Posted by admin on December 30th, 2008 — Posted in Help For You, Lawyers Web
In other words the ADEA permits employers to discriminate based on age considering age is legitimately necessary under the circumstances. In Meacham Knolls Atomic Power Laboratory was planning to lay off a number of employees. The company had its supervisors rate their subordinates based on their performance flexibility and critical skills. The Supreme Court ruled that if an employer seeks to rely on that defense. Specifically the jury found that although the plaintiffs did not prove that Knolls intentionally discriminated against them they did prove that Knolls method of deciding who to lay off disproportionately harmed older workers. The BFOQ defense states that it is not unlawful for an employer to take adverse employment actions otherwise prohibited by the ADEA where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business. Twenty-eight of those 40 employees sued under the ADEA claiming Knolls illegally fired them because of their age. A lawyer from Waalwijk won from a lawfirm in Glendora California Even if the employment action is otherwise prohibited by the ADEA. It has the burden to prove that its decision was based on a reasonable factor other than age. Knolls totaled those scores and gave the employees additional points based on their years of service. As long as the adverse action is based on reasonable factors other than age. At the trial a jury found Knolls had violated the ADEA because its layoff procedure had a disparate impact based on age. The Supreme Court has previously recognized that the employer has the burden to establish the BFOQ affirmative defense. For example it would not be illegal to consider criteria for a particular role in a movie that has a disparate impact on age if the part calls for someone of a particular age. The United States Court of Appeals for the Second Circuit initially affirmed the jurys findings but after the United States Supreme Court asked it to reconsider the Second Circuit reversed itself and ruled in favor of Knolls. The Supreme Court then agreed to hear the case and eventually reversed the Second Circuit and reinstated the jurys finding that Knolls policy unlawfully discriminated because of age. It then used those totals to decide who to lay off. Thirty of the 53 salaried employees the company laid off were at least 32 years old. In reaching its conclusion that the employer has the burden to prove the reasonable factors other than age defense the Supreme Court looked at another provision of the ADEA the bona fide occupational qualification defense. In that case Meacham versus Knolls Atomic Power Laboratory the Supreme Court interpreted a provision of the ADEA that permits an employer to take an adverse employment action against an employee.
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Posted by admin on April 21st, 2008 — Posted in Lawyers Web
Previously, we discussed the problems that arise if
you fail to place title to your assets into the name
of your revocable living trust.
In one article, I shared the problem of the widow.
She learned that her husband had assets that were in
his name alone and not put into the title of their
revocable living trust.
An attorney was now quoting her a fee of thousands of
dollars to clean up the revocable living trust and
try to avoid probate.
In my Multi-Media course I describe what you can do if
you find that an asset is left out of your trust.
About 13 years ago, the California Court of Appeals
decided a case where a man had died without placing title
to his assets into his revocable living trust. The appeals
court decided that even though the man had failed to
actually place title into his revocable living trust, the
man had demonstrated enough of an intent that his assets
be held in the revocable living trust. Therefore, the
court held that the revocable living trust held legal
title. The court then instructed the lower court to issue
an order converting the assets into the title of the
revocable living trust.
This case is now used in California to help avoid probate
if assets are found to not be in the name of the revocable
living trust. The key is that there has to be a
demonstration of intent that the assets be held in the
name of the revocable living trust.
In my practice I used to prepare a document called
“General Assignment of Assets to Revocable Living Trust.”
In it, I would declare the intent of the parties to have
their assets held in the title of the revocable living trust.
It then went on to say that if there was an asset that was
left out, it was to be placed into the revocable living
trust on request by the trustee. This gave the trustee
the elements needed under the court of appeals case to
avoid probate.
You should ask your estate planning professional if a
“General Assignment of Assets” to your revocable living
trust is appropriate for you.
Good luck and until next time,
Phil Craig
P.S. Feel free to forward this on to any friends.
Phil Craig is a licensed attorney and entreprenuer.
He started practicing law at age 25 in 1979.
He does not take on any more clients, but is
advisor to some of the biggest names in the internet
world. He shares his knowledge gained over the
last 25 years at his Living Trust Secrets newsletter site:
click here=========>http://www.LivingTrustSecrets.com
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Posted by admin on April 3rd, 2008 — Posted in Lawyers Web
When someone infringes your copyright, you have a limited time to make your claim. This is based on a legal principle called “statute of limitations.” Statutes of limitation, in general, are laws that prescribe the time limit to file lawsuits. The deadlines vary by the type of claim and maybe by the state where you live. The purpose of them is to reduce the unfairness of defending actions after a substantial period of time has elapsed. They allow people to go on with their lives, regardless of guilt, after a certain time.
Because copyrights are governed by federal law, there is only one statute of limitations for claims related to them. Copyright infringement claims have a three-year statute of limitations from the “last act” of the infringement. What constitutes the last act can vary. For example, if your image is published in a newspaper without your permission, you have three years from the date that the newspaper was distributed to file your claim in court. But if the infringement is continuing, such as when someone is using your image on the web without your consent, then the time to calculate the statute has not started to run. Instead, it would start when your photo is removed from the website. Determining when a statute has started to run can get a bit tricky. It sometimes starts when you have “constructive” notice of the infringement, even if you don’t have actual knowledge of it.
If someone uses your photo without your permission, you may seek legal remedy from that person within three years of the last act of infringement. So don’t sit on your claim once you have it. Note, however, to pursue any copyright infringement claims in court, you must first register your copyright with the U.S. Copyright Office.
Take my advice; get professional help.
PhotoAttorney
Copyright 2005 Carolyn E. Wright All Rights Reserved
— ABOUT THE AUTHOR —
Carolyn E. Wright, Esq., has a unique legal practice aimed squarely at the needs of photographers. A pro photographer herself, Carolyn has the credentials and the experience to protect photographers. She’s represented clients in multimillion dollar litigations, but also has the desire to help new photographers just starting their careers. Carolyn graduated from Emory University School of Law with a Juris Doctor, and from Tennessee Tech Univ. with a Masters of Business Administration degree and a Bachelor of Science degree in music.
She wrote the book on photography law. “88 Secrets to the Law for Photographers,” by Carolyn and well-known professional photographer, Scott Bourne, is scheduled for fall 2005 release by Olympic Mountain School Press. Carolyn also is a columnist for PhotoFocus Magazine.
Carolyn specializes in wildlife photography and her legal website is http://www.photoattorney.com
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Posted by admin on March 25th, 2008 — Posted in Lawyers Web
All important documents which are used in the probate process are known as probate records. The first category of records relate to personal properties which are to be submitted to the court.
The will should state what assets are involved, who are the beneficiaries, who will be the personal representative, guardian for minor children less than 18 years old, someone to manage children’s’ property [if the heirs are minors or young adults], signature of witnesses, signature of self and endorsement by the notary.
Courts and law firms give out prescribed forms for writing a will. Today, there are not only printed books, but also e-books, CDs and computer software, all available for developing a will. Software is a bit more expensive than book versions. [All these versions come within an approximate price range of US$25 to 50].
The next important document is proof of assets, which are in decedent’s sole name. These can include bank accounts, securities, Individual Retirement Accounts, life insurance policies/premiums, employee benefit plans, foreign property, Social Security benefits, IRS Tax Refunds and US Savings Bonds.
The second category includes administrative papers which are necessary in any probate. These include “Petition for probate of will and Letters testamentary” or a “Petition for letters of administration”, which is submitted along with the prescribed filing fee and the death certificate.
The judge conducts probate proceedings, appoints a person to handle the probate issue and execute the will or administer the assets respectively. Then issues the order sought. Both the above mentioned letters are known as “letters”. Some courts call this letter “Notice of appointment”.
When necessary, the judge holds hearings and clarifies queries raised by issuing written directions called “orders.” For instance, there is an order to pay the decedent’s debts and taxes and divide the rest among the beneficiaries.
The next important record is Notice of administration. This is also known as “Notice to creditors”. This is a notice given by the personal representative after identifying, gathering, appraising and safeguarding probate assets, for publication in a local newspaper. This is done so that every body, particularly creditors if any, will come to know of the current position of the properties. It enables the creditors to take responsive action by claiming the amount due to them by filing a `creditor’s claim’, to get back any money owed by the decedent. In Washington and some other states, `Notice to creditors’ is optional.
Then the Personal Representative disburses the property to all the heirs and beneficiaries, and obtains a document signed by them. This document, known as “Receipt and Waiver” signifies that the heirs and beneficiaries have received their respective share of the estate.
Next, the Personal Representative submits all the Receipts and Waivers and a Declaration of Completion of Probate to the probate court.
Finally the court issues an Order for transfer of property to heirs and beneficiaries. This is the epilogue of the probate episode.
Probate provides detailed information about probate, how to avoid probate, probate court, probate law and more. Probate is the sister site of Free Last Will And Testament Packages.
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Posted by admin on March 19th, 2008 — Posted in Lawyers Web
In this article we’re going to try to differentiate between an error and an accident when applied to malpractice.
The first thing that needs to be said here is that this is not an exact science. That is why we have courts of law. That’s why when something goes wrong with a procedure or operation it is not immediately determinable whether it is malpractice or not.
This article is going to get a little philosophical based on the beliefs and opinions of professionals and experts in the field of law and medicine. These are only beliefs and opinions and are not meant to be taken as facts. Again, if this was all fact then determining malpractice would be very easy to do. It is not.
An error is defined by the experts in the field as “the failure to perform an intended action which would have been the correct action, given the circumstances.” In other words, if the diagnosis calls for administering a shot of penicillin to a patient and the shot is not administered then that would be considered to be an error. It was clear that the shot should have been given and it wasn’t.
An accident, on the other hand, according to the experts, is something that is unplanned and unforeseen. Usually an unexpected event that produces an adverse outcome.
Here is where we get into that gray area and why we need lawyers. An adverse outcome after committing an error, by this definition, must be considered an accident since nobody plans to make an error, no one expects an error and no one has any desire for an error. Yet, errors still occur which produce the accident. It is up to the courts to basically decide if the error was an “honest error,” something that could happen to even a professional in the field, or an error that should have never happened if the procedure was performed by someone who was trained in the field. Yes, a very gray area.
There are, to make this even more complicated, many types of errors.
There are input errors or errors of misconception. This is where a wrong diagnosis is made and based on this diagnosis the wrong action is performed. An example would be when a diagnosis is made to remove an organ but later it was determined that the organ was healthy and didn’t need removal.
Then there are intention errors or mistakes. This is where the diagnosis is correct but the wrong action is performed. An example would be that a diagnosis is made to give someone 1000 mg of some drug. The diagnosis is correct but by mistake the wrong dose is given and an overdose occurs.
Then there is an execution error. This is where the diagnosis is correct and the right action is performed but the action is performed incorrectly. Given the same above example, 1000 mg is given but it is given through a Y port instead of through a drip bag, which it should have been given through. Again, a fatal overdose occurs even though the right amount of solution is given. These errors are then further divided into errors caused by the doctor’s own distraction or lack of concentration and errors caused by outside surroundings, such as the operating room maybe not being set up properly with equipment out of place.
In our next article we’re going to discuss how to talk about these errors and evaluate them.
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Michael Russell
Your Independent guide to Malpractice
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