Nov 24

Ask The Lawyer by Daniel Gwinn, Esq.

This week’s question:  I AM BEING SEXUALLY HARASSED AT WORK, WHAT SHOULD I DO?

 

QUESTION: My boss constantly makes sexual comments and jokes to me and it makes me really uncomfortable.  She can be pretty vindictive, so I am afraid to do anything because I need my job.  What should I do?

 

ANSWER:  Michigan’s Elliott Larsen Civil Rights Act, MCL 37.2101 et seq., and Title VII of the Civil Rights Act of 1964 both prohibit discrimination based on sex. It is unlawful to harass a person because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.  It can also include offensive remarks about a person’s sex. Usually, simple teasing, offhand comments, or isolated incidents that are not very serious, is not prohibited, but if the harassment is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted), it is unlawful.

 

Have you asked your boss not to make those comments to you?  Sometimes people don’t realize that their words or actions are offensive.  You should follow your employer’s internal complaint/sexual harassment procedures and report any incidents of harassment. If you are part of a union, you can contact your union representative and ask about grievance procedures under your contract. Going through these internal procedures may not be enough to stop the harassment, but if you unreasonably fail to take advantage of any preventive or corrective opportunities provided by your employer, your employer may be able to avoid legal liability for the harassment. You should also document the harassment, keep notes of what was said, when, where, and who else was present.   If the harassment continues after you have taken these steps, you may want to institute legal action and/or file complaints with the Michigan Department of Civil Rights or the Equal Employment Opportunity Commission.

 

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

 

GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinntauriainenlaw.com

Nov 17

This week’s question: WHAT IS PROBATE?

Dan-Gwin-new-photo-150x150This week’s question:  WHAT IS PROBATE?

 

QUESTION: My father, who was a widower, died recently and I was told I have to open a probate estate?  I have no idea what to do.  What is probate and where do I start?

 

ANSWER:  Probate is the process of administering a decedent’s estate. It refers to the procedure by which a decedent’s will is admitted to the court for purposes of estate administration.  A probate estate needs to be opened even if the decedent did not have a will, if he/she died owning assets solely in his or her own name.  Probate is essentially re-titling assets from the decedent to his/her heirs.

 

A probate estate is usually opened in the county were the decedent resided but can be opened where any of the decedent’s property is located.  In Michigan, there are several types of probate, depending on the size and needs of the estate.   Your first steps should be to determine what assets the decedent owned, whether the assets were jointly owned with anybody else, who the decedent’s heirs are, and whether the decedent had a will.  This will help you determine if a probate estate needs to be opened and what type fits best.

 

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

Attorney and Counselor at Law

GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinntauriainenlaw.com

Nov 17

This week’s question: AM I ENTITLED TO OVERTIME PAY?

daniel best picQUESTION: I am salaried employee. Lately, I have been required to work an extraordinary amount of additional hours. When I asked for overtime pay, my boss turned me down. Am I entitled to overtime pay?

 

ANSWER: It depends. Some salaried employees are not entitled to overtime pay, but others are. “Exempt employees” are not entitled to overtime pay, while “non-exempt employees” usually are. If you are properly classified as an exempt employee, then the most important part of your job performance should consist of supervisory and management duties. Where management or supervisory employees concurrently perform both management and non-management responsibilities, the employee may still be considered exempt if his or her primary duty consists of management responsibilities. The salary of an exempt employee must meet a certain minimum level, and must be more than minimum wage.

 

On the other hand, many employees are improperly classified as exempt and should be paid overtime for overtime hours. The federal government is currently reviewing the rules for exempt and non-exempt employees. Those employees who are MINO (“managers in name only) but whose duties primarily consists of non-management or “lead” type work, should most likely be classified as non-exempt and receive overtime time for overtime hours worked.

 

Your specific situation will depend on the nature of your job duties and how much time you actually spend performing managerial duties, not just what is listed on your job description. If you believe you are improperly classified as an exempt employee or a MINO and are entitled to overtime, a consultation with a lawyer to discuss your job duties and current salary may lead to an increase in your take-home pay.

 

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

Aug 04

Ask the Lawyer by: Daniel Gwinn A. Gwinn, Esq.-CHALLENGING RESTRICTIVE ‘NO PETS’ POLICIES

Ask the Lawyer by: Daniel Gwinn A. Gwinn, Esq.

daniel best picThis week’s question: CHALLENGING RESTRICTIVE ‘NO PETS’ POLICIES

QUESTION:  I live in a condominium complex that has a “No Pets” policy. I was fine with that when I bought my unit, but now my adult daughter needs to move in with me. My daughter is in therapy for emotional issues that surfaced after she was threatened and physically injured during an armed robbery at her place of employment. Her therapy includes a relationship with Shadow, a 114 pound mixed-breed dog. I can’t afford to move, my daughter needs a place to live, and Shadow goes with my daughter everywhere. What can I do?

ANSWER: You should request an accommodation for your daughter from the condominium Association and seek an exception to the “No Pets” policy. Federal law under the Fair Housing Amendments Act states that it is unlawful to refuse to make reasonable accommodations in rules or policies when such accommodations may be necessary to allow a person with disabilities equal opportunity to use and enjoy a dwelling.

A party requesting an accommodation to housing rules must establish she is a qualified person with a disability. Because your daughter’s psychological and emotion issues limit her ability to care for herself and to have trusting relationships with others, your daughter is a qualified individual with a disability.

The accommodation requested must be reasonable and necessary to afford the person with a disability equal opportunity to use and enjoy a dwelling. A request on behalf of your daughter for an exception to the “No Pets” rule should state that your daughter’s mental issues are alleviated, at least in part, by Shadow’s presence. Where rules and policies have the a disparate impact on equal opportunity for persons with disabilities, those rules and policies must be relaxed to level an unbalanced playing field.

Your request on behalf of your daughter is reasonable because it rebalances the playing field and does not impose a direct threat to the health, safety, or welfare of others living in your condominium complex. The accommodation you seek on behalf of your daughter is necessary to allow her to live with you in the dwelling of her choice.

A blanket “No Pets,” rule violates the Fair Housing Amendments Act when it denies persons with disabilities who rely on companion animals equal opportunity to live in the dwelling of their choice. Disability statutes are liberally construed, and require a different interpretation of strict and uniform enforcement of rules like “No Pets” because persons with disabilities are different and have different needs. Courts have invalidated “No Pets” policies where their strict enforcement would deny equal opportunity in housing. If your Association denies your request for a reasonable accommodation on behalf of your daughter, you should retain a lawyer with experience in civil rights law to assist you in obtaining a fair remedy.

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinntauriainenlaw.com

Jul 09

Ask the Lawyer By: Daniel A. Gwinn, Esq.

daniel best picThis week’s question: MAY I BREASTFEED MY CHILD IN A RESTAURANT?

QUESTION:  I was asked to leave the dining room of restaurant in Oakland County after I began breastfeeding my six-month old baby boy. I was embarrassed at being singled out and directed to the womens’ restroom, which I felt was an inappropriate place to attend to my child. Am I right to feel wronged?

ANSWER: If that outrageous incident occurred recently, you may have a cause of action. The state of Michigan joined a growing number of other states in June, 2014, by legislating greater freedoms and protections for breastfeeding women. On June 24, 2014, the State of Michigan enacted the Breastfeeding Antidiscrimination Act. The statute prohibits the denial of equal enjoyment of the goods or services of a “place of public accommodation” to a woman because she is breastfeeding a child. A “place of public accommodation” is a business, educational institution, or a refreshment, entertainment, recreation, health, or transportation facility of any kind” where goods or services are offered or made available to the public. A restaurant would definitely fall under the definition of a “place of public accommodation.”

The statute states that a person with control over a public accommodation may not post, print, mail, or circulate an advertisement or notice indicating that goods or services will or may be withheld from breastfeeding women. A place of public accommodation may not interfere with a woman’s patronage of or presence at place of public accommodation or state her presence or patronage is objectionable or unwelcome because she is breastfeeding a child. Interestingly enough, the statute does not define “child,” which may broaden the scope of protected women beyond those with an infant.

When the restaurant staff pulled you out of the dining room they interfered with your patronage of the restaurant. A person who believes her rights were violated under the statute may file a civil action for actual damages. The available remedies include injunctive relief, or an order to compel the place of public accommodation to refrain from further discriminatory conduct. The statute expressly provides for the award of the costs of litigation, including attorney and witness fees, to the complaining party. In addition, breastfeeding women in public cannot be charged with indecent exposure or disorderly conduct.

Breastfeeding in public places will most likely become more prevalent with the passage of the Breastfeeding Antidiscrimination Act and amendments to Michigan’s criminal laws. What was once considered a crime is now a protected activity. The wheels of justice sometimes turn slowly. A natural human instinctual trait has been recognized as a lawful – only thousands of years since the emergence of our species!

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinntauriainenlaw.com

Jun 16

This week’s question: WHAT YOU NEED TO KNOW ABOUT SPECIAL NEEDS TRUSTS.

daniel best picThis week’s question: WHAT YOU NEED TO KNOW ABOUT SPECIAL NEEDS TRUSTS.

QUESTION:  My disabled niece is receiving government benefits.  I want to give her some money, but I have been told that if she has too much money in her accounts she will lose her benefits.  I don’t want to jeopardize my niece’s benefits.  What should I do?

ANSWER:  Stop; before you give your niece a gift of money, you must first find out a few very important things.  First, you need to find out what type of benefits your niece is receiving from the government.  Some benefits such as Social Security and Medicaid benefits have strict income limits.  If you give your niece money and she exceeds those limits, she will jeopardize her government benefits.  You also need to know if your niece already has a special needs trust.  If she does, that is likely the best place to put the money.  If she does not have a special needs trust, then the family should explore setting one up for her.

A special needs trust is a vehicle that families of disabled people can use to help provide for things that will help to improve their lives.  Examples of expenses that can be paid from a special needs trust include: transportation costs; personal assistants; therapy not covered by insurance or other governmental benefits, travel expenses, internet, cable television, telephone, and other recreational and entertainment expenses.

There are several different types of special needs trusts.  It is very important that the special needs trust be drafted carefully so that it meets all of the legal requirements necessary to ensure that the disabled person retains his or her government benefits.  You also want to make sure that it meets the disabled person’s needs. Contact an experienced attorney to learn more about the options available for special needs trusts.

 

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinntauriainenlaw.com

May 19

ASK THE LAWYER By: Daniel A. Gwinn, Esq.

daniel best picThis week’s question: WHAT YOU NEED TO KNOW BEFORE YOU SIGN A SEPARATION AGREEMENT FROM YOUR EMPLOYER.

 

QUESTION:  I am being laid off from my job. My employer presented me with a separation agreement. I’m worried about signing it because it appears very one-sided. The separation agreement says I may consult an attorney. What kind of help can I expect from seeing a lawyer before I sign on the dotted line?

ANSWER:  A separation agreement is a legally binding contract. Seeking the assistance of a lawyer before signing it can help you in several ways. The separation agreement has been purposely drafted in your soon-to-be-ex-employer’s favor. Your employer is presenting you with the separation agreement to protect its legal rights, not yours.

Separation agreements commonly require you to release the employer from any and all causes of liability from employment discrimination claims. Employers also commonly include language preventing you from reapplying for employment. Some separation agreements may also allow the Employer to be relieved of any obligation to provide you with a job reference, which may hinder you in your search for a new job. The amount of money, or consideration, offered in exchange for your signature may be inadequate, based on the circumstances of your termination, and may include factors such as your salary, age, race, gender, sexual orientation, and disability status.

Know before you sign is the best course of action to follow. A good lawyer will explain the terms of the separation agreement to you in simple terms. A lawyer may advise you that you have a meritorious claim worth more than is being offered. He or she may be able to negotiate better terms, including more severance compensation, a positive letter of reference, an agreement not to contest your eligibility for unemployment benefits, and assistance in finding a new job. See a lawyer and “get peace of mind before you sign.”

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinntauriainenlaw.com

May 12

ASK THE LAWYER By: Daniel A. Gwinn, Esq.

daniel best picThis week’s question: CHOOSING A PERSONAL REPRESENTATIVE FOR YOUR

WILL: Should I appoint all of my children as Co-Personal Representatives of my Will?

QUESTION: I am getting my paperwork together to have my estate plan drawn up. I am thinking of appointing all three of my kids as Co-Personal Representatives of my Will. I don’t want one of my kids to feel left out or that I’m playing favorites. Can I legally appoint all three of my kids to handle my affairs after I’m gone?

ANSWER: The Personal Representative of your Will, (formerly called the Executor of the Administrator), once appointed by the Probate Court, is charged with the responsibility of enforcing the terms of your Will after you die. While you may legally
appoint multiple or Co-Personal Representatives, the real question is whether you should. In most cases, the answer is “no.” Michigan’s Estates and Protected Individuals Code grants wide powers to Personal Representatives to carry out your wishes as expressed in your Will. When there are Co-Personal Representatives, problems often arise because the Co-Personal Representatives, having equal powers, disagree on the manner in which to carry out your wishes. In many cases, the disagreements between Co-Personal Representatives become serious enough that litigation over the administration of the Estate arises, adding additional expense and reducing the value of the assets you worked so hard to accumulate. A better solution would be to appoint one of your children as Personal Representative with the other two as first and second successors. That way, one child has the authority to make the decisions that arise after you die. In the event other children are dissatisfied with his or her performance, they may file objections to the appointment in the Probate Court and, if successful, have the Personal Representative removed or replaced. Explain to your children the issues you are trying to avoid by appointing one child as Personal Representative with the other two acting as successors.

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at http://gwinntauriainenlaw.com.

Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com

http://gwinntauriainenlaw.com

May 06

This week’s question: REAL ESTATE 101 FOR BUYERS. What do you need to know before you sign that Offer to Purchase on the house of your dreams?

daniel best picThis week’s question: REAL ESTATE 101 FOR BUYERS. What do you need to know before you sign that Offer to Purchase on the house of your dreams?

 

QUESTION:  We’re trying to buy a house but the market is so hot houses are gone before we’ve made an offer. This time, we’ve signed an Offer to Purchase and paid an earnest money deposit, but we still don’t understand what we agreed to. What have we done and can you help us?

ANSWER: An Offer to Purchase is a contract. Since you have already signed it, you have agreed to its terms. A lawyer can assist by explaining those terms, but may or may not be able to negotiate a better deal for you, depending on the circumstances.

A better strategy would be to consult with a lawyer before you sign. Here are a few of the issues to consider:

  • The Offer should allow you to get out of the deal without losing your deposit.
  • Insist upon the right to hire a professional to inspect the house for hidden defects such as evidence of water, nonconforming renovations, or electrical or plumbing work that is no up to code. The Offer should allow you to back out of the deal and get all of your deposit refunded based on your own assessment of the inspection, and no one else’s.
  • Many Offers limit the parties to remedying any dispute through binding arbitration. It makes no sense to limit your remedies. Consider striking any clause that limits your remedies in case the deal goes sour.
  • Make sure your Offer includes a closing date that gives you time to conduct the inspection and get financing in order. Commitments for financing normally have expiration dates. If your closing is too far off, you may have to re-qualify.

In a hot real estate market, it may not be possible to seek the advice of an attorney beforehand. A delay in making an offer may cause you to lose the house of your dreams to buyers who are a step ahead of you. If you’re in that situation, negotiate a contingency clause making the offer contingent upon review by your attorney. That clause alone can make the difference between what appeared to be a great deal but turns out to be a house with too many defects to make the purchase worthwhile. And remember, you may want to back out of the deal because you find another house you like even better!

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinntauriainenlaw.com

Apr 29

ASK THE LAWYER By Daniel A. Gwinn, Esq. Identity Theft

daniel best picThis week’s question: IDENTITY THEFT. Can an employer require me to disclose my social security number on a job application?

 

QUESTION:  I’m concerned about giving out my social security number on job applications, both over the internet and in person. Can an employer require me to give out my social security number on a job application?

ANSWER: Michigan’s Social Security Number Privacy Act prohibits the display, print, or transmission of an applicant’s entire social security number in most circumstances. The statute, which became effective on March 1, 2005, grants an exception to documentation prepared by an employer before January 1, 2006, where the employer timely devised or implemented a plan to comply with the Act’s privacy provisions. Under the statute, applicants for jobs may only be requested to provide the last four digits of their social security numbers.

There are exceptions to the rule. State or federal law or court order may require a social security number to appear on a document. Once you are hired, you will be required to provide your social security number for tax and/or benefit purposes. If you initiate an enrollment process for health insurance, or a voluntary benefit program, you will likely be required to provide your full social security number. Vital public records may also require the inclusion of an entire social security number.

The Social Security Number Privacy Act also requires employers to create a privacy policy that ensures confidentiality of social security numbers and prohibits their unlawful disclosure. A valid privacy policy must limit who has access to private information, and describe the disposal process for documents containing an individual’s social security number. Employer privacy policies may be included in an employee manual or made available electronically.

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

ASK THE LAWYER By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinntauriainenlaw.com

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