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

Apr 18

This week’s question: CRIME AND PUNISHMENT

daniel best picThis week’s question: CRIME AND PUNISHMENT. Can an employer refuse to hire me because of my criminal conviction?

QUESTION:  I have been looking for work for months now and can’t find a job. Seven years ago, when I was a college sophomore, I was convicted of disorderly conduct. I honestly answer questions about my past on job applications, but I’m not getting any job offers. Is my past preventing me from getting hired? Can an employer refuse to hire me because of my criminal conviction?

ANSWER: An employer’s use of an individual’s criminal history in making employment decisions may be discriminatory. Criminal record exclusions have been found unlawful if the exclusions have a disparate racial impact. Enforcement of certain policies can have a disparate impact on racial minorities because disproportionate members of minority races have been wrongfully caught up in the criminal justice system. African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population.

Where there is disproportionate racial impact, an employer must show that refusing to hire an applicant with a criminal background is consistent with the job duties of the position and business necessity. The employer may also develop a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job.

For example, a criminal conviction for embezzlement may bar you from working in a bank. A bank may lawfully deny employment to applicants who were convicted of stealing. In your case, whether a prospective employer may bar you from employment depends upon whether the decision not to hire you disproportionately affects members of your race and whether a disorderly conduct conviction from seven years ago are related to the job you applied for.

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.

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 10

SHOULD I HAVE A LIVING TRUST? By: Daniel A. Gwinn, Esq

daniel best picThis week’s question: SHOULD I HAVE A LIVING TRUST?

 

QUESTION:  I attended a free seminar in a hotel ballroom last weekend about estate planning where I was informed I needed a living trust to complete my estate plan. The cost was more than I can afford to pay right now. Is it necessary that I have a living trust to put my affairs in order?

ANSWER: It depends on your situation. While there are distinct advantages to investing in a living trust as part of an estate plan, the investment doesn’t necessarily pay off for everyone. The advantages of a living trust include avoiding probate when you die, the ability to dispose of real property in different states with one document, and the ability to manage affairs during your lifetime. Your loved ones usually, but not always, receive the assets given to them from your trust more quickly than they would through probate. The terms and conditions included in a living trust are largely kept private and not made part of a public record.

On the other hand, a simple will, power of attorney, and health care directive adequately address the needs of many people in planning for their loved ones – and at a much lower cost. While tax savings can be gained by investing in a trust, in certain cases those gains are offset by the higher cost of drafting the trust document.

To make the decision that’s right for you, we recommend consulting with an attorney to properly assess your individual situation. Factors such as the size, nature, and location of your assets, and the needs of your beneficiaries may make the benefits of investing in a living trust a good value. In other cases, a simple will, power of attorney, and health care directive will achieve your objectives at a lower cost. An initial consultation with an experienced attorney before you invest in a living trust can save you money by choosing an estate plan to meet your needs and budget.

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 08

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

daniel best picQUESTION:  Can you briefly and simply explain how one federal judge overturned the will of millions of Michigan voters like Judge Friedman did in the same-sex marriage case decided on March 21, 2014, where he held that the Michigan Marriage Amendment (the “MMA”), was unconstitutional?

 

ANSWER: It’s complicated but we will try. Courts protect individual rights. The Fourteenth Amendment of the United States Constitution gives all citizens the right to equal protection under the law. One purpose of the Constitution and its Amendments is to remove certain subjects from political controversy, to place individual rights outside of the reach of majorities or officials and to establish individual rights as legal principles to be applied by the courts. An individual’s right to life, liberty, property, to freedom of speech and press, freedom of religion and association, and other fundamental rights may not be submitted to vote unless related to a rational governmental purpose, applied equally to all. All similarly situated people must be treated equally. Marriage has long been held to be included among our fundamental rights.

The narrow issue before the court was whether the limit of the right to marry to opposite sex couples was rationally related to any conceivable legitimate governmental purpose. The MMA denied the fundamental individual right of marriage to same-sex couples because of their gender. The State of Michigan failed to prove that limiting marriage to opposite sex couples was rationally related to a legitimate governmental purpose.

Judge Friedman held the MMA failed to meet the equal protection requirements of the United States Constitution. As a result, the MMA was held to be unconstitutional and unenforceable. Individual rights prevailed.

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 03

This week’s question: The Michigan Medical Marihuana Act

QUESTION: I was offered a new job but have to pass a drug screen before I can begin working. I have a Patient Identification card from the State of Michigan allowing me to legally possess and use medical marihuana to alleviate my chronic back pain. I am fairly certain I will test positive for marihuana on my drug screen test. The company has a drug-free workplace and zero tolerance policy toward drug use.  Can my future employer withdraw the job offer if I test positive for marihuana?

ANSWER: Yes. The stated purpose of the Michigan Medical Marihuana Act is to decriminalize marihuana for the health and welfare of its citizens. The legal protections extended under Michigan’s Medical Marihuana Act, however, do not extend employment rights to current or prospective employees. The Michigan Marihuana Act plainly states that an employer is not required to accommodate the ingestion of marihuana in any workplace or to accommodate any employee who is working under the influence of marihuana. The law further states that it is unlawful for any person to undertake any task under the influence of marihuana, when doing so would be negligent. Users of medical marihuana may not operate, navigate, or be in actual physical control of any motor vehicle, aircraft or motorboat while under the influence of the substance.

Michigan, like other states where regulated amounts of marihuana may be legally possessed and used, allows employers to terminate or withdraw job offers to persons who test positive for marihuana. The statute’s intent is to protect users and others from criminal and civil penalties for using or possessing marihuana. Many people who hold Patient Identification cards have complained their underlying medical condition qualifies them for an exception when it comes to applying for or keeping a job. Courts across the country have rejected those arguments. The statute allows employers to lawfully terminate the employment of employees or withdraw job offers from prospective employees who test positive for the substance.

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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