Legal Sense – Age Discrimination In Employment


The combined effects of an aging population and a sluggish economy have led to an increase in lawsuits alleging age bias in the workplace. The Age Discrimination in Employment Act (ADEA) prohibits age discrimination in the employment of persons who are at least 40 years old. The ADEA covers most private employers of 20 or more persons. It forbids age discrimination in advertising for employment, hiring, compensation, discharges, and other terms or conditions of employment. Retaliation against a person who opposes a practice made unlawful by the ADEA or who participates in a proceeding brought under the ADEA is a separate violation.

The ADEA takes into account that sometimes there is a correlation between age and the ability to fulfill the requirements of a job, and that even older workers must comply with employers’ rules and requirements that have nothing to do with age. An employer does not violate the ADEA if it takes an otherwise prohibited action where age is a “bona fide occupational qualification” necessary to the operation of a particular business. Nor is it a violation to differentiate among employees based on reasonable factors other than age or to fire or discipline an employee for good cause.

Before suing in court, an aggrieved person first must allege unlawful discrimination in a charge filled with the Equal Employment Opportunity Commission (EEOC) and then wait 60 days to allow the EEOC an opportunity to resolve the dispute informally before taking further legal action. Court remedies include injunctions (court orders stopping a discriminatory practice), compelled employment, promotions, reinstatement with back pay and an award for attorney’s fees and costs of bringing the suit. If a court finds that an employer’s violation of the ADEA was willful, it may also award liquidated damages equal to the out-of-pocket monetary losses of the plaintiff.

Employers sometimes select older workers to be terminated as a money-saving measure, given their generally higher compensation and perhaps their being close to vested retirement benefits. There is no ADEA violation in a decision that treats employees differently because of something other than age, such as money. An employer will not be liable under the ADEA for terminating an employee solely to prevent his pensions from vesting. (That conduct might very well violate ERISA, however.) Such a scenario is distinguishable from situations in which employers face ADEA liability because they have made decisions based on the stereotype that productivity and competence always decline with old age.

Deferred Action for Parents

President Obama set to Release New Immigration Program: Deferred Action for Parents

You recently may have noticed an increase in calls for matters involving immigration law. That is because President Obama announced a range of new immigration policies on November 20, 2014 – the most publicized being the Deferred Action for Parents (DAPA). This executive action taken by the President follows on the coat tails of its predecessor, Deferred Action for Childhood Arrivals (DACA) which was implemented in 2012. Both policies make humanitarian-sense given the rapid growth of the Hispanic demographic in the U.S. – a process that has been taking place for many decades, not simply the past few years. Many adult dgfev online casino Hispanics have been in the United States since adolescence. Additionally, both policies make fiscal sense from an income tax prospective. DACA and DAPA turn undocumented workers into social security card holders and tax payers. The guidelines for these new immigration policies will be provided on or before February 18, 2015. On that date, U.S. Citizenship and Immigration Services (USCIS) will begin accepting applications for the expanded DACA program – which applies to individuals of any age as long as they were minors when they arrived in the U.S. and have been continuously residing here since 2010. If you have been recently contacted by individuals that qualify for these deferred action programs, then please do not hesitate to contact William D. Pavy at the Floyd Law Firm, PC.

Apparent Authority Liability – How “appearances” can invite an unwelcome lawsuit

In most cases of tort liability, the owner or his employees either did something negligently or failed to do something that they should have done that resulted in injuries to a third person. Often overlooked or misunderstood are instances where “appearances” by someone other than an employee resulted in liability to the owner or operator of a golf facility.

As a general rule, the owner is liable when an employee, because of a lack of due care, causes injuries to a third person, wherein if the injuries were caused by an independent contractor, the owner is normally not held liable for the negligence of the independent contractor. The problem is oftentimes the difficulty in determining whether the tortfeasor was an employee or an independent contractor. Also, the courts are rather ingenious in finding liability where a “deep pocket” exists, especially where the distinctions between the employee and independent contractor are blurred.

The theory of liability most used is “apparent authority” or “apparent agency”, and the cases, more often than not, turn on whether the injured party could have reasonably expected or assumed that the person that injured them was an employee rather than an independent contractor.

In 1994, the Ohio Supreme Court held that South View Hospital was liable for the death of a patient who died allegedly due to the negligence of an emergency room physician that treated her. The hospital denied liability and claimed the doctor was not an employee, but an independent contractor with hospital privilege who was on duty when the Plaintiff was admitted. The court said that the Plaintiff and her family could have reasonably believed from all appearances that the doctor was an employee of the hospital. The court stated, “Certainly, the person who avails himself of hospital facilities expects that the hospital will attempt to cure him, not that its nurses or other employees will act on their own responsibility.”

The important points for you to remember are the “appearances” you create, and whether a person has a reasonable right to expect that the tortfeasor is an employee of your golf facility. For example, although it would look nice, it would not be prudent to insist that the employees of the independent contractor trimming trees on the golf course dress in shirts with your club logo emblazoned on the front of the shirts. If you do so, it is reasonable that patrons will assume these persons are employees of your club. If you send a “message” such as this, then reasonable reliance by the public should be expected, and the court will most certainly invoke the legal theory of “apparent authority” liability.

Avoid claims and potential liability by not sending the wrong “message” and finding ways to effectively disclose the independent contractor relationship to the public before you get a wake up call with a multi-million dollar lawsuit. Any comprehensive risk management program must include an assessment of potential “apparent authority” liability situations if the program is to be successful.

29-year-old woman chooses Death with Dignity

While scanning through news articles this week I was brought to a halt by headlines describing a 29-year-old woman who has scheduled her death for November 1, 2014.

Brittany Maynard, 29, has been diagnosed with a stage 4 glioblastoma brain tumor, a terminal condition which causes extremely painful and debilitating headaches and seizures. Brittany’s diagnosis came with the doctors’ prediction that she would have a few months to live before the tumor slowly and painfully took her life. Thereafter, Brittany, her husband and her family began to carefully consider how she might enjoy her last few months and ways in which she might be able to pass in peace, as an alternative to the horrific experience she knew the eventual death from her tumor would cause.

Brittany and her family chose to move to Oregon, one of five states (including Washington, Montana, Vermont and New Mexico) that authorize “death with dignity.” “Death with dignity” refers to the medical practice of allowing terminally ill patients the option to voluntarily request a life-ending medication which they can administer to themselves. Of course, there are numerous prerequisites a patient must meet before they are eligible, including terminal illness and mental competency. And the existing death with dignity laws are voluntary from every aspect; meaning the patient may voluntarily request it, but no doctor is obligated to write the prescription, and the patient may choose whether or not to fill the prescription and whether or not to ever actually take the medication. The death with dignity practice is said to provide those eligible patients with the option to reduce their suffering at the end of life and die comfortably and in control.

While at first glance it may seem an awful and unnatural thing to do, it seems advocacy for this practice is quickly spreading. As an estate planning attorney, I regularly discuss Living Wills. Living Wills are documents in which one designates whether or not they want certain life sustaining measures to be taken if they are terminally ill or in a condition of permanent unconsciousness. During discussions about Living Wills, I regularly hear advocates for death with dignity practices, including opinions about how animals are treated with more respect than people when it comes to how and when to end their lives. I also regularly hear advocates for prolonging life, including opinions about hope and fate and religion. And I can’t say that I’ve ever disagreed with either group of advocates.

However, I can say that the bottom line is the importance of advocating for yourself and your wishes, and the extreme importance of making your wishes known in a legally enforceable manner, such as Wills or Living Wills. Please contact Brittney Jones at The Floyd Law Firm to schedule your Estate Planning consultation and make your wishes known.

See the following link for more on Brittany Maynard’s story and how you can contribute:

20 Things Your HOA Board Should Do Every Year

  • BANK ACCOUNTS: Who are the authorized signers on the HOA’s Accounts? If they are not current, change them.
  • BUDGET: Send all members a budget presentation (expenses and income categories) with last year’s proposed budget, last year’s actual budget, and this year’s proposed budget.
  • RESERVES: Update the replacement reserve schedules for 5 years, 10 years, and 20 years.
  • SAVINGS: Evaluate the HOA’s savings program and investment plans. Time for a change?
  • LIENS/LOANS: Is the HOA paying off a loan? Are there any liens against the common areas – e.g. mechanic’s liens, deeds of trust liens, judgment liens? What is the nature and status of these?
  • AUDIT: Has the HOA budgeted for and scheduled the annual audit that is required by their governing documents.
  • DELINQUENT ACCOUNTS: Review the board collection procedure and current status of all delinquent accounts.
  • LAWSUITS: Review any lawsuit in which the HOA is involved. (Don’t overlook those handled by insurance.) What is the nature of status of each suit? Make sure they are reported in resale certificates.
  • GOVERNING DOCUMENTS: Get copies of all governing documents. Is each recorded? Record anything that is not recorded and work only with copies that show evidence of recording.
  • CHANGES TO DOCUMENTS: Last year there was a decision and vote to change something in a document? If so make sure that the HOA recorded an amendment with the change and notified the membership of the outcome.
  • RULES & REGULATIONS: Review the condition of the HOA rules and regulations which are also governing documents. Are they published?
  • SHALL V. MAY: Review the governing documents to identify what the HOA and the board must do, what they may do, and what they may not do. Do the HOA’s practices fit with the documents? If not, change the practice or amend the documents.
  • CHARTER: If the HOA is required to be incorporated, confirm that the charter is active by calling the secretary of state.
  • REGISTERED AGENT/ADDRESS: If the HOA is incorporated, confirm that the registered agent and registered address are still effective. If not, change them with the secretary of state.
  • CONDITION: Evaluate the condition of the property the HOA maintains. Any long-term or recurring problems? Does the HOA anticipate major repairs? How will they be financed?
  • VIOLATIONS: Evaluate the status of architectural violations. How does the HOA respond?
  • CONTRACT TERMS: Calendar The Affordable Care Act lists nine categories of individuals who will not be required to have health marketplace coverage in 2014. the expiration dates for all the HOA contracts and the calendar the termination notice dates. Do you know when the management contract renews?
  • INSURANCE: Evaluate the HOA’s insurance and bonds – types and amounts. Is the HOA bonding people who handle the HOA’s Funds? Does the HOA have a duty to defend the D&O coverage?
  • LAW CHANGES: Invite the HOA’s attorney to meet with the board to discuss changes in the law affecting the HOA.
  • NEW BOARD MEMBERS: Invite the HOA attorney to meet with the board to review the fiduciary duties and responsibilities of board members.

Serving on an HOA or condo association board can present serious liability issues for its members. If you are thinking about serving on an HOA or condo board, then you need experienced legal advice to guide you through the potential liability traps. South Carolina Law affecting homeowners associations and property owners associations are a mix of real estate law, premises liability, corporate law, and sometimes others! If you need the advice of an experienced HOA lawyer, contact the Myrtle Beach HOA lawyers at The Floyd Law Firm PC. We have experience creating, advising, and representing, hundreds of HOA’s in the Myrtle Beach South Carolina area.

Call T. Jarrett Bouchette Esq. at 843-238-5141 to speak to a Myrtle Beach HOA Lawyer today!!