Lawyers.com Blog

Federal Disability Retirement & the Reconsideration Process

nospam@example.com (Robert R. McGill) — Fri, 10 Oct 2008 22:02:58 -0400

In the process of applying for Federal Disability retirement under FERS or CSRS, it is the "hope and wish" of each applicant that it will smoothly sail through at the initial stage of the application. However, the reality of the process is that a certain percentage of applications get denied at the initial stage (Stage 1 of the process). It is both discouraging and befuddling to receive a letter from the Office of Personnel Management informing you that your disability retirement application has been "denied". You are now required to Request Reconsideration of your case within thirty (30) days of the date of denial, and you must submit additional medical evidence or other supporting documentation within 30 days of requesting such reconsideration (Stage II of the process). It is, indeed, a time of disappointment to receive a denial. It is all the more so when it is unclear as to the basis for the denial. Often, a denial letter will refer to the medical evidence without much commentary beyond acknowledging the submission of a medical report, then in the last paragraph, simply make a declarative statement that the medical evidence submitted "was insufficient" to show that you are disabled. Or, more often than not, the OPM Benefits Specialist will actually mis-state the law by claiming that you have "not shown that you are so disabled as to keep you from the workplace" (no such legal standard is required under disability retirement rules, regulations or case-law). Whatever the reasons given, it is both discouraging and disheartening to receive a denial letter from OPM. However, it is important to calmly, systematically, and with pinpoint focus reply to the letter of denial -- even if it doesn't seem to make any sense. This is done most effectively by using all of the tools required in persuading eligibility and entitlement to disability retirement benefits: the law; the medical report; the medical records; rational and legal arguments --in short, the "nexus" needed to win.

Sincerely, Robert R. McGill, Esquire

President Signs Law Expanding Scope of Americans With Disabilities Act

nospam@example.com (Jonathan I. Nirenberg) — Fri, 10 Oct 2008 13:48:10 -0400

On September 26, 2008, President George W. Bush signed the ADA Amendments Act of 2008 (the ADAAA) into law. The ADAAA restores the original intent of the Americans with Disabilities Act of 1990 (the ADA), and is intended to increase protection for disabled employees from discrimination. The ADA is a federal employment law that prohibits discrimination against individuals with disabilities, both in the context of employment and places of public accommodation such as restaurants, hotels, theaters, doctors’ offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers. The ADA Amendments Act will go into effect on January 1, 2009.

On June 25, 2008,The United States House of Representatives overwhelmingly approved what was then called the ADA Amendments Act of 2008. The United States Senate then unanimously approved the ADAAA on September 11, 2008. The House of Representatives approved the Senate’s version of the ADAAA on September 17, 2008. Later that day, the White House released the following statement:

The Americans with Disabilities Act of 1990 is instrumental in allowing individuals with disabilities to fully participate in our economy and society, and the Administration supports efforts to enhance its protections. The Administration believes that the ADA Amendments Act of 2008, which has just passed Congress, is a step in that direction, and is encouraged by the improvements made to the bill during the legislative process. The President looks forward to signing the ADAAA into law.

The ADAAA was passed in response to the fact that courts, including the United States Supreme Court, have interpreted the ADA so narrowly that the vast majority of cases brought under it are dismissed, primarily because the individuals suing are unable to meet the statute's definition of "disability." The ADA Amendments Act reverses many of those cases. For example, it makes clear that:

The ADA provides broad coverage to protect anyone who faces discrimination on the basis of a disability, and it should be interpreted broadly.
An impairment is considered a disability if it substantially limits at least one major life activity, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.
An episodic impairment or an impairment in remission is still a disability if it substantially limits a major life activity when it is active.
It is improper to consider most “mitigating factors,” meaning measures such as medication, prosthetics, or other technology that reduce the impact of an impairment, when determining if an individual is disabled.
The ADA prohibits employers from discriminating against employees based on the employer’s perception that the employee has a disability, even if the employee does not actually have a disability.

The lawyers of the employment law and civil rights law firm of Resnick Nirenberg & Cash, P.C., are experienced at representing employees in New Jersey, New York State, and New York City whose employment law rights have been violated.

Continue reading "President Signs Law Expanding Scope of Americans With Disabilities Act"

On the Job Injury in Florida

nospam@example.com (Harvey D. Friedman) — Fri, 10 Oct 2008 13:36:07 -0400

After getting medical attention, with respect to an on-the-job injury, the most important thing is to make sure that the accident is reported formally, not just to another employee, but rather to the supervisor. Even if it makes you uncomfortable because of being afraid of jeopardizing your job, you must protect your rights by insisting that a formal report be made out. The law requires that a report be made within 30 days. Many times employees think they are reporting the accident, but since nothing is ever written, an employer later can deny that it was reported and if 30 days goes, the insurance carrier has a defense.

So to recap what you can do if you are a victim of a serious personal injury in Florida:

get the medical attention you need
make sure there is a formal WRITTEN report at your workplace
make sure the written report goes to your SUPERVISOR

Continue reading "On the Job Injury in Florida"

What You Should Bring to Your Initial Consultation With an Employment Lawyer

nospam@example.com (Jonathan I. Nirenberg) — Fri, 10 Oct 2008 13:34:46 -0400

If you have experienced workplace discrimination, harassment, or retaliation, a breach of your employment contract, or another violation of your employment law rights, you might want to meet with an experienced employment lawyer to discuss your employment law rights. But what should you bring to their your initial consultation with an employment lawyer? The answer varies depending on the type of case you have. For example, someone with a wrongful discharge case would probably want to bring different documents to the meeting than someone who is looking to enhance a severance offer. The following are some of the most important documents a client might want to bring to the first meeting with an employment lawyer.

Chronology or Timeline

In most cases, it is helpful to prepare a chronology or timeline of the relevant events for your employment lawyer. Generally, the chronology should be brief -- in most instances between 1 and 3 pages. It should list the most important events relating to your employment issue, and identify the names and job titles of the people involved in those events. When possible, the chronology should provide the dates of the key events, and ideally should be in chronological order.

Employment Contract or Offer letter

If you have a written employment contract or an offer letter, you should bring a copy of it to your initial consultation.

Employee Handbook

If you have a copy of your company’s employee handbook, or copies of relevant employment policies, you should also bring them with you because they are often relevant to employment law casess.

Key Documents Supporting Your Legal Claims

You should also bring the key documents that you believe support your legal claim. For example, in a sexual harassment case you should bring any documents that show that you were harassed, such as harassing emails, memos, or pictures. Likewise, in a discrimination case you should bring documents that help prove you have been the victim of unlawful discrimination.

Documents or Information About Your Economic Losses

If you have experienced an economic loss, such as lost salary, commissions, or bonuses in a wrongful termination case, you should bring documents or information that show your economic loss.

Severance Agreement

If you have been fired and were offered a severance agreement, then you should bring a copy of it with you to your initial consultation. You should also bring a copy of the company’s severance policy if you have it.

Anything Else You Think May be Helpful

It usually does not hurt to bring additional documents that you think will help your case, as long as you can find the most important documents, like the ones described above, relatively easily. However, that does not mean your lawyer will want or need to review those documents during your initial consultation. Remember, the purpose of the consultation is to get an overview and initial assessment of your case.

An Open Mind

Perhaps the most important thing to bring to an initial consultation with an employment lawyer is an open mind. For example, many clients go to an employment attorney wanting to sue right away. While that might be the right thing to do in some cases, there are often other options to consider before suing, such as trying to negotiate a severance package or exploring a settlement before suing.

Note: It usually is not a problem if you do not have some, or even any, of the documents listed above. While these documents can be helpful, you do not necessarily need any particular document to pursue an employment law case.

If you work in New York or New Jersey, then contact Resnick Nirenberg & Cash for more information about your employment law rights, or to schedule an initial consultation with an experience employment lawyer.

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When Can A Private Company Require Random Drug Testing in New Jersey?

nospam@example.com (Jonathan I. Nirenberg) — Fri, 10 Oct 2008 13:17:06 -0400

From the standpoint of employees, random drug testing policies can be invasive, offensive, and a violation of their right to privacy. For example, drug testing can reveal information about an employee’s medical condition or prescribed medication, even when the employer has no legitimate right to that information. In contrast, from the standpoint of a private company, random drug testing can be an effective tool to limit workplace accidents, theft, and poor job performance.

Given those competing interests, when determining whether a private company’s random drug testing policy is an impermissible invasion of privacy, New Jersey law requires a balance between the employee’s privacy interests against the public interest being advanced by the employer. In New Jersey, an employee who is fired for refusing to participate in a private company’s random drug testing program may have a legal claim for wrongful discharge in violation of public policy if the employee was fired for refusing to submit to random drug testing
and the employee’s privacy interest outweighs the public interest in favor of the testing.

Determining if the public interest outweighs the right to privacy for a particular random drug testing program is a difficult question. To make that determination, a court has to balance the employee’s right to privacy with employer’s reason for testing. For example, the New Jersey Supreme Court has found that if an employee’s duties are “so fraught with hazard that his or her attempts to perform them while in a state of drug impairment would pose a threat to co-workers, to the workplace, or to the public at large, then the employer must prevail.” Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992). Some of the factors used to determine the public policy interest in favor of testing include whether there is any evidence of drug use by employees, the potential dangers of the employee’s job, how long the drug testing program has been in place, and whether the employer can effectively detect drugs without testing, such as by having supervisor observe employee behavior.

While not legally mandated, the New Jersey Supreme Court has strongly recommended that employers that have random drug testing programs should take steps to minimize the intrusiveness of the process. This includes making sure the testing procedures allow employees to maintain as much privacy and dignity as possible, and that employers announces the program to their employees in advance, provide details about the method for selecting employees to be tested, warn employees of the lingering effect of certain drugs, explain how the testing and analysis will be conducted, warn employees of the consequences of testing positive or refusing to take the test, only conduct tests necessary to determine the presence of drugs in the urine, and take measures not to disclose any information obtained as a result of the testing.

In short, while New Jersey law recognizes that random drug testing can be an invasion of privacy, testing is permitted if that privacy right is outweighed by the public interest supporting the testing. While in some instances it may be very clear that drug testing is permissible, such as when an employee operates heavy machinery or drives as part of his job duties, in many instances it is difficult to know whether a private company’s random drug testing program violates your right to privacy. If you believe your company’s random drug program may be a violation of your rights, you should consider contacting an experienced employment lawyer to learn more about your legal rights.

Continue reading "When Can A Private Company Require Random Drug Testing in New Jersey?"

Garmo's Immigration Newsletter

nospam@example.com (Steve N. Garmo) — Thu, 09 Oct 2008 11:07:54 -0400

Please visit our news archive at http://www.garmo.com/archives/ to read about the following headlines.

Citizens' U.S. Border Crossings Tracked - 10/09/08
According to a Washinton Post Article, Citizens' U.S. Border Crossings will be Tracked and Data From Checkpoints To Be Kept for 15 Years. [ more ]

New Citizenship Exam Brings New Questions and New Fears - 10/07/08
The LA Times article on the new citizenship test that began on October 1, 2008. [ more ]

Department of State (DOS) Publishes Instructions on Applying for the DV-2010 Program - 10/03/08
DOS published a notice with guidelines on applying to the 2010 Diversity Visa Lottery. Applications for the 2010 Diversity Visa Lottery Program will be accepted from October 2 to December 1, 2008. Entries for the DV-2010 Diversity Visa. [ more ]

Ciudad Juarez Announces Online Inquiry System - 10/03/08
The U.S. Consulate General in Ciudad Juarez now offers an inquiry system for legal representatives. The U.S. Consulate General in Ciudad Juarez processes all immigrant visa cases from Mexico as well as non-immigrant and American citizen services. Family members or applicants wishing to make an inquiry should continue to use the Consulate's call center at 1-900-476-1212 if calling from the United States or 01-900-849-4949 if calling from Mexico. [ more ]

Consular Section of the Embassy in Sanaa, Yemen Has Cancelled Immigrant Visa Appointments for October 2008 - 10/03/08
Due to the September 17, 2008, terrorist attack on the Embassy, the Consular Section of the Embassy in Sanaa, Yemen has been forced to reduce routine visa processing temporarily, including immigrant visas. As a result, all immigrant visa appointments will have to be rescheduled. You will be contacted by the National Visa Center or the Embassy Consular Section when your visa interview appointment has been rescheduled. [ more ]

Congress Passes Military Personnel Citizenship Processing Act - 10/03/08
On September 28, 2008, the House passed the Military Personnel Citizenship Processing Act (S. 2840), a measure that would speed up the naturalization process for military personnel and veterans. The measure, introduced by Sen. Schumer (D-NY), would require that USCIS process and issue a citizenship decision within six months of receiving an application from a current or former member of the armed forces, or their surviving dependents. If a decision is not made within that time frame, USCIS would be required to explain the delay and provide a new decision target date.

The bill would also establish an FBI liaison office inside USCIS and processing deadlines for other naturalization applications. The bill, already passed by the Senate, now heads to the President for final approval. [ more ]

Congress Passes Extension of Foreign Residence Waivers for Medical Graduates Program and of Religious Worker Program - 10/03/08
The House has passed, by a voice vote, a bill to extend the Conrad 30 program (H.R. 5571). This bill extends for five years the program authorizing waivers of the foreign residence requirement for medical graduates. Also, the House passed a bill to extend the non-minister religious worker program (S. 3606) through March 6, 2009. [ more ]

Summary of the Reuniting Families Act (S. 3514) - 10/03/08
Below is Section-by-section analysis of the Reuniting Families Act (S. 3514), introduced by Senator Menendez (D-NJ) and Representative Honda (D-CA) on 09/18/08. [ more ]

President Signs FY09 Continuing Resolution and EB-5 Regional Center Pilot programsInto Law - 10/03/08
President Bush signed into law the fiscal 2009 continuing resolution (H.R. 2638) which will extend funding for all government operations through March 6, 2009. The law also includes an extension of the Basic Pilot/E-Verify and the EB-5 Regional Center Pilot programs. [ more ]

USCIS Extends TPS for Nicaraguans, Hondurans, and El Salvadorans - 10/03/08
On October 1, 2008, USCIS Announced an 18-Month Extension of Temporary Protected Status for Nationals of Nicaragua, Honduras and El Salvador September 26, 2008 - U.S. Citizenship and Immigration Services announced today that it will extend Temporary Protected Status (TPS) to nationals of Nicaragua, Honduras and El Salvador. The extension will last 18 months.
[ more ]

Family loyalty out the window

nospam@example.com (Joseph E. Deering) — Mon, 06 Oct 2008 19:27:55 -0400

So what do you think?

In Mr. Condon’s Living Trust, he provided that his grandson, Jeff, would get $150,000 on his death if the grandson had reached age 25. He also provided that if his grandson was not 25 at the time of his death, his son, Milton, would be appointed as the after-death agent to manage the $150,000 and deliver it to Jeff when he reached that age.

Jeff was 19 when his grandfather died. In accordance with his grandfather’s Living Trust instructions, his father, Milton, secured the funds.

Fast-forward to six years later when Jeff finally turned 25, I noticed in my appointment book that Jeff had made an appointment to see me. In reviewing his grandfather’s trust, I was reminded about the gift provision to him. Therefore, I assumed that Jeff wanted to meet with me for advice on the transfer of that gift to him. As I met Jeff in my waiting room, I said, “Happy Birthday! What’s the first thing you are going to do with your gift?

He responded, “Sue my father!”

In my office, Jeff explained what he had meant by such a shocking statement. Upon turning 25, he approached his father for the money. When he did, his father said, “Hey, son, since my money is family money, your money is family money. You’ve been receiving your distribution all along in the form of food, clothing, and shelter.”

Mr. Condon wanted his grandson to have that bequest to help him get a leg up in life: to start that family, buy that home, establish that business. What his grandson got instead was a lesson in the school of hard knocks. When it comes to money, family loyalty goes out the window.

Thanks to: Jeff Condon, Trust Law Adviser, Wiley and Sons, 2008

Continue reading "Family loyalty out the window"

Federal Disability Retirement & the economy

nospam@example.com (Robert R. McGill) — Sat, 04 Oct 2008 23:29:27 -0400

I have been asked, via multiple emails, of my opinion concerning the right time to file for disability retirement, given the state of the current economy. I am not an economist; I am an attorney who specializes in obtaining disability retirement benefits for Federal and Postal employees under FERS & CSRS. With that prefatory caution, let me state that I am an optimist, and always see the glass as "half full" as opposed to "half empty". First, if a Federal or Postal employee can no longer perform the essential elements of one's job, then it is probably time to file for disability retirement. Second, while disability retirement does not pay a great amount of money, it is a base annuity which allows one to go out and start a "second career", and make up to 80% of what a person's former position presently pays, on top of the disability annuity. Further, because disability retirement allows one to retain one's health insurance benefits, such an individual can be an attractive candidate to a private employer, because of the lack of need to insure the person in the course of his/her the second career. Third, in a tough economy, part-time employment is often more available, and so it is often a good economy for individuals who have a base annuity to rely upon, and who are looking for supplemental income. In any event, one should always look at disability retirement benefits as an opportunity to preserve one's deteriorating health, and move on to pursue other avenues of opportunities.

Sincerely, Robert R. McGill, Esquire

Obesity & Social Security Disability

nospam@example.com (Gerald G. Lutkenhaus) — Fri, 03 Oct 2008 13:13:11 -0400

Social Security has a set of Impairment Listings. At one time "obesity" had an impairment listing. Thus, if the applicant was of a certain height and weight, then the applicant received Disability. For example, if you were 5'2" and 300 pounds, then you were well on your way to winning a Disability Case if you had any impairments in addition to your "obesity".

In 1999, Social Security changed the Rules and deleted the Impairment Listing for "obesity". Social Security did say it would consider the effects of "obesity" with regard to other listed impairments such as respiratory impairments, cardiovascular impairments, and muscoloskeletal impairments (back problems).

In a recent case I had a young lady who was 400 pounds and had spinal stenosis. Prior to 1999, she probably would have met the Impairment Listing for "obesity". Since the rules have changed, we had to go to a hearing before a judge and demonstrate the severity of her back problem. We won but the primary focus of the decision was on the back problem and not her "obesity."

In another case I had the applicant was a man who was over 375 pounds with congestive heart failure. Again, prior to 1999 he would have met the "obesity" listing. Instead, we had the hearing and the judge denied the claim on the grounds he had not done enough to lose weight. The United States District Court reversed the social security judge and we were granted a new hearing. We won this time with an on the record decision. But again, this case shows the rules have changed and "obesity" no longer is the "slam dunk" winner it once was.

This may be considered AN ADVERTISEMENT or Advertising Material under the Rules of Professional Conduct governing lawyers in Virginia. This note is designed for general information only. The information presented in this note should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Gerald G. Lutkenhaus, has been representing Social Security Disability claimants for 30 years in the Central Richmond Area in Virginia. He was given Martindale Hubbell's highest rating in 2003, for more information check our websites at http://www.virginiadisabilitylawyer.com or http://www.geraldlutkenhaus.com.

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Virginia Workers Compensation & A Brain Injury: Significant Pitfalls

nospam@example.com (Gerald G. Lutkenhaus) — Fri, 03 Oct 2008 13:06:00 -0400

There are some significant pitfalls in a Virginia Workers Compensation Case when it concerns a brain injury. These are the factors the claimant needs to know.

FIRST, if you suffer a head injury while working in Virginia and you start receiving workers' compensation benefits (weekly wage replacement checks and medical care) for this work place injury, it would appear you have no problems but things are not always what they seem for your comp claim in Virginia.

SECOND
THIRD
FOURTH
FIFTH
SIXTH
SEVENTH
EIGHTH
In summary, if one has a serious head injury in Virginia, it is critical to always file a Claim for Benefits within two (2) years to add a "brain injury" claim. This is so because the ill effects of any head injury could develop later and could always involve a brain injury. You should not lose your rights because of this "technicality."
This may be considered AN ADVERTISEMENT or Advertising Material under the Rules of Professional Conduct governing lawyers in Virginia. This note is designed for general information only. The information presented in this note should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.
Gerald G. Lutkenhaus has been representing claimants in Virginia for over 30 years. In the July 1999 issue of Richmond Magazine he was rated one of the Best Workers' Compensation Lawyers in Central Virginia. In 2003 he received the "AV" rating from Martindale-Hubbell, its highest rating for lawyers. In 2005 he was selected for the Bar Register of Preeminent Lawyers. You can get more information from http://www.virginiadisabilitylawyer.com or http://www.geraldlutkenhaus.com or call for a free consultation at 804-358-4766.

, thus if one has had one's injury listed as a "head injury" and not a "brain injury" and 500 weeks of compensation have elapsed and one is still "disabled," you would want to extend benefits under the 500 week "brain injury" exception in Virginia. However, because you never amended the Agreement to Pay form to add "brain injury" you would likely be barred from having your compensation extended beyond 500 weeks by the Commission., if the Agreement to Pay only says "head injury," then a major problem is created after the claimant has been paid 500 weeks of compensation. Normally, the cap on workers' compensation in Virginia is 500 weeks of compensation for almost all injuries. However, there are a few exceptions to the 500 week cap. One of those exceptions is a "brain injury" but not a head injury., the remedy is to file a Claim for Benefits with the Virginia Workers' Compensation Commission within two (2) years of the date of one's accident and add "brain injury" to your claim., the next problem is that the Commission and the Court of Appeals has decided that you only receive compensation for the injuries you have listed on the Agreement to Pay form and you only have two (2) years from the date of your accident to amend the Agreement to Pay form to add new injuries (such as a brain injury) if this was not inserted on the original Agreement to Pay form)., the problem that arises is that the Virginia Workers' Compensation Commission (which regulates workers' compensation in Virginia) and the Virginia Court of Appeals which hears appeals from the Commission have decided that "head injury" on the Agreement to Pay form does not include "brain injury" even if the "brain" has been injured when the head injury occurred at the time of the original accident., the important thing to note is the paragraph on the form that describes your injury. Most of the time if you have had a head injury, the form will say only "head injury." When you sign the form, it is your agreement that this is the only injury you have., the usual procedure is when you suffer the head injury, the insurance company for your employer will send you a form to sign which will be filed with the Virginia Workers' Compensation Commission. The Commission will then enter an award based on that form. The insurance form is called "An Agreement to Pay" form.
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New Terms for Custody and Visitation Rights in Florida

nospam@example.com (Sandy T. Fox) — Fri, 03 Oct 2008 10:31:46 -0400

Most divorces are accompanied by stress and emotional pain. The process is even more difficult for spouses with children. Two terms in Florida statutes have been changed to help reduce the emotional conflicts and trauma of divorce. Child custody will be known as shared parental responsibility and visitation will be called time-sharing. The changes will take effect October 1, 2008.

To safeguard the child's best interest, parental plans have become more detailed, covering children’s daily activities, the level of interaction with parents, religious practices, and wishes of the child.

Parental plans, as laid out in the statute, will act as a framework mapping out the rights and responsibilities of both the parents in the raising of their children. This will help attorneys guide parents toward what will be best for a child's welfare. Shared parental responsibility and time-sharing take the emotion out of establishing visitation rights for many parents.

It is hard for many parents to accept that they must petition for the right to visit their own child or that their legal custody is for a limited time. The terms child custody and visitation were perceived as negative for parents undergoing the stress of marriage dissolution. These changes will essentially help spouses to cooperate more with each other and think about the benefits of their child.

If you need more information about parental plans, shared parental responsibility, or time-sharing laws, we can help you resolve your divorce or family law cases. Contact Miami-Dade Florida lawyer Sandy T. Fox at 888-217-7526 for immediate legal assistance to resolve your divorce case in Miami or Fort Lauderdale, Florida.

Important Homestead News

nospam@example.com (James R. Modrall) — Fri, 03 Oct 2008 09:14:54 -0400

Good News From Lansing. These days it is hard to find good news in Lansing or Washington when it comes to taxes. However, in 2008 Public Acts 96 and 198, the Michigan legislature addressed the dilemma of homeowners who have put their houses up for sale and moved out.

Homestead Status. Michigan taxpayers are familiar with a Homestead exemption for their principal residence, which usually is worth a savings of 18 mils on their property tax bills - approximately half of the total potential tax burden for most taxpayers. We deal regularly with questions from clients about Homestead status, who can claim it and how. Most homeowners are familiar with the Homestead Affidavit, filed with the local assessor, to establish the Homestead exemption - sometimes called the Principal Residence Exemption (PRE).

Homestead Rescission. Michigan law requires that a property owner is required to rescind the PRE within 90 days after the property is no longer used as a principal residence, i.e when the owner moves out. Homestead status is determined on a calendar year basis. Normally, the PRE will be in effect for the taxable year in which the property is transferred or is no longer the principal residence. So, if a person moves out and/or rescinds the PRE during 2008, for example, the PRE status is generally maintained for the 2008 tax year. Prior to the 2008 amendments, an owner moving out of a home listed for sale in 2008 would lose the homestead exemption for the tax year 2009. If the owner failed to file the Notice of Rescission, continuing the exemption for 2009, the owner could be liable for penalties. For example, clients moving to a smaller residence or moving out of state in 2008 could be on the hook for a much large tax bill in 2009 and subsequent years until the property sells. (If a person moved out of their home in 2007, the PRE would be lost for 2008.)

Conditional Rescission. The 2008 statutory amendments to MCL 211.7cc.(5) are now permitted to file a Conditional Rescission Notice affirming that PRE property is not occupied, is for sale, is not leased and is not used for a business or commercial purpose. A new Department of Treasury form 4640 has been issued for this purpose. The statute requires it to be filed annually prior to December 31 in order to maintain the PRE for the next tax year. The statutory amendments states that an owner may retain an exemption "for not more than 3 tax years on property previously exempt ...".

While it is not completely clear how the 3 tax years are determined, it would appear that a homeowner moving out in 2008 and filing a conditional rescission prior to December 31, 2008, would be able to keep the PRE in effect for tax years, 2009, 2010 and 2011, if the property is unoccupied, listed for sale, and not leased during that period of time. (Let’s hope that the property owner in question has priced the property at a reasonable enough level to sell within that period of time.) Similarly, an owner who moved out in 2007 can get retroactive relief for 2008 under the new law, but the owner needs to act promptly.

Conclusion. The conditional rescission and continuation of the homestead exemption is a great tax break for the many Michigan residents who have been forced to move as a result of a lay-off or transfer. It also benefits retired property owners who have moved and have their residences listed for sale. It can be especially beneficial if the client has moved within the State of Michigan and can now claim two properties for the PRE, pending the sale of a previous homestead property. The new law has a critical time element for owners seeking relief for 2008. Relief should be sought before the December Board of Review meeting.

©BRANDT, FISHER, ALWARD & ROY, P.C.
This newsletter is provided for informational purposes and should not be acted upon without professional
advice.

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FERS & CSRS disability retirement: Beyond the MSPB

nospam@example.com (Robert R. McGill) — Sun, 21 Sep 2008 22:23:38 -0400

Not all cases that should be won, are won. No one can win 100% of the time; think about it -- even the best Major League Baseball players strike out at least 2 out of every 3 at-bats. Most strike out every 3 out of 4 times. Fortunately, I am able to pass through a high percentage of my clients at Stages 1 or 2 of the Disability Retirement process, and that is how it should be. Every now and again, however, a case must go to the Merit Systems Protection Board; and out of the small number that must get to that point, an even smaller number goes before an Administrative Judge who is clearly anti-employee, and ignores the law and sides with the Office of Personnel Management. Fortunately, most MSPB judges are fair and understand that disability retirement laws favor, for the most part, approval of disability retirement benefits. In those instances where, for whatever reason, a case has been denied at Stages 1 & 2, and the MSPB Judge completely ignores the strong and unequivocal testimony of the doctor, then there is still a good shot at winning the case at the 4th level -- a Petition for Full Review. Such a Stage must be approached by pointing out the legal deficiencies and, indeed, the Hearing Judge's complete mis-application of the law. It must be done delicately and respectfully, however, because you are essentially asking that the Full Board (a panel of 3 Administrative Judges) reverse one of the Administrative Judges at the Merit Systems Protection Board -- to declare that the Administrative Judge "erred" in applying the law. It is possible to do -- but it must be done with care, respect, and technical expertise.

Sincerely, Robert R. McGill, Esquire

When in Doubt, Plead Not Guilty

nospam@example.com (Mark Thompson) — Thu, 18 Sep 2008 13:30:42 -0400

Imagine a dartboard where the bull’s eye is “guilty.” Everything else on the board is “not guilty.” Not guilty does not necessarily mean that a defendant actually did not commit the crime. It can mean that, but it also means everything else, aside from “guilty.”

For low-level misdemeanors (simple misdemeanors in Iowa) guilty pleas can be taken at the initial appearance, often times while the defendant is still in jail. Not guilty can mean “I’m not sure, judge, I need time to speak with a lawyer.” Or it could mean “Well I was there, but I don’t think I was actually intoxicated.” Or it could mean, “I’m not sure what ‘interference with official acts’ means, but I’d like to find out before I say ‘guilty.’ ”

Will a judge be upset or give the defendant a greater sentence because the defendant pleaded not guilty then decided to change his plea? Usually not. Judges understand that defendants can be confused at the time of an initial appearance. Also, they would much rather have a not guilty plea be withdrawn to enter a guilty plea, than a guilty plea attempted to be withdrawn.

For a guilty plea to be withdrawn, the Defendant must show that the plea was not made knowingly, intelligently and voluntarily. It is the judge’s job to make sure these conditions are met. So if a Motion to Withdraw Guilty Plea is filed, it is an attack on the judge’s ability to determine if the defendant knew what was going on. And it is possible, of course, to have the same judge rule upon the Motion as the one that took the guilty plea.

Pleading not guilty is a good idea even if the defendant knows and understands he is guilty of some, but not all of the offenses that have been charged. Many times I have taken a case where a defendant pleaded guilty to one or two of the charged misdemeanors, and not guilty to the others hoping to have them dismissed as part of a plea bargain. Well, the essence of a plea bargain is giving something to the State in exchange for the State giving something to the defendant. Usually all the defendant has to give are his guilty pleas. So why hand over all your pleas before a bargain is on the table?

When a defendant is at his initial appearance, the best idea is to plea not guilty, at least to take a few days to think it over and possibly contact an attorney for advice. This article was drafted by Mark Thompson, with other work available at www.thompsonjustice.com/blog.

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Court Creates Incentive for Employers to Hire Undocumented Workers

nospam@example.com (John F. Sharpless) — Wed, 17 Sep 2008 11:32:42 -0400

Under Florida workers' compensation law, the amount of any compensation due to an injured worker is derived from a measure of the claimant's pre-injury wage earning capacity called the Average Weekly Wage (AWW). In most cases the AWW is determined by taking a 13 week average of the gross wages earned by the claimant prior to the accident or injury.

The First District Court of Appeals recently was confronted with an ambiguity in the definition of wages. (See Fast Tract Framing v. Caraballo, 1D07-1773) Florida Statute 440.02(28) does not specify whether wages "reported for federal income purposes" means wages reported by the employee in a tax return, or wages reported by the employer in a payroll tax return. The court held that the definition of wages only includes wages which the employee reports for Federal Income tax purposes.

This was a split decision and the dissenting opinion of Justice Padovano correctly points out that the court's decision will encourage employers to hire undocumented aliens and to compensate them with unreported cash payments. Undocumented workers are covered under Florida workers' compensation law. One of the primary reasons that they are covered is to remove incentives to Florida employers to hire them. If they weren't covered, employers could profit by hiring undocumented workers over legal workers knowing that if they were injured or killed the business would not have to foot the bill. However, if undocumenteds are covered, but their money benefits are only based upon wages that they report in tax returns, the incentive to hire illegals over lawful workers is back. If the undocumented worker is disabled and unable to work, no money benefits are likely to be paid as this worker probably not reported his income on a tax return. Therefore, it is better for the unscrupulous business to hire the undocumented worker over the legal worker.

For more information about Florida Workers' Compensation law or Social Security Disability law, please visit our websites at www.tampaworkerscomp.com or www.tampa-ssd.com

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