking that the Full Board (a panel of 3 Administrative Judges) reverse one of the Administrative Judges at the Merit Systems Protection Board -- to declare that the Administrative Judge "erred" in applying the law. It is possible to do -- but it must be done with care, respect, and technical expertise.

Sincerely, Robert R. McGill, Esquire

When in Doubt, Plead Not Guilty

nospam@example.com (Mark Thompson) — Thu, 18 Sep 2008 13:30:42 -0400

Imagine a dartboard where the bull’s eye is “guilty.” Everything else on the board is “not guilty.” Not guilty does not necessarily mean that a defendant actually did not commit the crime. It can mean that, but it also means everything else, aside from “guilty.”

For low-level misdemeanors (simple misdemeanors in Iowa) guilty pleas can be taken at the initial appearance, often times while the defendant is still in jail. Not guilty can mean “I’m not sure, judge, I need time to speak with a lawyer.” Or it could mean “Well I was there, but I don’t think I was actually intoxicated.” Or it could mean, “I’m not sure what ‘interference with official acts’ means, but I’d like to find out before I say ‘guilty.’ ”

Will a judge be upset or give the defendant a greater sentence because the defendant pleaded not guilty then decided to change his plea? Usually not. Judges understand that defendants can be confused at the time of an initial appearance. Also, they would much rather have a not guilty plea be withdrawn to enter a guilty plea, than a guilty plea attempted to be withdrawn.

For a guilty plea to be withdrawn, the Defendant must show that the plea was not made knowingly, intelligently and voluntarily. It is the judge’s job to make sure these conditions are met. So if a Motion to Withdraw Guilty Plea is filed, it is an attack on the judge’s ability to determine if the defendant knew what was going on. And it is possible, of course, to have the same judge rule upon the Motion as the one that took the guilty plea.

Pleading not guilty is a good idea even if the defendant knows and understands he is guilty of some, but not all of the offenses that have been charged. Many times I have taken a case where a defendant pleaded guilty to one or two of the charged misdemeanors, and not guilty to the others hoping to have them dismissed as part of a plea bargain. Well, the essence of a plea bargain is giving something to the State in exchange for the State giving something to the defendant. Usually all the defendant has to give are his guilty pleas. So why hand over all your pleas before a bargain is on the table?

When a defendant is at his initial appearance, the best idea is to plea not guilty, at least to take a few days to think it over and possibly contact an attorney for advice. This article was drafted by Mark Thompson, with other work available at www.thompsonjustice.com/blog.

Continue reading "When in Doubt, Plead Not Guilty"

Court Creates Incentive for Employers to Hire Undocumented Workers

nospam@example.com (John F. Sharpless) — Wed, 17 Sep 2008 11:32:42 -0400

Under Florida workers' compensation law, the amount of any compensation due to an injured worker is derived from a measure of the claimant's pre-injury wage earning capacity called the Average Weekly Wage (AWW). In most cases the AWW is determined by taking a 13 week average of the gross wages earned by the claimant prior to the accident or injury.

The First District Court of Appeals recently was confronted with an ambiguity in the definition of wages. (See Fast Tract Framing v. Caraballo, 1D07-1773) Florida Statute 440.02(28) does not specify whether wages "reported for federal income purposes" means wages reported by the employee in a tax return, or wages reported by the employer in a payroll tax return. The court held that the definition of wages only includes wages which the employee reports for Federal Income tax purposes.

This was a split decision and the dissenting opinion of Justice Padovano correctly points out that the court's decision will encourage employers to hire undocumented aliens and to compensate them with unreported cash payments. Undocumented workers are covered under Florida workers' compensation law. One of the primary reasons that they are covered is to remove incentives to Florida employers to hire them. If they weren't covered, employers could profit by hiring undocumented workers over legal workers knowing that if they were injured or killed the business would not have to foot the bill. However, if undocumenteds are covered, but their money benefits are only based upon wages that they report in tax returns, the incentive to hire illegals over lawful workers is back. If the undocumented worker is disabled and unable to work, no money benefits are likely to be paid as this worker probably not reported his income on a tax return. Therefore, it is better for the unscrupulous business to hire the undocumented worker over the legal worker.

For more information about Florida Workers' Compensation law or Social Security Disability law, please visit our websites at www.tampaworkerscomp.com or www.tampa-ssd.com

Continue reading "Court Creates Incentive for Employers to Hire Undocumented Workers"

One Hundred Percent Reinsurance Collateral May No Longer Required in Florida

nospam@example.com (Richard J. Fidei) — Tue, 16 Sep 2008 14:39:00 -0400

Florida's Insurance Commissioner received authorization from the Florida Financial Services Commission on September 16, 2008, to use his discretion in allowing the financially strongest unaccredited reinsurance companies to conduct business in Florida without having to post 100 percent collateral.

To view a copy of the approved Rule, click here.

The Florida Office of Insurance Regulation press release on the approved Rule is reprinted below.

Should you have any questions or comments, please do not hesitate to contact Richard J. Fidei, Esq. at Colodny, Fass, Talenfeld, Karlinsky & Abate.

Florida Office of Insurance Regulation’s New Reinsurance Rule Approved by State Financial Services Commission

TALLAHASSEE, Fla. – The Florida Office of Insurance Regulation (Office) today announced that the Florida Cabinet, in its capacity as the Financial Services Commission, approved a rule that would implement 2007 legislation giving the insurance commissioner discretion to The approval follows public hearings that were held in November and April and now enables the Office to further its efforts at finding alternative approaches to improving Florida's property insurance market.

In early 2007, the Florida Legislature passed a law (624.610(3)(e) F.S.) that gives the insurance commissioner the ability to establish lower collateral requirements for foreign reinsurers that are highly rated and financially sound.

"Florida needs to have well-capitalized and well-regulated foreign reinsurers to conduct business with Florida insurers without requiring them to post millions of dollars in collateral," said Insurance Commissioner Kevin McCarty. "Attracting this capital is an important step toward stabilizing our insurance market. This rule sends a message of openness to the reinsurance market and encourages the investment of capital in reinsurance for Florida property risk. Increasing capital and increasing competition are very important to cover hurricane risk in our state."

Under current law, U.S.-licensed and Florida-accredited reinsurers do not have to post collateral. When an insurance company buys reinsurance from a reinsurer authorized or accredited in Florida, the insurer gets a favorable accounting credit.

“This rule will allow the foreign reinsurers to be more competitive in our market,” added McCarty. “And it will make Florida a national leader in attracting capital via the reinsurance industry.”

Reinsurance is insurance for insurance companies. In the property insurance market, it is purchased to cover catastrophic losses that exceed what the company could pay out on its own. The cost of reinsurance is one component included in the cost to the homeowner of a property insurance policy.

For an insurer to get favorable accounting credit for reinsurance purchased from an unaccredited reinsurer, even if the unaccredited reinsurer is worth billions of dollars and is well regulated, the reinsurer has traditionally been required to post collateral for the full amount of the risk transferred. The collateral requirement has been cited as a barrier to investment by foreign reinsurers in the Florida market.

“As a safeguard, the Office always will do a thorough analysis of a reinsurer’s financial condition, claims paying and compliance history and regulatory environment before any collateral reduction is permitted,” added Deputy Commissioner Belinda Miller.

Continue reading "One Hundred Percent Reinsurance Collateral May No Longer Required in Florida"

Federal Disability Retirement: Agency Actions

nospam@example.com (Robert R. McGill) — Mon, 15 Sep 2008 21:51:30 -0400

I often receive telephone calls from Federal and Postal employees worried about what their Supervisor will write in the SF 3112B (Supervisor's Statement) -- the lies, half-truths, and vindictive statements that some Supervisors will, for whatever reason, attempt to have that "last parting shot". Such acts by supervisors are, for the most part, and fortunately, the exception, and not the rule; but each time it happens, it is despicable to the exponential degree -- especially in light of the context of attempting to harm a Federal or Postal employee who has a serious medical disability, and needs the financial security offered by disability retirement. As a general rule, the best approach to take is to follow the rule of thumb of the wise man: Do not worry about those things over which you have no control; focus upon those things over which you do have control. Remember that this is a medical disability retirment -- with the emphasis upon the term "medical". Having said that, a disability retirement application must first and foremost focus upon obtaining the most excellent medical report. If this is accomplished, then in 99% of the cases, it will nullify and make irrelevant anything which the Supervisor puts down on the Supervisor's Statement. This is the best and wisest approach to take; do not waste your time, emotional energy, or any further part of your life worrying about a Supervisor who lacks the fundamental compassion to be honest and truthful about an individual who has shown years of loyalty to the Federal Service. He/she is not worth it.

Sincerely, Robert R. McGill, Esquire

Iowa OWI/DUI Field Tests - The Walk and Turn

nospam@example.com (Mark Thompson) — Mon, 15 Sep 2008 13:14:31 -0400

The Walk and Turn test is probably the most difficult test for a completely sober person to perform. It has the most complicated instructions, and points are taken off for more than just swaying side-to-side or missing heel-toe contact. Therefore, it would benefit a suspect to review these rules prior to being in the position of being asked to perform the test.

The officer will attempt to find a level, safe area to perform this test. Unfortunately for the defense attorney, this safe, level area is not often in front of the police vehicle in view of their squad car camera. Mainly due to traffic concerns, the officer will ask the suspect to perform this test on a nearby sidewalk or other hard surface.

The test actually begins as soon as the instructions are being given. The suspect is asked to remain in a heel-to-toe position while instructions are being read. A point will be removed if the suspect starts prior to the full completion of the instructions, or if the suspect sways.

The suspect will be given the instructions for the test while in this heel-toe position. The left foot must be placed in front, right foot behind, making heel-to-toe contact, and the arms must be down at the suspect’s side.

The officer will tell the suspect to take nine heel-to-toe steps, on the line. The line can either be a section break in the pavement, a painted roadway or sidewalk path line, or possibly a chalk line drawn by the officer. The officer will demonstrate the steps and instruct the suspect to maintain heel-toe contact on each step, keep their hands at their sides and not step off the line.

Next, the suspect will be told how to make the “turn.” The instructions are very specific as to how this turn must be completed. The suspect must make a series of small steps, turning around, turning the same way the officer indicates. Then the suspect must begin another series of return steps with the correct foot forward.

The turn is the most commonly botched part of the test. Suspects lose a point for going the wrong way, taking too big of steps, or pivoting from the wrong foot.

Like the first set of steps, nine steps are required for the return. The suspect should stop immediately upon the ninth step, as a point will be taken off for a tenth step.

In general, points will be taken off for failing to keep balance during instruction, starting too soon, stopping while walking, missing heel-to-toe, stepping off the line, using arms to balance, improperly turning and taking the incorrect number of steps.

As I hope the above article indicates, the Walk and Turn test is a difficult test when sober, and very difficult when intoxicated. Please view other articles on this subject at www.thompsonjustice.com/blog

Continue reading "Iowa OWI/DUI Field Tests - The Walk and Turn"

What Assets Are Controlled By My Last Will?

nospam@example.com (John B. Whalen) — Mon, 15 Sep 2008 09:16:56 -0400

For further reading from my Web Site:

Be aware that a Will may not dispose of all of your assets at your death.

Perhaps to the contrary, a Will disposes of your assets that are titled in your name alone and that have no beneficiary designations.
Consequently, a Will does not control two, potentially and enormously valuable, categories of assets. A Will does not control (or dispose of) assets that have: Joint Owners (i.e., joint accounts, joint real estate, etc.), as they pass to the surviving owners (via Property Law), and/or Beneficiary Designations (i.e., annuities, retirement plans, etc.), as they pass to the named beneficiaries (via Contract Law).
The following chart illustrates this scenario and - more often than not - the unintended desires and wishes of the Testator (the person who wrote the Will), as well as the - again, more often than not - drastic consequences of the assets not being titled properly. As is shown by the middle column, the mother's intentions will be respected by her Will with the proper asset titles. The assets shown in the columns on the left and right will not be respected by her Will. ...

Senate Passes Amendment to Restore Americans With Disabilities Act to Protect Disabled Employees From Discrimination

nospam@example.com (Jonathan I. Nirenberg) — Fri, 12 Sep 2008 23:30:41 -0400

On September 11, 2008, the Senate unanimously voted in favor of the ADA Restoration Act of 2008. If it were to become law, the Act would “restore the intent and protections of the Americans with Disabilities Act of 1990” (the ADA) by protecting many more disabled individuals from discrimination. The ADA is a federal employment law that prohibits discrimination against individuals with disabilities, both in the context of employment and places of public accommodation such as restaurants, hotels, theaters, doctors' offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers. However, the ADA has been interpreted so narrowly that the vast majority of cases brought under it are dismissed, primarily because the individuals suing are unable to meet the statute’s definition of “disability.”

As discussed in a previous article, on June 25, 2008 the United States House of Representatives overwhelmingly approved a slightly different version of the ADA Restoration Act. If the House of Representatives approves the Senate’s version of the Act, which seems likely, then the President would need to sign it into law before it would go into effect.

The ADA Restoration Act would reverse many United States Supreme Court cases which have interpreted the ADA narrowly and limited the scope of its protection. For example, it would amend the ADA to make it clear that:

The ADA provides broad coverage to protect anyone who faces discrimination on the basis of a disability, and it should be interpreted broadly.
An impairment is considered a disability if it substantially limits at least one major life activity, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.
An episodic impairment or an impairment in remission is still a disability if it substantially limits a major life activity when it is active.
It is improper to consider most “mitigating factors,” meaning measures such as medication, prosthetics, or other technology that reduce the impact of an impairment, when determining if an individual is disabled.
The ADA prohibits employers from discriminating against employees based on the employer’s perception that the employee has a disability, even if the employee does not actually have a disability.

The lawyers of the employment law and civil rights law firm of Resnick Nirenberg & Cash, P.C., are experienced at representing employees in New Jersey, New York State, and New York City whose employment law rights have been violated.

Continue reading "Senate Passes Amendment to Restore Americans With Disabilities Act to Protect Disabled Employees From Discrimination"

Employee Does Not Always Have to Request Accommodation to Trigger Interactive Process

nospam@example.com (Jonathan I. Nirenberg) — Fri, 12 Sep 2008 23:01:55 -0400

Employers must Offer Reasonable Accommodations
If it Is Obvious Disabled Employee Needs One

An employer is required to provide a reasonable accommodation for a disabled employee if it is obvious the employee needs a reasonable accommodation to perform the essential functions of his or her job, even if the employee never requested an accommodation or does not think he needs one. That was the ruling reached by the United States Court of Appeals for the Second Circuit on July 2, 2008.

In that case, Brady v. Wal-Mart Stores, Inc., Patrick S. Brady sued Wal-Mart and two of his supervisors under the Americans with Disabilities Act (“ADA”), 42 U.S.C. 12101 et seq., and the New York Human Rights Law, N.Y. Exec. Law 290, et seq.

Brady, a nineteen-year-old with cerebral palsy, worked for Wal-Mart in the pharmacy department of a store in New York State. According to the court’s opinion, it is obvious to someone who sees Brady that he is disabled. For example, he walks slowly and with a shuffle and limp, he speaks noticeably slower, he does not look directly at the person to whom he is talking, and he has poor vision and a poor sense of direction. His disability affects virtually every aspect of his life, including driving, working, eating, learning, and seeing.

After working for another pharmacy for two years, Brady accepted a job in Wal-Mart’s pharmacy. From his first day on the job, Brady’s boss, Yem Hung Chin, expressed her dissatisfaction with Brady. She was short with him, made it clear she was not happy that Wal-Mart hired him to work in its pharmacy, and told him to speed up his work. Chin testified that Brady was too slow, appeared to have difficulty matching customers’ names to their prescriptions, and that his job performance was “absolutely awful.” She also testified that she “knew there was something wrong” with Brady.

At the end of Brady’s second day of work, Chin sent him to the personnel department. A personnel manager then informed Brady that the only job available was collecting shopping carts and garbage in the parking lot. Not surprisingly, Brady found this new assignment degrading, and considered it a demotion.

After Brady’s father complained to the assistant store manager, Wal-Mart agreed to return Brady to the pharmacy. But instead, Wal-Mart assigned him to the food department, where he was responsible for stocking shelves and zone merchandise. At the end of Brady’s first day working in the food department, Wal-Mart assigned him a work schedule for the following work week that was incompatible with his college schedule, even though he indicated his class schedule on the availability form he submitted. Frustrated by Wal-Mart’s actions, Brady quit the next day. Brady then sued Wal-Mart.

The jury found, in relevant part, that Brady was disabled within the meaning of the ADA and/or Wal-Mart perceived him to be disabled, Wal-Mart transferred him from the pharmacy to the parking lot because of his disability, Wal-Mart subjected him to a hostile working environment because of his disability, and Wal-Mart failed to provide him a reasonable accommodation for his disability.

Based on these violations of law, the jury awarded Brady $2.5 million in compensatory damages, $9,114 in economic damages, $5 million in punitive damages, and $2 in nominal damages. The trial court took away the economic damages award because the jury did not find that Brady lost his job as a result of the discrimination, and reduced the punitive damages to $300,000 in accordance with the ADA’s damages cap. After Wal-Mart asked Court to reduce the compensatory damages on a motion for remittitur, Brady accepted the Court’s reduction of the compensatory damages from $2.5 million to $600,000. Wal-Mart then appealed to the Second Circuit, which is the federal appellate court that covers the states of New York, Connecticut, and Vermont.

The Second Circuit first rejected Wal-Mart’s argument that Brady was not disabled, ruling that his cerebral palsy is a disability. It also found that the company perceived Brady to be disabled, relying on evidence including his supervisor’s admission that she “knew there was something wrong” with him.

The Appellate Court then found that it was permissible for the jury to conclude that Wal-Mart’s decision to transfer Brady to the parking lot was an adverse employment action because that position had a “less distinguished title” and “significantly diminished material responsibilities.” The Court did not find it critical that Brady only worked in the parking lot for a short period of time, especially since Wal-Mart never transferred him back to the pharmacy.

Perhaps most significantly from the standpoint of clarifying the ADA, the Second Circuit ruled that the jury properly found that Wal-Mart failed to accommodate Brady’s disability, even though he never requested an accommodation. The ADA makes it illegal for an employer to fail to provide reasonable accommodations to the known physical or mental limitations of an otherwise qualified employee with a disability, unless the company can prove the accommodation would impose an undue hardship on its business. Ordinarily, when an employee requests a reasonable accommodation the employer is required to engage in an “interactive process” with the employee to determine whether his or her disability can be reasonably accommodated. The Second Circuit ruled that employers also have an obligation to engage in the interactive process if it is obvious that an employee needs an accommodation for a disability, meaning when the company knew or should have known that the employee is disabled and needs an accommodation.

The Second Circuit’s ruling that an employee does not need to request a reasonable accommodation to trigger the interactive process if his or her disability is obvious, is important because many disabled employees do not know they need a reasonable accommodation, do not know they are legally entitled to reasonable accommodations, or are either too embarrassed or too afraid to request an accommodation. At the same time, the court’s decision recognizes that it would be impossible for an employer to provide an accommodation if it does not know the employee needs one. Thus, the court concluded that employers are required to provide a reasonable accommodation only if the employee requests an accommodation, or if the employee’s disability is obvious.

The attorneys of the employment and civil rights law firm of Resnick Nirenberg & Cash, P.C., are experienced at representing employees in New York State and New York City whose employment law rights have been violated.

Continue reading "Employee Does Not Always Have to Request Accommodation to Trigger Interactive Process"