employment law, Legal

Fired While On Disability Leave? Legal Reasons #50

If you were fired while you on leave, you may have a claim for wrongful termination.

The laws covering whether you can be fired while you’re off work recovering from a physical or mental illness or injury are complicated. First, it depends whether you are taking leave under the FMLA or similar state leave law, taking other unpaid leave, or collecting workers’ compensation temporary disability benefits. Whether or not you are collecting short-term or long-term disability (LTD) insurance benefits doesn’t matter – LTD policies offer no protection for your job.

Third, there are some situations in which you can legally be fired even though you’re on disability leave, as long as your employer follows the rules under the Americans with Disabilities Act (ADA).

Job Protection Under the Family and Medical Leave Act (FMLA)

If you are covered by the Family and Medical Leave Act (FMLA), you can take up to 12 weeks of unpaid leave to deal with a physical or mental medical problem (or to take care of a family member’s medical issues). Unfortunately, the FMLA does not apply to most employees who work for small businesses—it applies only to employees who work at companies with at least 50 workers (who must work within 75 miles of each other). Also, employees can take FMLA leave only if they worked at least a year for an employer and worked at least 1,250 hours for that employer last year.

Assuming you are eligible for FMLA leave and you correctly requested it, you cannot be fired while on FMLA leave. And when you return from FMLA leave, your employer must give you back your position, or one that is nearly the same—assuming you can still do the job.

Job Protection under the Americans with Disabilities Act (ADA)

Even after you have exhausted your 12 weeks of FMLA leave per year, the Americans with Disabilities Act (ADA) can make it difficult for your employer to fire you when you are out on disability leave. Fortunately, the ADA covers more small businesses than the FMLA—those with just 15 or more workers.

Before firing you while you’re on disability leave—or not reinstating you to your position after your disability leave ends—your employer has to try to “accommodate” you; that is, make the job suitable for you, given your impairments. Examples of ways an employer could accommodate your disability include granting you more unpaid leave after you’ve exhausted your FMLA leave, allowing you to work a flexible schedule, or making your workspace more ergonomic.

Your employer must work interactively with you to try to come up with accommodations that would allow you to do your job. (To protect yourself, it’s best to request accomodations from your employer in writing.) During discussions with your employer, you may need to compromise on the accommodations you asked for, however, since your employer only has to make accommodations that are reasonable and that won’t cause the company “undue hardship.” What constitutes undue hardship is based on the cost of the accommodations to your employer and the size of the company.

 

Diet, Family, Food For Thought, Inpsiration, Journal

A New Monday and My Why For Weight Loss

Each week, I spend a few minutes just reviewing what I accomplished. I take a moment to express gratitude and truly take in when I move forward. It’s crazy but I have lost 28 pounds in five weeks without trying to lose that weight.I have never been about binge eating or dieting, but Dr. Fuhrman’s Eat to Live plan was something that resonated with me. It is NOT a diet and definitely NOT for losing tons of weight but an anti disease eating regimen that involves eating most Fruits, Vegetables, Whole grains and seeds. I also added being active 7 days a week, cut out salt, and oil as well as visualized myself lighter.

Are my results typical? Probably not. Dr. Fuhrman does say that most people lost 20 pounds in 6 weeks. And also what was my why? See, that’s the thing, you need a real why. A why that will get you to move off your ass otherwise it is just a pipe dream. So my why is My father. Both my dad and grandfather died from heart disease, and I am determined not to go that way. I want to stop the cycle of dying due to preventable diseases. It seems ridiculous to me to die from something I did to myself. Now if a car hits, I am ok with that, but I am not going down without a fight!

But there is something. The time in the gym or when I am jumping rope or walking barefoot everywhere is my alone time, my processing time, the time where I feel I am working through the many thoughts in my head. So that is also my why. I don’t say any of this to brag, but I truly believe that you need a why to keep moving forward. That is the only way to seek change because you know what it’s for. So what’s your why?

Happy Monday! :0

family law, Legal

Divorce and Real Estate Part 1: Legal Reasons #59

How is California community property divided?

Many think  you would have to divide each physical object equally.  All that the law requires is that the net value of the assets received by each spouse must be equal. Thus, it is not uncommon for one spouse to be awarded the family residence, with the other spouse receiving the family business and investment real estate, as long as each spouse gets assets that are equivalent in value. Since the total net value of the assets being received by each spouse is equal, such a division is proper.

Ordinarily, it is not difficult to determine whether a particular asset is community or separate property. However, certain types of assets can pose unique problems in this regard, including a business that one spouse owned before marriage and both spouses worked on during the marriage, or property that belonged to one spouse before marriage but was shared during the relationship.

What about a closely held business or professional practice?

Like any other asset, a business or professional practice must be considered in the valuation and division of community property. To the extent that a business or practice has been developed during the marriage, there is a community property interest that must be dealt with in the dissolution. The most difficult and time-consuming aspect of determining the value of a business or professional practice is in evaluation of “goodwill.” This is the intangible value that most businesses have, which is based on the expectation of future business, based on established name or reputation. If the business or practice is operated by one of the spouses, it has a goodwill value even if it could not be sold on the open market.

Often, a business person or professional will say, “How can there be any goodwill . . . if I stop working, the office does not make any money?” The law’s answer is that the goodwill of a business or professional practice is valued as a “going concern.” That is, the law assumes that the business will continue operating and will not lose any customers that would otherwise have been lost if it were sold to another owner.Certified public accountant and business appraisers are hired to determine the value of a business or professional practice. The accountant or appraiser who is hired reviews the books and records of the business or practice and prepares a written report.

Food For Thought, Inpsiration, Journal

Good is the Enemy of Great

Last week, I had a discussion with friends about this topic as a prompt, and what came up for is that although I am a good writer, I am not a great writer. Of course, the standard is subjective, but I used two objectives: 1) Completed works and 2) Published. While I do have some completed works, it hit me that my output is about 1 essay every 3 months and that’s being generous. While not bad, it is nowhere near close to my goal of getting published a collection of essays. And then the second big one: not only had I not submitted any of my works anywhere, the last time I got published was when one of my short stories got accepted when I graduated from UCLA.

Then it hit me. Fear stops me from being great. The idea of submitting work that may get rejected scares the crap out of me and makes me rewrite essays over and over even they have been critiqued by numerous people. So for me Good means fear and it stops me from being great at writing. That epiphany now confirms me that I get to spend the second part of 2017 to start writing like a banshee and being submitted. Being being “good enough” just doesn’t cut it anymore.

Legal

5 Things You May Not Know About a DUI:Legal Reasons #58

1. You lose your license once you’re arrested

That’s right, the arresting officer will take away your driver’s license and unless you can show that there’s no basis for the suspension or revocation, the DMV will retain the license until you have completed the DUI administrative and criminal proceedings at which point, your driver license will be returned after you pay a $125 reissue fee ($100 if under 21).

2. You have to deal with two separate legal proceedings

As you expect, you will face a court hearing but what you may not expect is there is also an administrative hearing at the DMV.  Once the officer takes away your license (see above), you have ten days to request an administrative hearing at the DMV. Don’t count on a reversal of the suspension as very few drivers succeed at this hearing. The DMV suspension or revocation is an immediate administrative action taken against your driving privilege only —  that is, it only deals with your license and driving privileges. This is called Administrative Per Se (APS). Any sanctions imposed by DMV under APS are independent of any court-imposed jail sentence, fine, or other criminal penalty imposed when a person is convicted for driving under the influence (DUI).

3. Your DUI is public knowledge and you will receive solicitations from attorneys

Attorneys, bail bonds people, and others involved in the DUI legal circus can easily obtain the address you furnished to the arresting officer and they will likely bombard that mailing address with information about their services.

4. DUI classes are mandatory and you must pay for them, too!

No matter whether your charge is lowered to a “wet reckless” or you are characterized as a first offender, or have a Breath Alcohol Content (BAC) over .2, you will have to take a DUI education program and you will have to pay for it which may cost $1,000 or more. For example, a wet-reckless conviction requires a 12-hour DUI education program; a first offender must pay for a 30-hour program and if you blow over 0.20, you must take 60 hours of classes over nine months.

5. There are two types of license suspensions

There are two types of license suspensions — “hard” suspensions and “restricted” license suspensions.  Assuming you did not prevail at your DMV hearing (see above), there will be a thirty-day “hard” suspension of your license (no driving at all).  The 30-day period commences the day of the DMV suspension. After the 30 day hard suspensions, you may seek a restricted license by applying at he DMV provided that you file an SR-22 insurance form, and enroll into the First Conviction Program (must be the 3-month program), and the restricted license allows you to drive only to drive to and from work and to and from DUI educational classes.

Family, Food For Thought

New Beginnings

Every moment, we have a chance and a choice to start over.  I love that each month, I sit down and review my goals for the month. Although, I usually don’t get to the numbers in each of my goals, I still manage to touch each of them which tells me I have room to grow, and what direction I wish to go in .

This month will be a month of being in service to others especially my wife, loved ones and the community. I feel blessed to have so many wonderful people in my life, yet I don’t think many still feel how much they mean to me. Their love has been my foundation which allows me to work out, read, write, volunteer, and work my legal and Ziba job.

Yet it is also important to nurture that base because too often I assume they know they have my support, but more than that, it nourishes me. One of things that I Am learning in my new networking group BNI, the Giver’s Give philosophy which I take to mean that when you give, you get a bigger return than when others do you.  People, especially my wife and loved ones, have given me so much when, at time, I did so little for them so this month is the beginning f giving back to them. I love new beginnings and the chance to make choices that make a difference in my life.

Happy August all!