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Employment Law 101: What is a “Wrongful Termination?

Posted By Joette Melendez, Thursday, July 20, 2017

Call it what you will—layoff, reduction in force, downsizing, headcount reduction—the global economic situation has resulted in more job losses and unemployment than the United States has seen in generations.  As an employment lawyer, I am asked on a daily basis how one can determine whether he/she has a claim for “wrongful termination.”  

 

At-will Employment

 

You may be aware that Georgia, like almost all states, is an “at-will” employment state.  At-will employment means that, unless you have an employment agreement for a specified term providing that you can only be terminated for “cause,” you can be terminated for any reason or no reason at all, so long as no law is violated.  Your employer does not need to justify its actions, utilize progressive discipline, or allow you an opportunity to present your side of the story.  In other words, it is not illegal for an employer to be unfair or wrong when it fires an “at-will” employee.  

 

The Exceptions

 

The main exception is where the termination decision was based on the employee’s race, color, gender, age, religion, national origin, pregnancy, disability or veteran status.  If you can show that you were treated less favorably than other similarly-situated employees outside of your “protected class,” you may have a claim for unlawful discrimination.  

 

Another exception is where you have complained to your employer about discrimination or some other unlawful act, or filed or participated in a discrimination claim, and your employer terminates you in retaliation for these activities.  

 

If you are a union member or a government employee, you may have additional rights.

 

Do I Have a Case?

 

So, what if you believe that the decision to lay you off was based on your race, color, gender, age, etc.?  To successfully pursue a claim for discriminatory discharge, you must have evidence that the decision was based on your membership in one or more of these protected classes.  Certainly, it can be harder to prove that your termination was discriminatory or retaliatory when many others are suffering the same fate as you are.  But ask yourself this:  was the layoff legitimately based upon financial reasons, and if so, why were you chosen?  If you were chosen for layoff over someone outside of your protected class who was less qualified, then you may have a viable claim.  Comments or jokes evidencing bias against certain workers can often be circumstantial evidence of discrimination.  For example, comments by a decision-maker about wanting to have a more “youthful, aggressive sales team” may be evidence of age discrimination.  Jokes about a Pakistani employee’s accent may be evidence of national origin-based discrimination.

 

In addition, a reduction in force that is based on non-discriminatory factors (e.g., cost-cutting) may be unlawful if it has a discriminatory impact on a protected class.  For example, a plan that focuses on eliminating higher paying positions may have a disparate impact on older workers since they tend to earn more than younger workers.

 

The biggest part of any case is discovery—the process in which either party can request documents and information from the other side to prove their case or mount their defense.  Once it appears that an employment dispute is likely to lead to litigation, the employer is obligated to preserve all relevant documents (including emails, computer files, Blackberry data, etc.) that may become discoverable in the case.  Emails tend to be a treasure trove of helpful evidence in employment cases.  People who wouldn’t dream of committing certain thoughts, opinions, or feelings to paper think nothing of firing off a quick email with those same sentiments.

 

What Should I Do To Pursue It?

 

If you have not yet been laid off, but believe that you will be, this would be an excellent time to consult with an attorney specializing in employment law.  Your attorney may be able to help you avoid layoff by having your employer consider you for a transfer within the organization, or help position you to negotiate for a favorable severance package in the event that you are terminated.  If you have already been terminated and you believe the decision was discriminatory or retaliatory, it is also a good idea to consult with an employment law attorney.  Your attorney can negotiate with your former employer on your behalf or present a strong case to the Equal Employment Opportunity Commission—the federal agency that investigates employment discrimination claims—and, if necessary, file a lawsuit on your behalf.

 

Greg Fidlon has over eleven years of experience representing employers and employees in individual and class action litigation, and advising clients on all aspects of the employment relationship.  He can be reached at greg@fidlonlegal.com or 770-807-0083.

 

This content was written by one of our panel members, Gregory Fidlon, an attorney in Atlanta, Georgia.

***If you or someone you know is faced with labor issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

 

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No Joke. Hiring Policies that have a Discriminatory Impact on Older Job Seekers Are Lawful

Posted By Joette Melendez, Wednesday, July 19, 2017

The Eleventh Circuit Court of Appeals, sitting en banc, recently affirmed a district court’s dismissal of a plaintiff’s disparate impact claim under the Age Discrimination in Employment Act (“ADEA”) because the plaintiff was a job applicant, not an employee. See Villarreal v. R.J. Reynolds Tobacco Co., 2016 U.S. App. LEXIS 18074, *27 (Oct. 5, 2016). 

 

The plaintiff, who was over the age of 40, alleged that a prospective employer used “resume review guidelines” that had a disproportionately negative impact on applicants over the age of 40. The guidelines told hiring managers to target applicants who were a few years out of college and to avoid applicants with more than eight years of experience. As a result of these guidelines, only 19 of the 1,024 job applicants hired between September 2007 and July 2010 were over the age of 40. 

 

Section 4(a)(1) of the ADEA focuses on the employer’s motive and applies to disparate treatment claims (i.e., intentional discrimination). It makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” By contrast, Section 4(a)(2) of the ADEA focuses on conduct and applies to disparate impact claims (i.e., policies and practices that appear neutral, but which result in a disproportionate impact on protected groups). It makes it unlawful for an employer to “limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.”

 

In Villarreal, the prospective employer argued that the term “his employees” in Section 4(a)(2) referred to current employees, and that the subsequent use of the term “any individual” in that Section referred to those current employees. On the other hand, the plaintiff argued that Section 4(a)(2) precludes prospective employers from “limiting” their “employees” (e.g. hiring managers) in a way that would deprive or tend to deprive “any individual” like the plaintiff of a job because of his age. 

 

On November 30, 2015, the Eleventh Circuit Court of Appeals in a 2-1 decision found both readings plausible. Given the ambiguity in the statutory language, the Eleventh Circuit deferred to the reasonable interpretation of the Equal Employment Opportunity Commission (“EEOC”). According to the EEOC, Section 4(a)(2) protects both current employees and job applicants. The Eleventh Circuit reversed the district court’s decision, but the prospective employer successfully petitioned for a rehearing en banc. The second time around, the Eleventh Circuit refused to defer to the EEOC and found that the statutory language in Section 4(a)(2) was not ambiguous. The Eleventh Circuit held that Section 4(a)(2) clearly protects employees, not job applicants, and affirmed the district court’s dismissal of the plaintiff’s failure to hire disparate impact claim. 

 

The implications of this decisions are deeply troubling for Plaintiffs’ employment lawyers and all of those individuals within the protected class (which will include everyone at some point). In light of this decision, there is no recourse against companies with hiring policies and practices that have the effect of eliminating job seekers over the age of 40 disproportionately.

 

This content was written by one of our panel members, Louise Smith, an attorney in Dacula, Georgia.

 

***If you or someone you know is faced with labor law issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

 

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Three’s a crowd: The triplets of protecting your intellectual property

Posted By Joette Melendez, Tuesday, July 18, 2017

Trademarks, copyrights, patents. We hear these terms all the time and have heard more than once how important intellectual property is. But what is it and how is it protected? For the non-IP lawyer, these terms can seem confusing. Clients often ask how to “patent a logo” or “copyright an idea” but those terms are incorrect. After reading this post, you will see how most creations falls into one of these three categories. That way, you can have a more informed conversation with your client and help to answer some of her questions.

 

Trademarks

 

A trademark is form of intellectual property protection that applies to words, design marks (commonly known as logos), or symbols. The purpose of a trademark is to help a customer identify the source of a particular good or service. Trademarks are registered through the application process with the United States Patent and Trademark Office. You can recognize a trademark by the tiny "TM" or "R" symbol under a mark, usually located on the lower right. The use of "TM" means that the trademark has not yet been registered with the United States Patent and Trademark Office. The use of the "R" symbol indicates that the owner of the mark has a trademark registration. Some examples of famous trademarks are Nike, Chanel, UPS, and Coca-Cola. 

 

Copyrights

 

A copyright is a form of intellectual property protection that applies to original works of authorship such as books, songs, movies, photographs, and computer software. Copyright owners have six exclusive rights in relation to their copyrighted work. These include the right to reproduce the work, prepare derivative works, distribute copies of the work, perform the work publicly (as applicable), display the work publicly (as applicable), and publicly perform the work by means of digital audio transmission (as applicable). Copyrights are registered through the application process with the United States Copyright Office. 

 

You can recognize a copyright by the tiny "C" symbol located somewhere on the work of authorship. Copyright protection begins the moment the work is "fixed in a tangible medium", which means it was written, recorded, videotaped, etc. Copyright registration with the United States Copyright Office offers additional protections beyond the rights the author has by simply creating the work. 

 

Patents

 

A patent is a form of intellectual property protection that applies to inventions. Ownership of a patent registration provides the inventor the right to exclude anyone else from making, using, offering for sale, or selling the invention. The inventor also has the right to exclude others from importing the invention into the United States for a limited time in exchange for public disclosure of the invention when the patent is granted. Patents are registered through the application process with the United States Patent and Trademark Office.

 

I hope this summary has been helpful. Please feel free to contact us with any intellectual property questions at www.lakhanylaw.com.

 

This content was written by one of our panel members, Sonia Lakhany, an attorney in Atlanta, Georgia.

 

***If you or someone you know is faced with intellectual property issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

 

 

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Criminal History & Expungments

Posted By Joette Melendez, Tuesday, July 18, 2017

NEW YEAR….NEW YOU 

 

That is a promise a lot of people make to themselves on New Year’s Day. As you try to improve yourself, one thing holding many people back is their criminal history. You vow to get better job, go back to school, or move to a different area, but you may feel like a past brush with the law prevents you from moving forward. Although Georgia is one of the strictest states in the country as it relates expungement, there are several ways in Georgia to get past a spotted criminal history. 

 

The most common roadblocks on one’s criminal history are arrests with no convictions. Generally, if you were arrested for an offense, but you were never convicted, you can have this arrest removed from your criminal history. This applies to both felony and misdemeanor charges. The case may have been dismissed because you completed a pre-trial diversion program, or the victim did not want to press charges, or because the prosecutor decided there was not enough evidence to prove the case against you. Whatever the reason, most arrests that do not end with convictions can be removed from your criminal history.1 If the arrest occurred before July 1, 2013, you must apply to have this arrest removed. If the arrested occurred after July 1, 2013, the Georgia Criminal Information Center (the agency that maintains criminal history records in Georgia) will automatically remove the arrest within 30 days of the dismissal without you having to submit a separate application. 

 

Even if you were arrested AND convicted of an offense, all hope is not lost. You may still be able to have the conviction removed from your criminal history depending on the severity of the charge, your age, and how much time has passed since the conviction. 

 

First, let’s talk about misdemeanor convictions. If you were convicted of a misdemeanor offense before you turned 21, you are considered to be a youthful offender and you can file a petition to have that convicted removed from your criminal history. This applies to most misdemeanor offenses like shoplifting, possession of marijuana, battery, assault, and obstruction, just to name a few. However convictions for DUI and any misdemeanor offense that is sexual in nature (i.e., pandering or sexual battery) cannot be removed, no matter how old you were at the time of conviction. Also, to qualify you must have successfully completed your misdemeanor sentence and have no arrests (other than arrests for non-serious traffic offense) for the five years after completing your sentence. 

 

Now, let’s tackle the most difficult obstacle to overcome on your criminal history; a felony conviction. Felony convictions in Georgia may be restricted on your criminal history only under very extraordinary circumstances. Currently, the only remedy available to you is to apply for retroactive first offender treatment for your felony conviction under a fairly new law. Although it may only help a few Georgians, in 2015, the legislature passed a law that allowed for retroactive first offender treatment. If you were convicted and sentenced for a felony, and you could have been sentenced as a first offender at the time, but it was not offered to you, you can NOW apply to use first offender treatment on that old case; even if that case is decades old. In essence, the judge goes back and grants you a privilege that you  could and should have taken advantage of initially. The application ultimately requires approval from both the prosecutor and a judge, but if it is granted, it will clear a felony conviction from your record. 

 

 1 There a few uncommon situations where your charges may be dismissed, but the arrest is still not eligible to be removed. These can be found at O.C.G.A. § 35-3-37(i)(1)-(3)

 

If you are not eligible for retroactive first offender treatment and your felony conviction cannot be cleared from your record, you should apply for a pardon. A pardon can help erase the stigma that a felony conviction brings to your life. A pardon does not clear or erase a felony conviction from your record, but a pardon is a notation on your record that the State of Georgia has pardoned or officially forgiven you for that offense. To qualify for a pardon, you must have completed your sentence at least five years before applying, and you must have lived a law-abiding life during the five years prior to applying. If a potential employer searches your criminal history, a pardoned offense will still show, but there will be a notation that the State of Georgia has pardoned you, which may go a long way with many businesses and entities in proving that you are a new you. 

 

It’s important to note that none of the relief laid out above applies to federal offenses or to cases that occurred outside of Georgia. 

 

Finally, I want to make sure you know what record restriction and expungement means in Georgia. Many people believe that parts of their criminal record can be completely deleted or sealed. While that may be true in other States, in Georgia the best that someone with a criminal record can achieve is to have parts of that record “restricted.” If you are able to take advantage of any of the remedies laid out in this article, and parts or all of your criminal history become restricted, it is not literally wiped away clean. Those portions of your criminal history that have been restricted will no longer be seen by the public, including most employers, agencies, and organizations. However, criminal records that have been restricted can still be accessed by law enforcement agencies (police departments, probation officers, FBI, etc.) for criminal justice purposes only. My use of the terms “erase”, “remove” and “clear” throughout this piece all refer to restriction as it is known in Georgia. 

 

This content was written by one of our panel members, Laila Kelly, an attorney in Decatur, Georgia.

 

 

***If you or someone you know is faced with criminal law issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

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Family Law Survival Kit: “Do I have to pay child support?

Posted By Joette Melendez, Friday, June 30, 2017

Many people, upon hearing you are a lawyer, ask a family law question. One of the most common is “Do I have to pay child support?” Generally, if your former husband/wife/significant other/one night stand is suing for child support and you do not have primary custody, you will be liable for child support.

 

Determining Child Support 

 

Effective January 1, 2007, the income shares model takes into account the income of both parents when determining a child support amount. The income shares calculator is found at http://csc.georgiacourts.gov/. If a client pays health insurance premiums for the child(ren) and work related child care, it will be taken into account when establishing a final child support order. O.C.G.A. §19-6-15(h). So, assuming the non-custodial parent is asking the question: “Do I have to pay child support?”; the answer is probably…Yes. However, if the non-custodial parent is willing to pay health insurance or work related child care, it will lower his/her child support obligation. 

 

Deviations

 

Deviations from the presumptive amount of child support are possible if the required findings of fact are made by the court. O.C.G.A. §19-5-15(i). Deviations can also increase or decrease a child support amount. Deviations include high and low income, insurance and tax credit, travel expenses, alimony, mortgage, permanency/foster care plan, extraordinary expenses, parenting time, social security benefits, split parenting, uninsured health care expenses, and agreement. O.C.G.A. §19-5-15(i)(2). Paying private school tuition and extracurricular activities may also lower a parent’s child support obligation. Lawyers should ask clients to communicate their expenses to determine if the client can lower his/her child support obligation. A common misconception parents have is that the custodial parent can waive child support. That is not true. The right of child support belongs to the child and parents cannot give away their child(ren)’s right to child support. While the parties can always agree to a higher or lower amount than the calculator generated presumptive amount, there are no guarantees the judge will accept the parties’ agreement. 

 

Now that you know the answer to one of the most common family law questions, you can handle those distant acquaintances and late night relative calls with a little more confidence. Make sure to give them my number, however, just in case.

 

Fatima Harris, Esq. has over ten years of experience in representing men, women and children in divorce, custody, dependency and other family law issues. She can be reached at theharrislawfirm@gmail.com or 678-465-8645.

 

***If you or someone you know is faced with family law issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

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10 Things Estate Planning Can Do for You

Posted By Joette Melendez, Thursday, June 29, 2017

Admittedly, planning for your death is not a fun topic. It is, however, an important part of having a completely sound financial plan and, more importantly, the most unselfish decisions you can ever make in your entire life. That is not hyperbole, it’s a fact. By obtaining wills, advance medical directives, and durable/financial powers of attorney the only people who are likely to see the benefit of those efforts are those you care about. By taking the time and effort necessary to plan your estate, you will be able to:

 

Provide for your immediate family

 

Couples want to provide enough money for the surviving spouse. Couples with children want to assure their education and upbringing. If you have children under 18, both you and your spouse should have a will nominating personal guardians for the children, in case you both should die before they grow up. Otherwise, a court will decide without your input where your kids will live and who will make important decisions about their money, education, and way of life.

 

Get your property to beneficiaries quickly

 

Options include insurance paid directly to beneficiaries, joint tenancy, and living trusts, as well as using simplified or expedited probate and taking advantage of laws that provide partial payments to beneficiaries while a will is in probate. Without an estate plan, potential beneficiaries may bicker and argue about who is entitled to what, often at the expense of the estate itself. It is an unfortunate situation when competing interests obtain attorneys who are paid by the estate itself, and, at the end of the day, the beneficiaries exhausted significant estate assets in legal fees. 

 

Plan for incapacity

 

During estate planning, you can also plan for possible mental or physical incapacity. Georgia uses what is called an advance medical directive to address one’s living will and health care agents. This document enables you to decide in advance about life support should you be in a permanent vegetative state or critical condition, and pick someone to make decisions for you about medical treatment. The durable/financial power of attorney permits an agent to act on your behalf should you lack capacity to do so. Unfortunately, people often do not realize just how important this document is until it is too late.  

 

Minimize expenses

 

Good estate planning can keep the cost of transferring property to beneficiaries as low as possible, leaving more money for your beneficiaries.

 

Choose executors/trustees for your estate

 

Choosing competent executors/trustees and giving them the necessary authority will save money, reduce the burden on your survivors, and simplify administration of your estate. It will also reduce the likelihood that an uninterested third-party would need to be hired, which would further drain estate assets. 

 

Ease the strain on your family

 

You can take a burden from your grieving survivors and plan your funeral arrangements when planning your estate. Or you may want to simply limit the expense of your burial or designate its place. Perhaps you want to be cremated instead of buried? It is much easier to have this decision made prior to passing rather than have grieving family members be forced to make the decision after the fact. 

 

Help a favorite cause 

 

Your estate plan can help support religious, educational, and other charitable causes, either during your lifetime or upon your death, and at the same time take advantage of tax laws designed to encourage private philanthropy. Charitable entities also do not typically expire, so it is beneficial to name one in case all other beneficiaries named are no longer alive. 

 

Reduce taxes on your estate

 

Every dollar your estate has to pay in estate or inheritance taxes is a dollar that your beneficiaries won't get. A good estate plan can give the maximum allowed by law to your beneficiaries and the minimum to the government. Creating tax incentive estate plans is a complex tasks that often involves trusts or other asset protection vehicles. 

 

Provide for people who need help and guidance

 

Do you have an elderly parent or disabled child, or a grandchild whose education you want to assure? You could establish a special trust fund for family members who need support that you won't be there to provide. There are tax incentives in doing so, and, more importantly, peace of mind knowing those you care about are receiving care after your death.

 

Make sure your business continues smoothly

 

If you have a small business, you can provide for an orderly succession and continuation of its affairs by spelling out what will happen to your interest in the business. This is key for small businesses with several members who each have a divested interest.

 

The above-referenced points are merely some of the reasons to make the unselfish decision to create an estate plan.

 

This content was written by one of our panel members, Patrick William Lee, an attorney in Atlanta, Georgia.

 

***If you or someone you know is faced with probate issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

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Can my car be repossessed if I file a Chapter 7 bankruptcy?

Posted By Joette Melendez, Thursday, June 29, 2017

Can my car be repossessed if I file a Chapter 7 bankruptcy?

 

It's not uncommon for consumers to get in over their heads with debt and consider filing a Chapter 7 bankruptcy. Chapter 7 bankruptcy is a discharge in which the debtor's debts are completely discharged. A debtor must meet certain requirements to be eligible to file a Chapter 7 bankruptcy.

 

Some consumers may fear that if they file a Chapter 7 bankruptcy, the car loan lender may repossess his or her vehicle. Normally, during a Chapter 7 bankruptcy, the car loan lender is prohibited from repossessing your vehicle or trying to collect the debt owed on the vehicle. That is called an "automatic stay", and it makes it illegal for most creditors to continue any collection activities.

 

However, the lender can seek permission from the court to repossess the vehicle. The lender can do this by filing a motion for relief with the court. The lender must be able to show the court that it has the right to repossess the car and that its interests are not adequately protected because the debtor is not making loan payments on time. The debtor can oppose the motion. Typically, a hearing on the issue is held within a month. The bankruptcy judge may choose to allow the debtor extra time to try to work something out with the lender. However, if the debtor is not negotiating with the lender or attempting to pay for the car, the bankruptcy judge will often allow the vehicle to be repossessed.

 

If you are considering filing a bankruptcy and you wish to keep your vehicle, you have a few options. First, the easiest way is to stay current on your car payments. If you are current on your car payments, the car cannot be repossessed. If you are behind, attempt to find a way to catch up on the payments. If you are so far behind that you simply cannot catch up, you should consider negotiating with your lender. The lender would rather have money than to repossess a used car. Your lender may be willing to reduce your payments or your interest rate, or even possibly the principal balance that you owe.

 

Another option you could consider to keep your car is to redeem your car in the bankruptcy, which means to buy it back for its fair market value. In order to redeem the car, you must get the court's permission as well as to make a lump sum payment on the vehicle. This can be an attractive option if you owe more on the car than it is currently worth. This can result in you owing the vehicle free and clear from debt for significantly less than you would otherwise pay.

 

If you have questions about bankruptcy in Atlanta, call the Atlanta bankruptcy attorneys at Holston & Huntley, LLC at 888-513-0004. We can help you evaluate your options. Call us today to schedule a free consultation on your case. We serve Metro Atlanta Georgia as well as Birmingham Alabama including surrounding areas.

 

This content was written by one of our panel members, Willie Buddy Huntley, an attorney in Atlanta, Georgia.

 

***If you or someone you know is faced with bankruptcy issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

 

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Social Security: What Lawyers Should Know

Posted By James Jones, Tuesday, October 11, 2016
Claimants who apply for Social Security disability benefits, SSI disability benefits, and even retirement benefits can often times utilize attorneys and non-attorneys for their representation. If  the Claimant is under 50 years of age the general rule of thumb is that you must eliminate every single full-time job that exists within the United States in significant numbers. 

 

This would ordinarily be a job in a region where there is more than one hundred of said jobs available. The Social Security Administration does not concern itself with whether or not the person would be hired, how far the job is from where they live, or whether they would even like the job. The only issue it considers is   whether the person's physical and mental limitations would allow them to satisfactorily perform this job.

 

The role of the attorney is obviously to try and succeed in your client's case. This entails obtaining all relevant medical evidence, and more importantly, trying to get opinions from the treating physician; treating psychiatrist, treating psychologists, or other medical professionals indicating limitations that would interfere with your client's ability to perform full-time work at a competitive level.

 

If your client is over 50 years of age and is reduced to sedentary work and has no skills for sedentary work and has never done sedentary work, then a favorable decision can be rendered. This same rule would also apply for light duty work for individuals who are 55 and over.

 

Unfortunately, the last few years have seen the percentage of hearing decisions that are favorable reduced quite significantly. Most hearing offices have approval rates that are less than 50% where as many years ago the approval rate reached nearly 60%. Thus, it is harder to win the cases and more and more doctors and medical professionals are unwilling to complete treating physician forms that may aid your client in winning their case.

 

Obviously, if you are trying to build a practice in this area, you must properly screen your cases so that you are not spending a lot of important time on cases that cannot be awarded. You do perspective client a service, in some ways, by letting them know as early as possible if you do not feel that their case can be awarded.

 

However, you must keep in mind that many times a Claimant may present to you with a particular medical problem that they feel is disabling and the Claimant may have other problems for which they have not been getting treatment that may well be disabling. We often see this in mental health problems where a Claimant may have a physical problem but has an underlying psychiatric problem that has not been properly developed.

 

Additionally, if a Claimant has been going through special education throughout their life, then you must consider whether or not the Claimant may meet the adult mental retardation rules that the Social Security Administration has issued on such persons.

 

All in all, representing the disabled can be quite spiritually rewarding by helping people who may have not been able to obtain benefits but for your representation. Fees are limited to 25% and the general rule of thumb is that the 25% cannot exceed $6,000.00. Most often, your fees will either be $6,000.00 or less, depending on how much represents 25% of past due benefits.

 

There are also offsets that can be applied that can reduce the Claimant's back payment as well as your fee, such as Worker's Compensation benefits, marital assets and income in a SSI disability case, etc.

 

This content was written by one of our panel members, Lawrence Gordon, an attorney in Atlanta, Georgia.

 

***If you or someone you know is faced with Social Security issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

 

 

 

 

 

 

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Understanding Healthcare: Tips for Effective Coverage

Posted By James Jones, Tuesday, September 13, 2016

 

With the Affordable Care Act (ACA) bringing many changes to the way individuals select and use health insurance plans, I have listed some practical tips for those issues individuals will most likely encounter on a daily basis: open enrollment, the individual marketplace and health claim denials.  

 

As we approach the fall season, many employers will require their employees to choose a health insurance plan for the coming year.  This is commonly known as “open enrollment”.  With the litany of plans often available to choose from, it’s important that individuals carefully study their options before committing to a health plan for the coming year.  First, understand how your deductible and out-of-pocket expenses will be calculated.  Second, insurance companies enter into contractual agreements with certain hospitals and doctors within the plan’s “network”.  If you obtain treatment from an “out of network” provider, the benefits payable under your policy could be decreased or even not payable at all.  Therefore, always check with the insurance company or your primary physician to confirm if services will be covered at a specific doctor’s office or hospital.  Finally, as a general rule under the ACA, insurance companies cannot deny coverage or charge more for people with pre-existing conditions.  However, some health plans which have been “grandfathered in” can still include a 12 month pre-existing limitation exclusion.  Understanding  the exclusions and policy benefits language of any health plan can be a tedious process, however, it’s critical that you know upfront which services will be covered.

       

For those individuals shopping for health insurance on the marketplace exchange which was created under the ACA, read the summary of benefits and exclusions for those prospective plans.  Most insurance companies will have that information posted in a .pdf on their website.   Also, if you apply for advance payments of the premium tax credit and cost sharing reductions (subsidy) on your marketplace plan, you must affirm that you either don’t have access to health coverage through your employer, you had access to employer coverage but the coverage wasn’t affordable or didn’t meet the minimum value standard, or you were in a waiting period and unable to enroll in employer coverage.  If it turns out you were not eligible for the premium tax credit/subsidy, your employer will file an appeal with the marketplace and your eligibility for future assistance may be affected.  

         

If you have a health insurance claim denied, you must file a written appeal within the specific guidelines set forth in the plan.  Obtain a copy of the Explanation of Benefits (EOB), this document shows the charges submitted by the provider and which charges were paid.  If the claim was denied, the EOB will reference a specific denial code.   Contact your provider to obtain any medical records which may be needed to supplement your appeal letter.  Most plans have a time limit on when appeals must be submitted, so act fast.   Appeals should be in writing and include the claim number and reason for the appeal.  Finally, send the appeal letter certified mail to document its receipt as a verbal appeal over the phone can get lost in the shuffle.   Even if the insurance company initially denies your appeal, don’t give up as many plans allow a second appeal and/or an external review of your claim.

 

Understanding the details of a health insurance plan can be a daunting task, however, individuals must educate themselves about deductibles, benefits, exclusions and network providers.  As we move forward with the Affordable Care Act, it is likely to become even more cumbersome.  Your primary physician’s office and your insurer can be an excellent resource for information, but in the end, it’s your contract that you’re entering into with the insurance company and you must understand what you’ve bargained for.

 

This content was written by one of our panel members, Daniel Hoffey, an attorney in Atlanta, Georgia.

 

***If you or someone you know is faced with healthcare insurance issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

 

 

 

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Minority Mental Health: Know the Stats

Posted By James Jones, Wednesday, August 3, 2016

During the month of July, we commemorate National Minority Mental Health Awareness Month following the 2008 resolution by Congress. This resolution honors the legacy of Bebe Moore Campbell, an award winning African-American author, journalist, and teacher, who helped to destigmatize how minorities approach mental health issues in their communities.


Based on the 2000 census, minority groups comprise approximately one-third of the United States population, with an increase from one-quarter in 1990. Anxiety, the most common mental illness in the United States, affects about 18 percent of the population.


Anxiety Disorders include, but are not limited to, generalized anxiety, social anxiety, specific phobias, obsessive-compulsive disorder, and post-traumatic stress disorder for those pursuing social security disability benefits, anxiety disorders are evaluated under Medical Listing 12.06.

At least half of my clients, who have applied for SSI or SSDI benefits based on an anxiety disorder, also have a diagnosis of Major Depressive Disorder, Persistent Depressive Disorder, or Bipolar Disorder.

 

Anyone with depression seeking Social Security Disability benefits is evaluated under Medical Listing 12.04. People living in the United States have come a long way in addressing mental health issues in recent years, but there is a need for greater outreach to minority communities, since they are less likely than whites to pursue mental health treatment.

Although it is difficult to determine what percentage of Hispanics and Latinos in

the United States suffer from depression and anxiety, Puerto Ricans  reportedly have the highest rate. Only 6.8 percent of Hispanics, compared to twice as many whites, pursue mental health treatment, according to another study.

 

Fear of ignominy is one reason that Hispanics and Latinos with mental illnesses such as anxiety or depression, will avoid psychologists and psychiatrists in favor of support from family, a local church, a local community, or a local healer providing medical herbs. Latinos’ expression of “la ropasucia se lava en casa” basically translates into “one should not speak about personal business to the public.

         

A Latino legal assistant stated that “in all my years, I do not think I ever heard anyone in my family nor community talk about mental health.” Hispanics and Latinos may also have limited access to mental health information due to the language barrier. Families, for example, may not have an English speaking member to help talk to a mental health professional or may not understand the American culture. Additional reasons why Hispanics and Latinos may not seek medical treatment include the fear of deportation of oneself or a family member, inability to afford health insurance, and the possibility of misdiagnosis.


In my experience, African-American male clients have been the most reluctant to pursue mental health treatment for shame of how they will be perceived by their families and friends.  The limited dialogue concerning mental health treatment in the African-American community can be linked to the under-representation of black mental health professionals. Fewer than two percent of all American Psychological Association members are African American.  Thus, African-Americans may not seek counseling because discussing mental health issues with professionals who do not understand their culture is viewed as pointless.

 

From the perspective of an African-American legal assistant, “systemic economic inequality adds to the continuing stigmatization of mental illness. A grave amount of Blacks live

in poverty and this can result in the lack of access to mental health resources in our neighborhoods.” In 2011, 54.3 percent of adult African- Americans with a major depressive episode received treatment, compared with 73.1 percent of adult white Americans in Georgia, those without insurance can receive free state-funded mental health treatment by calling the Georgia Crisis Line at (800)715-4225.


 The sharing of personal stories of ethnically diverse celebrities such as Patty Duke, Nina Simone, and Demi Lovato, whose tumultuous lives improved with mental health treatment, has broadened the discussion, which must continue. 


This content was written by one our panel members, Kathleen Flynn, an attorney in Decatur, Georgia.

 

***If you or someone you know is faced with mental health issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***


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