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Archive for the tag “county”

Family Law Tip: Sole Legal Custody

I post some tips regarding family to my Linkedin page (see here) from time to time, and I thought I should start sharing them here too. Below is one of my family law tips, and you can read my articles on family law here and other posts on family law here and all are cataloged here.

 

Court Rejects Free Exercise Defense To Infliction of Emotional Distress Claim

This is from religionclause.blogspot.com which you can find here:

In Lawrence v. Treybig(TX App., June 20, 2019), a Texas state appeals court affirmed a trial court jury’s award of nominal damages and a permanent injunction against Arthur Lawrence who had been hired by a wealthy family as a basketball coach for their son, Cody Treybig, when he was nine years old. Lawrence remained in that position for six years during which time he convinced Cody of Lawrence’s paranoid religious views:

Lawrence … told Cody that Jimmy Treybig, Cody’s father, was a high-level member of an evil society called the Illuminati; that Cody’s school, his hometown of Austin, and colleges in general were full of evil Illuminati members; that the rapture was imminent; that Cody’s parents intended to have an RFID5 chip implanted into Cody’s body, which would damn him to hell; that the RFID chip would control Cody’s mind and would contain cyanide that could be used to kill him if he resisted; and that Cody’s parents and brother hated him and were evil.

In the suit against Lawrence for intentional infliction of emotional distress, the court rejected Lawrence’s free exercise defense:

Lawrence argues that the jury could not determine whether his conduct was extreme and outrageous without weighing the veracity of his religious beliefs and that the trial court therefore should have dismissed Cody’s claims. However, whether Lawrence’s views are sincerely held or whether he believed that he was helping to save Cody from damnation is irrelevant under the facts of this case, in which Lawrence’s conduct, no matter its motivation, was extreme and outrageous.

The court affirmed the award of damages of $4 and an injunction barring Lawrence from coming within 1,000 feet of Cody or contacting Cody or his family.

You can learn more about this issue here.

Texas Governor Signs “Save Chik-fil-A” Law

This is from religionclause.blogspot.com which you can find here:

On Monday, Texas Gov. Greg Abbott signed into law S.B. 1978 (full text) which prohibits any governmental entity in Texas from taking adverse action against any person because of the person’s affiliation, contribution or support for a religious organization. According to KXAN News:

The bill was brought forward by Republicans after San Antonio City Council voted in March to exclude Chik-fil-A from having airport concessions in their city because of the fast-food chain’s owners’ record on LGBT issues, specifically over donations to the Fellowship of Christian Athletes, the Salvation Army, and a George youth home; whose leaders advocate for marriage to be between one-man and one-woman.

The law has become known as the “Save Chik-fil-A bill.”

You can learn more about this issue here.

Feds Settle Suit With Old Order Amish Woman Over Photo In Residency Application

This is from religionclause.blogspot.com which you can find here:

According to the Indy Star, government agencies have settled a lawsuit brought by an Old Order Amish couple.  Under the settlement, the wife will be able to become a permanent U.S. resident without submitting photos of herself in the application for residency. She will also be able to cross the border without photographic identification.

You can learn more about this issue here.

Senior Community Management Sued Over Ban on Bible Study Groups and Public Prayer

This is from religionclause.blogspot.com which you can find here:

A lawsuit was filed this week in a Virginia federal district court by a retired pastor and his wife against a senior living community where they lived.  The complaint (full text) in Hauge v. Community Realty Company, Inc., (ED VA, filed 5/21/2019), alleges that the community’s management discriminated against plaintiffs on the basis of religion by acceding to demands of other residents to bar plaintiffs’ followers from publicly saying grace before their meals, and prohibiting plaintiffs from hosting Bible Study anywhere in the living complex.  The suit contends that management’s actions violated federal and state fair housing laws.  First Liberty issued a press release announcing the filing of the lawsuit.

You can learn more about this issue here.

Court Rejects Christian Adoption Agency’s Challenge To Anti-Discrimination Regulation

This is from religionclause.blogspot.com which you can find here:

In New Hope Family Services v. Poole, (ND NY, May 16, 2019), a New York federal district court rejected a constitutional challenge by a Christian adoption agency to New York’s anti-discrimination provisions. Regulations of New York’s Office of Children & Family Services prohibit adoption agencies from discriminating, among other things, on the basis of sexual orientation, gender identity or marital status. New Hope Family Services will not place children with same-sex couples or with unmarried couples. Inquiries from such couples are referred to other agencies. The court rejected New Hope’s contention that the regulation violates its free exercise rights because it was adopted to target faith-based agencies.  Instead, the court found that the regulation “is facially neutral and generally applicable, and that it has been neutrally and generally applied in this case….” The court also rejected New Hope’s free speech and equal protection challenges to New York’s regulation. In a press release, ADF said that the decision is likely to be appealed.

You can learn more about this issue here.

NBI SEMINAR MATERIALS: Traditional Ways to Manage Unemployment Compensation Costs

I  had the great opportunity to lead (perhaps “teach”) a continuing legal educationseminar hosted by the National Business Institute.  The subject was “Human Resource Law From A to Z” and I had opportunity to speak on Unemployment Compensation.  I was joined by other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Traditional Ways to Manage Unemployment Compensation Costs.”

Thanks!

__________

Traditional Ways to Manage Unemployment Compensation Costs

Many employers appear to be under the impression that since they pay unemployment compensation through mandatory taxes, there is little they can do to manage their unemployment compensation costs.  The fact is, however, is that there are a few ways to manage unemployment compensation costs.

The first, and most basic, way an employer can manage unemployment compensation costs is to contest a claim for benefits.  For example, if a claimant is found to have voluntarily quits his employment or commits willful misconduct (see above), the employer is not charged for the benefits, however employers must be proactive at every step – specifically contesting a claim, submitting its forms in a timely fashion to the Department of Labor, appealing an adverse determination and/or attending a referee’s hearing – in order to ensure, to the best of its ability, that it is not charged for benefits.  To that end, providing the Department of Labor complete paperwork, a full description of the cause of the employee’s separation from employment, and supplying additional information as it becomes available is a must.  Similarly, employers are given notice by the Department of Labor of their employees’ base period wages, which can also be appealed in order to avoid an award of benefits being charged to their account.  Being sure to attend all hearings, submitting all documents within time allotted, and appealing adverse decisions can all help reduce costs.

An employer’s tax rate for unemployment compensation depends on the the number and frequency of successful claims for benefits, therefore, successfully contesting benefits can help reduce the applicable tax burden.

If a claimant is successful in securing benefits, an employer may be eligible for relief from being charged for the claimant’s benefits if it properly files for it.  An employer may be relieved of charges if, for example, the claimant was terminated for cause or voluntarily quit, or if the claimant became unemployed due to natural disaster, and/or the claimant is self-employed,

There are also some every day strategies and policies which can be implemented to help manage unemployment compensation costs.

  • First, being diligent and careful about who one hires, and ensuring a good work environment, helps ensure employees will have longer terms of employment, and less need for benefits. Relatedly, be liberal about offering leaves of absence as this also reduces the odds of employees quitting.  Keeping turnover to a minimum is the goal.  When employees are terminated (for whatever reason), it may be advisable to conduct an exit interview to document the reason for termination.
  • Second, it is vital to maintain complete and detailed employment records. These records include each and every disciplinary issue, work quality issue, and/or personality issue, and the dates of these issues, the names of all involved, the details of the investigation of these issues, and how they were resolved.
  • Third, an employer should be sure to furnish its employees with a copy of its employment manual/policies (with signed verification of receipt). So doing ensures all of its employees have had notice of what is expected of them, how discipline is applied and enforced, and what the work rules are.

 

Court Properly Applied Neutral Principles In Dealing With Factional Dispute In Church

This is from religionclause.blogspot.com which you can find here:

Nelson v. Brewer(IL App., May 10, 2019), involved a dispute between two factions of a congregational church over control of the church, identity of its pastor and control of its property. The appellate court upheld the trial court’s action under Sec. 112.55 of the Illinois Non-Profit Corporation Act appointing a custodian to secure the church’s property and bring the church’s corporate governance documents in to compliance with law. The court also, through a series of orders, provided for selection of a 5-person board for the church. The appellate court said in part:

We find the circuit court in this case properly applied the neutral principles of law as it found both parties have an equal right to PTC property and carefully applied section 112.55 of the Act to remediate the church’s corporate governance. The court specifically refused to issue an opinion as to who is the rightful pastor because that question is religious in nature. Instead the court limited its findings to corporate reorganization by examining PTC’s articles of incorporation, bylaws, other corporate governing documents, the land trust, and pertinent state statutes to resolve the matter.

You can learn more about this issue here.

NBI SEMINAR MATERIALS: What you Need to Know About the Hearing Process

I  had the great opportunity to lead (perhaps “teach”) a continuing legal educationseminar hosted by the National Business Institute.  The subject was “Human Resource Law From A to Z” and I had opportunity to speak on Unemployment Compensation.  I was joined by other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “What you Need to Know About the Hearing Process.”

Thanks!

__________

Unemployment Compensation hearings are heard by a fact-finder known as a referee.  The hearings are semi-formal in nature, but generally follow typical adversarial hearing procedure.  Perhaps the single most important thing to know about referees’ hearings is that they are the one, and only, opportunity for either party to present evidence, testimony, and argument in support of his position with regard to the claim for benefits.  The referee’s decision is based solely on the file maintained by the Department of Labor and the testimony and evidence offered at the hearing.  It is unfortunately common for parties not to take the referee’s hearing seriously, or believe it is only some sort of preliminary (or intermediate (as opposed to final)) hearing, as it is not in a court or before a judge, however, as stated above, it is actually vitally important as it is the only fact-finding hearing in the unemployment compensation process.  Similarly unfortunate is that claimants are often told by the Department of Labor that they do not need an attorney at the hearing, however, considering how significant the referee’s hearings are to a claimant’s eligibility, it is highly recommended that the parties are represented at them.

Referees’ hearings take place at one’s local Unemployment Compensation hearing office, specifically in the referee’s office.  The hearings are audio recorded and transcribed if appealed to the Board of Review.  The referee’s office makes the complete claim file available to the parties prior to the hearing and, to that end, the parties should appear at least fifteen minutes prior to the hearing to review it.  The file typically consists of the correspondence between the parties and the Department of Labor, the application filed by the claimant, any response made by the employer, the income records from the claimant, and the initial determination of (in)eligibility.

As stated above, the hearing itself takes place in the referee’s personal office.  The arrangement of the room typically consists of the referee’s desk at the front (where the referees’ sits) and a long table perpendicular to the referee where the parties sit on opposing sides (some referees’ office have a traditional courtroom set up with the parties at side-by-side tables facing the referee).  The parties can be accompanied by their attorneys (or non-attorney representative), witnesses, and non-participating observers.  By statute, the parties may have a non-attorney representative instead of a lawyer who functions in a similar capacity as a lawyer.

The hearing begins with the referee reviewing and identifying literally every page in the claim file (which was just reviewed by the parties).  Upon completion of the review, the parties may object to the admissibility of the documents in the claim file.  Typically, the objections are to relevance (for containing information irrelevant to the claim) and hearsay.  It is not uncommon for the documents in the file, especially from the employer, to be written (or prepared) by a non-party who is not present at the hearing.  For example, the employer may appear at a referee’s hearing through its owner and a witness who saw the events giving rise to the employee’s termination.  By contrast, the contents of the file may have been written and/or prepared by the employer’s Human Relations director who is not present at the hearing, and, therefore, the contents would be hearsay.  If the objections are sustained, the documents objected to are not considered when the referee renders his decision.

After the file is reviewed, the hearing commences in a way that follows the traditional procedure of an adversarial hearing.  The hearing typically begins with an opening statement from the parties (some referee’s dispense with this portion of the hearing).  After open statements, the party which appealed the decision calls and examines its witnesses.  Through the witnesses, documents may be submitted as evidence.  The witnesses may be cross-examined by the adverse party.  When finished, the adverse party calls and examines its witnesses.  Closing arguments – if permitted by the referee – are then offered and the hearing concludes.

A very common mistake made by the parties – especially the employer – is not bringing the appropriate witnesses.  For example, employers often assert that a claimant was terminated from his employ due to willful misconduct, which would render the claimant ineligible for benefits.  This same employer may appear at the hearing with the owner and the human relations director as witnesses, neither of whom witnessed the misconduct that gave rise to claimant’s termination.  Unfortunately for the employer, the only testimony they would be able to provide regarding the misconduct is inadmissible hearsay.  So, needless to say, it is vitally important to bring the proper and relevant witnesses to the hearing.

As a referee’s hearing follows traditional adversarial procedures, the parties are free to make various objections as permitted by the rules of evidence.  As a referee’s hearing is semi-formal (similar to a district court (i.e.: small claims) hearing), objections for “best evidence” – and the like – are often not enforced.  Similarly, if a health condition is an issue, it is not necessary to call the physician or health care professional as a witness to ensure medical records are admissible as evidence.  The burden of proof lies with the party making the assertion.  For example, if the claimant was terminated for willful misconduct, the employer bears the burden to prove that it occurred.

A referee’s decision is issued within about two weeks of the hearing and is appealable to the Board of Review by the date listed on the determination/opinion issued by the referee.

Defamation Suit Dismissed Under Ecclesiastical Abstention Doctrine

This is from religionclause.blogspot.com which you can find here:

In In re Alief Vietnamese Alliance Church and Phan Phung Hung, (TX App., April 30, 2019), a Texas state appellate court held that a defamation claim by a church’s former interim pastor, Paul Nguyen, against the Church and its senior pastor Phan Phung Hung should be dismissed under the ecclesiastical abstention doctrine.  At issue were statements by Hung that Nguyen had committed adultery with a female church member. In a 2-1 decision, the majority said in part:

We conclude that Hung’s allegedly defamatory statements are … “inextricably intertwined” with matters relating to an internal struggle between a current and former leader of the Church over Church governance, the standard of morals required of leaders of the Church, and the reason for Nguyen’s leaving or being expelled from the Church….

Even if there is a dispute over Hung’s motivation in making the statements—either as part of a disciplinary procedure due to the alleged adultery or merely out of vindictiveness towards Nguyen, who had criticized Hung’s pastoring decisions—these statements were made in the context of expelling a member and former leader of the Church, or, alternatively, the Church member’s voluntarily quitting his leadership positions and quitting the Church—and then refusing to meet with Church leadership to resolve the dispute—either version of which is inherently an ecclesiastical concern as a matter of law.

You can learn more about this issue here.

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