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Administrative Law

Friday, December 8, 2017

Is Birth Tourism a Shortcut to US Citizenship ?

Is Birth Tourism a Shortcut to US Citizenship?

Ever since the post-Civil War adoption of the 14th Amendment to the Constitution, all persons born on American soil have been automatically granted citizenship. This policy was common sense in the era it was adopted, a time when international travel was cumbersome and relatively rare, but today its wisdom is being questioned. Is birthright citizenship being abused by people who want to short-circuit America’s labyrinthine immigration law?

The Citizenship Clause of the 14th Amendment states:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

From the moment it was adopted, this clause has motivated foreigners to give birth in America. For many years the number of these birth-tourists were limited by the nature of travel, but in today’s world, where air travel drastically cuts down the time it takes to get from one country to another, the path to citizenship guaranteed by the 14th Amendment is well-trod.

Stories abound of pregnant women visiting the U.S. on tourist visas who stay long enough to have their children, get American birth certificates and passports for them, then go back to their native countries, American tot in tow. The Chinese film industry even made a popular romantic comedy about the practice

Having a child that is an American citizen does not, however, guarantee that the child will grow up in America, or allow the family of the child to stay in this country indefinitely. Unless the parents have legal status in the United States, the entire family must return to their home country. It is not until an American-born baby is 21 that they are able to come to the United States and stay without being in school or having to show that they have a legal guardian here.

Once they reach the age of majority, the birthright citizen can enjoy the full benefits of citizenship, and can even sponsor his or her parents’ applications for citizenship.  It is important to remember that having an American-born child is a way to short-cut the system, but will likely take at least 21 years to capitalize on the investment.. In most cases applying for citizenship through other means will be just as fast.


Monday, November 13, 2017

Construction Accidents

CONSTRUCTION ACCIDENTS

Because construction work is inherently dangerous, the risk of injury to workers is greater than in other industries and workplaces. However, construction workers have a right to a safe work environment. While construction injuries are usually covered under workers' compensation laws, it may be possible to pursue a lawsuit based on negligence against site owners, contractors, subcontractors, their employees and agents for violations of applicable safety laws.

There are number of causes of construction accidents, including:

  • Falls - from roofs, ladders scaffolding and other heights
  • Falling objects - improperly secured tools, equipment and construction material can fall and strike a worker, causing head, neck, brain and spinal injuries
  • Equipment accidents - workers can be injured by machinery and equipment such as forklifts, cranes, nails guns and dumpsters
  • Fires and explosions - hazards arise from exposed wires, flammable materials, blow torches and leaking pipes which can lead to catastrophic injuries and fatalities
  • Trench/ Building Collapses - workers can be buried, injured and killed in trench collapses or by buildings that are being constructed or demolished
  • Repetitive Motion Injuries - physical labor often requires bending and lifting that can lead to muscle and joint damage
  • Respiratory illnesses - as a result of exposure to dust, asbestos, and other pollutants

Construction accidents can lead to a variety of injuries. For example, many injuries require fingers, toes and limbs to be amputated. In addition, broken bones and fractures are common as are shoulder, knee and ankle injuries. Workers can suffer head or brain injuries from falls or falling objects as well as spinal cord injuries or paralysis. Other common injuries include eye injuries or loss of vision, and hearing loss.

If you are a construction worker who has been injured on the job, you have the right to be treated for your injuries and the right to receive workers' compensation benefits. If the injury was the result of negligence, however, you may be able to pursue a personal injury lawsuit.


Wednesday, October 25, 2017

Employment Discrimination Laws in a Nutshell

Employment Discrimination Laws in a Nutshell

There are a variety of state and federal laws that make it illegal for employers to discriminate based on certain characteristics when making decisions about hiring, terminating, promoting, demoting or compensating employees, or any other terms and conditions of employment. Employers are also barred from retaliating against employees who file a discrimination-related complaint or engage in other protected activities. While the laws vary from state to state, all employers have an obligation to adhere to the following federal laws.

Title VII of the Civil Rights Act of 1964

This law prohibits discrimination in the workplace based on race, color, national origin, religion and gender. Title VII also established the Equal Employment Opportunity Commission (EEOC), the government agency that is tasked with investigating employment discrimination claims.  Before an employment discrimination lawsuit under federal law can be brought, it is necessary to file a claim with the EEOC. Title VII applies to employers with 15 or more employees.

Age Discrimination in Employment Act (ADEA)

The ADEA prohibits employers with 20 or more employees from discriminating against individuals who are 40 years or older and their age cannot be used as a factor in any employment decision.

The American with Disabilities Act (ADA)

The ADA prohibits employers with 15 or more employees from discriminating or harassing disabled employees and requires employers to make reasonable accommodations that will enable a qualified disabled worker to complete his or her job functions.  

The Pregnancy Discrimination Act (PDA)

The PDA prohibits discrimination based on pregnancy regarding any aspect of employment in businesses with 15 or more employees. Women who are temporarily unable to perform their jobs due to pregnancy must be treated similarly to other temporarily disabled workers. The ADA may also protect a woman who suffers from a pregnancy related medical condition.

The Bottom Line

In sum, employers are prohibited from discriminating against employees and potential job candidates because of race, religion, sex, age, disability, pregnancy or national origin. Not only can violations lead to financial penalties, a discrimination lawsuit can damage a business' reputation. By engaging the services of an experienced employment law attorney, you can establish policies and procedures to ensure that your business is in compliance with these laws. 

 


Thursday, June 8, 2017

What is Elder Law ?

What is Elder Law?

As the population grows older, many elders must face the difficult challenges of aging, such as declining health, long-term care planning, asset protection and other financial concerns. The practice of elder law is designed to assist seniors with meeting these challenges and give them peace of mind knowing that they will age with dignity.

Long-term Care Planning

The escalating costs of long-term care, including services for both medical and non-medical needs, is a daunting challenge for elders and their loved ones. In some cases, elders may need non-skilled care to assist with daily tasks of living such as dressing, feeding, shopping, and light housekeeping. Alternatively, some elders may require skilled nursing care whether provided at home, or in an assisted living facility or nursing home.

By failing to adequately plan for these needs, the cost of long-term care can easily deplete an elder's savings. A skilled elder law attorney can help explore options such as long-term care insurance, selecting the best skilled nursing facility or qualifying for public benefits such as Social Security and Medicaid.

Medicaid Planning

One option to cover the costs of long-term care is Medicaid, a federal program run by the states that provides medical assistance to low-income individuals, and those who are 65 or older. However, many elders may not qualify because their financial resources exceed the eligibility threshold. One way to protect your home and your assets is by establishing an irrevocable trust known as a Medicaid Trust.

Elder Abuse

Elder abuse, whether physical, or emotional, has been called the crime of the twenty-first century. In addition, financial abuse occurs when an individual takes an elder's property for a wrongful purposes or with intent to defraud. In these situations, an elder law attorney can serve as a dedicated advocate and protect a senior's rights.

Ultimately, an experienced and compassionate attorney can help elders plan for the challenges of aging, preserve their independence, protect their assets and enable them to enjoy their golden years .


Thursday, September 29, 2016

Common Lawsuits Brought Against Small Businesses

Common Lawsuits Brought Against Small Businesses 

It is impossible to predict every lawsuit that a small business might possibly face. There is nothing to prevent angry vendors, entitled customers, or disgruntled employees from filing a lawsuit, even if there is no legitimate basis for it. The more a business owner delegates responsibilities to employees, the greater the risk that an employee makes a mistake and exposes the business to a lawsuit. Even the most vigilant, hands on business owner is bound to make a mistake that can lead to a complaint filed against the business.

The most common lawsuits brought against businesses are wrongful termination suits brought by employees or candidates who have suffered a negative employment action. This can be anything from being fired to being demoted or even passed over for an advancement opportunity. If the employee or candidate believes that the action was taken for a reason related to race, gender, religion, identity, or another protected classification, that employee might file a lawsuit. For this reason, it is important to document any sort of negative or positive behaviors at work, so that if an employee does complain of discrimination, the courts can see the employee’s work history and the real reason why he or she may have been passed over for a promotion. Disparaging remarks made about any of these protected classes have no business in a work place as they can create a hostile work environment and lead to lawsuits as well.

Many employers choose to save money by denying their employees overtime pay. This can create many extra costs, as employees will sue for the money they are owed, and the legal fees can be significant. It is a good idea to have contracts establishing the boundaries of a relationship between an employer and an employee to minimize confusion.

It also makes sense to put agreements with vendors and customers in writing. The contracts should include a general description of the work to be performed, a list of any items to be delivered, a project schedule with deadlines, the fee, and the circumstances under which additional fees might be charged, warranties included with the work, how long the contract lasts, how it can be terminated, and how disputes will be resolved.

Personal injury lawsuits against businesses are also common, so it is important to make sure that a place of business is kept in safe condition. Floors should always be dry and warnings should be presented to customers of any dangerous conditions. Drivers should be selected carefully as any accident they cause can be made the responsibility of the business that employs them. Employees who are injured at work are usually precluded from suing their employer and are instead referred to worker’s compensation courts which have their own legal fees. Most states require employers to carry insurance in case of a workplace injury.


Wednesday, May 11, 2016

Worker's Comp vs. Personal Injury

Worker's Comp vs. Personal Injury


 

The primary difference between a workers' compensation claim and a personal injury claim is that a personal injury claim is based on fault, while a workers' compensation case is not. Any injury that occurs to an employee at his/her workplace is covered by workers' compensation, regardless of any negligence or lack of it.

In order to recover damages against another person in a vehicular accident or slip and fall, on the other hand, one must be able to prove some type of negligence on the part of the other person. In other words, the other party must be in some way to blame for the accident. Examples in the cases mentioned would be reckless or drunk driving or poor property maintenance resulting in a floor surface that is irregular or slippery.

In Workers' Compensation Cases, Fault-Finding Is Not Necessary

With very few exceptions, employees who are injured on the job are entitled to workers' compensation benefits regardless of fault. Employees need not prove any negligence on the part of their employers in order to file for and receive workers' compensation benefits. As a matter of fact, employees are eligible to receive workers' comp benefits even if the employee's own negligence resulted in the injuries.

Differences in Damages in Workers' Comp Cases and Other Personal Injury Cases

If it seems that the nature of workers' compensation, in which you can be reimbursed at times for your own clumsiness, is too good to be true, it is. This is because, while workers' comp will pay you compensation for your medical bills, any necessary vocational rehabilitation, lost earning capability or permanent impairment, it will not pay for your personal suffering.  The cap on workers' comp benefits, therefore, is much lower than the typical personal injury settlement once blame is assigned.

When you file a personal injury lawsuit, you may be entitled to compensation for enduring pain and suffering, loss of enjoyment of life (hedonic damages), even damage to clothing or jewelry during the accident. In cases in which you can file for workers' comp, however, you have foregone the right to sue your employer or co-workers for negligence and also the right to collect damages for pain and suffering.

Are Any Workers Legally Permitted to Sue Their Employers?

Yes, there are two categories of employees who are allowed to sue their employers when they are injured on the job: crewmembers of ships or boats and interstate railroad workers. Although these two classes of workers are not entitled to workers' comp, they are allowed to sue their employers under the Jones Act, for ship employees, or the Federal Employers Liability Act (FELA), for interstate railroad workers. It should be noted that workers on commuter trains may not qualify for FELA. Employees who work on ships or railroads should be sure to contact an attorney familiar with pertinent laws before filing for compensation.


Monday, June 29, 2015

Umbrella Insurance: What It Is and Why You Need It

Umbrella Insurance: What It Is and Why You Need It

Lawsuits are everywhere. What happens when you are found to be at fault in an accident, and a significant judgment is entered against you? A child dives head-first into the shallow end of your swimming pool, becomes paralyzed, and needs in-home medical care for the rest of his or her lifetime. Or, you accidentally rear-end a high-income executive, whose injuries prevent him or her from returning to work. Either of these situations could easily result in judgments or settlements that far exceed the limits of your primary home or auto insurance policies. Without additional coverage, your life savings could be wiped out with the stroke of a judge’s pen.

Typical liability insurance coverage is included as part of your home or auto policy to cover an injured person’s medical expenses, rehabilitation or lost wages due to negligence on your part. The liability coverage contained in your policy also cover expenses associated with your legal defense, should you find yourself on the receiving end of a lawsuit. Once all of these expenses are added together, the total may exceed the liability limits on the home or auto insurance policy. Once insurance coverage is exhausted, your personal assets could be seized to satisfy the judgment.

However, there is an affordable option that provides you with added liability protection. Umbrella insurance is a type of liability insurance policy that provides coverage above and beyond the standard limits of your primary home, auto or other liability insurance policies. The term “umbrella” refers to the manner in which these insurance policies shield your assets more broadly than the primary insurance coverage, by covering liability claims from all policies “underneath” it, such as your primary home or auto coverage.

With an umbrella insurance policy, you can add an addition $1 million to $5 million – or more – in liability coverage to defend you in negligence actions. The umbrella coverage kicks in when the liability limits on your primary policies has been exhausted. This additional liability insurance is often relatively inexpensive in comparison to the cost of the primary insurance policies and potential for loss if the unthinkable happens.

Generally, umbrella insurance is pure liability coverage over and above your regular policies. It is typically sold in million-dollar increments. These types of policies are also broader than traditional auto or home policies, affording coverage for claims typically excluded by primary insurance policies, such as claims for defamation, false arrest or invasion of privacy.
 


Thursday, June 18, 2015

Effects of a Lay Off on an Employment-sponsored Visa

Effects of a Lay Off on an Employment-sponsored Visa

The dragging economy has been tough on immigrants. An overabundance of citizens looking for work limits the number of some types of visas, and instability in the job market limits the appeal of employment-backed visas. Many workers who have lost their jobs because of the economic slowdown have had to leave the United States in order to avoid violating the law and jeopardizing their ability to live in this country in the future. However, some immigrant workers are finding ways to stay in the United States legally despite being laid off. 

  • Find another job. This is somewhat easier said than done, but workers who are able to find new employment can often extend their visa or get a new visa. This works best if the worker knows in advance that his or her current job will soon be ending and can find a new job to start before the old job ends.

There is technically no grace period in which to find a new job when a worker’s job ends (meaning a worker is out of status as soon as they clock out for the last time), but U.S. Citizenship and Immigration Services (USCIS) often approves petitions to change from one employer to the next if the gap between jobs is 30 days or less.

If a worker is out of work, and thus out of status, for more than 30 days, he or she will probably have to leave the country and get a new visa at a United States consulate office before starting a new job.

If a worker does have to travel abroad to get a new visa, the worker’s former employer may be required to pay for the worker’s trip home. Whether the employer is required to pay depends on when and how the worker’s job was terminated.

  • Become a dependent. If a worker in the United States on an employment-backed visa loses his or her job, one of the easiest ways to stay in status and prevent deportation is to become the dependent of someone who has legal status. Obviously, this only works if family circumstances allow.

 

It is important to note that if, for any reason, the worker's family member loses his or her legal status, then the worker who has become that person's dependent will lose his or her status as well.

 

  • Go to school. Workers who lose their jobs may have their status changed to student (F-1 status) if they are accepted into a full-time program at a college or university.

The further in advance a worker knows his or her job is in jeopardy, the easier it is to find a solution that will allow him or her to stay in the country legally. However, it is never too late to contact an experienced immigration attorney.


Monday, June 8, 2015

10 Things to Bring to Your First Meeting with Your Attorney

10 Things to Bring to Your First Meeting With Your Attorney

Hiring an attorney is not something most people do every day, so being a little bit unsure of how things are going to go is perfectly normal. To help ease some of the stress and make the process go more smoothly, take time to compile and bring the following list of items with you to your first meeting.

  1. A list of all your contact information. Your lawyer is going to need to know your full legal name and any other names you go by, your address, phone number(s), and email address.

  2. The names and contact information of other people that might get involved with the case - people on the other side, people on your side, witnesses, doctors, police, insurance agents, etc.  If a case has already been filed against you, the name(s) and contact information of the lawyer(s) representing the other side will also be needed.

  3. A typed up or written down account of the circumstances surrounding the situation that is causing you to seek legal help. Try to make your summary of events as detailed as possible. If writing or typing isn’t one of your strengths, try creating an audio recording.

  4. A timeline of events. The best way to do this is to buy a calendar, write all the important events on it, and bring it to the meeting with you.

  5. Any materials (including documents, digital files and photos) you have that relate to your legal matter. If possible, put the documents in an order that makes sense when paired with the summary of events and timeline you put together above.

  6. A list of information (particularly documents) you wish you had or thought you had but can’t seem to find now.

  7. The truth. You don’t have to swear to tell the truth, the whole truth, and nothing but the truth unless you are taking the witness stand in the courtroom, but lying to your attorney will not help your case. 

  8. Bring a good idea of what you hope to get out of the case. Think about what winning looks like to you. It is difficult for your attorney to figure out how best to help you if they don’t know what you want. 

  9. An open mind paired with a good sense of what your gut is telling you. Your lawyer may suggest a solution that you would never have imagined, or let you know that you don’t have a case. Listen to what they tell you, but don’t be afraid to share your thoughts on their suggestions.

  10. A list of any questions you have. The meeting will be far more productive if you leave without nagging questions or lingering doubts.

Monday, October 20, 2014

Thinking about becoming a Restaurateur ?

Opening a new restaurant? Some key legal considerations for restaurateurs

Each year, approximately 30,000 new restaurants are opened in the United States. Most restaurateurs understand the great risk that comes with these ventures; in fact, some sources estimate as many as 18,000 of the 30,000 restaurants opened this year will fail within the first three years in business. Despite the risk, many chefs and hospitality professionals dive right in. If you’re a hopeful restaurateur, legal planning is an absolute necessity to ensure you don’t fall victim to many of the common mistakes that cause these businesses to fail. Consider the following:

Business Entity
All restaurant owners must carefully consider the best corporate structure for their businesses. Generally speaking, there are four types of structures: a sole proprietorship, a partnership, a limited liability company (LLC) or a corporation. In the case of a restaurant, most owners will want to limit liability, and protect personal assets, should there be a lawsuit filed by a customer or employee. An LLC or corporation is often recommended for restaurants since these limit personal liability. A qualified business law attorney can help you identify which structure is best for your new restaurant, and help you prepare and file all required documents.

Zoning
As any successful restaurateur will tell you, a good location is key to a profitable restaurant. In considering the location of your restaurant, you will want to take into account the local zoning laws. Some areas are restricted to residential dwellings while others may be zoned for commercial use. Do you want to have outdoor seating in the summer? That too may be subject to zoning restrictions. Be sure to carefully outline how you plan to use the space and then identify possible locations accordingly.

Leasing a Space
If you don’t have the capital to buy a space for your restaurant, you’ll likely have to rent one. In many cases, costly renovations are required (especially if the space was not previously used for a restaurant). When a significant amount of money is put into the space upfront, it’s absolutely essential that you take steps to protect your tenancy and ensure your business can afford to stay there for an undetermined amount of time. This might mean negotiating a favorable a long-term lease, and including specific clauses pertaining to rent increases. A lawyer with experience in the restaurant industry should be consulted early in the process to ensure your best interests are protected.

Licenses and Permits
Unlike many other types of businesses, restaurants often require a number of licenses and permits from local governing bodies. For instance, you might be required to obtain a license to handle food. If you want to have a bar, you will need a liquor license. Even if you plan to have patron dancing, you may be required to obtain a special permit. An attorney can help you identify exactly what you will need and help you complete all applicable paperwork.

Patron & Employee Safety
To ensure the safety of all patrons, your local governing agency may require your restaurant to undergo regular inspections from the health department. To ensure the well-being of all employees, you should also review all Occupational Safety and Health Administration policies.

Insurance
If you frequent restaurants, you’ve likely witnessed an accident or two - a server spills a hot cup of coffee all over a patron or a bartender slips on some water from the ice machine. With the risk of injury high, it’s absolutely critical that all restaurant owners select an insurance policy which protects the business against lawsuits. In selecting the best policy, speak with an insurance agent and knowledgeable attorney who have restaurant experience to ensure you are protected.

Intellectual Property
You have probably thought long and hard about your restaurant’s name, signature recipes and even your tagline. Since these components are all critical to your branding and long-term success, you should take steps to protect them. An attorney can help you register the name of your restaurant or food creation as a trademark.

Franchises
If you are purchasing a franchise, you will have even more legal considerations including the time consuming review of the disclosure document and the often daunting franchise agreement.

Opening a restaurant has its fair share of challenges, especially when compared with many other types of small businesses. By addressing potential legal pitfalls, restaurateurs can focus on operational aspects of their business and enhance their chance of success. It’s absolutely essential that you consult an attorney with experience in the restaurant industry early on to reduce risk and expense down the road.


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