<![CDATA[Senior Consultant Shannon J. Bayer - Law Blog]]>Mon, 20 May 2013 02:11:50 -0500Weebly<![CDATA[Maintaining Personnel Files - Keeping Files Separate]]>Tue, 27 Sep 2011 18:36:34 GMThttp://shannonbayer.com/2/post/2011/09/maintaining-personnel-files-keeping-files-separate.htmlMost employers are aware that there are some laws that keep data separate. I want to provide a quick 3 file system for your employees, depending on your size of your company, you may be able to only have 2 files, but better safe than sorry:
1) Personnel file
Contains information, such as the resume, application,  reference checks, reviews, new hire information and signed policies, formal job offer letter and acknowledgement, current contact information, emergency contact information, job description, termination agreement and/or exit interview. No information that contains the employee's protected status, such as race, gender or disability should be in this file. If it is, either redact or remove to the other file.  (This list is not exhaustive, but a guide as to the types of documents to be maintained in this file. )
2) Medical File
Any information pertaining to the health of the employee, i.e. insurance forms for medical, dental, life insurance, short term and/or long term disability, COBRA info if applicable, any pre-employment health screenings, drug tests or any other medical information
3) I-9 Folder
All I-9 should be kept in their own folder, in a different location than the main personnel file.

In order to make things easier, sometimes it is best to maintain each type of a folder in a particular color: blue is personnel, green is medical and red is for the I-9. Anything to make this differentiation easier is highly advised. The violation in the maintenance of these documents or the compliance with state and federal laws can result in hefty fines for the employer. Do not hesitate to contact Bayer Law Office with any questions regarding compliance.
]]><![CDATA[The Interview – To Ask or Not To Ask]]>Mon, 19 Sep 2011 15:31:40 GMThttp://shannonbayer.com/2/post/2011/09/the-interview-to-ask-or-not-to-ask.htmlEveryone has heard of the horrible interviewer asking a woman if she has any kids. And after hearing her say no, the response goes something like, “Great, because I can’t have anyone taking time off for things like a kid’s runny nose.” This is frequently used as an example because it is so obvious that this question will likely result in a lawsuit. Many inappropriate questions are asked through out interviews. Some questions are asked because people are just having polite conversations and some are asked because of a preconceived judgment of what the answer means. I would hope, as our societal norms continue to balance out the genders that not only the judgment should stop but that they are sometimes just out and out wrong.

 So, what do I ask? The trick to an interview or pre-employment questionnaire is that the question must relate to the job description. When a person asks someone if they have kids, what they are generally asking is “Can you work late,” or “Are you flexible in your work hours?” So why not ask those questions instead. These non-skill based needs may be just as important as the skills, but it is harder to figure out how to ask the questions.

 For example, if a company were to hire a translator, to work in the hospital, with varying hours and short notice, here are some questions the interviewer SHOULD NOT ask:

1)      Where are you from that you speak so many languages?

a.       This is not relevant, what the interviewer need to know is what languages does this person speak and at what level of proficiency.

2)      Do you have kids?

a.       Truly the interviewer needs to know if the person can be available during the set time and how much notice they need to be able to get to the hospital to assist in the translation.

3)      I see you are not from here does your husband need you at home for dinner or anything.

a.       Wow! Definitely not necessary, but this does happen.

4)      Do you have a car?

a.       Also not necessary, even if there is no public transportation. What the interviewer needs to ask is whether the person has reliable transportation to and from the hospital during the times necessary.

 The interviewer can get the information they are after, but they must be willing to take the time and form the questions appropriately. The interviewee is expected to come in prepared but the interviewer must also be prepared. This pre-work can prevent accidental small talk and disclosures that may cause issues in the future. Keep in mind, anything them interviewee volunteers is acceptable, but the interviewer cannot elicit certain information.

 Even if the information is volunteered, it can not be used in a discriminatory way. If someone volunteers that they have kids AND state that they are able to meet all of the job requirements; any hiring decision must be based on their responses, not any pre-conceived notions or judgments.

As an employer, money is lost when the wrong hire is made. Asking the right questions in an interview is how you get a good employee. Take your time and train your management to properly interview. I find that the best method is Behavioral Interviewing. This technique allows the interviewer to ask questions to elicit a description of past behavior to predict future performance. When this technique is used properly it is much easier to find a successful employee who will stay with the company. Behavioral interviewing not only allows for that “gut reaction” people rely on, but establishes both subjective and objective standards for making a good hiring decision. 

]]><![CDATA[Passing on Passwords- Update and Insight into Social Media]]>Mon, 12 Sep 2011 13:26:08 GMThttp://shannonbayer.com/2/post/2011/09/passing-on-passwords-update-and-insight-into-social-media.htmlI recently came upon a passing mention of social media sites and the use of passwords. This got me thinking about the many parts of an individual’s personality that exist in the “cloud”. I have many faces online: financial, shopping, friendships, business, and even dating.  In my previous blog, I mostly referred to the financial side of passing down a password to the administrator of your estate. However, considering the many places you may want to close an account, you may have to enlist different individuals into these roles.

A parent, who appoints a child to administer their estate, may not want them to have access to their social sites. For example, imagine a widow, with kids in college, may not want them to know that she is signed up for an online dating service. She may want her close friends to be aware of the account and how to access it. This can be done by leaving a letter with the will to be opened upon her death. As you can imagine there are many other sites an individual may belong to that they may not want their family to know about. The best thing is to prepare and determine who you would like to control this information.

When considering your shopping sites, or online subscriptions, you may want someone different than the person handling your finances to shut down the site and possibly cancel all publication. You identity is still important to protect even after you are gone.

]]><![CDATA[New Non-Compete Bill - Hearing on September 15, 2011]]>Fri, 09 Sep 2011 16:32:27 GMThttp://shannonbayer.com/2/post/2011/09/new-non-compete-bill-hearing-on-september-15-2011.htmlIn January 2011 Bill 2239 (http://www.malegislature.gov/Bills/187/House/H02293) was re-filed in Massachusetts. It was referred to the Joint Committee on Labor and Workforce Development by both the House and Senate, with the hearing scheduled for next Thursday. The new law brings into place a one-year time limit of enforcement from the date of the termination of the relationship. I found one source that believed this law was limited in enforcement to only individuals making more than $75,000 per year, (http://faircompetitionlaw.com/2011/01/20/massachusetts-noncompete-bill-refiled/) however; I did not find that information in the Bill.  

I mentioned this in my office and received an immediate reaction. As I saw it, this is an employee friendly law looking to protect individuals from an over reaching non-compete. In my past job as a recruiter, I ran into this problem quite often. As an individual the limitations of my non-compete proved to be a hardship in finding my next position. However, I was the low person on the totem pole and I look at in the context of this type of position.

My colleague, who practices corporate and business law, vehemently reacted. Her concerns were that of the higher level employees with access to trade secrets and confidential information. She believes that if these individuals move onto competitors one year after termination, that they still have trade secrets and confidential information. And that while a Non Disclosure Agreement is in place, it is incredibly hard to prove any disclosures with hard evidence worthy of litigation. She then immediately ran down the list of the effects on the business and the potential lay-offs that could follow.

The non-compete is the most powerful tool in the business’s toolbox to protect and grow in this economy.

As we have seen in the past few years, we know that there are many arguments as to how the economy will grow. In this one bill I can see why we can’t come to any logical conclusion. This would be a good time to step back and stop compromising and truly analyze the economic balance of the situation.

]]><![CDATA[Michael Jackson's Estate]]>Wed, 31 Aug 2011 17:30:38 GMThttp://shannonbayer.com/2/post/2011/08/michael-jacksons-estate.htmlSome of you know me well enough that I am from Gary, IN. That means that I keep an eye out for news on the famous people from that area. Michael Jackson, Fred Williamson from Starsky  and Hutch, Polly Draper from Thirty Something. You know, real famous people. Recently an article was published in the NY Times discussing the charity concert in October as a tribute to Michael Jackson. http://www.nytimes.com/2011/08/31/arts/music/michael-jackson-tribute-angers-fans-and-divides-his-family.html?pagewanted=1&tntemail1=y&_r=1&emc=tnt
It seems this event was planned by some of the Jackson family but no one asked the estate managers who had been appointed by the court in order to manage the assets and debts of the estate. In his will he only provided for his mother and children. As the article mentioned that the court appointed the estate managers it seems that whatever estate plan he had in place did not plan for anything except the care of his children. We may not all have empires, but there are a lot of small business owners in the US. According to the most recent Census data, the US has over 3.5 million businesses with 1-4 employees. The owners or shareholders of these businesses must remember to include their business in an estate plan. The business's operating agreement must be taken into account and you need the right attorney for that process.
MJ's estate is now embroiled in a fight because standard provisions for his type of estate do not seem to have been included in his will or business entities' operating agreement. If you consider yourself a performer, wouldn't you want to set out the terms of how your image will be used or other estate assets licensed for profit? Don't you want to say where those profits go? As an average businessperson, wouldn't you want to make sure you have enough money for buy-out provisions or how your business should be closed after your death? It is up to the individual to determine what is important to them and then their attorneys can show them how certain estate planning vehicles can assist in maintaining them. ]]><![CDATA[Passwords To Your Life]]>Wed, 27 Jul 2011 14:45:53 GMThttp://shannonbayer.com/2/post/2011/07/passwords-to-your-life.htmlHave you noticed that all passwords now seem to require a capital letter, a random character, and at least seven letters?  I know I have had multiple incarnations of my password since I had to come up with one for my very first email account in 1994. I know my parents use anything from pets names and random numbers (hopefully not giving away too much here) and very specific numbers and last name combinations (worry not; the specific number is not their birthdays or social security numbers). In addition to all of these “protected accounts” I now have most, if not all of my bills and financial accounts come to me electronically. Basically, my financial life, and I am sure many other people’s life, is somewhere floating in the “cloud.” So how do we pass on that information when we pass on?
When I meet with my clients I introduce and explain the effectiveness of the standard documents necessary for a solid estate plan; wills, power of attorney, health care proxy, emergency guardianship, HIPPA Release, even a trust if appropriate. I then have the family complete a thorough questionnaire that includes a listing of all financial assets and debts. After all documents are drafted and signed, we sit down for a final time. During this time I explain the importance of centralizing where these documents are kept and add the importance of keeping up to date asset and debt inventories. I introduce a pre-filled document that lists all of the assets or debts as they provided to me in the initial questionnaire. The information included is as follows:
  1. Type of asset or debt
  2. Name of the institution or business
  3. Address of institution of business
  4. Name of contact for debt or asset
  5. Current value (payout amount) or amount due
  6. Name of beneficiary on account (if applicable)
  7. Debt’s security (i.e. house or car)
  8. If any other person has an interest in the asset or debt (co-signer)
  9. Website
  10. Login Information
You certainly can add other logins than your assets or debts. It would be great to add a social media listing, login to your email account and even a login to your website if applicable. I advise my clients that it is essential to keep this information up to date annually.

The existence of this document should be known by the executor of the estate and the attorney in fact listed on your power of attorney. However, access to this document should be limited until necessary. This can be done with the use of a safe deposit box or a safe in your home, even a locked file cabinet. There are some online services that will also maintain the password data. However, I find the comprehensive document is a better resource for individuals trying to deal with your personal assets and liabilities when you are not available.

Even if you don’t need or want an estate plan, this simple document can be created and maintained by you to assist your family when it is necessary for them to access this information when they need it.
]]><![CDATA[A Family Story of Disability Rights]]>Mon, 18 Jul 2011 15:12:23 GMThttp://shannonbayer.com/2/post/2011/07/a-family-story-of-disability-rights.htmlA Family Story of Disability Rights:

 

Today my cousin Clara is speaking at my mother’s office, the Vermont Center for Independent Living. I was lucky enough to spend this weekend with her. We spent the weekend telling family stories and how life was with my great grandparents. What is amazing to me is that Clara, at 80 years old, has been an active advocate for disability rights for decades.

When Clara and her twin Connie were born, they were placed into an institution due to their disability. I do not know the whole story. I only gleaned a bit of it from our discussions this weekend. Clara told me that it wasn’t until they were 22 that they first met my great grandfather and great grandmother. She told me how she was introduced to them as her aunt and uncle and how happy she was to have them as family.

Over the years Clara found more and more independence. Some time in the 1960’s she found a job cleaning dishes. During her time at this job, another employee kept calling her names, mostly “mental retard.” She whispered this to me while telling the story. I could tell by her face and voice that even the memory of this was very upsetting.

She confronted the man and told him to stop calling her names, that she wasn’t a retard, and she asked why he kept calling her that name. He said their boss told him “that retards worked here.” She told him again that she was not a retard. I forgot to mention, somewhere during this exchange she threw a plate down on the ground in frustration.  The employer brought her upstairs and asked why she threw the plate and was upset. She explained what happened and in return the employer fired her and the other employee kept his job.

Next, she told me was about how she and her sister fought to get a van from the county so that they, the other people in their house, and others like them, could get to their appointments, shop and go out for other necessities. She demanded the funds and would not allow a county administrator to get away with the standard brush off of “we don’t have the money.” It took years, but eventually they got a van.

As I was listening to this 80 year old recount years of self-advocacy, I realized how hard it was and still is to have a disability as an adult in this country. If you are a child, most people show genuine concern or caring, but as an adult the reaction is different. It seems to me that people either doubt that you have a “real” disability, that you are lazy, or that the recognizably disabled are a burden on society. My cousin Clara, not only contributes to her local community, but is an amazing advocate for her disabled community. She is 80 years old, full of life, and her own guardian. When I see her at Passover, she is always smiling and telling stories of her sister Connie and she takes pride in reading the Haggadah aloud with the rest of us.

She is more able than some, and probably less than others, but she is more than worthy of her community’s respect. I come from a family of activists, we believe change comes through action, but she and her sister Connie, have the most amazing story of triumph. I hope that the Vermont Center for Independent Living posts the video of her speaking. If they do I will send the link along.  

 Obviously there are legal issues that surround the caretaking of people with disability, special trusts and other estate planning tools, but what is important is to remember that those tools are used to take care of a person, and that is where our focus as a community should be as well.

]]><![CDATA[Reverse Mortgages: On the Way Out?]]>Tue, 28 Jun 2011 16:13:33 GMThttp://shannonbayer.com/2/post/2011/06/reverse-mortgages-on-the-way-out.htmlAfter reading a Wall Street Journal article on reverse mortgages, it seems more and more likely that this tool will be used less and less. There are a variety of factors that will effect the reverse mortgage market this year. The first and foremost is that in 2011, both Wells Fargo and Bank of America are stepping away from this “vehicle” to focus in other areas. Bank of America claims that it needs to redistribute its workforce to loan modification, but also stated that the fluctuation in home values and the inability for owners to pay their taxes or insurance caused them to leave the reverse mortgage business.


There are still enough lenders out there to get a reverse mortgage, but the costs are high. To add more restrictions on the reverse mortgage process,  the maximum equity allowed to be leveraged is being reduced by almost 1/3 the previous amount, leaving only $417,000 to be used for care of a loved one. So, some families are getting creative. One vehicle that is used by wealthier families is to create a private reverse mortgage, generally funded by the children. This allows the children to inherit on a stepped-up basis, eliminating possible capital gains. Or some children provide a revolving credit line for a parent backed by the equity in the house. This can work if the family members get along, communication is good and all beneficiaries are consulted.
To read the article, go to http://online.wsj.com/article/SB10001424052702304231204576403623987424798.html?mod=WSJ_hpp_sections_realestate.

To find out more about possible estate planning vehicles contact Bayer Law Office at shannonbayer@bayerlawoffice.com. 

]]><![CDATA[TROUBLE : Leona Helmsley and Her Dog]]>Tue, 14 Jun 2011 12:27:50 GMThttp://shannonbayer.com/2/post/2011/06/trouble-leona-helmsley-and-her-dog.htmlTrouble, the fluffy white lap dog of the infamous slum lady, “Queen of Mean” of New York, Leona Helmsley, passed away in December. Trouble originally inherited $12 million dollars from her adoring owner. Even though the majority of Helmsley estate went into a charitable trust, the judge knocked the sum down to $2 million, regardless Trouble took the claim for the world’s richest dog.  I remember this setting off a furry, sorry, I mean flurry of editorials and insider stories of the lives of the wealthy and their most loved possessions, their pets.

I grew up with dogs and absolutely loved my dogs, but the idea of providing one with $100,000 in security, $1,200 in food, $8,000 in grooming and $60,000 in caretaking after my death, really never crossed my minds. This is however, becoming more and more common, evidenced by the new MA law for pet trusts. It is true that many people are concerned with the welfare of their pets after their gone. To some, their pets are their family and they feel a need to provide for them as well as one would their own child. These trusts now allow, with some limitation, for the owners to do just that. As with the Helmsley case the courts can reduce the trust property to a reasonable amount for the proper care of the animal. It can only be written for pets that were alive during the grantor’s lifetime and the rule of perpetuities does not apply, I like to call this the parrot exception.

This new instrument may not see a lot of use, but those who do utilize it are likely happy to have the peace of mind that their pets will be cared for in the manner to which they had become accustomed. 

]]><![CDATA[Jack Kevorkian: A Life About Death]]>Mon, 06 Jun 2011 14:32:43 GMThttp://shannonbayer.com/2/post/2011/06/jack-kevorkian-a-life-about-death.htmlJack Kevorkian was a polarizing figure in the discussion on one’s right to death. His death restarted a conversation in the general public that has faded to the political legislative process in some states and disappeared completely in others. According to Google’s search engine, there are over 2,400 articles related to Dr. Kevorkian’s death. These articles vary in the support or dislike of his tactics, but he is part and some would say the reason “death with dignity” is a conversation and not a family secret.

States continue to take on this issue. In 1997 Oregon passed an act (ORS 127.800-995) providing guidelines for assisted suicide. In 2006, the US Supreme Court ruled that the federal government could not prosecute the doctors who assist suicides under the Oregon law (Gonzales v. Oregon). Other states are discussing similar laws, but there are many sides to this debate.

Most people I speak to think that this is a debate between religious groups and individual right’s groups, like most life issues. The debate seems to be happening not only under the guise of you die when God calls, but it is also within the community supporting death with dignity. How do you write laws that protect the individual from outside influence, lack of resources and the many variables that come into play with illness and injuries? I believe that this is the question that needs to be debated.

Oregon drew the lines that the individual had to have a terminal illness, no mental disease and had to administer the drug themselves so that it is a voluntary act to end their life. Montana, in 2009, passed a law stating that it is not illegal to commit suicide. January of this year, the Senate in Montana introduced a Death With Dignity Bill, SB 167, similar to Oregon’s. In that law, the determination of a mental disease is left up to the prescribing doctor. There is no requirement that this doctor must have enough visits to make that determination, there is no mandatory counseling. The law states that a “physician shall refer a patient who has requested medication under [sections 1 through 20] for counseling if in the opinion of the attending physician or the consulting physician the patient may be suffering from a psychiatric or psychological disorder or depression causing impaired judgment.” If the individual is referred to counseling, only then is there a mandate that the person must be cleared for mental disorders to allow the end of life drugs to be prescribed.   

This made me think of all of the articles that I have read over the last few years about the horrible state of our mental health programs. Until these programs receive the same attention as cancer, diabetes or other physical illnesses, how can anyone really be sure why an individual is making a choice regarding their life or someone else’s life?  And truly who wouldn’t be depressed when faced with less than six months to live? How does a professional make these determinations without a long term relationship with an patient.

Other issues to consider are that these laws are written only for competent adults. No person under 18 will ever be provided this death with dignity. After working at Dana-Farber for four years and walking passed the Jimmy Fund Clinic daily, shouldn’t they be part of the debate as well? While a child’s terminal illness is a terrifying reality, why isn’t this part of the conversation? It may just be taboo. It may be assumed that the parent will do “what is right” for the child. These parents and families have stresses that people not involved could not understand. Shouldn’t the child have the right to a compassionate death and not struggle through the pain?



I also believe in the miracle of science. Amazing things happen to people who are terminally ill. I have a family friend who was given a year to live and 20 some odd years later, she is still here. Individuals, who have no hope, suddenly find hope. These are the exceptions, but how do you legislate for such variables: on a state level, federal level, county level, in your home?

It's time to open this conversation with your friends, family and care givers.  This is an individual issue with national consequence.  

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