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Taking “Aim” at the Second Amendment

            The United States Constitution provides the very framework in which our nation is based, providing for the organization of the United States government and the establishment of the relationship between the federal government with the states, citizens, and all people within the United States.

The Second Amendment of the Constitution, which is part of the United States Bill of Rights, protects the right of the people to keep and bear arms.  The extent to which this right applies remains the subject of dispute as courts attempt to balance an individual’s right under the Second Amendment against governmental interests in adopting regulations to restrict gun ownership and control.  The Second Amendment was found to be fully applicable to both state and local governments through the Fourteenth Amendment in McDonald v. City of Chicago.  Thus, there has been a constant battle between gun rights as safeguarded by our Constitutional and the need for public protection and safety.

The right to gun ownership was established in Heller v. District of Columbia, where it was found that individuals have a right to own a gun in self-defense to protect their hearth and home.  However, this right did not provide an unfettered right to gun ownership.  In assessing a core Second Amendment right under the intermediate scrutiny standard, the court in Heller determined that gun registration requirements effectuated the important governmental interest in the public interest of promoting public safety.  Similarly, Heller limited the types of guns that could be owned by individuals to only those that were in common use and typically possessed by law abiding citizens.  Assault weapons and large capacity ammunition feeding devices were found to be “dangerous and unusual” and not to fall within the purview of rights provided under the Second Amendment.

The extent to which the right to carry guns in areas outside of the home remains the subject of dispute where two cert petitions are currently being argued before the Supreme Court.  In Masciandaro v. United States of America, the petitioner was convicted for possessing a loaded gun in the trunk of his car while in a national park area.  In applying the intermediate scrutiny standard, lower courts found that a regulation prohibiting the carrying or possessing of a loaded handgun in a motor vehicle did not violate an individual’s Second Amendment right as there was a substantial government interest in providing a safe environment for persons who visit and make use of the national parks.  In his appeal before the Supreme Court, Masciandaro argues that the Second Amendment right to possess a gun within one’s home should be extended to allow the possession of guns while traveling on public highways.

Similarly, in Williams v. State of Maryland, another case currently before the Supreme Court, purports that the Second Amendment provides for the right of an individual to carry a gun in his backpack while traveling to his house.  Williams was arrested after an officer observed him rifling through his backpack near a wooded area and then hiding his gun in the bushes.  The Court of Appeals of Maryland upheld his conviction on the grounds that Williams lacked standing to challenge the statute and handgun regulations as a violation of the Second Amendment since he failed to file an application to obtain a permit to carry a firearm, even though he attempted to argue that restrictiveness of the state law to obtain a gun permit was the reason he was unable to obtain one.  Nevertheless, it was found that Maryland’s statute prohibiting the wearing, carrying, or transporting a handgun, without a permit and outside of one’s home fell outside the scope of the protections afforded under the Second Amendment.

The Constitution provides for the very framework in which our nation is founded.  It provides the groundwork for the rights that we enjoy today and is the catalyst which has shaped our nation.  Yet, the rights entailed in the Constitution have not been deemed to be an absolute right.  Whether the Supreme Court will recognize and extend Second Amendment rights to protect the right to carry firearms outside of one’s home remains to be seen.

By Theodore Y. Choi, Esquire and published in Upon Further Review on September 13, 2011.

CONSIDERING ADDITIONAL TYPES OF DISABILITY OR LEGAL RELIEF FOR YOUR SOCIAL SECURITY DISABILITY CLIENTS

By Faye Riva Cohen, Esq., assisted by Gina Y. Mosley, Esq., of The Law Office of Faye Riva Cohen, P.C., Philadelphia, PA

Published in National Organization of Social Security Claimants’ Representatives Forum

March 2010 and April 2010

Social Security disability attorneys or representatives are often not familiar with some of the civil rights laws and other remedies which may be available to their clients, beyond, or in lieu of, Social Security disability benefits, and which may result in additional or alternative sources of financial proceeds for their clients. Also, as Social Security disability claims have greatly increased due to the lagging economy, client advocates may encounter many persons who will not meet the stringent Social Security disability standards, but may be able to qualify for other relief. This article will explore some of these laws and remedies.

Due to the complexity of some of the remedies and the intricate interaction between them, which often require balancing and negotiation, it will be beneficial to client advocates to establish a relationship with one or more attorneys who practice in the areas of law noted below if they do not, in order to determine if other remedies may exist for their clients. As many of these additional remedies have stringent time deadlines, inquiries should be made as quickly as possible to other counsel as to whether a client has additional remedies and the viability of pursuing them. Indeed, failure of an attorney or a representative to consider these remedies may be the source of a professional liability issue depending on the outcome of a client’s case.

An applicant for Social Security disability benefits frequently has a history, such as his medical conditions or work history, which has brought him to the position of applying for this type of benefit, which requires that he is deemed unable to perform substantial gainful work for a minimum of twelve (12) months or he has a condition that will result in death.  That history often involves his employment situation and the nature of that situation can serve as the basis for additional remedies.  Therefore, a thorough interview with a potential client should determine:

  • Whether that person suffered an injury at the workplace;
  • Whether his employer terminated him as a result of suffering the injury after the employer was informed that it was a work-related injury;
  • Whether the injury, work-related or not, still permitted him to work for his employer with a reasonable accommodation by the employer. The courts’ interpretation of “reasonable accommodation” is discussed below;
  • Whether the employer refused to make the reasonable accommodation and instead laid off or terminated the employee;
  • Whether the employee, who formerly did not have any or few performance problems, suddenly received discipline or write-ups after the injury;
  • Whether the employer should have been aware that the employee was suffering from physical or mental problems, and instead of helping him manage those problems, terminated him, laid him off, or eliminated his position;
  • Whether the employee had available to him short and/or long-term disability benefits, some type of retirement disability or union benefits for which he could apply.

THE AMERICANS WITH DISABILITY ACT AND ITS AMENDMENTS

Significant legislation has been enacted to protect employees who have been injured in and out of the workplace and who are suffering from an illness.  The Americans with Disabilities Act of 1990 (hereinafter “ADA”) was intended to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C.A. §12101 et seq. The Act applies to employers with 15 or more employees and prohibits discrimination against qualified individuals on the basis of a disability in regard to job application procedures, hiring, advancement, termination, compensation or job training. See 42 U.S.C. §12112(a).

In the years since the Act’s passage into law, the U.S. Supreme Court has handed down specific opinions which have curtailed the reach of the ADA and have greatly limited the definition of a disability under the ADA. Large clusters of people, initially covered by the ADA, have been shut out from the intended far-reaching protections as a result of those court opinions.  The result has put a heavy burden of proving a disability on the plaintiff, which was clearly against Congress’ intent.  See Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) and its companion cases and in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).  As a result of these Supreme Court cases, lower courts have found that individuals with a range of substantially limiting impairments are not people with disabilities.

In order to rectify this situation, Congress passed the Americans with Disabilities Act Amendments Act (hereinafter “ADAAA”), which became effective on January 1, 2009. The ADAAA greatly broadens the relevant definitions of the ADA and gives renewed hope to disabled individuals who are ready, willing and able to work with a reasonable accommodation. The Act’s new language also enlarged the definition to include a larger array of individuals who are “regarded as” having a disability.  Additionally, mitigating factors are no longer assessed in the evaluation of an individual as disabled.

If one has a client who lost his job due to a negative job action and who is covered by the newly expanded ADAAA, but had no recourse but to initiate a Social Security disability claim, either because his condition worsened or because he could not locate another job with his disabilities, he will be required to file a claim with a government agency at the local, state or federal level in order to protect his rights and preserve his right to bring later litigation, if necessary.  That government agency may hold a fact-finding conference or a mediation, depending on the agency’s practice, and while the matter is at the agency level it may be settled without resorting to litigation. Bear in mind that the ADA claim can proceed independently and concurrent to the Social Security disability claim.

Employers are required by the ADAAA to reasonably accommodate those employees known to have a disability to allow for the fulfillment of essential job functions.  However, these employers will not be required to make accommodations which will cause an undue hardship.  Under U.S.C. §12111(9), those reasonable accommodations include, but are not limited to, (1) making existing facilities used by employees readily accessible to and usable by individuals with disabilities, (2) job restructuring, (3) modification of equipment or devices, (4) appropriate adjustment or modifications of examinations, training materials or policies, and (5) the provision of qualified readers or interpreters.

It is the employee’s responsibility to inform his employer that an accommodation is necessary in order for that employee to fulfill his essential job functions.  It is also important to know that the new amendments make it clear that employees who are simply “regarded as” having a disability are not eligible for the aforementioned accommodations.  Once the eligible employee requests an accommodation, an interactive process with the employer regarding the appropriate accommodations will begin.  U.S.C. §12111(10) enumerates factors that would cause an undue hardship on the employer when accommodating an employee and are thus not mandated under the law. That list includes: (1) the nature and cost of the accommodation, (2) the overall financial resources of the facility or facilities, (3) the overall size of the business and (4) the type of operation.

It is also significant to note that simply because an employee’s doctor sends a note to the employer limiting the employee’s ability to work, requesting time off for the employee, requesting reduced hours, or asking that the employee be assigned to light duty, the employer is not necessarily governed by the doctor’s request. Legions of employees have been terminated because an employer either did not feel the need to honor a doctor’s request or seized upon the doctor’s request to terminate an employee because, according to the doctor, the employee cannot do the job as required. An employee would be wise to seek legal help, if possible, in negotiating a disability accommodation from an employer.

It is not uncommon for employers to begin plotting for an employee’s termination shortly after they are informed, formally or informally, of the employee’s illness.  Red herrings often used by employers to terminate or alternatively force an employee to resign include giving an employee a series of baseless poor performance evaluations, job restructuring rendering the affected employee’s position nonessential, suddenly changing absence policies, or engaging in poor treatment of an employee which encourages his resignation.

THE REHABILITATION ACT

The Rehabilitation Act Title V entitled “Nondiscrimination under Federal Grants and Programs” 29 U.S.C.A. § 720 et seq. protects those with disabilities from discrimination on the basis of those disabilities in programs organized by or receiving money from the federal government. The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in Title I of the Americans with Disabilities Act described above.

 THE PREGNANCY DISCRIMINATION ACT

The two primary laws that protect women during pregnancy are the Pregnancy Discrimination Act and the Family Medical Leave Act (”FMLA”).  An amendment to Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act was established in 1978. The Act requires employers with 15 or more employees to treat employees with pregnancy-related conditions in the same manner required by law as those with other health conditions.  For example, if an employee with a serious medical condition is permitted to take leave or work a modified schedule under FMLA, the pregnant woman will be afforded the same options.  The Act also prevents an employer from firing or refusing to hire a woman based on her pregnancy or ability to take maternity leave.  In that same light, an employee cannot lose credit accrued for seniority or retirement benefits during her leave.  Lastly, an employer is required to keep the job open and maintain health care benefits as though the woman was on sick or disability leave.

Pregnant women also rely heavily on FMLA.  As previously discussed, expecting and new mothers can take up to 12 weeks off within a 12 month period to care for the birth of their child.  One key distinction between FMLA and the Pregnancy Discrimination Act is that FMLA only applies to employers of 50 employees or more.  Moreover, the employee must have worked either one full year or 1250 hours to request FMLA leave.

THE AGE DISCRIMINATION IN EMPLOYMENT ACT

The Age Discrimination in Employment Act of 1967 (“ADEA”) protects those employees over the age of 40 from workplace discrimination based on age.  29 U.S.C. § 621 et seq. It applies to employers with 20 or more employees, state, local and federal governments, and employment agencies and labor organization. Under this Act, it is unlawful for employers to discriminate against employees or job applicants with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, job assignments and training. As with the ADAAA, this Act also makes retaliation relating to the aforementioned unlawful.

Although an employee can be asked to waive their rights under the ADEA when signing a severance agreement, a clearly established protocol must be followed.  The agreement must be (1) in writing and understandable; (2) specifically refer to ADEA rights; (3) not waive rights or claims that may arise in the future; (4) offer valuable consideration; (5) advise the employee in writing to consult with an attorney prior to execution of the waiver; (6) allow for 21 days in which the employee can consider the agreement; and (7) allow for 7 days within which the employee can revoke the agreement after signing it.  Consider this protocol if a severance agreement concludes one’s client’s disability matter.

 THE FAMILY MEDICAL LEAVE ACT

The Family Medical Leave Act, (P.L. 103-3, 107 Stat. 6) (“FMLA”) was enacted on February 5, 2003 for the purpose of helping people who were stressed about trying to balance the competing demands of work and family life. The FMLA allows an employee to take up to 12 weeks of unpaid leave in a 12 month period for the birth or adoption of a child, to care for a family member, or to tend to his own serious health problems. The employee has three options from which to choose when deciding how to take time off.  He can take the entire 12 weeks at once, take leave as needed following proper procedures, or he can simply work a reduced schedule. Note that FMLA time off may be combined with paid time off and employers generally have an option of requiring that employees use up their sick/vacation/personal time prior to using FMLA time.  Employers have the burden of providing employees with information, notice and guidance about FMLA requirements.

It is important that any FMLA documents completed by the client and their doctors be reviewed by an attorney if possible.  Moreover, an attorney or representative should ensure that the FMLA documents conform or are at least considered when applying for other types of disability.  Often these documents will have different or contradicting onset dates, diagnoses, prognoses, or levels of severity of condition which will complicate the Social Security disability application procedure. The FMLA leave documents can be of assistance and provide documentary support in a Social Security disability claim.

The Department of Labor’s Wage and Hour Division published a Final Rule under the FMLA in January 2008 which became effective on January 16, 2009, and an updated set of regulations by the Department of Labor were published. The FMLA benefits provided to military families (referred to as military caregiver leave and covered service-member leave) greatly expand the usual 12 weeks of FMLA leave up to 26 workweeks of leave in a single 12 month period to care for a covered service member with a serious illness or injury incurred in the line of duty on active duty. Also, the time spent performing light-duty work doesn’t count against the 12 week FMLA leave. The regulations provide added guidance of what a “serious health condition” is.

Implementation of the ADA and the FMLA sometimes cause friction between an employer’s right to know about an employee’s condition and an employee’s right to keep his medical conditions private.  Relying on a medical treatment source for this information is not suggested, as doctors have been known to tell patients they are not required to reveal any information about their medical conditions, when that is not always the case, which can result in an employee’s termination for refusal to divulge information an employer has a right to know.

Generally, the information that must be revealed by an employee or his medical treatment sources under the FMLA must be enough to permit the employer to know how to best accommodate an employee, or to provide the information on Department of Labor Form WH-380E, which is a certificate of health care provider for an employee’s serious health condition. This information, requested from a doctor, includes, among other things, the beginning date of the condition, dates treated for the condition, probable duration of condition, medication prescribed, treatments, referrals made to other health care providers, and whether an employee can perform certain job functions.

Employees on FMLA must follow an employer’s usual and customary procedures for reporting an absence, barring an usual circumstance.  Further, an employer’s direct supervisor cannot contact health care providers and cannot ask for additional information beyond that required on the certification form, as the Health Insurance Portability and Accountability Act (“HIPPA”) is invoked to limit this information. There are also provisions for certification of ongoing conditions and fitness for duty certifications.

 FECA AND FELA CLAIMS AS OPTIONS FOR FEDERAL EMPLOYEES

 The Federal Employees Compensation Act (“FECA”), 5 U.S.C.A. § 8101 et seq., provides federal employees with compensation benefits for work-related injuries or illnesses.  Administered by the Department of Labor’s Office of Workers’ Compensation Programs, all claims generally must be brought within three years of the date of injury. The federal employee will continue to receive compensation benefits as long as they remain totally or partially disabled.  The federal employee will receive two-thirds or three-fourths of their salary at the time of the injury depending on whether the employee has dependents.

Another piece of federal legislation that attorneys who handle disability matters should be familiar with is Federal Employers’ Liability Act (“FELA”). 45 U.S.C.A. § 51 et seq. This Act was initially meant to protect the rights of railway workers who were injured while at work in this country. Since its enactment, FELA has been greatly expanded.  There is a three year statute of limitations from the date of the injury.  Generally the statute begins running when the employee knew or should have known of the existence of the injury and that the FELA statute of limitations is triggered in an occupational injury case when the injured worker knew or should have known: 1) of the existence of the injury; and 2) that workplace exposure was a cause

 SHORT AND LONG-TERM TERM DISABILITY POLICIES AND ERISA

Clients frequently are not aware that they are entitled to make a claim which entitles them to receive some form of some short and/or long-term disability payments as a general benefit of their employment, membership in a union or because they have opted to receive additional benefits paid for through payroll deductions. Employees may also have disability coverage they have purchased privately.

However, simply because this type of benefit exists does not mean that it is easily procured. Disability insurance carriers may be reluctant to approve clients for benefits, particularly long-term disability benefits, and if they are approved, carriers often attempt to terminate the employee prematurely. Employees are sometimes lulled into thinking that because they have received short-term disability benefits easily that receiving long-term disability benefits will also be an easy process. Moreover, if an employee is receiving long-term disability benefits, this normally indicates that the injury is not work-related, because a worker’s compensation claim would ensue instead.

Insurance disability carriers tend to have little respect for the fact that a claimant has been awarded Social Security disability benefits prior to or even after an ALJ’s decision, and this type of award does not have significant impact on a carrier’s decision to award long-term disability benefits.  However, a detailed decision by an ALJ judge, the Appeal’s Council or a court, will usually be helpful in a long-term disability claim.  In the event that a client suffers from physical and mental impairments, because many policies limit the number of years of benefits for mental impairments, carriers may seize on a decision and allege that the mental impairments take priority over the physical impairments, so one should use care in emphasizing the nature of the disability claimed.

Most insurance carriers require that a successful applicant for long-term disability benefits apply for Social Security disability benefits, and if that claim is successful, those benefits will be offset against any amount paid to the applicant under long-term disability coverage, after the deduction of any attorney’s fees. If that claim is not successful, it should not impact on private disability insurance benefits.

There are several levels of administrative appeal in the long-term disability denial process and insurance carriers frequently extend the administrative process as long as possible, hoping to wear out the applicant. It is important that each stage of the administrative process be followed, and that any and all medical evidence is submitted to the insurance carrier during the administrative process.  This is because there is case law which states that evidence submitted after the administrative process cannot be introduced if a denial is later litigated under The Employee Retirement Income Security Act of 1974 (“ERISA”), found in the U.S. Code beginning at 29 U.S.C. §1001.

ERISA is a federal law which mandates minimum standards for most voluntarily established pension and health plans in private industry. The result is additional protection for individuals with covered plans.  Long-term disability appeals are included in the health care plans covered by ERISA. Being familiar with ERISA is particularly important when dealing with denials of long-term disability benefits in that this federal law preempts the vast majority of state and local laws pertaining to similar subject matter.

ERISA dictates an administrative process which must be fulfilled in its entirety before the employee obtains the right to sue.  The administrative processes differ from policy to policy but the common thread running through every policy is that stringent timelines must be followed in order to safeguard the claim. ERISA also provides for an internal appeal process.  Once this process is complete, a lawsuit can be brought.

UNEMPLOYMENT INSURANCE BENEFITS

Although there may be risks if a claimant applies for both unemployment insurance (“UI”) benefits and Social Security disability benefits contemporaneously, for those who don’t have a financial choice, one is not precluded from filing for both benefits contemporaneously. In order to receive UI benefits, one must assert that he is ready, willing and able to work but cannot find employment.  Conversely, to file for Social Security disability benefits one must show that his medical condition prevents him from working in his previous position or any other field and he is not currently seeking employment.

Although there appears to be an inherent conflict in these positions, in Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999) the U.S. Supreme Court held that: (1) claims for Social Security Disability Insurance (SSDI) benefits and for ADA damages did not inherently conflict, and (2) an employee was entitled to an opportunity to explain any discrepancy between her statement in pursuing SSDI benefits that she was totally disabled and her ADA claim that she could perform essential functions of her job. A similar analysis can be applied to the receipt of UI benefits where one alleges an ability to do some type of work.

Administrative law judges may not look favorably upon Social Security disability claims where the employee is receiving UI benefits, but they should consider a claimant’s application for and/or receipt of UI benefits as only one of the statutory factors adversely impacting the claimant’s credibility in assessing the ability to work, and it should be considered as part of the five step sequential evaluation process and the totality of circumstances.

Holding oneself out as being able to work is not the same as being able to work and perform substantial gainful activity. Also, a mere desire to work is not proof of the ability to work, because many employers will not hire someone with a myriad of medical problems, despite that person being willing to make a work attempt.

A November 15, 2006 Memorandum from Chief Judge Frank A. Cristaudo to Regional Chief Judges and Regional Office Management Teams, states that “[t]his is a reminder that the receipt of unemployment insurance benefits does not preclude the receipt of Social Security disability benefits.  The receipt of unemployment benefits is only one of many factors that must be considered in determining whether the claimant is disabled. See 20 CFR 404.1512(b) and 416.912(b).” The Memorandum states that Social Security Ruling 00-1c incorporates Cleveland.  A long line of Appeal’s Council and ALJ Decisions prior to Cleveland support this analysis, which requires consideration of all of the evidence and the totality of circumstances, making the ability to receive both types of benefits possible.

Some advocates delay the date of onset of the condition in a Social Security disability claim paving the way for a client to receive UI benefits for a period of time. However, the Social Security disability process can be quite lengthy, and may not always be successful for claimants, so it may be desirable for them to have a stream of income pending the Social Security disability process.  UI benefits are not offset by Social Security disability and therefore can serve as additional funds for claimants during the Social Security disability application process.

THE PUBLIC POLICY EXCEPTION AS APPLIED TO EMPLOYEES AT WILL AND EMPLOYEES WITH WORKER’S COMPENSATION CLAIMS

Since 1891, Pennsylvania common law held that in the absence of a specific statutory or contractual restriction, an at-will employment relationship could be terminated by either the employer or the employee at any time, for a good reason, a bad reason or no reason at all. Henry v. Pittsburgh & Lake Erie Railroad Co., 139 Pa. 289, 21 A. 157 (1891).  It was not until almost 100 years later that this holding was reevaluated in Geary v. United States Steel Corporation, 456 Pa. 171, 319 A.2d 174 (1974).  In Geary, an employee was terminated for warning his fellow coworkers of the valid dangers posed by the new product the company was manufacturing.  Interpreting Geary, Yaindl v. Ingersoll-Rand Co. held “when the discharge of an employee at will threaten public policy, the employee may have a cause of action against the employer for wrongful discharge.” 281 Pa.Super. 560, 422 A.2d 611, 617 (1980).

Some states may have statutory or common law making it a violation to terminate an employee who has been injured during the course of employment. In Pennsylvania, for example, the courts have established a narrow exception to the standard employment at will doctrine which permits employers to terminate their employees for minimal reasons, stating that it is a violation of public policy to terminate an employee who initiates a claim of worker’s compensation. Rothrock v. Rothrock Motor Sales, Inc., 810 A.2d 114 (Pa.Super. 2002). However, this is often a difficult standard to meet and employers often ignore this exception, taking the risk that an injured employee will not have the substantial resources necessary to sue the employer for violation of the policy.

 In September 2009, a record setting consent degree was entered into between Sears, Roebuck and Co. and former employees who were allegedly discriminated against when Sears maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees rather than providing them with reasonable accommodations for their disabilities in violation of the ADA.  The case was docketed as EEOC v. Sears Roebuck & Co., N.D. Ill. No. 04 C 7282. The Chicago based U.S. Equal Employment Opportunity Commission declared that the class action lawsuit it had initiated would be settled for $6.2 million with additional remedial relief.  Many attorneys in the workers compensation field believe that this settlement will lead to important changes in how companies structure their leave policies.

 However, the Pennsylvania public policy exception to the employment at-will doctrine will not apply where a statutory remedy is available.  For example, an employee who was terminated based on race, color, religion, national origin, or sex is entitled to file under Title VII and similar state statutes, although he may be permitted to raise the exception as an ancillary state claim.

SEVERANCE AGREEMENTS IN LIEU OF COURT PROCEEDINGS

 Another helpful tactic which should be considered if Social Security disability standards cannot be met but an employee must leave his position because he can’t perform his job duties due to some disability and/or his employer can’t reasonably accommodate his disability, is negotiating a severance agreement to include additional funds for a client and/or lengthen his entitlement to health insurance benefits.  The agreement will be enforceable so long as the scope is reasonable, no laws are violated, consideration is present and the agreement is knowingly and voluntarily entered into.

Employers are oftentimes willing to enter into a severance agreement to avoid the lengthy discrimination agency or litigation process.  It may be far more cost effective for an employer to give these concessions early in the negotiation process.  It is important to exhaust all other remedies discussed earlier if a severance agreement is to be signed because standard severance agreements terminate the employee’s right to sue the employer for any actions that took place during a certain time frame, with the possible exception of worker’s compensation claims, depending on state law.

CONCLUSION

 It is not unusual to have a client suffering from a job-related injury or illness who would have been able to continue to work given a reasonable accommodation under the ADAAA or following a FMLA leave. Instead, many employers terminate, lay off, or force these employees to resign in violation of the law and the public policy exception to the employee-at-will doctrine and the aforementioned statutes, depending on state law.  That client, in addition to the receipt of Social Security disability benefits, could potentially receive worker’s compensation benefits, short and/or long term disability benefits, retirement disability and/or a settlement from an employer due to alleged violations of one of the civil rights acts or policies.  Note that there may be financial offsets from receipt of more than one of these types of benefits. Also, a negotiated severance agreement or settlement may include severance pay, extension of insurance benefits and attorney’s fees and costs for a client.

In conclusion, there is no doubt, as outlined by the various remedies above, that the disability field of law is often confusing as it requires interaction with various laws and policies which often have not only varying, but conflicting, burdens of proof.  However, a practitioner who is at a minimum familiar with other possible remedies can be of great help to his client. Also, this help may result in additional sources of income to the client and to the practitioner who undertakes these additional claims or refers them to other attorneys and is able to collect referral fees depending on state guidelines.

 

Supreme Court Spotlight: No “Cure” for Injuries Caused by Vaccines?

The balancing of the need for vaccination to promote public health versus the right of an individual to recover for injuries or death sustained through the use of those vaccines, was the focus in Bruesewitz, et. al. v. Wyeth, Inc., et. al., a recent case heard by the Supreme Court of the United States.  The development of vaccinations through the use of modern technology has changed societal viewpoints regarding the perilous nature of communicable diseases.

The effectiveness of vaccines has in essence become a double edged sword for vaccine manufacturers and the general public.  Through the use of vaccines, the number of reported people with communicable diseases dramatically decreased.  However, as Isaac Newtown’s Third Law of Motion states, “for every action there is an equal an opposite reaction.”  As vaccines became more effective at preventing communicable diseases, the public became much less fearful of those diseases and less concerned with trying to find the most effective cure for an illness.  Rather, the public shifted their attention and concerns to the risk of injury that could come about through the use of the vaccines that were designed to prevent their diseases.  Thus, the amount of tort product liability suits filed against vaccine manufacturers increased over the years.  In turn, the increase in lawsuits incited many manufacturers to close their businesses as the cost to defend against potential tort liability suits exceeded their annual sales.  The remaining vaccine manufacturers were then free to increase the cost of vaccines, thus deterring individuals from opting to pay for a vaccination which again raised public health concerns.

In an effort to alleviate these problems, Congress enacted the National Childhood Vaccine Injury Act of 1986 (“NCVIA”).  The NCVIA established an expedited no-fault compensation system whereby a person claiming that a vaccine has caused injury could file a petition in the United States Court of Federal Claims, naming the Secretary of Health and Human Services as the respondent.  A special master was assigned to review the petition and enter an informal adjudication.  Any objections to the decision rendered by the special master was reviewed by the Court of Federal Claims who then entered a final judgment.  A claimant then had the option to accept the final judgment or seek tort relief from the vaccine manufacturer.

Incorporated within the NCVIA was a Vaccine Injury Table listing compensable injuries sustained through the use of a vaccine.  Injuries that were shown to have met the criteria of a listed vaccine were prima facie entitled to compensation without the need to show causation.  Those side effects which were unlisted could still be entitled to compensation but causation was needed to be proven.  Although the burden of causation rested upon the claimant, the NCVIA did not require proof of a defectively manufactured, labeled or designed vaccine as a pre-requisite to recovery.  Successful claimants received compensation that was paid out of a fund created by an excise tax on each administered vaccine dose.  On the other hand, the NCVIA provided manufacturers immunity from liability arising from suits for failure to warn where all regulatory requirements have been met.  Manufacturers were also not subject to punitive damages and it eliminates liability for damages resulting from a vaccine’s unavoidable, adverse side effect.  Specifically, the NCVIA, codified under 42 U.S.C. § 300aa-22(b)(1), states: “No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.”

Whether an unavoidable, adverse side effect provided tort liability immunity to vaccine manufacturers for claims based upon a defective design claim, was the issue confronted by the Supreme Court in Bruesewitz, et. al. v. Wyeth, Inc., et. al.  The minor complainant in the aforesaid matter received a diphtheria, tetanus, and pertussis (DTP) vaccine and soon after experienced seizures.  The complainant suffered from more than 100 seizures over the next few months.  The complainant was later diagnosed with “residual seizure disorder” and “developmental delay,” both disorders which she will suffer from for the rest of her life.  The parents of the complainant filed a petition alleging that the vaccine manufacturer’s defective design was the cause of their daughter’s disability and that compensation should be awarded based upon the theories of strict liability and negligent design under Pennsylvania common law.  In a 6-2 decision (Justice Kagan did not participate), the Court held that the NCVIA precluded compensation against manufacturers for tort liability resting upon a design defect claim for three (3) reasons and thus state-law design defects claims were preempted.

The Supreme Court first took a textual analysis into the language of the statute and found that the “even though” clause of the statute precluded design defect claims.  So long as there was proper manufacturing and warnings, any side effects were deemed to be unavoidable and thus, manufacturers could not be held liable.  Products liability law allows for claims to be brought upon three (3) grounds: defective manufacture, inadequate directions or warnings, or defective design.  The Supreme Court found that the failure to specifically mention defective design liability within the statute was a deliberate choice by Congress to preclude such claims.

The Supreme Court next delved into the reasons for which comment k of the Restatement (Second) of Torts § 402A does not apply.  The Restatement (Second) of Torts § 402A exempts from strict liability rules “unavoidably unsafe products.”  Cases interpreting Comment “k” to determine situations in which the exemption from strict liability would apply, analyze the term “unavoidably unsafe products” rather than the word “unavoidable” standing alone.  If the NCVIA were meant to incorporate such an exemption, Congress would have utilized conjunctive language rather than use the phrase “even though.”  If Comment “k” were to apply, the entire “even though” clause would be rendered superfluous and meaningless.

Lastly, the Supreme Court found that the failure to mention design defect claims within the text of the NCVIA of the Food and Drug Administration’s regulations denotes the proposition that such claims were not meant to be a basis for liability.  The Court held that the NCVIA’s compensation scheme provides for a mechanism which promotes the very purpose of design defect claims.  In addition, the Court held that the purpose in which the NCVIA was created was to coax manufacturers back into the market in order to produce vaccines at a competitive price.  To hold manufacturers liable for funding the compensation program while leaving no means of protection against design defect claims, would in essence deter manufacturers from re-entering the market and defeat the very purpose for which the NCVIA was created.

In the final analysis, it appears that the Supreme Court attempts to strike a balance in an era where public concern for the health and welfare has come to the forefront in the face of an increasing number of newfound diseases.  Although the Supreme Court held that all defects claims brought under the NCVIA are preempted, a claimant seeking damages for injuries stemming from the use of the vaccines is not without recourse.  A party still has means of recovery through a defective manufacture or inadequate directions or warnings claim.  Even still, any claim must first proceed under the compensation system before any tort relief against a manufacturer may be sought.

This article is by Theodore Y. Choi, Esquire and was published in Upon Further Review on March 9, 2011.

Attorneys Beware The Fake Creditor Scam

As a solo practitioner or small firm owner, few things are more exciting than obtaining a new client. What follows is a warning about how what seems like a great case may end up costing you everything in your bank account and then some. The scam goes like this:

You receive an unsolicited email from a creditor seeking legal assistance to collect on a debt. You respond to the phone number in the email and speak to the creditor. The creditor is a Michigan business that has run into trouble with a client in Pennsylvania. He has allowed the local debtor to continue its relationship but now the debt is out of control and something must be done. He informs you that he feels all that will be necessary is a demand letter from your office. Upon asking how he found you, he replies from the local bar association.

At this point, some due diligence on your part reveals that the creditor is a real Michigan company. Moreover, the judgment debtor is a genuine company, registered with the Commonwealth of Pennsylvania. The credit agreement and invoices provided from the client are signed by a man who is listed as an officer of the debtor company. Everything seems to check out ok. Unlike most clients, this gentleman does not seem to care a great deal whether you represent his business on an hourly or contingent rate, but ultimately you agree this will be a contingent matter. You draft a fee agreement for your new client. It is returned immediately. Upon receipt of the agreement, you draft a demand letter.

In response, and with record haste, comes a letter from the judgment debtor on company letterhead. Enclosed is a certified check with a hologram and watermark. It is drawn on a big bank and is in the amount of $198,750.00, 100% of the demand made out to your firm alone. Why couldn’t all your collection matters be this easy? You contact your client who is happy to have you deposit the check and then cut him the client’s share from your trust account. You laugh all the way to the bank, (literally perhaps), with visions of what all this wealth can bring you.

After about 24 hours, your trust account shows that the funds have cleared. You cut your client a check for his share and yourself a check for the remainder. Everything is right with the world. But then, five weeks later, you receive a phone call from your bank. The certified check was a fake and you, as the account holder, are responsible for the funds that are deposited into your account. Your “client” has long ago left for the Caribbean and you are now staring down some extraordinary financial and legal troubles.

Usually, fake creditors are obvious. Their email solicitations come from overseas with nonsensical details or are simply way too vague to be taken seriously. They are often no more credible than the ubiquitous Nigerian Prince who needs your help to move some money out of the country. Here we have real companies with the names of real individuals. There are working phone and fax numbers and the people speaking to you sound perfectly credible.

Lucky for me, there were three red flags when I was working my way through this matter. First, the creditor used two different email accounts. While they both contained some variation of his name and some numbers, they were not sent from the creditor company’s domain. Rather, they arrived from Hotmail or AOL accounts. This seemed a little odd.

Second, the envelope containing the check from the “Pennsylvania debtor” was postmarked in Canada. This can be an easy thing to miss, however. Your attention is certain to be drawn more towards the six figure check in your hand than an empty envelope. Also, if an assistant opened the mail and threw out the envelope you would have no way of knowing.

Last, the scammer got greedy and sent his certified check before my demand letter was mailed. There was basically no way that the debtor could have known that I represented the creditor.

The lesson is to be diligent in accepting new clients and beware of certified checks. If there is any doubt whatsoever, contact your local bank and ask them how long it would take to determine for certain that the check is legitimate. Use phone numbers found on company websites, not those provided in emails from the contact. If you run up against this scam, report it to the local authorities. Unfortunately, no one investigated my case but it doesn’t mean someone may not take it more seriously in the future. You may save the next attorney his livelihood!

By: Gregory S. Shields, published in March 2013 in Upon Further Review.

 

Divorce After Death?

Historically, when a husband and wife were in the process of being divorced and one died their status remained as if married, and division of the probate marital property would occur under the probate rules of Title 20.  Effective January 28, 2005, the foregoing changed, and equitable distribution under certain circumstances may now occur even after one of the spouses has died.

            Title 23 now provides that “[I]n the event one party dies during the course of divorce proceedings, no decree of divorce has been entered and grounds have been established as provided in subsection (g), the parties’ economic rights and obligations arising under the marriage shall be determined under this part rather than under 20 Pa.C.S. (relating to decedents, estates and fiduciaries).”  23 Pa.C.S.A. § 3323(d.1).   The Official Note indicates that the primary reasons for the changes is so that parties who are divorcing would need not choose between equitable distribution or electing against the Will of the other spouse.  Indeed, the Official Notes state that “[T]he parties’ economic rights and obligations are determined under equitable distribution principles, not under the elective share provisions of Chapter 22 of Title 20 (Decedents, Estates and Fiduciaries Code).”  Importantly, the change to Title 23 leaves several questions unanswered, that have yet to be clarified by the courts.

            It is universally accepted that a divorce decree cannot be entered, regardless of the approval of the divorce grounds, when one of the spouses in the divorce action dies, because a divorce action abates immediately upon the death of one of the parties.  The changes to 23 Pa.C.S.A. § 3323(d.1) does not alter the foregoing.  Taper V. Taper, 939 A.2d 969 (Pa. Super., 2007), Yelenic v. Clark, 922 A.2d 935 (Pa. Super., 2007), In Re Estate of James A. Bullotta, Jr., 838 A.2d 594 (Pa., 2003).  Therefore, regardless of the approval of divorce grounds, the parties remain married.

            If the parties remain married, regardless of grounds of divorce being established, then any item of property that passes by law to the surviving spouse, because they are the surviving spouse, must supercede equitable distribution.  Of particular note are retirement plans, such as IRA or 401(k) plans that are generally governed by ERISA, which of course is a federal statute that does not fall within Title 20.  Frequently, pension plans stipulate that if a spouse is named as a beneficiary, their name cannot be removed without their consent.  The same might be the case for life insurance provided as an employment benefit through the decedent’s employer.  Likewise, a tenancy by the entireties is created and governed by common law and not Title 20.  Consequently, assets passing outside Title 20 may not be subject to equitable distribution after the death of a spouse.

            23 Pa.C.S.A. §3323(d.1) did not take effect until January 28, 2005.  Left unresolved is whether the change to Title 23 effects parties who separate prior to the effective state of the statute, and whether the change to Title 23 should be applied to parties when one of the parties filed for divorce prior to the effective date of the statute.  Under 1 Pa.C.S.A. §1926, no statute is to be considered retroactive unless it is clearly and manifestly so intended by the General Assembly.  Indeed, “in the absence of clear language to the contrary, statutes must be construed to operate prospectively only.”  Budnick v. Budnick, 419 Pa.Super. 172, 615 A.2d 80 (Pa.Super.,1992.)  citing Flick v. Flick, 408 Pa.Super. 110, 115-117, 596 A.2d 216, 219-220 (1991).  There is nothing in §3323(d.1) that even hints at retroactive effect; therefore the statute may not apply to those individuals who separated prior to January 28, 2005.

            Attorneys who practice in the field of family law should be aware that if the parties separated after January 28, 2005, and one of the spouses is ill, consideration should be made to obtaining a finding of grounds for divorce, depending on the assets involved and how they are held.  Those attorneys who practice in the field of estate law need to make certain they are aware of this change in the law, the need to update wills, and the need to check the records of the Register of Wills to determine if a Personal Representative is appointed.  Consideration should be made to filing an informal caveat to block probate of any will, and a formal caveat then filed and a petition filed to appoint an independent administrator pendente lite to marshal the assets of the deceased spouse’s estate, to ensure that the other spouse is not left with nothing.

Here is yet another an article, by Adam S. Bernick, Esquire, who is of counsel to my firm, providing some sound advice and insight into the estate planning process.  This article was originally published in Upon Further Review on December 8, 2009, and can be seen here.

U.S. Supreme Court Weighs in on Beneficiary Issues in Savings and Investment Plans

What happens when an individual never removed his divorced spouse as a beneficiary of his employer’s Savings and Investment Plan (SIP) and then dies? The recent U. S. Supreme Court case of Kennedy v. DuPont, 129 S.Ct. 865, 172 L.Ed.2d 662 (1/26/2009) answered this question in a unanimous decision authored by Justice Souter. The Court determined the plan document controlled what happened to the benefits. If the plan document stipulated release of the money to the divorced spouse, regardless of a non-QDRO divorce decree directing otherwise, because the decedent neglected to change the designated beneficiary from the now divorced spouse to another individual, then the plan administrators acted correctly when they released the money to the divorced spouse and not to the estate.

The decedent, William, worked for DuPont and participated in a SIP. Under the SIP, William retained the power to designate any beneficiary or beneficiaries to receive all or part of the funds upon his death, and to replace or revoke such designation. Importantly, under the SIP when William died, if he did not have a surviving spouse and a beneficiary designation was not in effect, distribution would be made to the executor or administrator of his estate. Implicit in the foregoing, of course, is that if William never amended his beneficiary designation to remove his now divorced spouse, it would remain in effect.

In 1971, William married Liv, and, in 1974, he signed a form designating her to take benefits under the SIP. William did not name a contingent beneficiary to take if she disclaimed her interest. William and Liv divorced in 1994. The divorce decree (apparently non-QDRO) provided for divorce of the parties, and specifically divested Liv of her rights in any of William’s retirement plans. However, William did not execute any documents removing Liv as the beneficiary of the SIP, although he did execute a new beneficiary-designation form naming his daughter, Kari, as the beneficiary under DuPont’s Pension and Retirement Plan. On William’s death in 2001, petitioner Kari was named executrix and she asked DuPont to distribute the SIP funds to William’s Estate. DuPont relied on William’s designation form and paid the balance of some $400,000 to Liv.

Litigation occurred and the matter eventually made its way to the U.S. Supreme Court. The Court granted certiorari to resolve a split among the appellate courts and state supreme courts with regards to a divorced spouse’s ability to waive pension plan benefits through a divorce decree not amounting to a QDRO and whether a beneficiary’s federal common law “waiver” of plan benefits would be effective where the waiver was inconsistent with plan documents.

The Court held that regardless of any waiver under federal common law, the plan administrator was correct in not granting Liv’s “waiver”. Instead the Court held that the plan administrator “did its statutory ERISA duty” by paying the benefits to Liv in conformity with the plan documents. The Court reasoned that ERISA compliance is governed by the plain language of the written documents, and that plan administrators should not have to review a multiple amount of documents prior to release of the benefits.

Family law attorneys need to make sure that if there is no QDRO they take action to make their clients aware if the consequences of not changing the beneficiary designation. If there is a QDRO, the plan administrators must be made aware of the QDRO promptly so that the plan records/beneficiary designation is modified to reflect the terms of the QDRO. Estate planning attorneys need to review their clients’ beneficiary designations to make sure that they still comply with their estate plan goals.

By Adam S. Bernick, Esquire, Law Office of Adam S. Bernick and of counsel to the Law Office of Faye Riva Cohen, P.C. and published in Upon Further Review on November 10, 2009.

The Medical Authorization Process Under HIPPA: Protection or Burden?

We will not accept the authorization for the release of medical records that you had your client complete; he must complete our authorization instead, because of HIPAA. “The patient must physically come to our office and sign our authorization in person in order for our office to release medical records to the patient or anyone else because of HIPAA. “I can’t talk to you at all about your client’s health condition because of HIPAA. These are common phrases I have heard from health care providers when trying to gather evidence for a client’s case.

The word “HIPAA” has become synonymous with patient privacy. This privacy concept comes from the Privacy Rule, which developed out of a Congressional mandate for the adoption of Federal privacy protections for individually identifiable health information. In the Administrative Simplification provisions, Sections 261-264, of the Health Insurance Portability and Accountability Act (“HIPAA”) of 1996, Public Law 104-191, Congress directed the Secretary of Health and Human Services to establish these Federal privacy protections.

The HIPAA Administrative Simplification provisions directed the Secretary of Health and Human Services to adopt national standards for electronic health care transactions. To ensure that this new information sharing would not jeopardize patient privacy, Section 264 of HIPAA directed the Secretary of Health and Human Services to establish Federal privacy protections for individually identifiable health information. Thus, the Secretary drafted the Privacy Rule and required compliance, for most covered entities, by April 14, 2003. Covered entities include health plans, health care clearinghouses, and health care providers.

According to the Privacy Rule, a valid authorization for the release of protected health information is required when an attorney is requesting his client’s medical information from a health care provider. See 45 C.F.R. § 164.508 (2003). The general requirements for a valid authorization include:

  • a description of the protected health information to be used or disclosed
  • the names of person(s) or class of persons authorized to make requested use or disclosure
  • the names of person(s) or class of persons to whom the covered entity may make the requested use or disclosure
  • a description of each purpose of the requested use or disclosure
  • an expiration date or expiration event
  • the patient’s signature and date
  • notification to the patient of his right to revoke, how to exercise that right, and the exceptions to the right to revoke
  • notification of the ability or inability to condition treatment, payment, or enrollment for benefits on signing the authorization
  • an explanation of the potential for the information to be disclosed to another by the recipient and no longer be protected

Although these authorization rules may be followed by an attorney’s office, it does not guarantee cooperation from health care providers. Any attorney, or support staff, who has attempted to gather a client’s medical documentation to prove his case has undoubtedly heard the phrase “HIPAA” countless times, as a rebuttal to providing documentation.

Some may say that the Privacy Rule has empowered patients to have more control over their health information. However, the way the Privacy Rule functions in the attorney-client context is anything but empowering, because clients who want their attorneys to have unlimited access to their health information are burdened by the barriers their health providers place on the collection of this important information. Fear of penalties, misunderstanding of the Privacy Rule, and possibly a general dislike of the legal profession may all contribute to the apprehensiveness or unwillingness of certain health care providers to assist a law office with the development of a client/patient’s case. Whatever the rationale may be, this lack of cooperation can disadvantage a client’s case by delaying the receipt of essential evidence.

One example of how this lack of cooperation can disadvantage a client’s case occurred when our office was attempting to gather medical records from a hospital for a Social Security Disability case. These records illustrated when and how our client began suffering from auditory hallucinations, paranoia, and depression. The client spent a week at the hospital in an attempt to stabilize her psychiatric symptoms. These records were imperative for proving to the administrative law judge that this client was no longer able to work due to the onset of her mental conditions.

Our office went through the standard process of calling the hospital to inquire as to where to send a request for medical records. We prepared a detailed request and sent it to the medical records department along with a HIPAA compliant authorization that we had our client review and sign. In response to this request, the medical records department refused to accept our authorization and informed us that a hospital authorization would need to be completed by the patient (even though it is extremely difficult to even get this client to answer her telephone, let alone fill out more paperwork). The client also had a disability advocate, who in the meantime hand delivered a request for medical records. When she followed up with her request, she was informed that there was no record of such a request.

Our office continued to attempt to receive these much-needed records. We made sure all of the requested paperwork was completed and sent another request for medical records to the medical records department. We called their office daily to ensure that our second request was received and responded to. When we finally were told that it was received, we were informed that we were missing the required hospital authorization. We explained that the requested authorization was enclosed and that now the hearing was quickly approaching, so we needed their assistance with this matter. We spoke with the supervisor who could not assist us further because of “HIPAA”. The department would not expedite the process in any way and their only suggestion was to resend everything again and then wait to see what happens.

Since we had our client’s interest in mind and wanted to make sure the judge had ample time to review these important medical records prior to the hearing, we were forced to go beyond the medical records staff and talk to hospital administration. After several telephone calls and letters, we were able to set up a time to pick up these medical records. We were glad we went through all of the trouble of obtaining this documentation because we ultimately won the case for the client and these records assisted us in proving the elements of her case. However, our office was forced to spend a great amount of time and energy conducting the seemingly simple task of gathering a client’s medical records. This type of delay obviously can have a negative financial impact on a client and could be extremely detrimental to a client’s case. Unfortunately, this hospital staff’s behavior is just one example of how some health care providers function under the guise of protecting patient privacy.

Although it would be ideal for patients to be able to gather their medical information without the assistance of an attorney, often times it is necessary for an attorney to handle this part of the legal process on behalf of their clients (e.g., handling disability cases where a client has difficulty remembering tasks or physically visiting a doctor’s office).

Attorneys are required to provide diligent representation to their clients and need the cooperation of health care providers to meet this obligation. Although the protection of patient privacy is clearly an important goal, in practice it appears that the real world application of HIPAA’s Privacy Rule is more of a burden on clients and their counsel than a protection of clients’ rights.

By: Samantha Bogin, Esquire and published on July 10, 2006 in The Legal Intelligencer.

The Number of the Least: Establishing Small Firm Technological Infrastructure on a Shoe String Budget

The book of Revelation refers to the “number of the beast” – a “code” or form of identification without which man can neither buy nor sell. Many commentators have argued that this is an analogy for man’s growing technological dependence in the Information Age. Individual commentaries on biblical text notwithstanding, the analogy certainly applies to the practice of law in this new millennium. Although law schools still teach the tradition methods of “paper research”, they are also offering an ever increasing number of courses instructing law students on the use of information technology and computer-based research. The federal courts have moved fully into electronic filing for the processing of nearly every species of legal filing and the state courts which have not yet done so, will do so in the very near future.

In short, the legal profession, like nearly every other aspect of economic and social endeavor in contemporary American society, has become so dependent upon information technology that the legal practitioner who eschews that technology will be hard-pressed to efficiently and/or effectively ply his/her trade. While large firms generally have more capital to invest in both the necessary technology and the personnel adept in its deployment, use and maintenance, the sole practioner and the small firm may be more financially constrained This article proposes to suggest various options, methods, and tools to establish a technological infrastructure sufficient to allow the sole practioner and the small firm to effectively, efficiently and economically engage in the art of lawyering in the Information Age. For the purposes of this article, a small firm will be defined as one requiring a network of no more than nine computers, or workstations. This article also presupposes that your firm’s office space has network wiring pre-installed, and that the operating system (OS) installed on each computer on the network is Microsoft Windows XP Professional tm (XP Pro).

First and foremost, your firm will need a method of connecting to the internet. An internet connection is necessary for email, online legal research and electronic court filing. No matter what your firm’s method of connecting, an Internet Service Provider (ISP) will be required. There are various ISP vendors in the market, the largest and best known probably being Verizon tm, Earthlink tm and Yahoo tm . Each provider will offer various packages for small businesses, so shop around for one that best meets your firm’s needs and budget. While three methods of internet connection are offered by various ISP providers, (DSL, Cable Modem, Telephone Modem), DSL is recommended as it possesses a combination of data transfer speed, cost effectiveness and ease of use far superior to the other two methods.

Routers are devices that allow a given number of computers to connect to the internet, and, at the same time, to each other. Routers also have security features built into them to frustrate outside attempts to hack networks, effectively standing between your network and the internet, providing a security buffer, while at the same time “routing” data from the internet to a given network and, in turn, among the computers that comprise that network. A good 4 port “wired” router costs about $50, and can support a nine workstation network through the use of switches. Switches, like routers, allow several computers to connect to a single data line, but are less secure and efficient than routers, while being much less expensive, running $10-$20 per unit. Switches are most useful when used in conjunction with a router to allow 2-4 computers to share a single router port.

Computers on wireless networks connect through a card inside each unit that sends signals to, and receives signals from, a central wireless router which is, in turn, connected to the internet through your firm’s chosen ISP provider. The cards cost $50-$70 and a competent wireless router will run from $70 to $200. For a nine-station network, total cost would average about $700. Wireless routers, however, are generally not recommended as they are less secure, less reliable, and more expensive than the hard-wired alternatives.

Two options exist for connecting the firm’s small office network: Peer-to-Peer (P2P), or client server (CS). A P2P network connects work station computers to each other and, through a router, to the internet. Software applications (word processing, web browsers, etc) are installed and operate on each computer individually. A CS network requires that the router and all workstations (clients) connect through a central computer (server). Software applications are installed on the server only and the workstations access that software by way of access accounts, purchased from the software provider on the basis of the number of anticipated users. Of the two options, P2P is preferable for networks of nine (9) computers or less. XP Pro supports such a network natively and it is very easy to set up, whereas CS networks usually require some level of specialized knowledge and software to configure. The general rule of thumb is, if the firm does not plan to expand its network beyond nine (9) workstations within a three (3) year period, use P2P.

As to the computers themselves, a low-end workstation is more than adequate to handle the computing needs of a small firm. The minimal specifications for such a workstation are: Processor – Pentium Celeron tm; Memory – 256 MB; Hard Drive – 40 GB; CD ROM read/write (R/RW) drive. Such units can be purchased from various computer vendors (i.e. Dell tm, Gateway tm , etc.) for about $500, including a monitor and XP Pro pre-installed. While not absolutely necessary, it is highly recommended that one computer on a P2P network be detailed to central storage of all the firm’s files (file server). Not to be confused with the server on a CS network, a file server does not store software used by the computers on the network, but does contain all data files (word processing documents, etc.) generated and maintained by the firm. These files can be accessed by any computer on the network by way of an easy to use network function in XP Pro called “file sharing.” Also, in order to minimize the risk of virus infection and/or accidental data corruption/erasure, this computer should not be used as a workstation, nor should it be used to navigate the internet except to locate and download drivers and other software needed for smooth operation. In order to preserve the firm’s data in the event of a crash or other critical system failure, the file server should be equipped with a DVD R/RW drive for backing up the firm’s files on a daily or weekly basis. A single standard double-layer DVD, costing about $.50 per disk, will record up to 6 GB of data, which is more than enough storage for the amount of data files generated and maintained in most small firms.

The internet offers a legion of free and useful software applications (“Freeware”), which can save a small firm hundreds, if not thousands, of dollars. Other types of software allow free use for a limited time or with restricted functionality until a fee is paid (“Shareware”), allowing the user to “try before you buy.” Be sure to read the End User License Agreements (EULAs) for each piece of software the firm is considering as it may contain restrictions on use for business purposes. If such restrictions exist, use at your own risk.

For virus protection, it is difficult to match AVG Free tm. For firewall protection, ZoneAlarm tm is highly recommended. Although prone to certain compatibility issues when translating documents generated by other word processing programs (i.e. Microsoft Word tm ), Open Office tm is a free and complete office suite offering features comparable to Microsoft Office tm , including word processor, spreadsheet, multimedia presentation suite, and a native Portable Document Format (pdf) converter, which is essential for converting word processing files to pdf format for electronic filing. For web browsing, the best free browser is Mozilla Firefox tm. It has no restrictions on business use, and is cleaner, leaner and much more secure than other free browsers, including the one that comes bundled with XP Pro. Equally attractive is Mozilla’s free email client, Thunderbird tm. For reliably calculating filing deadlines, Acute Software tm offers a handy, free date calculator. For instant messaging (IM) between the personnel in the firm, Gaim tm is a free IM client that will handle most preexisting IM accounts without advertisements or pop-up windows. For detecting software applications surreptitiously installed by advertisers (Adware and Spyware), Lavasoft’s tm AdAware tm is difficult to beat. Also, it should be noted that there are several excellent commercial software titles on the market, so shop around and decide whether your firm needs commercial software, or can suffice with freeware.

As to the fax, laser printer and copier machines common to all offices, these can be replaced by an all-in-one unit, which incorporates each function into a single unit. While each of these roles has been traditionally fulfilled by separate machines, the all-in-one units offer the best bang for the buck and can be made available to the entire network from a single workstation through the use of an easy to use function in XP Pro called “printer sharing.” Aside from the obvious necessity of the printer, copier and fax functions, most of these all-in-one units also offer a scanner function. A scanner is absolutely indispensable for rendering hardcopy exhibits into pdf format for electronic filing. Considering that the legal profession often entails the processing of large amounts of paperwork, be sure to check the specifications of any machine the firm is considering in order to ensure that it will be capable of handling the load, and that the unit in question has some form of bulk feed function equivalent to a copier. Single page scanners are not up to the task and, if chosen, will form a production bottleneck. The most well known manufacturers for such machines are Hewlett-Packard tm, Panasonic tm, and Canon tm .

In conclusion, this article has attempted to offer an overview of methods by which a small firm with constrained finances may establish the technological infrastructure necessary to compete effectively in the field of legal practice in the Information Age. Given the length constraints inherent in an article such as this one, the subjects addressed herein have only been touched upon, and can be further developed with diligent research. For more Freeware and/or Shareware, check out sourceforge.net and www.tucows.com. For further education on hardware, software and nearly everything tech, www.tomshardware.com is highly recommended. For reviews of software and hardware, consult www.cnet.com. For low-cost hardware and software with fast delivery, try www.newegg.com and www.tigerdirect.com.

By Ken Ruh, J.D. and published in The Legal Intelligencer on January 30, 2006.

 

AVOIDING AMBIGUITY IN A WILL AND APPLICATION OF THE ANTI LAPSE STATUTE

An anti-lapse statute is a rule of interpretation that is intended to cure a will to ensure that the next individual in line of a pre-deceased child or certain other close relatives receive testator’s devise or bequest.  20 Pa. C.S. § 2514(9).  Specifically, the Pennsylvania anti-lapse statute states that “[A] devise or bequest to a child or other issue of the testator …shall not lapse if the beneficiary shall fail to survive the testator and shall leave issue surviving the testator but shall pass to such surviving issue who shall take per stirpes the share which their deceased ancestor would have taken had he survived the testator….”  20 Pa. C.S. § 2514(9).

When does the anti-lapse statue apply to a will when the testator included language that two children should “share and share alike” and one of children predeceased the testator?  In a case of first impression at the appellate level, the Superior Court recently provided guidance on this matter in In re Estate of Harper, — A.2d —-, 2009 WL 1510255 (Pa.Super.), 2009 PA Super 104.

In Estate of Harper, Testator’s will stated as follows:

SECOND: I give, devise and bequeath all the rest, residue and remainder of my estate to my wife…

THIRD: In the event my wife, FLORENCE J. HARPER, fails to survive me, then I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, of whatsoever kind and nature and wheresoever the same may be situate, of which I shall die seized and possessed, or to which at the time of my death I may be entitled, to my son, SAMUEL CARL HARPER and to my son, WILLIAM D. HARPER, share and share alike.

In Estate of Harper, Testator’s wife and son William predeceased him by five years, and the surviving son and currently serving Personal Representative (Executor) of the Estate claimed that he, as the surviving beneficiary of Testator, was entitled to the entire residue of Testator’s Estate, because the phrase “share and share alike” denotes a per capita, or individual, distribution, and necessarily negates any right of representation.

At the trial level, the Orphans’ Court noted that the phrase “share and share alike” “is standard language.  And the Orphans’ Court observed, “these are words that have been used in wills for hundreds of years.” Superior Court citing Notes of testimony, 5/29/07 at 10.

The Superior Court noted that it failed to see how the language “share and share alike” intended to void the anti-lapse statute.  For example, “while the testator provided for the possibility that his wife might predecease him, he did not use any survivorship language in the residuary clause such as “provided this person is living at my death” or “if this person does not survive me” with regard to the two sons.”   Also, the Superior Court noted that “the testator had almost five years after the death of his son to revise the Will if he did not want his son’s share to pass through.”

Ultimately, the Superior Court found that Appellant’s interpretation of the words “share and share alike” to be unreasonable and insufficient, “standing alone, to overcome the statutory presumption against lapsed bequests” because to hold otherwise then “the anti-lapse statute would be effectively eviscerated.”

As a related matter, the Superior Court held that the Orphans’ Court correctly declined to hear extrinsic evidence of an alleged ambiguity in testator’s will, relating to the beneficiary who would now receive the property as a result of the anti-lapse statue.

Individuals engaged in estate planning on behalf of clients need to make clear to their clients that if the client wants their assets to pass to the surviving co-beneficiaries that the will must include language to that effect; otherwise, the anti-lapse statute may be applied and instead of the client’s remaining beneficiaries inheriting the property, it might pass, to issue of the deceased beneficiary.

By Adam S. Bernick, Esquire, Law Office of Adam S. Bernick and of counsel to the Law Office of Faye Riva Cohen, P.C.

This article was originally published in Upon Further Review” on August 7, 2009, and can be seen here.

Social Media is Outpacing the Legal System

Courts have not caught up to the realities of social media and its role in workforce issues. As an employment lawyer, representing both employees and employers, I know that social media policies need to relate to the industry in question. In the case of the airline industry, especially in the case of flight attendants, social media is the prevalent way that thousands of airline employees communicate with each other because they often have shifting work assignments and rarely work with the same people or at the same location on a regular basis. Therefore, they rely on social media to exchange ideas, comment and or complain about their industry or unions, and discuss the nature of their work.

Some points to consider about social media in the workplace are:

  • Courts have generally not considered social media posts and online bullying have a severe impact in the real world. The old saying “sticks and stones may break my bones, but words will never hurt me,” no longer applies in the world of social media which is public and enduring. Social media posts are a different form of harassment than is face-to-face harassment.
  • Courts have not penalized employers whom have refused to investigate claims of violations of their social media policies, and have distinguished the failure of employers to follow their own policies from actionable harassment.
  • Employers are often quick to discipline or terminate employees who they determine have embarrassed or damaged them, yet they are slow or refuse to enforce social media policies to protect employees from insults or abuse on social media from other employees or managers.
  • Much like other policies that employers have “on the books,” such as sexual harassment policies, social media policies are often not enforced by employers. It is up to the employee to take proactive action, hopefully after consulting an experienced attorney, to require employers to enforce and apply these policies.

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