Recent Blog Posts

DWI and the State of New York

Paul DeLorenzo — Mon, 14 May 2012 21:44:00 GMT

What makes DWI cases in New York unique from DWI cases throughout the rest of the country?

a. How is defending them different?
Defending a DWI in New York is different than most jurisdictions because the suspension pending prosecution law punishes the accused before he or she is actually proven guilty beyond a reasonable doubt. The law allows nay mandates the sitting tribunal to suspend the accused’s license if he or she has a BAC of .08 or higher at the time of arrest. This places an extreme burden and hardship on the accused and in many instances “makes” that person plead guilty quickly and without real thought to defending the case to the end. (92)

b. How do the laws and strategies change?
The Defendant who has had his or her license suspended pending the prosecution of the matter does have the right to requests a hardship privilege or in other words a conditional license where it can be demonstrated the person has no available travel methods and the conditional/hardship license will allow this person the ability to travel to and from work. Some court do not allow a person to argue they need a car for the entire work day as they need to travel all day for work since the statute reads only to and from work. Most local judges in this region believe it best to allow the person the ability to travel even during the work day so as to maintain their standard of living.
In addition, New York state has implemented a Criminal Jury charge that will presume the accused guilty if he or she failed to take a breath test. A difficult charge to over come without some real showing of circumstances that may have merited a refusal. Unless you are unconscious or in someway incapable of consenting to the request the cards are stacked against you. While the law does makes sense it places the accused in the position of proving his innocence as opposed to the people proving guilt.

c. What legal skills and law firm resources are necessary when defending DWI cases in New York?

Negotiation skills are by far the single most important tool needed when defending a DWI matter. You must diplomatically convince the District Attorney to reduce your clients charge to one outside the alcohol category which is simply not an easy thing to do. The amount of “Court Watching” groups involved in New York make the type of movement difficult as it almost always receives scrutiny from all ends. At that point the District Attorney must present viable and cohesive reasoning for the charge to be moved from the alcohol category. Such as problems with the stop, breathalyzer and the like. In addition, if you are planning on taking the matter to trial then the ability to understand highly technical systems is a must as you will need to break down the breathalyzer test and attack its credibility all the while keeping a jury in on the “discussion”. Keep in mind the jury will automatically grant the Breath test credibility as a scientific tool and such “CSI” tools are usually given more weight in the mind of a juror and rightfully so. Yes, it is true DNA testing has been proven as defective at times but let’s be honest, for the most part it works and everyone knows that.

Further, and if your client can afford this, the use of experts, photographers, and investigators is a must when defending these matters. The costs are in the thousands but worth it when the technical aspect is at the heart of your dispute. The use of a retired New York State Trooper who has had 30 years of experience to testify the procedures used in your case are incorrect and cause doubt in the final performance of the breath test machine are almost immeasurable.
Investigators can take statements from witnesses at the scene concerning the stop of the vehicle or the road side tests used as well as shed light on the indicia of intoxication the police officer is alleging against your client.
Photographers can help since they will take pictures of the scene in a professional manner and in one best suitable for the courtroom. For example a picture of the intersection may show the allegation that your client went through a stop sign as the basis for the stop as invalid as there was no stop sign.

However, the attorney should always take the time to visit the scene as it will allow a better understanding of the incident and the particulars to your case.

Helpful Information About New York Motorcycle Accidents

Paul DeLorenzo — Mon, 19 Mar 2012 14:26:00 GMT

Statistics show that motorcycle accidents are on the rise - and New York is no exception. In fact, the NHTSA reported that there were over 190 motorcycle fatalities in New York in 2006. If you are involved in a New York motorcycle accident, know your rights and responsibilities under New York law. It can save you time, money and a lot of hassle.

New York: A No-Fault State

While fault is a critical question in any motorcycle accident, New York is a no-fault state, meaning that neither party takes the blame for a New York motorcycle accident. Instead, each driver goes through his or her insurance company. The no-fault law is easily misinterpreted and may not interfere with your right to collect a settlement or compensation for your injuries. Due to the complexities of the no-fault system, it is recommended that you consult a New York motorcycle accident attorney on fault-related issues in addition to speaking to your insurance company about the matter.

New York Motorcycle Insurance, Licensing and Registration Requirements

New York state law is clear – every motorcycle on the road needs to carry liability insurance. New York's minimum requirements are 25/50/10, which is $25,000 for bodily injury per person per accident, $50,000 for total bodily injury per accident and $10,000 for property damage per accident. In addition, motorcycles must be properly registered and inspected every 12 months. Motorcycle registration occurs annually and all New York motorcycle registrations expire on April 30 each year. In order to legally operate a motorcycle in New York state, you must possess a Class M or Class MJ (junior operator) license and pass both a written and road test to obtain a New York state motorcycle license.

Helmet Laws in New York

Head injury is the leading cause of death in motorcycle accidents, so wearing a helmet is a must for any motorcycle operator. In New York state, it’s also the law – anyone operating a motorcycle in New York must wear a US DOT-approved motorcycle helmet with eye protection.

If You Are in an Accident in New York

If you are involved in a New York motorcycle accident, don’t just attend to your injuries – get in touch with an experienced motorcycle accident lawyer as soon as possible. A skilled New York motorcycle accident attorney can help evaluate your claim and obtain compensation for your injuries and related expenses. It’s important to have someone on your side as you navigate the sometimes confusing waters of New York state motorcycle accident law – and a New York motorcycle accident lawyer can help you understand and protect your rights.

Call Us Now. We Can Help!

518-374-8494

EMPLOYMENT DISCRIMINATION IN NEW YORK STATE

Paul DeLorenzo — Mon, 05 Mar 2012 15:33:00 GMT

1 How Does NY State Protect Against Employment Discrimination?

There are many federal statutes dealing with employment discrimination. But New York State (like most states) also provides a separate array of protections, which in many instances overlap the protections of federal law.

2 What Specifically Does NY Prohibit?

New York State ’s Human Rights Law recognizes as a civil right the right

to be free from employment discrimination based on age, race, creed,

color, national origin, sexual orientation, military status, sex, marital status, or disability. Some of these categories are not protected under federal law. There are also protections for a person not to be denied employment due

to a criminal conviction. Going beyond issues relating to employment,

New York also provides that the opportunity to obtain education and use

places of public accommodation is similarly a civil right. As of November 29, 2010, there is also a special provision of the law specifically addressing sexual harassment of domestic workers. There are

also provisions for discrimination on the basis of “predisposing genetic

characteristics” and status as the victim of domestic violence.

3 Are There Protections Against Retaliation?

Retaliation against those who complain of any unlawful discriminatory acts or who testify or assist in any legal proceeding is unlawful.

4 Who Can Be Pursued For Discrimination?

While federal anti-discrimination law requires that an employer have a minimum of 15 or 20 employees (depending on the type of discrimination), New York State law requires only that there be at least four employees. The state law applies not only to employers, but to employment agencies and labor organizations.

5 What Happens After A Complaint Is Filed?

Within 180 days of the filing of a complaint, the division will determine whether it has jurisdiction and, if so, if there is probable cause to believe that the person complained of has engaged in an unlawful discriminatory practice.

The division may also dismiss a complaint on grounds of “administrative convenience,” in which case the complainant has the right to sue the employer or other entity directly.

Within 270 days after filing a complaint (or 120 days after a court has reversed and remanded the Division’s order dismissing a complaint for lack of jurisdiction or lack of probable cause), the Division may require the respondent to answer the complaint and appear at a public hearing.

If the complaint is dismissed for lack of jurisdiction or lack of probable cause, complainant may appeal to the NYS Supreme Court within 60 days thereafter.

6 When Must A Discrimination Complaint Be Filed?

A complaint must be filed within one year after the alleged discriminatory practice.

7 What About Out-Of-State Discrimination?

If the discriminatory acts occurred outside the state, but a resident of the state was discriminated against, the Human Rights Law applies.

8 Is There A Right To Sue Under State Law?

Unless one files a complaint with State Division or a local human rights agency (such as the NYC Commission on Human Rights), there is a right to sue for damages and other remedies. If the Division dismisses the complaint on the grounds of administrative convenience, untimeliness, or on the grounds that the election of remedies is annulled, the person may sue just as though no complaint had been filed with the Division.

CONTACT THE DELORENZO LAW FIRM TODAY FOR A FREE CONSULTATION

What is Personal Injury Law?

Paul DeLorenzo — Mon, 20 Feb 2012 15:22:00 GMT

What is Personal Injury Law?

In the legal sense, personal injury is a type of tort or civil wrong where harm is caused to one individual because another individual failed to use reasonable care. Personal injury law overlaps quite a bit with litigation law. The law recognizes a tort as grounds (legal reasons) to sue the offender in order to recover for losses caused by an injury or other type of harm, including psychological. This is referred to as recovery for damages and may involve expected future losses in addition to actual present losses. Some of the damages one may sue for are reasonable medical expenses, property damages, pain and suffering, loss of earnings capacity, emotional distress, loss of consortium or companionship, and legal costs and attorney fees. The main goal of tort law to make the injured party whole again and to discourage others from committing the same offense.

With personal injury law, liability is a key factor. Liability is determined by showing that the individual who caused the harm did so because of a failure to exercise reasonable care. Further, it must be shown that it was foreseeable that this failure could result in the injury or harm that did occur to the other party. A finding of reckless or negligent action may result in a judgment of liability. There are various defenses to a claim of liability. For example, if the injured party knew that the activity in which he was engaged when he was injured was dangerous, the other party may assert assumption of the risk, claiming that the injured party bears all the responsibility for his injury. Other defenses are pre-existing condition and intervening causes.

Personal injury law is extremely complicated and the subject of much debate. There are many critics actively seeking tort reform in an effort to decrease these types of lawsuits, as well as the amount of damages that may be recovered and the contingency fees attorneys may charge. A contingency fee works on the principal that the attorney only gets paid if the case is won and damages are recovered. The contingency fee is based on a percentage of the recovery, rather than an hourly rate.

Personal injury or tort law generally makes one think of lawsuits. However, many of these cases never proceed to court. More frequently an out-of-court settlement is sought to resolve the issue. This is much more expedient than a lengthy, costly civil court trial. However, when a settlement cannot be reached, the parties usually must proceed to a state court, and the judgment may then be appealed to the applicable appellate courts. Many jurisdictions have small claims courts which hear personal injury cases wherein a small recovery amount is sought, which falls under a set threshold. Although less common, federal courts may hear some personal injury cases as well. Either federal or state courts may preside over class action suits.

Disability, Workers Compensation, and Lawsuits...Information you should know!

Paul DeLorenzo — Mon, 13 Feb 2012 22:39:00 GMT

A. Disability:

For disabled persons there are two (2) basic benefits you may be entitled to under the Social Security Act. Please review the following to help you in determining if you fall into either of those categories.

1. Social Security Disability Benefits:
These are benefits for someone who has a history of working and paying into the Social Security system, and who are therefore "covered", and who suffers a disabling injury and/or disease preventing them from continuing to work. Usually this monthly benefit approximates 66% of your average earnings over the last five (5) years prior to your disability.

2. Supplemental Security Income (commonly known as S.S.I.):
These are benefits for someone who does not have a history of paying into the Social Security system, whether it is due to age or a lack of employment history, and therefore are not "covered" for purposes of receiving Social Security Disability benefits, and are disabled. These S.S.I. payments are a minimal stipend of about $500.00 per month. You must have minimal assets and/or minimal family income in order to get this benefit.

B. Medicare Coverage:
This is health insurance coverage if you are eligible for Social Security Disability or S.S.I. If you are eligible for these benefits, the Medicare premiums of about $50.00 per month are deducted from your monthly benefits.

Frequently Asked Questions:

Q: What is a "disability" for Social Security purposes?

A: A person has to have an injury, disease, or medical condition which prevents that person from engaging in any "substantial gainful activity." Basically this means your disability must be so severe as to prevent you from doing not only the work you performed in the past, but also any other type of work within the national economy. For instance, if a severe back injury prevents you from returning to a job where heavy lifting is involved, you may be able to do a lighter job, and therefore you would not be entitled to Social Security benefits.

Q: If I'm receiving Workers' Compensation benefits, am I entitled to Social Security benefits?

A: Yes, although the Social Security system has a different standard which has to be met, you could receive Workers' Compensation and Social Security Disability benefits, although if you are receiving Workers' Compensation benefits the amount that you may be entitled to receive from Social Security will be reduced due to your receipt of Workers' Compensation benefits. However both benefits can be coordinated so that you receive the most money possible for your disability.

Q: I've been hurt in an automobile or other type of accident where I am suing another party. I have been out of work and am receiving Social Security Disability benefits. If I settle my lawsuit or get a judgment, do I need to reimburse Social Security?

A: No, any reimbursement or set-off (such as receiving Workers' Compensation payments) is strictly by Social Security law or regulation. There is no Social Security law which states that an injured person must give up Social Security Disability benefits or pay back Social Security for benefits received if he or she obtains a settlement or judgment from another party.

SLIP and FALL? The Business can be responsible for all your compensation for your injuries.

Paul DeLorenzo — Mon, 06 Feb 2012 14:40:00 GMT

Negligence or carelessness, such as is seen in auto accidents and slip-and-fall cases.

It is vital to bear in mind that the mere fact of injury "even serious injury" does not necessarily result in liability. Sometimes people are hurt and there is no recourse (other than to their own insurance, if applicable); liability exists when there is fault, and fault is generally based on intentional acts or negligence.

Any liability in the situation described would presumably be based on negligence, since it’s very unlikely that the business intentionally caused the ice to make people fall. Then the issue becomes whether the business was in fact negligent, which depends on the circumstances.

As noted above, negligence is carelessness. If the business did not know there was ice and had no reason to know of the ice, and/or if there was no time to act on the knowledge, then there would be no negligence.

For example, say that ice formed overnight, and someone slipped and fell first thing in the morning, before staff or management had any chance to do anything about the ice - or possibly even to know it existed. In that case, there would be no fault. Similarly, there would be no fault if they knew there was ice and had taken reasonable steps, such as roping off the ice-covered area. If they took reasonable steps—what any reasonable person would do—and someone was still injured, they likely would not be negligent or liable. If ice were reportee and an employee promptly headed out to clean it up, but someone fell before the employee got there, the business might not be liable.

On the other hand, if someone had reported slick conditions and the business did nothing, that might make them liable. If a manager or supervisor saw the ice and ignored it, that would tend to create liability, as would not checking to see if a parking lot was safe after an obvious ice storm.

So in answer to the question—it depends. Specifically, it depends upon whether the business was acting as, and was as careful as, a reasonable person.

New York Statute of Limitations for Civil and Personal Injury Actions - An Overview

Paul DeLorenzo — Mon, 30 Jan 2012 15:15:00 GMT

What Is A "Statute of Limitations"

A statute of limitations is a law which places a time limit on pursuing a legal remedy in relation to wrongful conduct. After the expiration of the statutory period, unless a legal exception applies, the injured person loses the right to file a lawsuit seeking money damages or other relief.

Proliferation of Statutes

Although people often speak of "the statute of limitations", in fact there are many statutes which apply limitations periods to civil actions. Sometimes it can be difficult to keep track of the various statutes and their exceptions. Thus it is a very good idea for somebody who is concerned about losing their right to sue as a result of the expiration of the statutory limitations period to consult with a qualified lawyer, who can help determine which statute applies, and help preserve the right to recover damages.

Specific Civil Actions

The following periods represent a small sample of the statutory limitations periods in New York. Please note that it may be possible to bring multiple causes of action from a single incident of wrongful conduct, and thus even if it appears that the relevant statute of limitations has run it may remain possible to bring a different claim. Also, there may be an exception to the standard limitations period that applies to any given situation. The following list is provided by way of example. If you wish to know how the statute of limitations applies to a specific situation, you should verify the statutory time period and its relevance to your situation with a qualified New York lawyer.

Professional Malpractice: Medical malpractice actions must be filed within thirty months of the date of the act or omission that gave rise to the injury occurred. For malpractice actions based upon the presence of a foreign object within the body of a patient, the action must be filed within one year of the date that the foreign object was or should have been discovered. Other professional negligence actions are governed by a three year statute of limitations.

Personal Injury: 3 years.

Fraud: 6 years.

Libel / Slander / Defamation: 1 year.

Injury to Personal Property: 3 years.

Product Liability: 3 years.

Contracts: 6 years.

Statute of Limitations or Statute of Repose

A statute of repose is different from a statute of limitations, in that after the statutory period has expired it is not possible to file a lawsuit even if an injury occurs after that time. For example, if there is a twenty year statute of repose on the manufacture of aircraft, a claim cannot be filed against the manufacturer more than twenty years after the date of manufacture, even if a design or manufacturing defect is responsible for a later accident.

Accrual of Claims

A statute of limitations is said to start running at the time a claim accrues. Ordinarily, that is the time at which an injury is suffered.

The Discovery Rule

Sometimes it is not reasonably possible for a person to discover the cause of an injury, or even to know that an injury has occurred, until considerably after the act which causes the injury. For example, an error in the drafting of a will might not be noticed until the will is being executed, decades after it was drafted, or a financial planner's embezzlement might not be noticed for years due to the issuance of false statements of account.

When it applies, the "discovery rule" permits a suit to be filed within a certain period of time after the injury is discovered, or reasonably should have been discovered. The discovery rule does not apply to all civil injuries, and sometimes the period of time for bringing a claim post-discovery can be short, so it is important to seek legal assistance quickly in the event of the late discovery of an injury.

Tolling of the Statute of Limitations

In addition to late discovery, it may be possible to avoid the harsh result of a statute of limitation by arguing that the statute has been "tolled". When it is said that a statute is "tolled", it means that something has stopped the statute from running for a period of time. Typical reasons for tolling a statute of limitations include minority (the victim of the injury was a minor at the time the injury occurred), mental incompetence (the victim of the injury was not mentally competent at the time the injury occurred), and the defendant's bankruptcy (the "automatic stay" in bankruptcy ordinarily tolls the statute of limitations until such time as the bankruptcy is resolved or the stay is lifted).

Under New York law, a minor ordinarily has three years from the date of his or her eighteenth birthday to commence litigation. However, for medical malpractice actions, the statute of limitations cannot be extended for more than ten years from the date of the act or omission giving rise to the injury.

Contractual Limitations

It is often possible to shorten a statutory limitations period by contract. For example, an employment contract might require that any claim relating to the employment relationship, including wrongful termination, be filed within one year of the claimed wrongful conduct. Courts often uphold these clauses, particularly in the context of business transactions, even though they provide for a shorter limitations period than the statute of limitations would otherwise apply.

WHat is Personal Injury Law

Paul DeLorenzo — Mon, 23 Jan 2012 14:41:00 GMT

What is Personal Injury Law? In the legal sense, personal injury is a type of tort or civil wrong where harm is caused to one individual because another individual failed to use reasonable care. Personal injury law overlaps quite a bit with litigation law. The law recognizes a tort as grounds (legal reasons) to sue the offender in order to recover for losses caused by an injury or other type of harm, including psychological. This is referred to as recovery for damages and may involve expected future losses in addition to actual present losses. Some of the damages one may sue for are reasonable medical expenses, property damages, pain and suffering, loss of earnings capacity, emotional distress, loss of consortium or companionship, and legal costs and attorney fees. The main goal of tort law to make the injured party whole again and to discourage others from committing the same offense.

With personal injury law, liability is a key factor. Liability is determined by showing that the individual who caused the harm did so because of a failure to exercise reasonable care. Further, it must be shown that it was foreseeable that this failure could result in the injury or harm that did occur to the other party. A finding of reckless or negligent action may result in a judgment of liability. There are various defenses to a claim of liability. For example, if the injured party knew that the activity in which he was engaged when he was injured was dangerous, the other party may assert assumption of the risk, claiming that the injured party bears all the responsibility for his injury. Other defenses are pre-existing condition and intervening causes.

Personal injury law is extremely complicated and the subject of much debate. There are many critics actively seeking tort reform in an effort to decrease these types of lawsuits, as well as the amount of damages that may be recovered and the contingency fees attorneys may charge. A contingency fee works on the principal that the attorney only gets paid if the case is won and damages are recovered. The contingency fee is based on a percentage of the recovery, rather than an hourly rate.

Personal injury or tort law generally makes one think of lawsuits. However, many of these cases never proceed to court. More frequently an out-of-court settlement is sought to resolve the issue. This is much more expedient than a lengthy, costly civil court trial. However, when a settlement cannot be reached, the parties usually must proceed to a state court, and the judgment may then be appealed to the applicable appellate courts. Many jurisdictions have small claims courts which hear personal injury cases wherein a small recovery amount is sought, which falls under a set threshold. Although less common, federal courts may hear some personal injury cases as well. Either federal or state courts may preside over class action suits.

Understanding Divorce and the litigation process

Paul DeLorenzo — Mon, 16 Jan 2012 16:26:00 GMT

If your lawyer starts out trying to negotiate a settlement for you without filing in court, great! But if it is taking too long, file in court so that you some controls applied by the court. Every case has a start, and every case must have an end. If you need support, do not wait too long to file in court, or the court will think you maybe do not really need it. If you are not seeing your child(ren) file immediately, or the court may think you do not really care. If you are paying more support than you should during negotiations, and it lasts too long, it will tell a court you can afford to continue to do so.

A divorce is officially started by the filing of a Summons with Notice that clearly states on it "Action for Divorce." This document, when filed, has a fee of $210.00 to buy an index number. This is the number that is then found on all of your court documents to identify your case. The spouse that files the Summons and pays the fee is the Plaintiff.

The Summons must then be served on the other spouse, who is the Defendant, within 120 days of buying the index number. It must be personally handed to him or her by a person over the age of 18 who is not named in the lawsuit. An affidavit of personal service must be signed by the person who served the summons in front of a notary public.

Within 45 days of serving the summons, a request for a preliminary conference should be made to the court. It requires that a Request for Judicial Intervention be filed and paid for, $95.00. The RJI is what allows the court to assign a judge to your case. At the preliminary conference, the court will have your lawyer, or you if you do not have a lawyer, together with the other side, fill in a preliminary conference stipulation and order.

The preliminary conference stipulation and order is a document which will provide the court with a complete and succinct information about your divorce, including but not limited to: the names and addresses of both spouses; their lawyers names, addresses and telephone and fax numbers; date of marriage; names and dates of birth of the children, if any; what issues are already resolved and what issues are not resolved.

The preliminary conference stipulation and order will also "road map" your divorce. It will give deadlines as to when each step of a divorce must be completed by, including but not limited to, serving discovery demands; production to the demands; depositions; appraisals of houses, businesses, pensions, collectibles; status conferences, compliance conferences; and when the case is to be certified ready for trial. Sometimes, the trial itself will be scheduled too, in case will be needed.

If issues of custody or visitation are not resolved, the court can (and probably will) appoint a lawyer for the child(ren) at this time, called a law guardian. The law guardian is usually paid for by the two parents in proportion to their respective incomes. If issues of mental health or psychological aberration are presented, the court may also appoint a mental health forensic, also usually paid for by the two parents in proportion to their respective incomes.

If motion(s) were served as to support and other issues, the court will try to have the parties settle these issues pending the trial or final settlement at this conference too. If these issues are present, but no motions were filed yet, the court will also try to have them settled, or schedule the filing of the motions and responses.

Discovery is the process by which you both give and get proof of each other’s financial situations, identify marital property and separate property. Discovery is only for finances in a divorce. A Demand for Discovery and Inspection lists all the documents you are to provide for the other side to review. Interrogatories are written questions you must answer in writing and swear to in front of a notary public. A deposition is when you, the other spouse, and both of your lawyers sit in a conference room with a court reporter. The court reported swears you both in to tell the truth, and then the other party’s lawyer asks you questions and you answer them. A transcript is then provided to prove what was and was not said at deposition. At the deposition, only questions pertaining to finances may be asked.

The best way to answer a question is to actually answer the question. It is not the time for you to say what you want said. Your turn will eventually come to do so. If the question can be answered by a simple yes or no, do so. If a question requires more words, answer it in as few words as possible. If you did not completely hear the question, do not assume what the questions was, state you did not hear it completely and ask for it to be repeated. If you do not understand a question, do not assume what the asker intended, state that you do not understand the question. Do not answer a question until you are certain the asker finished the question. You do not want to risk saying what you think sounds great for you, but actually opens up a can of worms. This is how you handle answering questions at trial too.

Never, never let the other side see that you are annoyed or irritated or upset by their tactics or statements. This will let them know how to get under your skin to make you look bad in the courtroom. Do not ever say, "but in court I will not do (or say) it." If you do it outside of court, you will do it in court, and the other lawyer knows this. Always maintain total self-control no matter what is said that you do not like. If it is not your turn to talk, then do not talk. If you do not like what is being said, simply look at your toes remorsefully. Do not make faces or gestures either. Keep your hands out of your pockets. Otherwise the judge will say to him or herself, you must be everything your spouse says you are.

Hopefully, you will be able to settle the case before trial based on the information gathered through discovery, recommendations of the law guardian and the forensic expert. If not, make sure what you are fighting for is something the law allows a judge to award you, is worth fighting for, and that your facts are on your side. Never go to trial if there is a great risk of walking away with less than what is being offered in the settlement agreement.

Litigate facts as applied to the law, not emotions.

No Fault Law

Paul DeLorenzo — Fri, 13 Jan 2012 19:41:00 GMT

New York auto accident law is a bit different than other states’ laws when it comes to issues of fault, vicarious liability and pain & suffering. These can be complicated issues, so we asked an expert to provide us with an overview of each.

The two parts of no-fault insurance

According to Ira Slavit, a New York attorney in practice for over 20 years whose firm concentrates its practice in personal injury matters and medical malpractice litigation, no-fault insurance law in New York essentially divides cases into two parts. He explained:

The first part concerns first-party benefits, where hospital bills, doctor bills and lost wages are paid. The second part concerns pain and suffering. So generally, the first thing to do is make sure that the no-fault insurance company is identified and that an application is submitted timely. At the same time, it is important that the injured party is receiving the proper medical treatment that’s required for the injuries that they have sustained in the accident.

Vicarious liability: A rebuttable presumption

New York State has what’s called vicarious liability, which means that an owner of the vehicle is responsible for the negligence of the individual who is operating the vehicle with the owner’s permission and consent, according to Slavit. He told us that while some states require that the driver be operating the vehicle in furtherance of the business of the owner or some other more restrictive limitation, New York is different. “In New York, as long as the driver is operating with the permission and consent of the owner, the owner is also legally responsible for any negligence. There’s actually a presumption of permissive use in New York. It’s a rebuttable presumption. What that means is that it’s presumed that the driver has permission and the burden falls to the owner to prove otherwise.”

New York’s limitations on pain & suffering

New York’s no-fault law, while intended to make it easier for people to have their medical bills and lost earnings paid without having to prove negligence on the part of the driver, actually makes it harder to sue and recover for pain and suffering, according to Slavit. He explained:

The New York no-fault motor vehicle insurance law requires that in order for there to be a recovery for pain and suffering, the injury sustained has to qualify as a serious injury as defined by the no-fault law. There are nine categories of serious injury, ranging from death, to loss of a fetus, to disfigurement, to permanent injury, permanent consequential limitation of use or a total disability of a non-permanent nature that encompasses at least 90 out of the first 180 days following the accident. If the injuries don’t qualify as a serious injury, then the lawsuit will get dismissed.

Employment DIscrimination Law Questions and Answers

Paul DeLorenzo — Fri, 13 Jan 2012 19:35:00 GMT

Federal Laws Prohibiting Job Discrimination Questions And Answers

Federal Equal Employment Opportunity (EEO) Laws

I. What Are the Federal Laws Prohibiting Job Discrimination?

Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin;
the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;
the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older;
Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;
Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government;
Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination based on genetic information about an applicant, employee, or former employee; and
the Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.

The U.S. Equal Employment Opportunity Commission (EEOC) enforces all of these laws. EEOC also provides oversight and coordination of all federal equal employment opportunity regulations, practices, and policies.

Other federal laws, not enforced by EEOC, also prohibit discrimination and reprisal against federal employees and applicants. The Civil Service Reform Act of 1978 (CSRA) contains a number of prohibitions, known as prohibited personnel practices, which are designed to promote overall fairness in federal personnel actions. 5 U.S.C. 2302. The CSRA prohibits any employee who has authority to take certain personnel actions from discriminating for or against employees or applicants for employment on the bases of race, color, national origin, religion, sex, age or disability. It also provides that certain personnel actions can not be based on attributes or conduct that do not adversely affect employee performance, such as marital status and political affiliation. The Office of Personnel Management (OPM) has interpreted the prohibition of discrimination based on conduct to include discrimination based on sexual orientation. The CSRA also prohibits reprisal against federal employees or applicants for whistle-blowing, or for exercising an appeal, complaint, or grievance right. The CSRA is enforced by both the Office of Special Counsel (OSC) and the Merit Systems Protection Board (MSPB).

Additional information about the enforcement of the CSRA may be found on the OPM web site at http://www.opm.gov/er/address2/guide01.htm; from OSC at (202) 653-7188 or at http://www.osc.gov/; and from MSPB at (202) 653-6772 or at http://www.mspb.gov/ .

Discriminatory Practices

II. What Discriminatory Practices Are Prohibited by These Laws? Under Title VII, the ADA, GINA, and the ADEA, it is illegal to discriminate in any aspect of employment, including:

hiring and firing;
compensation, assignment, or classification of employees;
transfer, promotion, layoff, or recall;
job advertisements;
recruitment;
testing;
use of company facilities;
training and apprenticeship programs;
fringe benefits;
pay, retirement plans, and disability leave; or
other terms and conditions of employment.

Discriminatory practices under these laws also include:

harassment on the basis of race, color, religion, sex, national origin, disability, genetic information, or age;
retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices;
employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities, or based on myths or assumptions about an individual's genetic information; and
denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.

Employers are required to post notices to all employees advising them of their rights under the laws EEOC enforces and their right to be free from retaliation. Such notices must be accessible, as needed, to persons with visual or other disabilities that affect reading.

Note: Many states and municipalities also have enacted protections against discrimination and harassment based on sexual orientation, status as a parent, marital status and political affiliation. For information, please contact the EEOC District Office nearest you.

III. What Other Practices Are Discriminatory Under These Laws?

Title VII

Title VII prohibits not only intentional discrimination, but also practices that have the effect of discriminating against individuals because of their race, color, national origin, religion, or sex.

National Origin Discrimination

It is illegal to discriminate against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group.
A rule requiring that employees speak only English on the job may violate Title VII unless an employer shows that the requirement is necessary for conducting business. If the employer believes such a rule is necessary, employees must be informed when English is required and the consequences for violating the rule.

The Immigration Reform and Control Act (IRCA) of 1986 requires employers to assure that employees hired are legally authorized to work in the U.S. However, an employer who requests employment verification only for individuals of a particular national origin, or individuals who appear to be or sound foreign, may violate both Title VII and IRCA; verification must be obtained from all applicants and employees. Employers who impose citizenship requirements or give preferences to U.S. citizens in hiring or employment opportunities also may violate IRCA.

Additional information about IRCA may be obtained from the Office of Special Counsel for Immigration-Related Unfair Employment Practices at 1-800-255-7688 (voice), 1-800-237-2515 (TTY for employees/applicants) or 1-800-362-2735 (TTY for employers) or at http://www.usdoj.gov/crt/osc.

Religious Accommodation

An employer is required to reasonably accommodate the religious belief of an employee or prospective employee, unless doing so would impose an undue hardship.

Sex Discrimination

Title VII's broad prohibitions against sex discrimination specifically cover:

Sexual Harassment - This includes practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender, including same sex harassment. (The "hostile environment" standard also applies to harassment on the bases of race, color, national origin, religion, age, and disability.)
Pregnancy Based Discrimination - Pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions.

Additional rights are available to parents and others under the Family and Medical Leave Act (FMLA), which is enforced by the U.S. Department of Labor. For information on the FMLA, or to file an FMLA complaint, individuals should contact the nearest office of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor. The Wage and Hour Division is listed in most telephone directories under U.S. Government, Department of Labor or at http://www.dol.gov/esa/public/whd_org.htm.

Age Discrimination in Employment Act

The ADEA's broad ban against age discrimination also specifically prohibits:

statements or specifications in job notices or advertisements of age preference and limitations. An age limit may only be specified in the rare circumstance where age has been proven to be a bona fide occupational qualification (BFOQ);
discrimination on the basis of age by apprenticeship programs, including joint labor-management apprenticeship programs; and
denial of benefits to older employees. An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.

Equal Pay Act

The EPA prohibits discrimination on the basis of sex in the payment of wages or benefits, where men and women perform work of similar skill, effort, and responsibility for the same employer under similar working conditions.

Note that:

Employers may not reduce wages of either sex to equalize pay between men and women.
A violation of the EPA may occur where a different wage was/is paid to a person who worked in the same job before or after an employee of the opposite sex.
A violation may also occur where a labor union causes the employer to violate the law.

Titles I and V of the Americans with Disabilities Act, as amended

The ADA prohibits discrimination on the basis of disability in all employment practices. It is necessary to understand several important ADA definitions to know who is protected by the law and what constitutes illegal discrimination:

Individual with a Disability

An individual with a disability under the ADA is a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having a disability. An entity subject to the ADA regards someone as having a disability when it takes an action prohibited by the ADA based on an actual or perceived impairment, except if the impairment is both transitory (lasting or expected to last six months or less) and minor. Major life activities are basic activities that most people in the general population can perform with little or no difficulty such as walking, breathing, seeing, hearing, speaking, learning, thinking, and eating. Major life activities also include the operation of a major bodily function, such as functions of the immune system normal cell growth, brain, neurological, and endocrine functions.

"Qualified"

An individual with a disability is "qualified" if he or she satisfies skill, experience, education, and other job-related requirements of the position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of that position.

Reasonable Accommodation

Reasonable accommodation may include, but is not limited to, making existing facilities used by employees readily accessible to and usable by persons with disabilities; job restructuring; modification of work schedules; providing additional unpaid leave; reassignment to a vacant position; acquiring or modifying equipment or devices; adjusting or modifying examinations, training materials, or policies; and providing qualified readers or interpreters. Reasonable accommodation may be necessary to apply for a job, to perform job functions, or to enjoy the benefits and privileges of employment that are enjoyed by people without disabilities. An employer is not required to lower production standards to make an accommodation. An employer generally is not obligated to provide personal use items such as eyeglasses or hearing aids. A person who only meets the "regarded as" definition of disability is not entitled to receive a reasonable accommodation.

Undue Hardship

An employer is required to make a reasonable accommodation to a qualified individual with a disability unless doing so would impose an undue hardship on the operation of the employer's business. Undue hardship means an action that requires significant difficulty or expense when considered in relation to factors such as a business' size, financial resources, and the nature and structure of its operation.

Prohibited Inquiries and Examinations

Before making an offer of employment, an employer may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in the same job category. Medical examinations of employees must be job-related and consistent with business necessity.

Drug and Alcohol Use

Employees and applicants currently engaging in the illegal use of drugs are not protected by the ADA when an employer acts on the basis of such use. Tests for illegal use of drugs are not considered medical examinations and, therefore, are not subject to the ADA's restrictions on medical examinations. Employers may hold individuals who are illegally using drugs and individuals with alcoholism to the same standards of performance as other employees.

The Civil Rights Act of 1991

The Civil Rights Act of 1991 made major changes in the federal laws against employment discrimination enforced by EEOC. Enacted in part to reverse several Supreme Court decisions that limited the rights of persons protected by these laws, the Act also provides additional protections. The Act authorizes compensatory and punitive damages in cases of intentional discrimination, and provides for obtaining attorneys' fees and the possibility of jury trials. It also directs the EEOC to expand its technical assistance and outreach activities.

Title II of the Genetic Information Nondiscrimination Act of 2008

GINA prohibits discrimination against applicants, employees, and former employees on the basis of genetic information. This includes a prohibition on the use of genetic information in all employment decisions; restrictions on the ability of employers and other covered entities to request or to acquire genetic information, with limited exceptions; and a requirement to maintain the confidentiality of any genetic information acquired, with limited exceptions.

Employers And Other Entities Covered By EEO Laws

IV. Which Employers and Other Entities Are Covered by These Laws?

Title VII, the ADA, and GINA cover all private employers, state and local governments, and education institutions that employ 15 or more individuals. These laws also cover private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training.

The ADEA covers all private employers with 20 or more employees, state and local governments (including school districts), employment agencies and labor organizations.

The EPA covers all employers who are covered by the Federal Wage and Hour Law (the Fair Labor Standards Act). Virtually all employers are subject to the provisions of this Act.

Title VII, the ADEA, GINA, and the EPA also cover the federal government. In addition, the federal government is covered by Sections 501 and 505 of the Rehabilitation Act of 1973, as amended, which incorporate the requirements of the ADA. However, different procedures are used for processing complaints of federal discrimination. For more information on how to file a complaint of federal discrimination, contact the EEO office of the federal agency where the alleged discrimination occurred.

The CSRA (not enforced by EEOC) covers most federal agency employees except employees of a government corporation, the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Security Agency, and as determined by the President, any executive agency or unit thereof, the principal function of which is the conduct of foreign intelligence or counterintelligence activities, or the General Accounting Office.

The EEOC'S Charge Processing Procedures

Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.

V. Who Can File a Charge of Discrimination?

Any individual who believes that his or her employment rights have been violated may file a charge of discrimination with EEOC.
In addition, an individual, organization, or agency may file a charge on behalf of another person in order to protect the aggrieved person's identity.

VI. How Is a Charge of Discrimination Filed?

A charge may be filed by mail or in person at the nearest EEOC office. Individuals may consult their local telephone directory (U.S. Government listing) or call 1-800-669-4000 (voice) or 1-800-669-6820 (TTY) to contact the nearest EEOC office for more information on specific procedures for filing a charge.
Individuals who need an accommodation in order to file a charge (e.g., sign language interpreter, print materials in an accessible format) should inform the EEOC field office so appropriate arrangements can be made.
Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.

VII. What Information Must Be Provided to File a Charge?

The complaining party's name, address, and telephone number;
The name, address, and telephone number of the respondent employer, employment agency, or union that is alleged to have discriminated, and number of employees (or union members), if known;
A short description of the alleged violation (the event that caused the complaining party to believe that his or her rights were violated); and
The date(s) of the alleged violation(s).
Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.

VIII. What Are the Time Limits for Filing a Charge of Discrimination?

All laws enforced by EEOC, except the Equal Pay Act, require filing a charge with EEOC before a private lawsuit may be filed in court. There are strict time limits within which charges must be filed:

A charge must be filed with EEOC within 180 days from the date of the alleged violation, in order to protect the charging party's rights.
This 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law. For ADEA charges, only state laws extend the filing limit to 300 days.
These time limits do not apply to claims under the Equal Pay Act, because under that Act persons do not have to first file a charge with EEOC in order to have the right to go to court. However, since many EPA claims also raise Title VII sex discrimination issues, it may be advisable to file charges under both laws within the time limits indicated.
To protect legal rights, it is always best to contact EEOC promptly when discrimination is suspected.
Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.

IX. What Agency Handles a Charge that is also Covered by State or Local Law?

Many states and localities have anti-discrimination laws and agencies responsible for enforcing those laws. EEOC refers to these agencies as "Fair Employment Practices Agencies (FEPAs)." Through the use of "work sharing agreements," EEOC and the FEPAs avoid duplication of effort while at the same time ensuring that a charging party's rights are protected under both federal and state law.

If a charge is filed with a FEPA and is also covered by federal law, the FEPA "dual files" the charge with EEOC to protect federal rights. The charge usually will be retained by the FEPA for handling.
If a charge is filed with EEOC and also is covered by state or local law, EEOC "dual files" the charge with the state or local FEPA, but ordinarily retains the charge for handling.

X. What Happens after a Charge is Filed with EEOC?

The employer is notified that the charge has been filed. From this point there are a number of ways a charge may be handled:

A charge may be assigned for priority investigation if the initial facts appear to support a violation of law. When the evidence is less strong, the charge may be assigned for follow up investigation to determine whether it is likely that a violation has occurred.
EEOC can seek to settle a charge at any stage of the investigation if the charging party and the employer express an interest in doing so. If settlement efforts are not successful, the investigation continues.
In investigating a charge, EEOC may make written requests for information, interview people, review documents, and, as needed, visit the facility where the alleged discrimination occurred. When the investigation is complete, EEOC will discuss the evidence with the charging party or employer, as appropriate.
The charge may be selected for EEOC's mediation program if both the charging party and the employer express an interest in this option. Mediation is offered as an alternative to a lengthy investigation. Participation in the mediation program is confidential, voluntary, and requires consent from both charging party and employer. If mediation is unsuccessful, the charge is returned for investigation.
A charge may be dismissed at any point if, in the agency's best judgment, further investigation will not establish a violation of the law. A charge may be dismissed at the time it is filed, if an initial in-depth interview does not produce evidence to support the claim. When a charge is dismissed, a notice is issued in accordance with the law which gives the charging party 90 days in which to file a lawsuit on his or her own behalf.
Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.

XI. How Does EEOC Resolve Discrimination Charges?

If the evidence obtained in an investigation does not establish that discrimination occurred, this will be explained to the charging party. A required notice is then issued, closing the case and giving the charging party 90 days in which to file a lawsuit on his or her own behalf.
If the evidence establishes that discrimination has occurred, the employer and the charging party will be informed of this in a letter of determination that explains the finding. EEOC will then attempt conciliation with the employer to develop a remedy for the discrimination.
If the case is successfully conciliated, or if a case has earlier been successfully mediated or settled, neither EEOC nor the charging party may go to court unless the conciliation, mediation, or settlement agreement is not honored.
If EEOC is unable to successfully conciliate the case, the agency will decide whether to bring suit in federal court. If EEOC decides not to sue, it will issue a notice closing the case and giving the charging party 90 days in which to file a lawsuit on his or her own behalf. In Title VII and ADA cases against state or local governments, the Department of Justice takes these actions.
Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.

XII. When Can an Individual File an Employment Discrimination Lawsuit in Court?

A charging party may file a lawsuit within 90 days after receiving a notice of a "right to sue" from EEOC, as stated above. Under Title VII, the ADA, and GINA, a charging party also can request a notice of "right to sue" from EEOC 180 days after the charge was first filed with the Commission, and may then bring suit within 90 days after receiving this notice. Under the ADEA, a suit may be filed at any time 60 days after filing a charge with EEOC, but not later than 90 days after EEOC gives notice that it has completed action on the charge.

Under the EPA, a lawsuit must be filed within two years (three years for willful violations) of the discriminatory act, which in most cases is payment of a discriminatory lower wage.

Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.

XIII. What Remedies Are Available When Discrimination Is Found?

The "relief" or remedies available for employment discrimination, whether caused by intentional acts or by practices that have a discriminatory effect, may include:

back pay,
hiring,
promotion,
reinstatement,
front pay,
reasonable accommodation, or
other actions that will make an individual "whole" (in the condition s/he would have been but for the discrimination).

Remedies also may include payment of:

attorneys' fees,
expert witness fees, and
court costs.

Under most EEOC-enforced laws, compensatory and punitive damages also may be available where intentional discrimination is found. Damages may be available to compensate for actual monetary losses, for future monetary losses, and for mental anguish and inconvenience. Punitive damages also may be available if an employer acted with malice or reckless indifference. Punitive damages are not available against the federal, state or local governments.

In cases concerning reasonable accommodation under the ADA, compensatory or punitive damages may not be awarded to the charging party if an employer can demonstrate that "good faith" efforts were made to provide reasonable accommodation.

An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their rights under the laws EEOC enforces and their right to be free from retaliation. Such notices must be accessible, as needed, to persons with visual or other disabilities that affect reading.

The employer also may be required to take corrective or preventive actions to cure the source of the identified discrimination and minimize the chance of its recurrence, as well as discontinue the specific discriminatory practices involved in the case.

The Commission

XIV. What Is EEOC and How Does It Operate?

EEOC is an independent federal agency originally created by Congress in 1964 to enforce Title VII of the Civil Rights Act of 1964. The Commission is composed of five Commissioners and a General Counsel appointed by the President and confirmed by the Senate. Commissioners are appointed for five-year staggered terms; the General Counsel's term is four years. The President designates a Chair and a Vice-Chair. The Chair is the chief executive officer of the Commission. The Commission has authority to establish equal employment policy and to approve litigation. The General Counsel is responsible for conducting litigation.

EEOC carries out its enforcement, education and technical assistance activities through 53 field offices serving every part of the nation.

The nearest EEOC field office may be contacted by calling: 1-800-669-4000 (voice) or 1-800-669-6820 (TTY).

Information And Assistance Available From EEOC

XV. What Information and Other Assistance Is Available from EEOC?

EEOC provides a range of informational materials and assistance to individuals and entities with rights and responsibilities under EEOC-enforced laws. Most materials and assistance are provided to the public at no cost. Additional specialized training and technical assistance are provided on a fee basis under the auspices of the EEOC Education, Technical Assistance, and Training Revolving Fund Act of 1992. For information on educational and other assistance available, contact the nearest EEOC office by calling: 1-800-669-4000 (voice) or 1-800-669-6820 (TTY).

Publications available at no cost include posters advising employees of their EEO rights, and pamphlets, manuals, fact sheets, and enforcement guidance on laws enforced by the Commission. For a list of EEOC publications, or to order publications, write, call, or fax:

U.S. Equal Employment Opportunity Commission
Publications Distribution Center
P.O. Box 541
Annapolis Junction, MD 20701
1-800-669-3362 (voice)
1-800-800-3302 (TTY)
(301) 206-9789 (fax)

Employment DIscrimination Law Questions and Answers

Paul DeLorenzo — Fri, 13 Jan 2012 19:35:00 GMT

Federal Laws Prohibiting Job Discrimination Questions And Answers

Federal Equal Employment Opportunity (EEO) Laws

I. What Are the Federal Laws Prohibiting Job Discrimination?

Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin;
the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;
the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older;
Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;
Sections 501 and 505 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified individuals with disabilities who work in the federal government;
Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits employment discrimination based on genetic information about an applicant, employee, or former employee; and
the Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.

Discriminatory Practices

II. What Discriminatory Practices Are Prohibited by These Laws? Under Title VII, the ADA, GINA, and the ADEA, it is illegal to discriminate in any aspect of employment, including:

hiring and firing;
compensation, assignment, or classification of employees;
transfer, promotion, layoff, or recall;
job advertisements;
recruitment;
testing;
use of company facilities;
training and apprenticeship programs;
fringe benefits;
pay, retirement plans, and disability leave; or
other terms and conditions of employment.

Discriminatory practices under these laws also include:

harassment on the basis of race, color, religion, sex, national origin, disability, genetic information, or age;
retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices;
employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities, or based on myths or assumptions about an individual's genetic information; and
denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.

III. What Other Practices Are Discriminatory Under These Laws?

Title VII

Title VII prohibits not only intentional discrimination, but also practices that have the effect of discriminating against individuals because of their race, color, national origin, religion, or sex.

National Origin Discrimination

It is illegal to discriminate against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group.
A rule requiring that employees speak only English on the job may violate Title VII unless an employer shows that the requirement is necessary for conducting business. If the employer believes such a rule is necessary, employees must be informed when English is required and the consequences for violating the rule.

Religious Accommodation

An employer is required to reasonably accommodate the religious belief of an employee or prospective employee, unless doing so would impose an undue hardship.

Sex Discrimination

Title VII's broad prohibitions against sex discrimination specifically cover:

Sexual Harassment - This includes practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender, including same sex harassment. (The "hostile environment" standard also applies to harassment on the bases of race, color, national origin, religion, age, and disability.)
Pregnancy Based Discrimination - Pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions.

Age Discrimination in Employment Act

The ADEA's broad ban against age discrimination also specifically prohibits:

statements or specifications in job notices or advertisements of age preference and limitations. An age limit may only be specified in the rare circumstance where age has been proven to be a bona fide occupational qualification (BFOQ);
discrimination on the basis of age by apprenticeship programs, including joint labor-management apprenticeship programs; and
denial of benefits to older employees. An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.

Equal Pay Act

Note that:

Employers may not reduce wages of either sex to equalize pay between men and women.
A violation of the EPA may occur where a different wage was/is paid to a person who worked in the same job before or after an employee of the opposite sex.
A violation may also occur where a labor union causes the employer to violate the law.

Titles I and V of the Americans with Disabilities Act, as amended

Individual with a Disability

"Qualified"

Reasonable Accommodation

Undue Hardship

Prohibited Inquiries and Examinations

Drug and Alcohol Use

The Civil Rights Act of 1991

Title II of the Genetic Information Nondiscrimination Act of 2008

Employers And Other Entities Covered By EEO Laws

IV. Which Employers and Other Entities Are Covered by These Laws?

The ADEA covers all private employers with 20 or more employees, state and local governments (including school districts), employment agencies and labor organizations.

The EPA covers all employers who are covered by the Federal Wage and Hour Law (the Fair Labor Standards Act). Virtually all employers are subject to the provisions of this Act.

The EEOC'S Charge Processing Procedures

Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.

V. Who Can File a Charge of Discrimination?

Any individual who believes that his or her employment rights have been violated may file a charge of discrimination with EEOC.
In addition, an individual, organization, or agency may file a charge on behalf of another person in order to protect the aggrieved person's identity.

VI. How Is a Charge of Discrimination Filed?

A charge may be filed by mail or in person at the nearest EEOC office. Individuals may consult their local telephone directory (U.S. Government listing) or call 1-800-669-4000 (voice) or 1-800-669-6820 (TTY) to contact the nearest EEOC office for more information on specific procedures for filing a charge.
Individuals who need an accommodation in order to file a charge (e.g., sign language interpreter, print materials in an accessible format) should inform the EEOC field office so appropriate arrangements can be made.
Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.

VII. What Information Must Be Provided to File a Charge?

The complaining party's name, address, and telephone number;
The name, address, and telephone number of the respondent employer, employment agency, or union that is alleged to have discriminated, and number of employees (or union members), if known;
A short description of the alleged violation (the event that caused the complaining party to believe that his or her rights were violated); and
The date(s) of the alleged violation(s).
Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.

VIII. What Are the Time Limits for Filing a Charge of Discrimination?

All laws enforced by EEOC, except the Equal Pay Act, require filing a charge with EEOC before a private lawsuit may be filed in court. There are strict time limits within which charges must be filed:

A charge must be filed with EEOC within 180 days from the date of the alleged violation, in order to protect the charging party's rights.
This 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law. For ADEA charges, only state laws extend the filing limit to 300 days.
These time limits do not apply to claims under the Equal Pay Act, because under that Act persons do not have to first file a charge with EEOC in order to have the right to go to court. However, since many EPA claims also raise Title VII sex discrimination issues, it may be advisable to file charges under both laws within the time limits indicated.
To protect legal rights, it is always best to contact EEOC promptly when discrimination is suspected.
Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.

IX. What Agency Handles a Charge that is also Covered by State or Local Law?

If a charge is filed with a FEPA and is also covered by federal law, the FEPA "dual files" the charge with EEOC to protect federal rights. The charge usually will be retained by the FEPA for handling.
If a charge is filed with EEOC and also is covered by state or local law, EEOC "dual files" the charge with the state or local FEPA, but ordinarily retains the charge for handling.

X. What Happens after a Charge is Filed with EEOC?

The employer is notified that the charge has been filed. From this point there are a number of ways a charge may be handled:

A charge may be assigned for priority investigation if the initial facts appear to support a violation of law. When the evidence is less strong, the charge may be assigned for follow up investigation to determine whether it is likely that a violation has occurred.
EEOC can seek to settle a charge at any stage of the investigation if the charging party and the employer express an interest in doing so. If settlement efforts are not successful, the investigation continues.
In investigating a charge, EEOC may make written requests for information, interview people, review documents, and, as needed, visit the facility where the alleged discrimination occurred. When the investigation is complete, EEOC will discuss the evidence with the charging party or employer, as appropriate.
The charge may be selected for EEOC's mediation program if both the charging party and the employer express an interest in this option. Mediation is offered as an alternative to a lengthy investigation. Participation in the mediation program is confidential, voluntary, and requires consent from both charging party and employer. If mediation is unsuccessful, the charge is returned for investigation.
A charge may be dismissed at any point if, in the agency's best judgment, further investigation will not establish a violation of the law. A charge may be dismissed at the time it is filed, if an initial in-depth interview does not produce evidence to support the claim. When a charge is dismissed, a notice is issued in accordance with the law which gives the charging party 90 days in which to file a lawsuit on his or her own behalf.
Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.

XI. How Does EEOC Resolve Discrimination Charges?

If the evidence obtained in an investigation does not establish that discrimination occurred, this will be explained to the charging party. A required notice is then issued, closing the case and giving the charging party 90 days in which to file a lawsuit on his or her own behalf.
If the evidence establishes that discrimination has occurred, the employer and the charging party will be informed of this in a letter of determination that explains the finding. EEOC will then attempt conciliation with the employer to develop a remedy for the discrimination.
If the case is successfully conciliated, or if a case has earlier been successfully mediated or settled, neither EEOC nor the charging party may go to court unless the conciliation, mediation, or settlement agreement is not honored.
If EEOC is unable to successfully conciliate the case, the agency will decide whether to bring suit in federal court. If EEOC decides not to sue, it will issue a notice closing the case and giving the charging party 90 days in which to file a lawsuit on his or her own behalf. In Title VII and ADA cases against state or local governments, the Department of Justice takes these actions.
Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.

XII. When Can an Individual File an Employment Discrimination Lawsuit in Court?

Under the EPA, a lawsuit must be filed within two years (three years for willful violations) of the discriminatory act, which in most cases is payment of a discriminatory lower wage.

Federal employees or applicants for employment should see the fact sheet about Federal Sector Equal Employment Opportunity Complaint Processing.

XIII. What Remedies Are Available When Discrimination Is Found?

The "relief" or remedies available for employment discrimination, whether caused by intentional acts or by practices that have a discriminatory effect, may include:

back pay,
hiring,
promotion,
reinstatement,
front pay,
reasonable accommodation, or
other actions that will make an individual "whole" (in the condition s/he would have been but for the discrimination).

Remedies also may include payment of:

attorneys' fees,
expert witness fees, and
court costs.

The Commission

XIV. What Is EEOC and How Does It Operate?

EEOC carries out its enforcement, education and technical assistance activities through 53 field offices serving every part of the nation.

The nearest EEOC field office may be contacted by calling: 1-800-669-4000 (voice) or 1-800-669-6820 (TTY).

Information And Assistance Available From EEOC

XV. What Information and Other Assistance Is Available from EEOC?

U.S. Equal Employment Opportunity Commission
Publications Distribution Center
P.O. Box 541
Annapolis Junction, MD 20701
1-800-669-3362 (voice)
1-800-800-3302 (TTY)
(301) 206-9789 (fax)

Free advice 24 hours a day on all serious injury accidents. CALL 1-800-INJURED

Paul DeLorenzo — Wed, 12 Oct 2011 18:49:00 GMT

Victims may need help 24 hours a day 7 days a week and that's why the DeLorenzo Law Firm has the Injury Help Line. Just call 1-800-INJURED anytime day or night and a lawyer will answer your urgent questions!

Slip and Fall Injuries

Paul DeLorenzo — Wed, 05 Oct 2011 17:17:00 GMT

Personal Injury versus Workers Compensation

Normally, slip and fall cases are covered under a special branch of personal injury law called premises liability law. Under premises liability law, a standard of care is set based on the reason you were at the premises, with those invited to a premises to do business afforded the highest amount of protection and those trespassing on a premises afforded the lowest amount of protection. Negligence must be proven for you to recover, and you are able to collect your damages only by proving that the premises owner breached his duty and that the breach led to damages.

Worker's compensation is different. Under the worker's compensation laws in place throughout the United States, a worker who is injured at work is not permitted to sue his employer in a personal injury lawsuit. Instead, that worker recovers under worker's compensation rules and gets his damages from a worker's compensation insurer. To get damages for your slip and fall, you must prove:

That it happened at work, while you were working or because of your job duties
The nature and extent of your injuries and illnesses

It is important to note what is missing from that list- negligence. Your boss or employer did not have to be negligent for you to recover your damages from a slip and fall case. Negligence is not relevant. As long as you weren't drunk or under the influence or doing something against specific company rules when your injury happened, if that injury happened because of work, then you can recover.

The worker's compensation laws determine exactly how much you get, instead of a jury determining your damages as in a slip and fall case. The workers comp payment is usually based on the nature and severity of the disability or injury that you suffered as a result of the slip and fall.

If you slipped and fell at work, you should speak with one of our lawyers right away.

Injured from a fall off a work site roof?

Paul DeLorenzo — Wed, 21 Sep 2011 20:11:00 GMT

Roof Fall Injury at Construction Site

Roof fall construction accidents can pose a life threatening or life altering situation to those who experience them. Common roof fall injuries at construction sites include injuries such as a broken neck, broken back, broken leg, and head injuries. Unfortunately many roof fall injuries that occur can be prevented but sometimes negligence is involved and the construction worker ends up getting injured because of a situation that should have never existed and could have easily been prevented.

How Do Roof Fall Injuries Occur?

Roof injuries can occur a variety of ways. The most common reason for falling off of a roof or being injured while working on a roof is improper safety equipment. A construction worker who is not provided with the proper safety equipment can change a roofing job from being safe to being a possible death trap.

A construction worker should never be asked to work in unsafe conditions without the proper safety equipment which includes working with bad railings, bad planks, without a safety harness, or without other necessary safety equipment including equipment to safely hoist material.

Who is at Fault?

Fault for a roof injury involving negligence usually falls on the property owner or, sometimes, the contractor who the injured worker is employed by. The reason a property owner or contractor would be at fault for a roof injury to a construction worker would be for reason such as trying to cut costs or cut time by not properly providing the worker with the right safety equipment for the job that needs to be done. Another reason a contractor could be at fault for a worker suffering from a roof fall injury would be if the contractor did not have a fall protection plan in place. A fall protection plan is required by OSHA when a drop is more than 6 feet from the ground. If a fall protection plan is not in place it puts the roof worker at risk.

What are my Rights if I am Injured?

If you were injured by falling off of a roof or were injured on a roof due to faulty or unsafe equipment or if you were not provided with the proper equipment for the job or a proper safety fall protection plan negligence may be involved. While every case is different and is based off of liability and the type of injury and the extent of the injury sustained you are more than likely entitled to compensation for the injuries that you have suffered.