Thursday, November 1, 2018

Workplace Retaliation

Workplace Retaliation

Workplace retaliation lawsuits have become increasingly more common and more expensive for employers. When employees file a complaint about discrimination or harassment in the workplace, it’s imperative that you, as an employer, take it very seriously and handle the complaint with special care. I’m telling you, not just as a Business Lawyer, but someone who’s seen these things happen over and over that, if the course of action you take is viewed as punishing the person for filing the complaint in any way, you may wind up facing a very expensive lawsuit.

What Qualifies as Retaliation

Retaliation is any adverse action that a company takes against an employee because he or she filed a complaint about harassment or discrimination. Adverse action can include actions such as firing the employee, giving them negative evaluations, disciplining or demoting them, reassigning them or reducing their pay.

Protection against retaliation doesn’t just apply to the person who filed the complaint, it also applies to anyone who participates in the investigation that arose from the complaint. This means that employees who are interviewed regarding a complaint cannot be retaliated against because they participated in the investigation.

The Truth of the Complaint Doesn’t Matter

What can be galling for many employers is that even if the original complaint of harassment or discrimination turns out to be baseless or even fabricated, the employer is still on the hook if they take any action that can be deemed retaliatory. Never take action that punishes someone for bringing a complaint because you think the claim is bogus or because you think the employee is simply lying — it doesn’t matter.

Unintentional Retaliation

Many employers fall into the trap of unintentionally retaliating against an employee. For example, suppose an employee complains to you that a supervisor constantly makes derogatory and sexist comments. Trying to be helpful, you think that it would be a good idea to move the employee to a different office while the claim is investigated. Even though you may have had good intentions – separating the employee from the alleged harasser, – if the reassignment is seen as retaliatory, then you would be liable for workplace retaliation.

The problem in the above example is that the complaining employee, not the alleged harasser, had his or her employment affected as a result of filing a complaint. If you want to take action to remedy the situation, then the focus needs to be on the wrongdoer, not the employee complaining. The problem isn’t fixed by removing the complainer; instead, the problem should be fixed by removing the cause.

How to Handle an Employee who has Complained

Although employers are allowed to discipline their employees, regardless of whether they’ve filed a complaint or not, it pays to be especially careful in how you discipline an employee who has filed a complaint. For example, suppose an employee filed a complaint about sexual harassment. When the employee receives a negative review two months later, even if the review had nothing to do with the sexual harassment complaint, the employee will often construe the review as retaliation.

Accordingly, if you are going to discipline or otherwise negatively affect the employee after he or she has filed a complaint, take special care to document your basis for disciplining the employee. Otherwise, in the absence of proof to the contrary, a court might be suspicious of the timing between the complaint and the subsequent disciplining of the employee.

Preventing Retaliation in Your Business

Preventing claims of retaliation in the workplace is surprisingly easy and doesn’t take much effort or time:

  • Create a Policy: Make sure you have a policy against retaliation already in place. The policy should specify what retaliation is, state that retaliation won’t be tolerated and set forth a process for reporting and investigating complaints.
  • Take Complaints Seriously: Take all complaints seriously and perform a thorough investigation. If the complaint has any basis, remedy the situation immediately. Remember to focus on the wrongdoer, not the employee who complained.
  • Keep Complaints Confidential: Make it clear to your employees that any complaints they file will be kept confidential and information will only be shared with members of the organization to assist in investigating the matter. Also, let employees know that filing a complaint will not in any way affect their career opportunities.
  • Keep Records: Have a process in place that records and documents everything, from the initial complaint, through the investigation and all the way to the conclusion. It is imperative that you document the process for any future legal proceedings.

Free Consultation with a Business Lawyer

If you are here, you probably have a business or employment law issue you need help with, call Ascent Law for your free workplace retaliation consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Wednesday, October 31, 2018

Child Custody for Babys

Child Custody for Babys

Resolving child custody and visitation issues is often a complicated process fraught with emotion, and perhaps never more so when a baby or an infant is involved. While the “best interests of the child” is the standard typically applied by judges in awarding custody, it may be less clear with infants who can and should be caring for them.

The ability to attach and bond to a caregiver is an important developmental milestone for babies that can affect their mental health for the rest of their lives. While mothers were once traditionally considered the best de facto caregivers, this has changed in recent years. Some states award custody on specific factors, while other states allow judges a wide berth in determining the crucial elements in determining custody.

For infants, this might include a mother who is breastfeeding or whether or not a parent can spend a generous amount a time with the baby. Fathers who can show that they have consistently cared for the infant may receive greater consideration than those with less involvement in their child’s life.

Demonstrating caregiving capability is essential in Child Custody Cases

Even if both parents can demonstrate that they have competently cared for an infant — including handling overnight care on a regular basis — judges may award custody based on the special needs of infants to have predictable schedules. Another consideration is ensuring that both parents have the necessary access and time to each bond with an infant, which may necessitate a schedule of visitation that alternates daily, or arranging for the child to be seen by a parent during the daytime even if it coincides with another parent’s primary parenting time.

Proposed Changes to State Custody Laws Strengthen Fathers’ Rights

For many years, fathers have argued for more parity in custody arrangements. But instead of making their case to a judge, they are now helping promote bills that would alter state laws pertaining to custody arrangements.

As recently reported by the Wall Street Journal, 20 states are currently considering legislation regarding shared parenting. The proposals call for judges to “maximize” time spent with each parent. In Utah and Washington State, the proposed law requires equal time among parents unless a judge deems it in the best interest of the child to rule otherwise.

Opponents of the bill are concerned that limiting the discretion of judges may not end up actually reflecting the true parenting needs of the child, which can be difficult to ascertain. Advocates worry that this will provide undue advantage to fathers who have been physically or emotionally abusive if a de facto time split is implemented. Additionally, they suggest that the laws primarily affect cases where parents are particularly hostile to one another and unable to sustain cooperative agreements without court intervention.

Those favoring the legislation point to studies that indicate that shared parenting responsibilities have been demonstrated to improve outcomes for children. They argue that without more time with their children they are not able to actually parent and supply those benefits two-parent children enjoy.

Although it is unlikely that all 20 bills will pass, advocates are hoping that passage of even just a handful of bills can be leveraged to continue promoting a movement toward shared parenting and more significant parental rights for fathers.

Free Consultation with a Child Custody Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will aggressively fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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When Do You Have to Go Through Probate?

When Do You Have to Go Through Probate

Leaving a will behind when you die is the responsible thing to do. But leaving a will, doesn’t always mean that there’s no need for probate. An estate may undergo formal probate for many reasons including when a will is contested, unclear, or invalid, or when the assets are held only in the deceased’s name. And when there’s no will, probate is often required to oversee the distribution of the deceased’s property.

As a general rule, you’ll want to avoid probate if possible. Unfortunately, there are situations where you don’t have a choice. Let’s explore those situations that determine when you have to go through probate.

When There’s A Will There’s Usually Probate

Determining if a will needs to go through probate depends on the laws of your state and the property you hold at death. Some states, such as Washington, do not require probate to be filed. Other states base the need for probate on the value of the estate. Common situation when you have to go through probate with a will include:

  • Will Contest: Disputes can arise because family members are unhappy with the deceased’s estate plan. Death can cause old family tensions to resurface causing disputes over insignificant family property. A beneficiary may contest the validity of a will’s construction. If someone who could take under the will protests the division of property, you must probate the will. All challenges are handled in probate court.
  • Value of the Estate: Smaller is better when it comes to probate. It’s common practice to allow estates falling below a predetermined value to avoid probate. In California, estates valued over $150,000, and that don’t qualify for any exemptions, must go to probate. In Oklahoma, a probate is required on an estate valued over $20,000.
  • Assets Held Only in Deceased’s Name: Probate is not just about distributing property. It also initiates the legal transfer of title to that property. If a person dies and owns real estate, regardless of value, either in his/her name alone or as a “tenant in common” with another, a probate proceeding is typically required to transfer the property. However, many states offer a quicker, less expensive probate-alternatives for transferring title to cars.

When There’s No Will You Really Need Probate

When a person dies without a will, they are said to have died “intestate”. The laws of the state where you reside will determine how your property is distributed upon your death. However, probate administration when there’s no will is similar to when there is one. When you die, your property is classified as either probate property or non-probate property.

  • Determining the Estate’s Heirs: If no Will exists, the property is divided among the person’s heirs. In California, if the person has a spouse and or children, the property first goes to them. If there is no spouse or children, the property goes to the person’s next nearest relatives. The laws of intestate succession are very state specific.
  • Transfer of Assets: When there is no will, probate is frequently required to determine the deceased owner’s probate assets, assess their value and distribute them to creditors and heirs. It’s not uncommon for property transferred under intestacy to be counter to what the deceased would have chosen if living. Probate transfer title to the heirs with the closest family relationship to the deceased. Special provisions, such as the small estate exemption, also apply to an estate without will.

Free Consultation with a Probate Lawyer

If you are here, you probably have a probate issue you need help with, call Ascent Law for your free probate consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Tuesday, October 30, 2018

At What Time of Year is Divorce Most Likely?

At What Time of Year is Divorce Most Likely

A recent study of divorce filings in Utah indicates there are two particular months out of the year at which divorce filings peak: March and August. But January and February are also higher than normal.

Researchers have presented a number of hypotheses as to why people are more likely to get divorced in these months. The most commonly accepted reason is that these months typically come after winter or summer holidays. Many couples might hope the holiday season in the winter or a big summer vacation will mend their relationship and allow them to get “back to normal,” but this mindset tends to lead to disappointment. Divorce is sometimes the logical next step.

In the study, researchers examined divorce filings in Washington between 2001 and 2015. filings steadily increased by about 33 percent from December to March. In Salt Lake County, for example, there was an average of 430 filings each December, with that number jumping to an average of 520 in March.  In Utah, in 2018, there are literally thousands of cases that have been filed.  In the Third District Court, there has been more than 6,000 family law cases.

The general consensus is that people make the decision to get divorced around the holidays in December and January, but then wait a couple of months to get their finances in order and consult a family law attorney before formally moving ahead. This would explain why the peak falls in March, rather than in January or December.

Researchers also noticed a spike of divorce filings in the month August. Researchers suspect that couples may be waiting until after their family vacations are over, or that they may wish to get the process started before their kids go back to school.

All of these seasonal divorce filing patterns were consistent with research performed in other states, and so these trends may very well be present nationwide.

Free Consultation with Divorce Lawyer

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Employer Responsibilities for Worker’s Compensation

Employer Responsibilities for Worker's Compensation

In most states, including Utah, employers are required to purchase insurance for their employees from a workers’ compensation insurance carrier. In some states, larger employers who are clearly solvent are allowed to self-insure, or act as their own insurance companies, while smaller companies (with fewer than three or four employees) are not required to carry workers’ compensation insurance at all. When a worker is injured, his or her claim is filed with the insurance company, or self-insuring employer, who pays medical and disability benefits according to a state-approved formula.

Unless they fall within limited, exempt categories, employers without workers’ compensation insurance are subject to fines, criminal prosecution, and civil liability.

Penalties for Not Having Worker’s Comp

Failure to provide workers’ compensation insurance coverage can result in:

  • Fines;
  • Criminal prosecution;
  • Personal liability of the employer for any workers’ compensation benefits due injured workers; and,
  • An employee’s exercising the option to sue the employer rather than file a compensation claim.

Duties of Employers

In addition to providing workers’ compensation coverage, in most states, employers must perform some, if not all, of the following duties:

  • Post a notice of compliance with workers’ compensation laws in a conspicuous place at each job site;
  • Provide immediate emergency medical treatment for employees who sustain on-the-job injuries;
  • Furnish further medical attention if an injured worker is unable to select a doctor or advises the employer in writing of a desire not to do so;
  • Complete a report of the injury and mail it to the nearest workers’ compensation board office. A copy of the report should also be mailed to the employer’s insurance company. An employer who refuses or neglects to make an injury report may be guilty of a misdemeanor, punishable by a fine;
  • Make a written report of every accident resulting in personal injury that causes a loss of time from regular duties beyond the working day or shift on which the accident occurred or that requires medical treatment beyond first aid or more than two treatments by a doctor or persons rendering first aid;
  • Comply with all requests for further information regarding injured workers by the workers’ compensation board or the insurance company, such as statements of the employee’s earnings before and after the accident, reports of the date of the employee’s return to work, or other reports that may be required to determine the employee’s work status following the injury.

Employer’s Duty Not to Retaliate

Employers often appear to frown on employees who file workers’ compensation benefit claims, and some blatantly discriminate against such employees.  To protect employees from employers who discriminate against, harass, or unjustly terminate injured employees, many states prohibit employers from punishing, discriminating against, or discharging employees who exercise their rights under workers’ compensation laws, and allow employees to bring civil actions against their employers for the tort of “retaliatory discharge.”

If an employee believes he or she has been discriminated against or discharged in retaliation for exercising rights under workers’ compensation laws, he or she may have a claim against his or her employer for retaliatory discharge.

Besides termination, retaliation may take the form of more subtle types of discriminatory treatment, such as demotion or salary reduction. Injured employees are protected from discriminatory conduct immediately after an injury and before a formal workers’ compensation claim is filed. An employee’s cause of action may be successful even though all the employee did was give notice to the employer of a claim.

Free Consultation with a Utah Employer Lawyer

If you are here, you probably have a business law or employment law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We help businesses and business owner navigate the law. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Monday, October 29, 2018

Can I Write My Own Divorce Settlement?

Can I Write My Own Divorce Settlement

In many situations, divorcing couples can reach agreements outside of court and resolve their issues without much need for mediation.

The answer to the question, can I write my own divorce settlement is yes, of course you can.  The problem is that if you do, you might forget something.  Or you may word it in such a way that has a different legal meaning than a common meaning.  Also, the court may reject it because its not done the way the court wants to see it done.  For this and many other reasons, you shouldn’t ever do it.

You do have the legal ability to write your own divorce settlement, but it is almost never advisable to do so. Many issues related to your divorce require a high level of knowledge about the practice area, which only an experienced family law attorney will have. Even if you do not retain an attorney for the entire divorce process, you should at the very least work with a lawyer to draft your divorce settlement agreement.

The forms you need to fill out

There are many divorce settlement forms you can find online, some of which will be adequate for your case, others of which will not. An attorney will be best positioned to determine which forms you need to fill out and what you need to include in them.

Settlement preparation

Before you begin the process of negotiating a settlement with your spouse, you need to be fully armed with all the pertinent facts surrounding your divorce, including a full list of assets and values, income and debt information and anything else that is financially relevant.

You will be much better prepared for the settlement process if you work with an attorney who has experience in handling divorce negotiations. The attorney will know exactly what information you need to gather, what types of initial offers are reasonable and how much you should be willing to compromise or negotiate from that initial offer. Without the assistance of an attorney, you risk ending up with a bad deal.

Written agreements

Once the time comes to write your settlement agreement, you could end up leaving legal loopholes in the document if you do not have the expertise needed to create a thorough agreement. Attorneys are highly skilled in creating these written agreements that capture all the most important details and do not leave anything up for debate.

Getting Through the Holidays as a Divorced Parent

Getting through the holidays as a divorced parent with children can be a struggle. However, if you can find the right balance in everything you do, this time of the year does not need to be so stressful. Below are a few tips to help you through the holidays:

  • Prepare for the challenge: Accept that it may be difficult to deal with the challenges of the holiday season, especially if you’ll be without your children for a few days. Getting yourself emotionally prepared ahead of time can help you stay collected when the holidays arrive.
  • Acknowledge your kids’ feelings: You are not the only one who is dealing with the emotional challenges of dividing time over the holidays. Your children are likely to have complicated emotions, as well. Have conversations with them ahead of time so they know what to expect over the holidays. Honestly answer any questions they have.
  • Be flexible: When dealing with the other parent, put your emotions aside as much as possible to find timesharing agreements that work for the two of you and are in the best interests of your kids.
  • Budget: You and the other parent should agree on a budget for holiday spending. Getting into a situation in which you are each trying to “outdo” the other in terms of gifts is unfair — especially to the children.
  • Establish new traditions: Although you can attempt to maintain old traditions as much as possible, it can be a lot of fun to find new ways to celebrate that will stand the test of time.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Military Leave Law

Military Leave Law

The Uniformed Services Employment and Reemployment Relief Act of 1994 (USERRA) provides job protection to workers who serve in the military, typically those in the National Guard or military reserves. More specifically, USERRA prohibits employers from engaging in discriminating acts against employees who serve in the military and provides eligible service members with job reinstatement rights upon completion of military service. The law applies to all employers, but does not require the employer to pay the employee during military leave.

Military Leave Eligibility

The right to reinstatement in a civilian job applies to individuals who voluntarily or involuntarily serve in the military, or who have served in the military. All employers are required to comply with the law, regardless of size. USERRA benefits apply to the following type of uniformed service:

  • Active duty, including Reserve and National Guard duty
  • Active duty for training
  • Initial active duty for training
  • Inactive duty for training
  • Full-time National Guard duty

Reemployment Eligibility

When a service member returns from military leave, the guarantee of reemployment in a civilian job applies if:

  • The employee gave the employer advanced written or verbal notice of military service or training
  • The employee’s cumulative military leave does not exceed 5 years
  • The employee was discharged under honorable conditions
  • The employee applied for reemployment within the specified time

The USERRA provides exceptions to the five-year limitation when certain situations apply. For instance, this limitation is inapplicable when the service member is unable to obtain a release from service, must participate in necessary training, or the service occurs during a time of war or a national emergency. Also, employers are required to make every effort to provide reasonable accommodations for military service members with disabilities.

There are limited instances where an employer is not required to rehire a military service member returning from active duty. These include the following:

  • Changes in the workplace make it impossible (or nearly so) to reinstate the employee
  • Reinstatement would create an undue hardship for the employer (in the context of a disability, this could be the unavailability of a reasonable accommodation)
  • Employment of service member was so brief that there should be no reasonable expectation to return

Military Leave Benefits

The law protects a service member’s job status, pay, and benefits as if he or she was not away at active duty. For example, the service member who leaves for six months of active duty should get the same pay raise as his or her non-military peers (assuming performance levels and seniority are equal). Upon reemployment, the employer must:

  • Count the employee’s military leave toward seniority status: The service member is entitled to increased pay, promotions, benefits, and pension vesting as if continuously employed.
  • Provide training: If the employee is not qualified for the reinstatement position, the employer must make “reasonable efforts” to qualify the employee.
  • Not discharge the employee without cause: The law prohibits an employer from discharging an employee for 180 days if service was for 31 to 180 days or for one year if service exceeded 180 days.
  • Offer immediate reinstatement of health insurance coverage: The employer cannot impose a waiting period on health insurance coverage for the employee and the previously covered dependents of the employee.

State Military Leave Protection

Many states have military leave laws that protect workers that serve in a state militia, the National Guard, or as a reservist. Laws vary by state, but most prohibit discrimination against employees that serve in the military and entitle the worker to unpaid leave. Laws typically also provide reinstatement rights and protect the worker’s benefits. For example, Washington state law prohibits employers from denying employment, reemployment (after taking a leave for active duty service) or employment benefits to servicemembers because of their military association and obligations.

Free Consultation with a Utah Business Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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