wrongful termination briefly explained

March 3rd, 2016

I find myself advising certain information repeatedly to potential and actual clients about how a wrongful termination lawsuit is going to roll. One of the things I often explain to them is the concept of “pretext.” I tell them that almost never will the employer tell you that you were fired because, say, you complained to the Occupational Health and Safety Administration. Usually, if you get a reason for your termination, it is because of something else. Most wrongful termination cases are going to come down to whether the employer’s claimed reason is really just pretext or a cover-up for the real reason you were fired–the safety complaint. And, the courts you will be going through to sue for wrongful termination have a fairly specific understanding of what “pretext” is.

Most of the time, I am told that the reason was pretty stupid, insignificant and even morally wrong. These may not actually prove cover-up, at least, in the mind of the courts. Pretext is specifically either 1) that the reason is factually untrue and the employer could not believed it to be true, 2) other employees were not treated the same for the same reason, and 3) other circumstances strongly suggest that the employer was motivated to fire because of the illegal reason and not the pretextual one.  Stupidity, insignificance or morally wrong decisions aren’t going to be pretextual unless you have some additional information that shows the reason was pretextual according the specific definition above.

Email me at robertlreilman@yahoo.com for a free  email consultation if you believe you were wrongfully fired.

NOTE: please keep in mind that this blog is not meant to be legal advice. Consult a lawyer if you need legal advice.

When is reduction in pay good cause to quit?

February 4th, 2016

Short Answer: In Michigan, there is no clear benchmark in which a reduction in pay becomes good cause to quit attributable to the employer and the former employee would be entitled to unemployment benefits.

If you do quit because your pay was reduced, you will probably have a hard time getting unemployment benefits unless there were additional considerations such as discriminatory practice or, possibly, the reduction in pay alone is intolerable because you have high expenses.

Questions or need to consult? email me at robertrleilman@yahoo.com

NOTE: please keep in mind that this blog is not meant to be legal advice. Consult a lawyer if you need legal advice.

 

 

What to Do If You Were Wrongfully Fired or Discriminated Against At Work

December 2nd, 2015

What should you do if you believed you were wrongfully fired from your job or otherwise discriminated against? Aside from other issues you will have to think about such as filing for unemployment benefits,  below are a few suggestions in anticipation of litigation:

  1. Start a diary or journal. Write down all important facts and events. The more details you can recall, the more useful it can be to you.  Write down any witnesses and contact information.
  2. Obtain a copy of any current employee handbook, employer policy, and any current collective bargaining agreement.
  3. Make a written request for a copy of your employee file as this is your right under Michigan law. Allow for reasonable time to comply and reasonable cost for the copy.
  4. Gather all relevant documents, photographs, videos, audio recordings, and any other item that can be used for evidence. Be sure to preserve any employer letter you got that terminated your employment.
  5. Gather together information about your educational background, employment history going back 15 years, criminal history, any lawsuits including divorces and traffic citations, and bankruptcies.
  6. Schedule an attorney consultation as soon as possible. There can be very short statute of limitations in employment law, some as short as the 90 days in Michigan to file a whistle blower retaliation lawsuit. I offer a free email consultation.

See my website for more information on what I can do for you.

NOTE: please keep in mind that this blog is not meant to be legal advice. Consult a lawyer if you need legal advice.

Michigan charges interest on unemployment benefits to be repaid

November 18th, 2015

A recent case brought to my attention that the State of Michigan Unemployment Insurance Agency (UIA) is now charging interest on unemployment benefits that must be returned. Apparently, the Michigan Employment Security Act was amended in 2011 to require the UIA to charge interest at the rate of 1% a month. 2011 Mich. Acts. 14. Unfortunately, even if you and the UIA believed that you qualified for the benefits but the determination was overturned on appeal, you will have to repay those benefits plus interest. Potentially, you could owe thousands of dollars, and if you agreed to repay monthly over several years or more, you may owe even more money in interest.

What can you do? The Employment Security Act does provide a waiver of repayment, but only if you were not at fault and with any of the following three grounds: 1) you provided incorrect wage information and your former employer didn’t provide or correct that information, and you didn’t intentionally misrepresent, 2) your household income is below the Federal poverty guidelines, and 3) the UIA committed an administrative or clerical error but this expressly does not include those errors overturned in an administrative law judge, appeals or judicial determination. M.C.L. 421.62(a).

Besides these limited grounds for a waiver, there is some possibility that you contest repayment especially in cases where the employer did not protest in a timely fashion or not at all, or that other statutory and administrative procedures were not followed. Be sure to timely request a determination and appeal on this issue.

Questions about unemployment benefits in Michigan: contact me at email@robertlreilman.com

NOTE: please keep in mind that this blog is not meant to be legal advice. Consult a lawyer if you need legal advice.

dissecting a motion to dismiss hearing under Medical Marihuana Act

February 4th, 2010

“now, when you digest marijuana, do you feel better?”

This was was the assistant prosecuting attorney (“APA”) asked the defendant. I suppose his inquiry was whether or not marijuana really is of medical use to the defendant. Or that, if you felt better, it must not be a debilitating condition. I had to grin because, well, lots of people like it because it makes them feel really good. But so what if you do feel better. Morphine can certainly make you feel better but it won’t eliminate any debilitating condition. Chemotherapy doesn’t make you feel better but it is of medical value. Thus, this was an indication of a fallacy coming from a team of lawyers experienced in prosecuting drug possession charges, but now confronted with a new medical marijuana affirmative defense. This particular hearing was to hear a motion to dismiss the possession of marijuana charge. The defendant did not see a doctor for registration under the Michigan Medical Marihuana program until two days after his arrest. Thus, the defendant is asserting medical use as a defense at at time where he had not seen a doctor for recommendation to use marijuana. So, does an affirmative defense based on the fact that the defendant believed it was of medical use work? The Michigan Act is certainly broad enough to include pre-recommendation medical use.  The prosecution doesn’t think so.

So, I decided to write this blog about it. 

The case was simple: the defendant was charged with  possession of a single marijuana cigarette found in his jacket. A police officer came to his house after an informant claimed a marijuana plant was growing at that house. The defendant is registered through the Michigan Medical Marihuana Program. However, he registered after he was arrested for possession. He has been diagnosed with symptoms involving weight loss, nausea, muscle spasms, and seizures. A doctor in Battle Creek recommended his using of marijuana for medical use. One additional fact: the defendant has had his condition well before his arrest for possession.

The defendant’s attorney, an experienced criminal-defense attorney originally from California, began by interviewing the doctor by telephone. This is a critical part of the affirmative defense. The doctor has to establish evidence to support an affirmative defense of medical use. The doctor must testify that the defendant has a debilitating medical condition, and that the medical use of marijuana is likely to alleviate or treat that condition. At this particular hearing, the doctor also discussed what he thought was an effective dose. This sets the stage for determining whether one marijuana cigarette was not an unreasonable quantity. This doctor thought that one cigarette was pretty low for the defendant’s condition.

The APA’s argument was that the new Medical Marihuana Act and its affirmative defense to possessing marijuana was a convenient defense for any offender. That might make sense, especially if the defendant had not registered for medical use until after the arrest. However, the defendant still has to prove that he has a debilitating condition and medical use of marijuana will help that condition; a possiblity of physican-defendant collusion to avoid arrest seems less likely. So, how would the APA be able to counter a physician’s testimony?

To begin, the APA heavily stressed whether there was a bona-fide physican/patient relationship. In Michigan, there is no case law that defines what this means. The APA thought that a physician who only takes referrals of patients that will need medical marijuana is not bona-fide. Instead, such a physician is in the business of creating Medical Marihuana registrants by simply glancing at medical records from another hospital and quickly drawing up recommendations, much like a products on a factory. Either that, or this was a physician who conspires with defendants to get them off charges of marijuana possession.  The APA thought the fact that the medical practice being in a hotel indicated further evidence that it was not a bona-fide relationship. 

Surprisingly, the defendant got up to testify.  The APA asked him whether he knew about the legal defense of medical marijuana at the time of his arrest. The APA also asked the arresting officer if the defendant ever expressed his medical marijuana rights. Here, the APA was implying that a defendant must assert the right during an arrest. He later acknowledged that no such requirement existed.

When the APA questioned the arresting officer, he inquired about the general appearance of the defendant. Did he look sick? Did the defendant explain his medical condition, even show x-rays? So, even if it was not important to assert a right to medical marijuana during an arrest, the APA was getting to his basic point. Medical marijuana is an convenient defense for someone to get charged with possession of marijuana. His inquiry about appearance was suggesting that the defendant is really fine, his condition was not debilitating, the physician is a paid expert witness. The motion to dismiss based on medical use is all a clever ruse to avoid conviction. The APA even cited a recent California case because of the concern of “post-arrest” certification, meaning the defendant goes out after an arrest and colludes with a physician to qualify for medical use of marijuana. The defendant’s attorney dismissed that case as not binding, and stressed that the affirmative defense clearly provides for the possibility of medical use before any doctor recommendation as long as the defendant can provide the required evidence.

That is what the defendant did in this hearing. The APA only really disputed whether it was a bona-fide physician relationship. He really didn’t do a good job disputing whether the condition was one that qualified as a debilitating condition. So, if the judge finds that it was a bona-fide relationship, then he must consider whether the affirmative defense should apply before a doctor actually recommends it. However, the statute calls for mandatory dismissal if the defendant can provide the required evidence.  Thus, the judge probably has no room of statutory interpretation (other than whether it was a bona-fide relationship) because if the defendant has provided the required evidence, his charge must be dismissed necessarily. I can definitely see the APA appealing this case should the Court decide for the defendant.

Personally, I agree that medical use of marijuana should extend to any period before a doctor recommended it. I think it would be difficult to fabricate medical records going back years, especially if the defendant came to see a doctor days after his arrest.  An individual would likely know if marijuana helped his or her debilitating condition. Thus, it would be inhumane to prosecute an individual for marijuana possession just because he or she had not obtained a registration card first. Also, this requirement of doctor recommendation before arrest would not read from the statute itself. Clearly, the statute provides two levels of protection: a presumption of medical use if the individual registers with the Michigan Medical Marihuana Program, and an affirmative defense of medical use in a criminal charge for possessing marijuana. Thus, why would there be an affirmative defense if the law required doctor recommendation before valid medical use? In order to construe this requirement, the statute would have only the requirement to register with the state of Michigan.

NOTE: please keep in mind that this blog is not meant to be legal advice. Consult a lawyer if you need legal advice.

Medical Marijuana Information for Michigan

January 7th, 2010

If you found this blog because you are looking for information about the Medical Marihuana Law in Michigan, I have found the following links:

Excellent source of information written by a Michigan attorney:

http://sites.google.com/site/medcannabis/

Michigan Medical Marijuana Association Website:

http://michiganmedicalmarijuana.org/

Americans for Safe Access website:

http://www.safeaccessnow.org/

Veterans for Medical Marijuana Access Website:

http://www.veteransformedicalmarijuana.org/

I plan to research employment and the Medical Marihuana Act in Michigan. Stay Tuned!

CART–Communications Access Real Time

December 24th, 2009

I had an opportunity to experience CART when I practiced in the Western District of Michigan in Grand Rapids.

CART is real time captioning. In a courtroom, you already have a court reporter. Chances are that reporter also has equipment available to transcribe in real-time everything the reporter is putting down. If you are involved in a court hearing in any way, call the court reporter in this case to arrange for CART services. If you have no business with a court, You could still pick a public hearing and arrange for CART to try it out.

I had a important hearing scheduled in Grand Rapids. At first, I thought it was too late to arrange for any CART service because I called the day before the hearing, and I instead asked the court clerk about other assistance devices like headphones. I mentioned CART just to inquire. The clerk referred me to the court reporter. The court reporter was able to arrange CART service even though I called just the day before. The reporter brought in her own laptop, on which I was to view the captioning in real time. The reporter did not charge extra for the service, primarily because she was already employed to record the court proceedings. The CART program, apparently, does not take any extra effort from the reporter.

I really enjoyed this device. Normally, I find it extremely difficult to follow court proceedings because for some reason the acoustics is not friendly in the courtroom. However, in this proceeding, I was able to follow everything just like I was watching a movie in closed captioning. The delay was quite minimal, maybe the most was a second. Though, I am sure CART is only as good and fast as the reporter is.

CART is marvelous technology. I can imagine that more deaf and hard of hearing individuals showing up for jury duty for example. I can imagine deaf and hard of hearing parties to a suit no longer have to rely on their attorney for information on what had happened; they can see the proceedings occurring in real-time.

Why stop there? CART, I can imagine, could easily be programmed to translate English into any number of languages instantly. With a sizable hispanic population, it would be very useful (as well as accessible) for a Spanish-speaking person to use CART for no extra charge than to arrange for an expensive interpreter.

Court reporters, who have CART equipment, are available for any other function if you arrange for the service ahead of time. However, you would have to pay the court reporter’s fees because it would be outside the courtroom, where a court reporter is already employed. But, I can see perhaps doing group functions where each individual pays a small amount to contribute to the CART reporter’s fee and be able to enjoy certain events that were previously inaccessible. I, for one, would like to see more plays at Miller Auditorium, for example.

Here are some websites on CART.
http://www.ncraonline.org/
http://cartinfo.org/news/index.html

About the 4th Amendment in public schools

November 10th, 2009

Wikipedia has good articles on Stafford and T.L.O. You can also read the case opinions at findlaw.com. Those Wikipedia articles describe well what these cases were about.

hyperlinks for the Stafford v. Redding case:

Stafford case opinion
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&navby=case&vol=000&invol=08-479

wikipedia article on Stafford
http://en.wikipedia.org/wiki/Safford_Unified_School_District_v._Redding#cite_note-1

New Jersey v. T.L.O.
http://en.wikipedia.org/wiki/New_Jersey_v._T._L._O.

T.L.O. case opinion online
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=469&page=325

Briefly, Stafford was the Supreme Court recognizing that there is a limit to a 4th amendment search in public schools of a student based on T.L.O. reasonable suspicion standard. A school official cannot ask a female student to turn her bra inside out to look for aspirins and other over-the-counter prescription drugs based on reasonable suspicion alone.

What is reasonable suspicion? It is a standard less strict than the usual probable cause required in a 4th amendment search. (see http://en.wikipedia.org/wiki/Probable_cause). A school official must have “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school,”  New Jersey v. T.L.O., 469 US 325 (1985) at 342. The search must also be “reasonably related to the objects of the search and not excessively intrusive,” Id. The Stafford case involves a search where the Supreme Court found to be excessively intrusive.

Before, federal courts have varied in what was excessively intrusive under reasonable suspicion. The Supreme Court, itself, considered random urine testing of athletes in Vernonia School District 47J v. Action, 515 U.S. 646 (1995), and random urine testing of ANY extracurricular activity (i.e., the National Honor Society) in Board of Education v. Earls,536 U.S. 822 (2002), and did not find either excessively intrusive. Indeed, these drug testing cases do not require even reasonable suspicion to justify a test. A federal trial court explored sniffing by police dogs in Doe v. Renfrow, 475 F.Supp 1012 (1979). That opinion did not consider sniffing by the dog as excessively intrusive. Similarly, in Horton v. Goose Creek Independent School District, 690 F.2d 470 (5thCir. 1982), the Fifth circuit did not find police dog sniffing to be excessive. However, the Ninth Circuit in B.C. v. Plumas Unified School District, 192 F.3d 1260 (9th Cir. 1999), did find random, suspicion-less police dog sniffing unreasonable.

 

NOTE: please keep in mind that this blog is not meant to be legal advice. Consult a lawyer if you need legal advice.

Upcoming Supreme Court Cases

August 10th, 2009

http://news.yahoo.com/s/time/20091005/us_time/08599192776000

I found this article on Yahoo discussing the cases coming up in the Supreme Court. Two cases that stood out for me are the issue of the crucifix on Federal land and the ban on handguns in Chicago.

In Salazar v. Buono, The issue of the crucifix is whether the Federal government has endorsed a particular religion over another contrary to the Establishment clause. However, this case seems interesting because the crucifix has been on Federal property since 1934. Would the Supreme Court be quick to require removal?

As for the handgun ban in Chicago in National Rifle Association v. Chicago & McDonald v. Chicago, most people are not aware that the 2nd Amendment has not been applied to the states. In a process called Incorporation, the Supreme Court has to find that a particular individual right guaranteed against the federal government such as those enumerated in the Bill of Rights is important enough that it should be incorporated into the 14th Amendment. The 2nd Amendment has not been incorporated.

If you want some background in these areas of law. I recommend these articles in Wikipedia, which I think is understandable even for someone who is not a lawyer.

http://en.wikipedia.org/wiki/Establishment_Clause & http://en.wikipedia.org/wiki/Lemon_v._Kurtzman

and

http://en.wikipedia.org/wiki/2nd_amendment

and

http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights)

 

NOTE: please keep in mind that this blog is not meant to be legal advice. Consult a lawyer if you need legal advice.