Law & Daily Life - The FindLaw Life, Family and Workplace Law Blog

April 2009 Archives

Credit Card Holders' Bill of Rights: What it Could Mean for You

Amidst rising credit card debt and increased bankruptcy filings in the United States during the recession, the AP reports that the House of Representatives appears to be getting close to passing one measured called the "Credit Card Holders' Bill of Rights". The legislation certainly sounds impressive and significant (as do most things that have "Bill of Rights" appended to them), but what would the measure actually do for us were it to come into law?

Here's a short list of what lawmakers are reportedly highlighting as the benefits passed on to card holders by the legislation:

The Supreme Court has, in an opinion that can be described as anything but "fleeting", has temporarily upheld the Federal Communications Commission's (FCC) "fleeting expletives" policy. For anyone looking for where to place the blame, feel free to point at celebrities who enjoy using profanity when giving their award acceptance speeches (sorry Bono, Cher).

The case had its beginnings after Bono said "'This is really, really, f***ing brilliant'" during NBC's broadcast of the Golden Globe Awards. It was at that point in 2004 that the FCC, for the first time, declared that such one-time, expletive, use of the F- and S-Words could be "actionable" (i.e. penalized under federal indecency laws). However, the FCC didn't penalize NBC because it was the first time it had clarified the rule.

The FCC, did eventually take action in response to other celebrity F- and S-word usages at award shows, thanks to Cher for this quotable quote:

Census data released yesterday indicates that Blacks and Hispanics are starting to fall further behind whites in pursuing higher-paying jobs, reports the AP. Indeed the discrepancies appear to be the "largest rates in about a decade" and are perhaps due in part to the tough economony as one demographer explained, "[t]he lesson of most economic downturns is minorities are the last hired, first fired. They lose jobs more quickly, and they will be the last to recover."

Here are just a couple of the key figures highlighted in the AP piece:

- Blacks with four-year bachelor's degrees made about $46,502 (78 percent of the salary for whites with the same level of education)

- Hispanics with bachelor's degrees got $44,696 or about (75% of whites)

According to a demographer for the Population Reference Bureau, Mark Mather, the statistics "highlight some of the barriers for minorities". He went on to indicate that "the pay disparities could widen further since blacks and Hispanics tend to be relative latecomers to the professional world and thus more vulnerable to layoffs in the current recession."

Iowa Same Sex Marriages and Licenses Underway: Obstacles Ahead?

On the heels of the Iowa Supreme Court's momentous decision declaring unconstitutional a law limiting marriage to unions between a man and a woman, the AP reports that same-sex couple all over the state have started to apply for marriage licenses. Indeed, at least one lesbian couple was able to get married in Des Moines, and the story indicated they believe they were the first ones to do so considering that they had to get a judge to waive the requisite 3-day "waiting period before marriages are considered final."

Other couples also were lining up to get waivers so that they could proceed with their marriages as soon as possible, and some exlained that "they wanted to get married as soon as possible after seeing how California voters reinstated a ban on same-sex marriage", which was itself triggered by a California Supreme Court decision. The same court is currently considering a challenge to the voter-passed constitutional amendment, and a ruling is expected by mid-June.

The hiring of Isiah Thomas at Florida International University reportedly angered a number of faculty at FIU due to his past track record, and no, I am not referring to his coaching or executive skills. Instead, what the New York Times was talking about was the fact that Isiah Thomas was found by a jury to have sexually harassed a colleage in his previous stint with the New York Knicks.

Indeed, the Times story noted that some relatively extraordinary steps apparently were being planned in welcoming Thomas to his new gig:

"Laurie Shrage, the director of women's studies and a philosophy professor at the university, said she and some of her colleagues planned to hand-deliver to Thomas a copy of the university's sexual harassment policy. "

Divorce in the Recession: Do It Yourself?

Some have suggested that the recession could result in a surge in divorces, or actually even encourage couples to divorce. Certainly in the context of wealthy individuals, the recession has been suggested to be a good time (if there is such a thing) to seek a divorce because so many people's assets have lost so much value. However, for mainstream individuals facing nearly unprecedented levels of job losses, foreclosures, and other financial challenges, divorce might seem like an altogether daunting financial proposition.

As a result, individuals or couples who have made the difficult decision that it is time for a divorce might understandably be wondering whether they can save costs by handling a divorce themselves. And if they believe they can do so, they might also be wondering whether they should.

The estate of late billionaire hotelier Leona Helmsley has, at last, begun to be distributed. The New York Times has covered the ongoing dispute over how money in her charitable trust would be spent. According to a "mission statement" created by Helmsley years ago, the money was supposed to be used for the benefit of dogs. In the end however, as had been argued for by her trustees, only a small part of the amount doled out yesterday went to the care of dogs (a paltry $1 million out of the $136 million distributed), while the remainder went to medical centers.

People might wonder what would prompt Helmsley to use a trust in the first place, if as argued by the President of the Humane Society, it could possibly result in her "wishes ... clearly being subverted"? For Helmsley, a big part of the answer may have been as simple as "taxes".

On FindLaw Answers, the interactive message boards where users can pose questions which are then answered by the greater FindLaw community, we see trends on topics that are important to the question-asking public. A recurring Family Law topic that comes up is about grandparents' rights to custody or visitation of their grandchildren. So, you may be wondering too, do grandparents have legal rights to see their grandchildren?

The short answer is ... it depends!  Grandparents don't actually have constitutional rights to custody and any rights recognized are primarily through state law measures.  The Supreme Court weighed in on the matter in 2000 in Troxel v. Granville where it held in a 6-3 decision that a Washington statute which allowed any individual to petition for court-ordered right to see a child over the custodial parent's objection, if it was in the child's best interest, violated the parents' due process rights to make decisions concerning the care, custody, and control of their children. 

Supreme Court Sets Lower Bar for Aliens to Put a Hold on Deportations

The Supreme Court today lowered the bar for aliens facing deportation to be able to get courts to put a temporary hold on such deportations until their appeals have been heard.

The case dealt with a particular provision of laws passed in 1996 designed to limit and streamline appeals for aliens in immigration proceedings. The alien in this case was Jean Marc Nken, a citizen of Cameroon, who had applied for (and been denied) asylum and other immigration relief. After he went through a series of appeals, he ended up asking that his deportation be "stayed", or put on hold, while his latest appeal was considered. However, the request was denied, apparently based on a part of the streamlined immigration laws which says "no court shall enjoin the removal of any alien...unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law."

How to Deal with a Noisy Neighbor

We've all had those nights...You know, the ones where you lie in bed and simply can't believe anyone would play music so loud, at such an un-be-lie-vable hour of night. Or perhaps your upstairs neighbors are night owls and like to do their vacuuming, dish-washing, or exercise routine after midnight. Regardless, now that the winter months have passed, the likelihood of loud parties or other potentially noisy activities may rise too.

So what do you do when you just can't take it any more and you would like to be able to get through a workday without having your forehead hitting the keyboard in front of you?

Generally, the first thing to do is to talk to your neighbor to see if the situation can be resolved without resorting to the legal system.  This will likely be simpler and less stressful for all concerned, and it's important when doing so to keep your cool. Being nice (or at least polite, if you can't work up the will to be nice) is far more likely to achieve results than, say, pounding on a door, wall, floor, or ceiling.

If this attempt fails, it's a good idea to next document your complaint, perhaps by writing a letter to your neighbor and saving a copy. This will be helpful in case legal proceedings occur later on down the line (make sure you save any written response from them too). If that also doesn't resolve the issue, check your local noise ordinance, which you will probably be able to find online.  There is likely a municipal ordinance for your area that limits the decibel level of permissible noise, and once you've found out, you can notify your neighbor of the law.

Should none of these informal approaches work, you have the option to call the police to ask your neighbor to turn the noise down, and possibly issue a warning or ticket. If none of these steps gets the job done, and you've determined that your neighbor's noise violates the law, you have the option of proceeding in small claims court for money damages, or you can seek an order to stop the noise in regular court.  Before you take this measure, make sure to document your complaint, as discussed earlier, and look for other people in your area who may be able to corroborate your claim as witnesses.

In a 6-3 ruling handed down today, the Supreme Court scolded a federal appeals court that essentially got too friendly in its treatment of certain veterans disability benefits claims.

The ruling dealt with cases brought by two veterans, Woodrow Sanders and Patricia Simmons, whose benefits claims were denied by the Department of Veterans Affairs (VA). The veterans had argued that the VA mishandled certain notices it was required to give them under federal law. The law at issue, the Veterans Claims Assistance Act (VCAA), is a law which was passed in 2000 to improve the manner in which the VA assists veterans claiming benefits, and which also set out some basic notice requirements for the VA. At the bottom of this dispute is how mistakes made by the VA regarding notices to veterans are to be treated by courts.

The U.S. Court of Appeals for the Federal Circuit had ruled in favor of Sanders in one of the cases, indicating that the system set up by the Veterans Court to review claims of notice error:

Savana Redding was a 13-year-old eighth grade honor student at Safford Middle School in Arizona when the school's principal pulled her out of class and took her to his office. Lying open on a desk in his office was Savana's planner (which she claimed to have let another student borrow), and some prescription-strength ibuprofen pills, as well. Possession of these pills on campus was prohibited by a school rule, but Savana denied having anything to do with them.

Not satisfied with the denial, the principal asked to search Savana's belongings. After she allowed him to do so, (nothing was found) she was then taken to the school nurse's office where she was strip-searched quite thoroughly by the school nurse and another official (both female). No pills were found through that search either. Savana was left, as she described, having endured "the most humiliating experience" of her life, and feeling "violated by the strip search." She and her parents ended up suing the school and officials claiming a violation of her civil rights, and the case has now gone all the way to the Supreme Court. An appeals court ruled in favor of Savana Redding, finding that school officials violated her Fourth Amendment right to be free from unreasonable search and seizure.  It also ruled that the defendants could be held liable for damages.

Job Search Fraud Rising in Recession: Five Job Search Scams to Avoid

An article in the Sun-Sentinel describes how identity thieves are taking the phrase "kicking 'em while they're down" to a whole new level. It looks like scam artists have found easy prey in the legions of newly unemployed individuals who are now seeking searching, sometimes desperately, for employment.

The article noted that job-search fraud is rising quickly in Florida, and "generating thousands of complaints a year, according to the Federal Trade Commission. It fielded more than 2,400 such complaints from Florida in 2008, up nearly 40 percent from 2007." The consequences can be terrible for individuals already in difficult circumstances, as "[i]dentity thieves have used the information to wreak financial havoc, often trashing victims' credit while using their names to open bank accounts and obtain credit cards, loans, cell phones and utility services."

With that in mind, here's a quick list of unemployment-related scams that should be on everyone's radar:

Cheerleader Coach Fired for Playboy Pics: The Exceptions to At-Will Employment

CBS reported yesterday about Carlie Christine, a cheerleading coach at Casa Robles High School in California, who got fired after she appeared in Playboy magazine. Carlie Christine's termination, although likely justifiable as a legal matter (though the school district appears to be refusing comment at the moment), might lead people to wonder just what kind of off-work conduct could put them at risk of getting fired.

Let's just get it out of the way up-front that posting scandalous, incriminating, and yes, nude, photos of yourself on the Internet for the world-at-large to see are really good ways to get fired and/or not-hired-in-the-first-place. The fact is that in states with "at-will" employment (the vast majority), an employer may terminate an employee for any reason or no reason, unless the employee's employment agreement provides to the contrary.  There are a few exceptions to this rule, and here are the big three:

New York Next in Line to Legalize Gay Marriage?

Right on the heels of Vermont's legalization of gay marriage, governor David Paterson reportedly intends to introduce a bill doing the same in New York.

Governor Paterson justified the legislation as follows, according to the AP:

"Paterson said Tuesday the measure is necessary because gays and lesbians in civil unions are denied 1,200 to 1,350 civil protections such as health care and pension rights since they're not married."

This actually wouldn't be the first such effort in New York, as the same bill was killed procedurally in the state Senate in 2007. However, the Senate was controlled by Republicans in 2007, and in the meantime control has since switched (narrowly, 32-30) to Democrats. Opponents, however, are promising the same result this time around and it remains to be seen if party lines will be adhered to. Despite the rising momentum in various states toward the legalization of gay marriage, opposition remains stiff and even the Senate's Majority Leader, Malcolm Smith, doesn't believe there are enough votes to pass the bill (though he does support it).

A federal court of appeals has ruled that a police department's refusal to allow a female Muslim police officer to wear a headscarf while on duty did not add up to religious or sexual discrimination.

Kimberlie Webb, a practicing Muslim, got hired as a Philadelphia police officer in 1995, but the circumstances leading to her case happened in 2003. This was when she asked her supervisor if it would be okay if she wore a headscarf while on duty and in uniform. To clarify, this wasn't the type of headscarf that would cover her whole face, but instead "would cover her head and the back of her neck." (Obviously, headscarves were not on the list.)

Nevertheless, the Philadelphia Police Department refused the request based on a "Directive", or memo, specifically listing allowable uniforms and equipment. Philly's Police Commissioner Sylvester Johnson noted, "[o]ur dress code is very, very strict. . . . And it specifically tells you the things that you can wear. If those things are not on there, then it is prohibited based on our Directives."

CNN reported today on the story of Japanese-born Noriko Calderon, whose Filipino parents illegally immigrated to Japan, and who is now being left behind in Japan as her parents are deported. CNN gave the following background on the Calderon family's situation:

"Filipinos Arlan and Sarah Calderon illegally entered Japan in the early 1990s on fake passports. They married and had a daughter, Noriko...

But her future in the only country she's ever known went into limbo when Japanese immigration authorities arrested her mother in 2006.

Her parents decided to fight Japan's notoriously rigid immigration laws and for three years under a harsh media spotlight, they argued their case all the way to the country's High Court, saying Arlan is gainfully employed and their daughter only speaks Japanese.

The family lost their case in the High Court, and Japan ordered Arlan and Sarah Calderon be deported back to the Philippines."

A fire department in New Haven, Connecticut, has had no job promotions in a long, long time and it has nothing to do with the recession or tight government budgets, the New York Times reports. No, promotions at the New Haven Fire Department have been on hold since 2003 because that was when the test used for promotions was thrown out by the city "because none of the 19 African-American firefighters who took it qualified for promotion." This, in turn, led Frank Ricci (who had done well on the test) and 17 other white firefighters to sue the city claiming racial discrimination.

Claims made by a member of a majority group alleging racial discrimination in favor of a member of a minority group are called "reverse discrimination" race claims (the claims are usually thought to work the other way around). The Supreme Court is scheduled to hear arguments on April 22 in Ricci's case, which he lost in the lower courts. However, the good news for Ricci is that the Court has lately tended to disfavor policies making decisions based on race. This has been particularly noticeable in the area of education. Last year, the Supreme Court limited the use of race in assigning public school enrollment.

A judge has put a stop to new Texas rules which would have prevented certain individuals with valid visas from getting driver's licenses or ID cards, the AP reports. The Mexican American Legal Defense & Education Fund (MALDEF) sued the Texas Department of Public Safety on behalf of five immigrants who had "permission to work in the country and a Lewisville landscaping business that employs seasonal foreign workers through a federal program." Plaintiffs claimed that, under the new rules, they would be unable to obtain licenses to drive to and from work because their visas were only valid for 10 months (the rules require 12 months).

Austin Judge Orlinda L. Naranjo found that the problem with the rules wasn't that they sought to prohibit illegal immigrants from obtaining such forms of ID (which is actually encouraged by federal law), but instead that they kept legal residents from being able to do so. Specifically, the judge found that "the length of time a visa is valid for, or the amount of time left before a visa expires, has no correlation to the verification of an applicant's full name and place and date of birth or to an applicant's identity, competency or eligibility." Further, the Texas Legislature did not give the DPS the authority to essentially "create a new category of ineligible persons to receive a driver license." With that in mind, the judge enjoined the government from enforcing the rules

Reconcile, or Else! Wife Handcuffs Herself to Husband to Work Things Out

In what appears to have been an ill-fated effort to save a marriage, 37-year-old Helen Sun handcuffed herself to her husband Robert Drawbaugh to try and talk things out with him. The Connecticut Post described the scripted-for-a-movie-like incident, which occurred after Drawbaugh returned from Los Angeles to Fairfield, Conn., to try and reconcile with Sun:

"Sun, according to police, changed the lock on the bedroom door so that it locked from the outside and purchased handcuffs in preparation for the encounter. That night, as Drawbaugh slept, she put a gallon of water in the bedroom and took her husband's cell phone and wallet.

When Drawbaugh awoke and found himself handcuffed to Sun, police said she replied: 'You slept all day today, now this is what we are going to do for the next day.'"

Layoff Preparation and Survival Tips

Getting laid off is a terrible experience for anyone, and can understandably leave people feeling helpless or having doubts as to their value as employees. In recent months, layoffs have occurred often and sometimes in large numbers, leading many to join the ranks of job-seekers seeking unemployment benefits. To make matters worse, the AP reports that hundreds of thousands of previously laid off Americans will soon be exhausting their unemployment benefits, this despite the fact that Congress twice extended unemployment benefits last year.

Although some feel that recent signs of life in the economy may be a signal that the current recession is bottoming out, the same economists may likely concede that the job market usually lags behind other economic indicators in a recovery.

So what do you do if you're hearing disturbing rumors at the workplace, or are seeing worrisome management meetings, or have already faced some form of cutbacks? Here are five quick tips to help prepare and cope with a layoff:

Vermont Legalizes Gay Marriage Over Governor's Veto

Vermont has become the fourth state to legalize gay marriage after its House barely overcame Governor Jim Douglas's bill veto in a 100-49 vote (the Senate's vote was not close, 23-5).

Governor Douglas felt that there were other things that should have been taking up the government's time, "What really disappoints me is that we have spent some time on an issue during which another thousand Vermonters have lost their jobs...We need to turn out attention to balancing a budget without raising taxes, growing the economy, putting more people to work." He added that the law would not improve gay and lesbians' situation because it gives them no rights under federal laws or the laws of other states. However, gay marriage supporters were elated, with some indicating they finally felt equal to other couples.

Supporters of the bill had to work hard to garner the necessary vote-count because the bill had originally passed by only a 95-52 margin, which would not be enough to override a veto.

Although the debate over gay marriage has been getting the lion's share of media coverage, Eastern Michigan University (EMU) was sued in a noteworthy case by former student Julea Ward, alleging she was dismissed from EMU's Graduate School Counseling Program "solely because her religious beliefs and expression regarding homosexual behavior contradicted the views of the EMU counseling department." In a press release, the Alliance Defense Fund clarified that the student was dismissed for not "affirming homosexual behavior as morally acceptable", as required by the school's program.

The complaint filed by the ADF on behalf of the student, further asserts that counseling department at the school prohibits students from advising clients that they can refrain from homosexual conduct. The case arose after a client in the program sought counseling from Ward regarding a homosexual relationship. Ward, who "believes that homosexual conduct is immoral sexual behavior," asked a supervisor whether she should continue to see the client or refer them on to another counselor. Despite referring the client on to another counselor, Ward had disciplinary proceedings brought against her, and was later dismissed from the program after she refused to go through what the complaint described as a "remediation" program.

A Malawian judge today rejected Madonna's petition to adopt a second Malawian child. The pop diva's adoption attempt drew sharp criticism from some non-profits working in the area, and shed a light on the rules and controversies surrounding some international adoptions.

As reported by the Guardian, had the court approved Madonna's petition, she could have returned home with young Chifundo "Mercy" James tomorrow. The problem is that home isn't and has never been Malawi. Judge Esme Chombo of the Malawian court ruled that Madonna could not adopt the girl because she had not complied with Malawi's residency requirements for foreigners wishing to adopt children from the country.

Three years ago, Madonna was allowed to take her first adopted Malawian child, David, to London before the adoption was finalized. Today she drew a different judge.

Madonna has already filed her appeal of today's ruling.

The California Supreme Court recently faced the recurring challenge of parental drug abuse in juvenile dependency proceedings, which generally involve children who are neglected or abused by their parents or guardians and become “dependents” of the courts. One court in San Diego had come up with a treatment program called the Substance Abuse Recovery Management System (SARMS) aimed at parents suspected of having drug or alcohol abuse issues.

Parents in dependency proceedings could be required to complete the SARMS program as part of a family reunification plan. Now this all probably sounds fairly reasonable, but in the California Supreme Court’s own words, the San Diego court also included an extra “stick” to encourage parents to complete the program. Parents who failed to comply with SARMS were subject to contempt citations and jail time. Indeed, “the ‘stick’ proved to be quite large in this case, in which a mother was sentenced to 300 days in custody for failing to enter drug treatment.”

In a move critics are calling politically-motivated, or just plain "cruel", West Virginia legislator Craig Blair has introduced a bill requiring random drug testing of individuals filing for unemployment benefits. According to CNN, Blair and his supporters (who have a website at say they are motivated not only by the "rampant" use of drugs in the country, but also by their desire for proper use of taxpayer funds.

CNN noted that the bill would "require random drug testing for any government assistance" and someone who failed their drug test "would get the benefits and 60 days to clean up." A failure of a subsequent drug test would result in an individual losing their benefits for two years.

Political opinions regarding such a law aside, people might be wondering whether such random drug testing would be legal. After all, the Constitution doesn't allow for anyone driving to be randomly tested for their blood alcohol content (BAC), despite the fact that they are partaking in the government-granted privilege of driving. In most (but not all) circumstances, the Constitution requires some sort of individualized suspicion of wrongdoing prior to a search and seizure by the government.

In a closely divided 5-4 opinion, the Supreme Court announced today that a portion of a collective bargaining agreement (CBA) which requires union members to arbitrate their federal age discrimination claims must be enforced.  As a result, union members in such circumstances can't bring a separate age discrimination suit in federal court.

The case is noteworthy because it overturns a lower court's ruling which, relying in part on past Supreme Court cases, found that these kinds of arbitration clauses are not enforceable if they give up workers' rights to have a court hear their federal age discrimination cases. Today's decision allows unions to collectively decide whether or not to give up individual workers' rights to sue in federal court for age discrimination.