The Importance of Picking the Right Employment Lawyer for Your Case

If you have any service disputes, discrimination issues, harassment cases, debt related issues or any job termination problems, the most possible solution to resolve all this mess is to hire an employment lawyer. An Employment lawyer is a legal professional who takes care of all your trade & discrimination related matters, helping you assure the protection of your rights. These rights include rights as a person, employee and your rights to privacy. As we all know, getting a job is comparatively easy than keeping it! This makes keeping a job, an even more challenging and daunting task. In case you are facing any problems at your job, hiring an ideal employment attorney can help you get the results in your favor.

Being honest, most people will never seek to look for an employment lawyer. As a matter of fact, most of them have not even heard of it! The ones, who've heard about it, make plenty of mistakes before contacting an attorney, which in turn results in a financial disaster for them. Hence, picking the right and ideal public prosecutor is also crucial! The process of picking a good public prosecutor is very imperative, as it involves a lot of research, questioning & consultation before hiring.

Services provided by an Employment lawyer:

• Unfair Dismissal - the suffering and disturbance caused by illegal termination can affect every facet of your life. These lawyers provide protection to the employees terminated from their workplaces due to one or some other reason. They will work closely with you to ensure that you're fairly compensated at your former job if that is the best solution as per your situation. Your career is often part of your character, and being terminated unduly can lead to despair, annoyance, and an inability to find a new job. If you've been fired, you may still have trouble obtaining a new location because of the shame of being terminated, downsized, or set loose.

• Workplace Discrimination - If you sense that you have been discriminated against in the workplace, it's indispensable that you directly reach the employer lawyers, as they are the experts in all aspects of employer discrimination, whether it is based on age, gender, race, handicap, or any other inappropriate standards of work. They'll take your case and work diligently to prove discrimination, and turn the tables in your favor at last.

• Sexual Harassment - molestation is, basically, unsought behavior, remarks or overtone of a sexual nature. It involves an individual harassing a member of the alternative gender or of an identical sexual class. It may involve proposals of marriage, inappropriate love letters, offensive or nuisance phone calls or mails, sexually explicit conversations, foul speech or dirty jokes, etc.

Thus, you can distinctly understand that there is an immense contribution of a reputed employment lawyer in helping you make the rightful compensations & restore the legal rights.

For more tips on how to pick the right employment lawyer, Contact Us

Do's And Don'ts in Planning An Employee Dismissal

Everyone that gets hired and is working in some company can be confronted with a dismissal, doesn't matter whether his fault or not. Having to dismiss an employee isn't fun, but sometimes it's the only option. Firing someone is always an unpleasant situation, but you need to face it as something that will inevitably happen in your organization, and before you even consider letting an employee who isn't meeting the expectations of the business go, it is important to take steps to remedy the situation beforehand. Doing so will help you protect your business from potential litigation as well as mitigate the shock to the employee if you must actually fire them.

It may not be easy or fun, but it is necessary. With proper preparation and a good attitude towards it, terminating an employee can be done with the minimum amount of disruption and the most positive good that can come out of the situation. Not to mention, you'll feel better about the scenario and sleep better at night. Also, layoffs might signal the end of this business relationship, remember we live in a small world and how you treat employees as they walk out the door can impact the reputation of both you and the company for a long time to come.

The litigious nature of the United States and common decency still demand that you follow certain protocols when you fire someone. Most employers know that terminations should be handled carefully. However, mistakes in the termination process, even by well-intended employers can, and frequently do, contribute to unnecessary, protracted and expensive litigation. The termination process requires advance planning and professional implementation. Given this, employers should handle terminations in a very discreet and compassionate manner in order to reduce the risk of litigation.

There are several steps you can take to fulfill your legal obligations to terminated employees and avoid escalating any hostilities over the firing. Following the right process can ease the stress of the situation, and help to ensure that you don't end up with a wrongful termination case.

Here are some guidelines that will ease the trouble of letting some employees go.

DOS:

• Do first, understand the details about the employee's performance upon which your decision is based.
• Do Offer Healthcare. Losing your job is a stressful time for anyone and the thought of not having healthcare can add considerable anxiety to employees.
• Do try to preserve an employee's dignity. It's natural for a person being fired to feel resentment toward you and your business. So, everything you do in a termination meeting should be designed to minimize, as much as possible, this natural resentment.
• Do set up a proper termination meeting. You'll want to conduct the meeting out of sight and earshot of any other employees, in a quiet place where you won't be interrupted. The meeting room should be in a location that does not alert other people as to what is taking place.
• Do get to the point. If employees still don't have an idea that you are going to fire them it is better to let them know within 30 seconds of the beginning of the discussion.
• Do show empathy for the employee. As a moral person your duty is to show empathy for the employee who is leaving. Some will reach acceptance immediately. Others might cry. Some might get angry. Your actions will be noted and judged whether you like it or not, and your actions in this situation can have some long-term consequences about how others perceive you, as well as other more practical consequences like litigation.
• Do make a plan for all work in progress. Once the employee you fired is gone, there will invariably be team work, clients and projects that need to be dealt with. As you piece together your firing strategy, make sure there are no gaps in productivity and that you keep your employees motivated.
• Do consider paying the employee some type of severance pay. Maybe the dismissed employee still needs some help in moving forward with things in his life for some reasonable period.
• Do review the decision to terminate.
• Do explain the cause of being fired. Even if the state allows employees to be fired at will, still it is best when you explain the cause and escape the possibility of a lawsuit. You don't have to spend a lot of time going over every last detail of the employee's conduct that led to the discharge, but you should provide a reasonable explanation.
• Do Select the Right people to meet with the Employee. When you are conducting the final meeting, it is preferable to have another person in the room with you. Doing so helps prevent any, "he said, she said" situations.
• Do treat the terminated employee fairly and respectfully.
• Have a plan in place for terminating employees. Everyone coming to work for you will someday have to be terminated. If you have this attitude, one of being prepared "in case" you have to terminate someone at any time, you'll most likely take the time to have a plan in place for terminating employees.
• Do offer guidance to the employee in transition. Agree to provide good references to solid employees who leave the company. If you have a close relationship with the employee, offer to make some phone calls on their behalf and check in with them periodically.
• Do the firing in a private place. Don't make them "walk the gauntlet" past co-workers. You can use your office, or a closet with good lighting. Just be sure it is somewhere comfortable.
• Do offer to answer the employee's questions. Let the employee know you're happy to help with information about benefits, severance if applicable, or other logistical concerns.
• Conduct the termination face to face. Even if your call isn't being recorded, you should not terminate an employee on the phone. Instead, make plans to have a conversation in person, even if this is inconvenient for you. The employee that is getting fired deserves a face to face meeting so they can ask any questions they may have.
• Consider consulting with legal counsel before doing the termination. Employment attorneys can quickly assess whether or not the employer is in a defensive position to argue cause and if not, the elements of a reasonable separation package.
• Do calculate wages that will be due for the performed work.
• Be professional. Have everything ready and in order, and move smoothly from one part of the meeting to the next. Be organized and follow a script if possible. Have all paperwork ready to sign, a check for the employee if appropriate, and all logistical elements in line ready to go.
• Do read the employment contract. If you have a written employment contract, then this contract should be reviewed before dismissing the employee. If the contract is well drafted, it should contain a termination clause which defines and limits your liability for severance to the dismissed employee.
• Consider writing a reference letter. With this you will help your employee to find new employment. This is not only good for the employee, but will also benefit the former employer as it will significantly diminish the risk of the employee bringing any legal claims against you.
• Ensure that only those who need to know about the termination are informed. News of a looming termination should not be leaked to the affected employee or any other employees in the organization.
• Do allow employee to pack up belongings in privacy. Employers should arrange for a trusted manager or human resources staff person to meet the employee after hours. Do not force the employee to pack up his or her belongings in front of other staff members.
• Do calculate how long will the meeting last. The purpose of this meeting is to inform the employee of the decision, not to debate it or review it. If the basic information is prepared in advance, including written materials, then the job can be done in a relatively short period of time.
• Do let your employee respond. Let the employee speak their mind. Acknowledge any valid points and tell the employee that you appreciate their input and candidness.
• Do end on a positive note. Thank the employee for their contributions and wish them luck in the future. When you finish, stand up and shake their hand.
• Do inform the employee of any rights or entitlements that they may have coming.
• Do make it clear that the decision is final. If you take the position that the decision has already been made, all alternatives have been considered, and all the other managers or owners are in agreement and that you are merely giving this information to the worker, you'll find it easier to keep your cool and keep control of the situation.
• Do collect company possessions from the employee. You'll need to collect any keys, cell phones, company car, company credit cards, or any other property belonging to you from the employee.

DONTS:

• Don't terminate an employee on the spot unless the actions are so bad that they require immediate removal from the workplace, such as violence against others.
• Don't worry about being the bad guy. As a manager, your duty is to ensure that the employees are performing their duties accordingly and when you decide that some of them are not doing their job you should react to the benefit of the company.
• Don't do it on the phone. Even if your call isn't being recorded, you should not terminate an employee on the phone. Instead, make plans to have a conversation in person, even if this is inconvenient for you.
• Don't blame others for your decision.
• Don't prolong the termination. Begin the conversation with the situation and clearly state the employee is being let go immediately. Also, make eye contact to show your conviction in the situation.
• Don't send somebody else to terminate the employee you have hired.
• Don't lie. Lies get you in trouble. The person being fired will see right through you and will begin to think about ways he can make you pay for being dishonest. Don't lie to the employee about why you're firing him or her in order to save feelings.
• Don't get into an argument. If the employee requires explanation, fine. But don't debate the issues as that only opens you up to more lawsuits.
• Don't go into a termination meeting without knowing what you are going to say. Allow approximately 15 minutes for the meeting, and have an opening statement prepared that will set the tone for the meeting, briefly explain the reasons for the termination, and the effective date.
• Don't withhold money from their paycheck. You cannot withhold money owed the company from an employee's final paycheck. If an employee owes the company money, consult your employment attorney.
• Don't make promises you can't keep. Don't tell an exiting employee, you'll be happy to provide them a reference when in good consciousness, you know you cannot.
• Don't violate laws. Firing someone for going on maternity leave, military duty or whistle-blowing can only bring you a lawsuit. Familiarize yourself with the laws and make sure you're not leaving the door open for a discrimination suit.
• Don't do this where others can overhear your conversation. Reserve a conference room so you can have a private conversation, even if this means delaying the firing a day or two.
• Don't do it alone. Have a second management person come in and take notes, so you can focus on the conversation. Respect the privacy and confidentiality of everyone involved by meeting in a private area. This gives you an individual who hears and participates in the employment termination in addition to the manager. This person can also help pick up the slack if the hiring manager runs out of words or is unsure what to say or do next.
• Don't Fire Without warning. Unless an immediate, egregious act occurs, the employee should experience coaching and performance feedback over time. Before you fire an employee, try to determine what is causing the employee to fail.
• Don't tell anyone about the termination unless it is on a "need to know" basis. Other employees can spread the gossip and you don't want the person about to be terminated to find out before you get the chance to deliver the news yourself.
• Don't e-mail or text the news. As hard as it may be to deliver it, give the person the respect of doing it in person. Also, terminations via e-mail can be a huge PR nightmare.
• Don't make people sign documents they are not ready and comfortable to sign.
• Don't let the employee believe that the decision is not final. Hopefully, you thought long and hard before scheduling the termination meeting. You have your reasons, if you choose to provide them, reasonably articulated, and a coworker on hand to support you. In fact, tell the employee that the purpose of the meeting is to inform her of your decision, which is final. This is kinder than misleading the employee.
• Don't do it in front of the entire company. As bad as it makes the employee that is being fired publicly look, screaming at them that they've got ten minutes to get off the premises in front of your entire staff actually makes you look even worse.
• Don't give access to the Information system to the employee you have fired.
• Don't take it personally. Don't consider yourself a bad manager, you tried your best to work with them letting them go is simply the last resort. Ultimately, it is not your fault, but theirs.
• Don't make that plan with other employees.
• Don't rush through the terminating meeting.
• Don't make the reasons up to avoid looking bad. If it's a cost-cutting measure, tell the employee that. But if it's just a case of them not being a fit, disguising a firing as a layoff is just plain unethical.
• Don't allow the employee to leave with company property in his possession. Ask the employee to hand over his key, door pass, badge, smart phone, laptop, tablet and any other company-owned equipment or supplies during the termination meeting.
• Don't require from the employee to sign a release for a termination package on the day you fired him. A terminated employee should be allowed at least a full week to consider a termination package, as this gives the employee an opportunity to review the package with his or her lawyer and/or financial advisor.
• Don't interrupt, contradict or try to defend yourself or the company. Arguing will only create resentment and frustration on the part of the employee.
• Don't fire an employee without a checklist in hand. This keeps you organized and on track when you need to fire an employee. The employment termination checklist ensures that you cover all appropriate topics during what can be a stressful meeting for all participants.
• Don't go into details. You don't need to go into too much detail, but simply state "You're being fired for coming to work smelling like onions," and move on with it.
• Don't offer help in finding them new workplace.
• Don't fire anyone on Friday or right before a holiday. Maybe the fired employee will need support from any support service and they are closed on weekends and holidays. Also, being terminated earlier in the week allows the person to get a jump-start on finding a new job.
• Don't overreact and fire an employee in the excitement of the moment.
• Don't apologize, you can only express regret that the employment didn't work out.
• Don't take responsibility for the failure. You may want to simply express regret that the opportunity did not work out.

CONCLUSION
Firing an employee is never an easy thing to do, you must carefully plan all the important things ahead and keep in mind the DO'S and DONT'S we mentioned here. Keep everything professional and don't let your negligence bring you a lawsuit. Consult with a lawyer and take a look at the procedure before terminating an employee's work contract. The actions you take really do matter to the employee who is being fired and to the coworkers who will learn quickly that the employee is gone.

Marc Aaron Goldbach has devoted his nearly 25 years of experience in employment law and had fought many cases aggressively and exclusively for employees in wrongful termination, discrimination, whistleblower, sexual harassment, maternity or medical leave and unfair labor.
If you feel you have a few claims to make against your employer or employee, then the best thing to do is to contact him at (562) 216-8296/ (562) 696-0582 or schedule online appointment at: http://www.goldbachlaw.com/long-beach/employment-lawyer/

Do You Need An Employment Lawyer?

An employment lawyer is a legal representative who specializes in employment-related cases. If you believe that you have been wrongfully terminated, sexually harassed, treated unfairly and discriminated against, an employment attorney can guide you in your rights as an employee.

In addition to this, employment advocates often handle labor-related disputes, including issues regarding financial discrimination, worker's compensation, wages, and other types of injustices. So if you have recently been a victim of such discrimination or injustice, you should immediately contact a competent employment attorney. The lawyer will advise you in such a situation. Also, he or she will defend you at the court of law. Furthermore, he/she will handle all the paperwork and present arguments in your favor to win the case.

Does an Employer Need an Employment Lawyer?

As an employer, you also need the services of an attorney. While it is the responsibility of the employer to handle most of the employment issues, some matters are quite tricky and difficult to deal with. Thus, you will need the help of a lawyer conversant with matters employment. An employment attorney helps you stay abreast of changing labour laws, which may be difficult for you to understand or interpret in your own. He or she can review any agreements you entered with your employees, such as severance agreements and employment contracts.

He/she can review personnel policies or employee handbook to ensure legal compliance. In addition to this, a lawyer protects you against violating laws pertaining to occupational safety & health, pay checks, family leave and overtime pay just to name but a few. An employment advocate can also advise you when it comes to making critical decisions such as whether dismissing an employee is lawful and what steps you can take to reduce the risk of a potential lawsuit.

An Employment lawyer will offer you the best defense against the injustice done to you. Whether it is a case of harassment by the employer or a case of worker's discrimination, a competent and experienced lawyer will be able to defend you in the most professional manner.

Such a legal expert may also represent you to negotiate for compensation amount because if you don't hire his services you might get cheated by the employer. For example, an employer might trick you to get less compensation than you deserve.

When Is the Best Time to Contact an Employment attorney?

Many claims pertaining to employment law have deadlines or time limits often known as 'statutes of limitations'. That is why it is always recommended to file your case sooner rather than later. Even so, it is very important to choose an experienced and competent lawyer to represent you.

Things to Consider

There are several things to be considered when choosing an employment advocate. These include time involved, cost, location, etc. A lawyer can be found through referral services provided through various professional law associations or through friends and family. Information is also available through search engines on the internet or through the Yellow Pages. You can check advertisements of employment lawyers in newspapers and magazines.

So, you can see that there is a great deal of benefits of hiring an experienced employment attorney. If you feel you have a few claims to make against your employer or employee, then the best thing to do is to contact an employment lawyer in your area to discuss the issues. By Norah Achayo Amboko

Fair Labor Standards Act - What Employers Need to Know

The Fair Labor Standards Act (FLSA) of 1938 is key piece of compensation legislation. Although FLSA has been around for a long time, it is the most frequently violated employment law. Employers misclassify employees as exempt or fail to calculate working time accurately. Misclassifications can result in severe back pay issues. Calculating overtime incorrectly can often result in overpayments or underpayments.

Violations can not only hurt companies financially, but damage reputations as well.

FLSA cases have hit a new record high and continue to rise. A record breaking 8,126 FLSA suits were filed in federal courts in the last year. All in all, there has been an increase of over 400% since the year 2000. Employers have to be conversant with the intricacies of the law to avoid lawsuits.

What is Fair Labor Standards Act (FLSA)?

Fair Labor Standards Act (FLSA) is a federal law which establishes minimum wage, overtime pay, record keeping, and youth employment standards. FLSA is administered and enforced by Wage and Hour division of U.S. Dept. of Labor. FLSA has three major objectives. These are:

· To fix a minimum wage below which employees pay cannot fall.

· To encourage full employment by establishing a maximum number of hours employees can work before an employer must pay an overtime premium.

· To safeguard child workers.

There are a number of employment practices which the FLSA does not regulate. These include:

· vacation, holiday, severance, or sick pay

· meal or rest periods, holidays off, or vacations

· premium pay for weekend or holiday work

· pay raises or fringe benefits

· a discharge notice, reason for discharge, or immediate payment of final wages to terminated employees

Scope of FLSA

FLSA provides two different types of coverage:

Enterprise Coverage

If an enterprise is covered, all employees of the enterprise are entitled to FLSA protections. Generally, enterprises with at least two employees or those that generate business of at least $500,000 a year are covered. Hospitals, businesses providing medical or nursing care for residents, schools, preschools and all kinds of government agencies are also covered under the Act.

Individual Coverage

Even if the enterprise is not covered, individual employees may be covered and are entitled to FLSA protections. In case of individual coverage, FLSA covers workers who are engaged in:

· Interstate commerce

· Production of goods for commerce

· Closely related process or occupation directly essential to such production (CRADE)

· Domestic service

Individuals working for small construction companies and independently owned retail or service businesses are usually not covered by FLSA.

FLSA Requirements

The FLSA is a basic regulation that focuses on many areas - from minimum wage to overtime to rules about exempt and non-exempt classifications to child labor and recordkeeping. The basic requirements under FLSA include:

· Minimum wage

· Overtime pay

· Record keeping

· Child labor restrictions/youth employment

Minimum Wage Requirements

FLSA requires that covered, non-exempt employees must be paid not less than federal minimum wage for all hours worked. Under FLSA the federal minimum wage is $7.25 per hour effective July 24, 2009. Minimum wage includes the following payments/allowances:

· Wages

· Commissions

· Certain bonuses

· Tips received by eligible employees

· Reasonable cost of room, board and other "facilities" provided by the employer for the employee's benefit

Overtime Pay Requirements

FLSA defines overtime as time worked beyond prescribed hours. Covered, non-exempt employees must receive one and a half times the regular rate of pay for all hours worked over forty in a workweek.

Hours Worked and its Components

Hours worked include all the time during which an employee is required to be on the employer's premises, on duty, or at a prescribed workplace. The main components of hours worked include:

· Suffer or permit to work

· Waiting time

· Travel time

· On-call time

· Training time

· Sleep time

Record Keeping Requirements

Every employer covered by FLSA must maintain certain records for each covered, nonexempt worker. Here is a list of basic records that an employer must maintain:

· Employee's full name and social security number.

· Address, including zip code.

· Birth date, if younger than 19.

· Sex and occupation.

· Time and day of week when employee's workweek begins.

· Hours worked each day.

· Total hours worked each workweek.

· Basis on which employee's wages are paid.

· Regular hourly pay rate.

· Total daily or weekly straight-time earnings.

· Total overtime earnings for the workweek.

· All additions to or deductions from the employee's wages.

· Total wages paid each pay period.

· Date of payment and the pay period covered by the payment.

Each employer must retain payroll records, collective bargaining agreements, sales and purchase records for at least three years. Wage computation records should be retained for two years. This includes time cards and piece work tickets, wage rate tables, work and time schedules, and records of additions to or deductions from wages.

Child Labor Rules

Child labor provisions under FLSA are designed to protect the educational opportunities of minors. These provisions:

• Prohibit youth employment in jobs that are detrimental to their health and safety

• Restrict hours that those under 16 years of age can work

• List hazardous occupations too dangerous for young workers to perform

FLSA Minimum Wage and Overtime Exemptions

The most common FLSA minimum wage and overtime exemptions, often called "white collar" exemptions, applies to certain:

· Executive Employees

· Administrative Employees

· Professional Employees

· Outside Sales Employees

· Computer Employees

Avoiding FLSA Pitfalls

Wage and hour claims are increasing rapidly. Misclassification of employees is one major area that U.S. Dept. of Labor is clamping down on. The second area that is being investigated is improper payment of overtime. Mistakes in classification and overtime pay can result in major settlements including back pay, payment of fines, and reclassification. So employers should remain compliant with FLSA guidelines and avoid following pitfalls in wage and overtime calculations:

· Improperly applying an exemption.

· Failing to pay for all the hours an employee is suffered or permitted to work.

· Limiting the number of hours employees are allowed to record.

· Failing to include all pay required to be included in calculating the regular rate for overtime.

· Making improper deductions from wages that cut into required minimum wage or overtime.

· Failing to add all hours worked in separate establishments for the same employer when calculating overtime due.

· Treating an employee as an independent contractor.

This article is written by a regulatory expert at ComplianceOnline. ComplianceOnline is a Palo Alto-based leading provider of trainings, consulting and advisory services in the Governance, Risk and Compliance space. We also offer customized training courses developed in conjunction with organizations that wish to train large groups of their employees. For more information, please visit www.complianceonline.com

Discrimination and Employment Law

Many people with Epilepsy complete a good education and go on to have a productive career. This can be in many areas. This depends on the person, their condition, circumstance's and of course their motivation. People with Epilepsy can work in many different occupations, but this is sometimes limited due to safety or the ability to drive.

Employers may give reasons for not hiring a person with Epilepsy. These may be the likes of your safety and the safety of others, the company's liabilities, concerns you won't perform and your ability to deal with the public. Producing an income is important for many reasons, such as self-esteem and supporting yourself and a family. Many people with Epilepsy work and positions are initially open to people with the condition.

Overall, there is no difference in job performance and productivity between workers with Epilepsy and others. Studies have shown that behavior, productivity of employees with Epilepsy is as good as or better than others. Accident rates are lower!! This comes from a motivation to work hard and prove that they are worthy of the workplace.

Should they tell their employer?

That's a difficult decision, really up to the person seeking employment. Will your Epilepsy have an effect on your employment? If your employer and work mates know about your Epilepsy, it is easily understood. If they do not want to hire you because of your Epilepsy, maybe they wouldn't have been the best person to work for. Does your employment require a driver's license, or is it just about getting to work each day.

There is always public transport, friends and work mates. So much with Epilepsy comes back to fear of the word EPILEPSY, or a general misunderstanding. 95% of the time things may be just fine. That depends on how severe your Epilepsy is and what type you have. But, if you have found an employer that can see past that small part of you, you're on your way to employment. If you have the qualifications, skills, and experience your on your way. If you're a hard worker with a good attitude, you are headed in the right direction.

An employer will generally ask about your health, so that is a good time to mention Epilepsy. Everyone is a health risk in some ways. Anyone could have a heart attack at any time. There is no warning of that, just like there is sometimes no warning of a seizure. But, everyone you are working with can know you have Epilepsy.

Epilepsy - Let's talk About It!! Be Positive!!
http://www.positiveepilepsy.com

What Is A Class Action Lawsuit?

At some point in your life, you have probably received in the mail a notice from the courts stating that you are a member of a class action lawsuit and now you want to know what that all means. What should you do? What are the pros and cons to taking action? Where can you learn more about the process to make a better decision? If you are like most people, if you don't know what to do you simply file the notice in the trash can and forget about it. This may not be the best solution however. In this article, I will share with you the various options that you have and the things that you should consider.

The whole idea behind class action lawsuits is to provide a pathway for the normal person to be able to stand up to the largest corporate or private businesses who have legal associates galore, so that you can have an opportunity to correct the wrongs that have been done to you by the big conglomerates. It is important to remember that even though the actual damage or cost to you specifically is small, the illegitimate increase to the corporate entity can be enormous if done to hundreds or even hundreds of thousands of people or class members. With this in mind, you should think twice before tossing that notice the next time, while it probably won't make you rich, it may make a difference in how corporations treat people in general.

How A Class Action Suit Works (Thanks to Diamond McCarthy LLP for their input)

You come home from a long day at work and check your bills, investments, property, etc and discover that something isn't quite right. You pickup the phone and call the business where the error was made and inquire about when they can correct the matter. You get nothing but flack. They refuse to take ownership of the problem. After hours on the phone you get nowhere. You're not only frustrated, but angry, and you share your plight with friends, at the office, everywhere you go and it doesn't take you long to discover that you aren't the first person to face this problem and most likely, won't be the last.

You decide to hire an attorney, take legal action to get the company to correct the problem. But there is no response. Your attorney does a little research of his own, he finds more people who have been wronged, and files suit for everyone with the court. Your attorney now starts taking depositions, recording grievances, and asks that the court certify the case as a class action so that everyone in the same predicament can resolve their issue. The court agrees and certifies the case. And low and behold, you now have a class action lawsuit.

The court then states that each person involved needs to be sent a letter or notified that they have a right to file action at the same time as everyone else. Each person needs to be notified so that they can have their say and receive the same resolution as everyone else involved in the case. This is the place where everyone, rich and poor alike, including the person or persons who bring the claim, are treated equally. What this means, is that everyone, all class members, are supposed to have equal input, rights to any money or resolution ordered by the court, and so forth.

Mailed Notices

In most cases, there are several notices mailed to class members over the course of the case. The first notice is to inform you of what is going on as well as providing you with an option to opt-out or choose not to be a participant in the case and not be represented by the party who established this case and is sending you the notice.

If you choose to opt out, then you have no further rights in the case. You have two choices before you then, either let the matter go entirely or bring your own case before the court. However, neither of those choices will give you claim to any money that is garnered from the original case.

If you do not opt out, you are considered part of the case, are stuck with the settlement that is allotted, and prohibited in taking any further action on the matter. If for some reason you don't receive a notice, you have no idea what is going on, well, it sucks to be you, because the court just has to make "the best notice practical under the circumstances', if the opt-out date passes, you are considered in and bound by the courts decision. The case proceeds, sometimes for years. If you never received notice, you will probably never know about any money or other resolutions that you could have received.

At some point in time, all parties will either reach a settlement, which is presented to the court for its approval as to fairness, etc..., or the case is tried and the judge makes the decision.

In most circumstances, cases are resolved or settled by agreement by the parties and approved as being fair and equitable by the court. Both sides do a little give-and-take before resolving.

If the judge decision is in favor of the business or corporation, then, it's over and you and all of the class members are stopped from pursuing any further action on the same complaint.

However, if you win and the class members win, then the judge decides the damages, orders the company to make restitution, and orders notice is given where claim to the "pot" can be made. The "pot" can also be split according to a formula, which the court decides.

In either event, it's over and justice is done. Either the company is proven blameless, the wrong is corrected, restitution made, and errors on the part of the company are never committed again.

Brenda Segna

What Is An Advanced Medical Directive?

Like many of you before my grandfather became ill I often questioned, what is an advanced medical directive? At 87 years-old my grandfather needed opened heart surgery. Our family was torn between what was the right avenue to take, how much should we do for him and when was it time to let him go. We soon learned that an advanced medical directive is a living will.

For my grandfather, the living will outlined his wishes in the event that he was struck by a terminal illness or was unconscious, incapable of making a decision for his health care. A basic advanced medical directive gave detailed instructions to family members for his wishes if specific situations arose. For instance, should prolonged life-sustaining procedures be pursued at this time? The patient can direct their physician to withhold or withdraw life-sustaining procedures that will simply prolong death which is inevitable regardless of the treatment and the procedures are not necessary for the patient's comfort or relief of pain.

Most directives mandate that the maker outline which procedures they want withheld and under what conditions of terminal illness or unconsciousness they would want medical services stopped. And would they like to donate their organs. The following is a common list of procedures for most medical directives that a person would need to accept or decline:

• Intravenous supplied hydration
• Feeding tube supplied for food
• Surgery
• CPR
• Drugs-antibiotics or pain relievers
• Dialysis
• Chemotherapy
• Being placed on a ventilator

An Advance Medical Directive allows the maker to refuse or accept life-sustaining treatment in any situation. Unlike a living will, a directive can be used to state your wishes about your health care in any situation in which you are unable to make your own decisions, not just when you are in a coma or are terminally ill. In addition, this signed piece of paper allows you to choose someone you trust to speak for you when you are incapacitated.

Preparing this directive affords you the luxury of choosing someone that you are comfortable with to insure that your decisions are followed to the letter if you are incapacitated. You can also visit before hand with the person that you choose and clearly state your wishes. If you don't believe in receiving blood products, then make this clear to the person you have chosen, tell them under no circumstances do you want any blood products.

The whole purpose of this directive is to give the maker complete control over their life while they are capable of making decisions and choices. It is simply a map for the person the maker chooses to place in charge of their health care should the need arise. It guides the decision person to follow the maker's wishes.

And the nice thing is that you don't need a separate living will if you have already made your wishes known about life-sustaining treatment in your Advanced Medical Directive. Most states will also recognize an Advanced Medical Directive no matter where it originates from. Hospitals will require your signed directive upon admittance. I will never question again what is an advanced medical directive, but I will always be thankful that my grandfather had one. It simply meant that we did not have to worry about making any decisions. My grandfather already had and we knew that we were doing what he wanted. It lifted the burden off our shoulders.

Brenda Segna

What is Texas Appellate Law?

The following is an overview of the Texas appellate law as well as the Fifth Circuit appellate law. Every step of an appeals process can involve numerous and complex issues or they can be resolved rather simply. The following overview is intended to be simply that, an overview.

In Texas courts a decision by a district judge can be appealed to the Court of Appeals and then to the Texas Supreme Court. If a case is in federal court, a decision by the federal district court can be appealed to the 5th Circuit and then the United States Supreme Court.

All cases begin in a trial court, before they ever reach an appellate court. The trial judge has the ability to dismiss the case on the pleadings early in the litigation as well as dismissing it after a summary judgment motion well into the litigation. The case has the potential of being tried before a judge or a jury and a final judgment could be entered after a full trial. And in some cases, the trial judge will enter a judgment that is different than the jury's verdict. But at some point, the proceedings in the trial court will come to an end. And at that point, a party unhappy with the outcome, typically the losing side, but sometimes even the winning side, has the opportunity to appeal.

An appeal is placed in motion with the filing of the notice of appeal in the trial court. The party appealing, which is referred to as the appellant, must also designate an appellate record. The appellate record consists of materials from the trial court that the appellant would like to present to the appellate court and use in appeal.

Appellate Panel and Oral Argument

An appellate panel decides appeals. The Texas Court of Appeal and the Fifth Circuit decides cases in three-judge panels. These judges are chosen randomly from the pool of available appellate judges on the courts. In appeals to state supreme courts and the U.S. Supreme Court, the entire court usually hears the appeal. State supreme courts typically have seven justices, and the U.S. Supreme Court has nine justices.

Once the briefing is completed, the appellate court will hear oral argument. The time between the close of briefing and oral argument varies tremendously between different courts. The Texas Courts of Appeal typically will set oral argument a few months after the close of briefing; the Fifth Circuit often takes well over a year to set oral argument. The Fifth Circuit, however, often decides cases without oral argument.

The oral argument in the Texas Court of Appeal is at most 30 minutes and is usually about 5 - 15 minutes. The Fifth Circuit usually sets oral argument at 10 minutes, but sometimes 20 minutes. By the time of oral argument, the judges on most appellate courts will have read the briefs, had at least one of their research attorneys or clerks prepare a bench memorandum discussing the issues, and often discussed it among themselves.

The lawyers at oral argument usually focus on just the most important aspects of their case, and the judges will frequently ask questions. This is not the time to reargue the entire case.

At the close of oral argument the case is submitted to the appellate court for a decision.

Briefing

In a standard appeal process, the parties will file a total of three briefs with the court.

The appellant begins with the 'opening brief.' The appellant's opening brief will explain the facts and procedural history of the case, and then explain what went wrong in the trial court and why the appellate court should reverse the earlier decision.

Next, the non-appelling party, who is called the appellee, will file a responsive brief. In this brief, the appellee or respondent basically explains the facts and the procedural history of the case and then argues why the trial court reached the right result and why the appellate court should not reverse the decision.

Finally, the appellate can file a reply brief. In this brief, the appellant has the opportunity to argue why the respondent's claims are wrong. However, the appellant may not make any new legal argument in the reply brief; the appellate can only "reply" to the respondent.

All briefs must contain proper citations to legal authorities (cases, statutes, etc.) and proper citations to the appellate record.

Standards of Appellate Review

An appeal does not mean that a new trial has been granted. The appellate courts do not retry cases or hear new evidence, they do not even hear new legal arguments. Instead, appellate courts review what occurred in the trial court to see if the proper procedures have been followed and the proper law has been applied. Because of the restricted nature of this review, the issues that are raised on appeal are normally significantly different from those that are raised at trial.

In most cases, the appellate court will turn to the trial court or jury on factual issues. However, the appellate court determines and decides the definition of the law. On issues of law, the interpretation of prior case law, or a statute, or the Constitution, the appellate court will not defer to the trial court but will instead independently decide the issue.On an appeal if there is a pre-trial dismissal after a summary judgment motion or a demurrer, in most of these situations, the appellate court will review the materials and independently decide whether the case should have been dismissed or whether it should have been allowed to go to trial.On an appeal from a judgment after a trial, the appellate court will reverse the judgment only if it finds the trial court committed legal errors that were prejudicial which means the outcome would have been different during the trial. It should be noted that minor legal errors are normally not reason enough for a reversal. This rule is often referred to as the harmless error rule.

Decision

The appellate panel issues a written opinion which explains how it came to the decision that it did. Similar to the time between briefing and oral argument, the time between oral argument and the written decision can vary greatly between different courts. The Texas Court of Appeal has 90 days to issue an opinion, although they have the option of resubmitting the case and extending their time by 90 days. The Fifth Circuit has no deadline, and the time can vary tremendously.

If the appellate court deems it appropriate, the written opinion will be published in the official reports and will be binding authority for litigants in the future.

Rehearing by the Appellate Court

Any party that is dislikes or is disappointed with the opinion has a brief time window in which to request that the appellate court rehear the case. (When the time window closes, the appellate court loses jurisdiction to rehear the case.) Because of this, these petitions are almost never granted. If the arguments have already been made and considered, the court will more than likely not consider them again. And if the arguments have not already been made, the court probably won't consider new argument.

But, in very rare cases, the appellate court may have misunderstood the law or the applicable facts of the case. (Note: this is not the same as understanding but disagreeing with a party's claims about the law and the facts of the case.) If this is the situation, the appellate court has discretion to rehear the case.

Review by a Higher Court

A party who is dissatisfied with the results on appeal can also petition a higher appellate court to review the case. In Texas, this would be the Texas Supreme Court, and in the Fifth Circuit, it is the U.S. Supreme Court. (If a federal issue is involved, the U.S. Supreme Court can take cases from the Texas courts.)

With a few exceptions (like death penalty appeals), the Texas and U.S. Supreme Courts are not required to take any particular case; they choose what cases they will decide. The courts generally do not view themselves as simply providing a second layer of appellate review. Instead, they view themselves as insuring uniformity in the law in important issues. As a result, the Texas and U.S. Supreme Courts are likely to take cases where the lower courts have reached different conclusions on the same issue. They are not likely to take a case merely because the appellate court reached the wrong result.

Consequently, the petition asking the higher court to take review must be carefully drafted with this in mind.

Interlocutory Appeals and Appellate Writs

Most appeals involve cases that have been concluded in the trial court, but there are times when a party can appeal from a trial court order before the case is over. In the Fifth Circuit, these are called interlocutory appeals. In the Texas Court of Appeal, these are technically not appeals at all, but are original proceedings, called writ petitions, asking the Court of Appeal to issue an order (or writ) directing the trial court to modify one of its orders. The circumstances in which a party can file an interlocutory appeal or a petition for an appellate writ vary from court to court and are often very technical.

That defines what Texas Appellate Law is; I'd like to thank Diamond McCarthy LLP for taking the time to answer my questions as I wrote this piece. If you have further questions or inquiries you should speak with a lawyer in your area today or check with a law library in Texas.

Brenda Segna

Criminal Law Explained For Anyone

Criminal law is the set of rules that the government has decided on, setting forth acts that are considered dangerous to human life as opposed to civil law, which is generally less violent and dangerous. These would include threats of harm, bodily injury and lewd sexual acts. It determines not only the crime but also the punishment. In many cases, the punishment is decided upon in a way that fits the crime that was committed. In other cases, the punishment is already mandated by state or federal law. Civil matters and white collar crimes are handled by separate divisions.

The enforcement of these laws is done at the state level. At one time, both penal and civil law were considered together but today they are separate and distinct. Crimes of this violent and offensive nature are separated because they hold very serious consequences when the law is broken.

Each different type of crime has its own unique characteristics, elements that separate it from other crimes. The most serious of crimes will be punished by death or capital punishment. Physical punishment, like caning, has been prohibited in much of the world, although it is still practiced in some places.

Generally, even for these very serious crimes, the punishment is incarceration or jail time. The increments of time served in jail will depend on the crime and can be anywhere from an hour to a lifetime. The sentence will always depend on the crime.

Some judges will hand down a sentence that allows parole or probation. Parole is when the government allows a convicted felon to live outside the prison after they have served a satisfactory amount of time behind bars. They would then be on probation, which is the supervision that the government will keep over the ex-inmate until such time as they are deemed fit to live among normal society without being watched for criminal activities.

Many times there will be fines imposed for acts of crime. People can have their homes and property seized to pay for these fines, even if they are serving time in prison, as well.

There are five objectives to enforcing these laws. They are retribution, incapacitation, restitution, rehabilitation and deterrence. The main objective is left up to the differing opinions of the community governments and judges that pass down sentences. They will determine which one fits the particular situation. Retribution is usually the main objective. It stands for making the criminal pay for his actions. They have committed their crime and they must pay for it in some way. This is the eye for an eye effect.

Incapacitation is a goal for judges who need to keep this person away from everyone else so that they can no longer be a threat. This usually consists of jail time or death. Restitution is taking from them and giving to their victims or government, usually monetarily through fines. Rehabilitation is often encouraged in civil matters but it is generally accepted that violent criminals will have a difficult time with it. The final of these objectives of criminal law is deterrence. This can be done on an individual or group level. Deterrence focuses on imposing fees or other penalties on someone or a group of people in order to keep others from committing the same act.

A pardon [http://www.pardons.ca] is the forgiveness of a crime and the penalty associated with it. Find out how to obtain Canadian pardons [http://www.pardons.ca] and U.S. Entry Waivers.