Monday, July 28, 2014

Employers and Employees Use Collective Bargaining to Negotiate Employment Terms


Q:       What is collective bargaining?
A:        Collective bargaining is the negotiation of matters regarding employees’ wages, benefits and other terms and conditions of their employment. Collective bargaining occurs between the employer’s representatives and the union, which the employees have selected to be their exclusive bargaining representative. 

Q:       What law governs collective bargaining?
A:        Most private employers are covered by the National Labor Relations Act (NLRA), which is enforced by the National Labor Relations Board (NLRB). Some businesses in the railroad and airline industries are covered under the Railway Labor Act, and some very small enterprises may not be covered at all. Civil servants in the federal government are covered by the Civil Service Reform Act, and state, county and municipal workers fall under state or local laws. Postal workers are covered under the Postal Reorganization Act, the NLRA and the Labor Management Relations Act.
            Public employers are also governed by the state’s collective bargaining law, which, in Ohio, is enforced by the State Employee Relations Board (SERB). State collective bargaining laws limit the right of certain workers, such as police and firefighters, to strike. These workers are subject to final offer arbitration, known in Ohio as conciliation.

Q:       What must be included in a collective bargaining agreement?
A:        The law does not dictate contract terms and neither the NLRB nor SERB will impose terms upon the parties without their agreement. Rather, the law provides a framework so management and labor can negotiate a contract governing wages, hours and working conditions. The law limits the unilateral power of employers, protects workers’ rights to organize and engage in “concerted activity for mutual aid and protection” and prohibits discrimination against workers who exercise these rights.


Q:       What does it mean to bargain “in good faith?”
A:        It means that the parties must negotiate with honest intentions about the wages, hours, terms and conditions of employment and provisions of a collective bargaining agreement. Good faith is mutual obligation to meet at reasonable times and places, and to bargain with the intention of reaching agreement or resolving contract questions. “Hard bargaining” (taking a strong position on an issue) does not violate the law, but the following approaches constitute bad-faith bargaining and do violate the law:
·       surface bargaining (going through negotiation motions without intending to reach an agreement);
·       a “take-it-or-leave-it” approach; and
·       refusing to meet, delaying meetings or failing to give the chief negotiator sufficient authority to make agreements.
           
            If either party fails to bargain in good faith, the other may file an unfair labor practice charge. Good faith is determined based on the totality of circumstances.

Q:       Must an employer bargain with the employee’s union over everything?
A:        No. The law recognizes these three types of bargaining subjects:
·       Mandatory subjects involve issues of wages, hours and working conditions. The parties have to bargain over mandatory subjects.
·       Permissive subjects involve subjects other than wages, hours and working conditions (e.g., ground rules for negotiations, settlement of unfair labor practice charges or pension benefits). These may be voluntarily discussed but cannot be bargained to impasse, and either party may refuse to bargain over a permissive subject. If the parties do reach agreement on a permissive subject and incorporate it into a collective bargaining agreement, then they must abide by that agreement.
·       Illegal subjects include any proposal that violates National Labor Relations Act (NLRA), the Public Employees Relations Act (PERA), the Civil Service Reform Act (CSRA) and/or any other federal, state, county or municipal law. Illegal agreements/provisions are void and cannot be enforced.

Q:       May an employer change employment conditions during bargaining?
A:        No. Employers must maintain the “status quo” regarding existing wages, hours and working conditions, even if a contract has expired—unless there is an impasse in negotiations. An impasse means that neither party is willing to compromise further to reach an agreement. If a legal impasse has been reached on an issue, the employer may then unilaterally impose on its employees its last offer regarding that issue. For certain public employees (e.g., police and firefighters), the employer must maintain the status quo until an agreement is reached, either mutually or through conciliation.
           
This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by attorney Margaret J. Lockhart, an OSBA Certified Specialist in Labor and Employment Law who is associated with the firm of Marshall & Melhorn. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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Monday, July 21, 2014

Getting, Modifying and Replacing Social Security Cards: What You Should Know


Q:       How do I get a Social Security number for the new baby we’re expecting?
A:        When you apply for your baby’s birth certificate, you can apply for a Social Security number at the same time. If you have the baby in a hospital, you can complete both applications before you leave the hospital. Learn more about Social Security cards through www.socialsecurity.gov/pubs.

Q:       We adopted a baby girl from overseas and brought her to the U.S. Can we get a Social Security number for her?
A:        Yes. Generally, you must complete an application for a Social Security card (Form SS-5 (see www.socialsecurity/gov/ssnumber).
You must provide:
1)     documents that prove your child’s U.S. citizenship or immigration status; adoption; age; and identity;
2)     a document proving your identity;
3)    evidence establishing your relationship to the child. (You can use the adoption decree or the child’s amended U.S. birth certificate for this purpose.)
            Usually, you can mail or take your application and original documents to your local Social Security office. All documents must be originals or copies certified by the issuing agency. You will receive your child’s number and card by mail once the Social Security office has verified your documents.
            If you do not yet have proof of your child’s citizenship, a Social Security number may be assigned based on Department of Homeland Security documentation issued when your child first arrived in the U.S. Once you’ve received your child’s citizenship documentation, take it to the Social Security office so your child’s record can be updated.

Q:       Can I use a plastic version of my paper Social Security card?
A:        The Social Security Administration does not recommend using plastic or metal versions of your card, or making copies of or laminating your paper card, or carrying your card with you. Generally, you will only need to produce your Social Security card when you apply for employment. Keep any document that includes your Social Security with your important papers, and question anyone other than your employer who asks for your number or your card. Learn more at www.socialsecurity.gov/ssnumber.

Q:       How do I change my name on my Social Security card?
A:        Gather documents proving your legal name change (e.g., marriage license, divorce decree, certificate of naturalization showing a new name, or a court order showing your name change). Also collect evidence of your identity (driver’s license or state-issued ID) and your U.S. citizenship or immigration. Then, complete an application for a Social Security card and take it, along with your documents, to your local Social Security office. Documents must be originals or copies certified by the issuing agency. Mailed documents will be returned with a receipt. Once the Social Security office receives the application and documents, your new card will be mailed to you. It will show your old number and your new name.

Q:       If I lose my Social Security card, can I replace it?
A:        You should know your Social Security number, but you may not need to replace your card, since you will rarely need to show it. However, if you want to replace your card, you can take or mail an application to your local Social Security office, along with original documents or certified copies from the issuing agencies, proving your identity and your U.S. citizenship or your current work-authorized immigration status. If you are a noncitizen without a work permit, you must provide a letter from a federal, state or local government agency stating that you meet the requirements for a Social Security benefit and explaining why you need a number.

The information for this “Law You Can Use” column was provided by the Social Security Administration. It was prepared by the Ohio State Bar Association. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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Monday, July 14, 2014

Children May Be Witnesses in Family Law Trials


Q:       Can children testify in a divorce or custody trial?  
A:        Yes, children are allowed to testify in a divorce or custody trial if they are 10 years old or older. Children under 10 may also testify if they appear able to correctly and truthfully explain facts to the court.

Q:       How does a court decide if a child is able to tell the truth or remember facts correctly?
A:        If there is any question about a child’s ability or willingness to tell the truth or accurately remember information, the judge will interview the child to determine if the child can testify. The judge or magistrate will talk with the child about the difference between truth and a lie and will ask general questions about the child and his/her family, friends, pets and school. If the court determines that the child can answer questions and can correctly and appropriately relay information to the court, then the child will be allowed to testify.  

Q:       Can a child witness be asked the same questions as an adult witness?
A:        Although there are no restrictions on the sorts of questions a child can be asked, many factors are considered when deciding what questions should be asked of a child witness and how they should be asked. Depending on the child’s age and maturity, questions must be asked in a way that the child can understand and correctly answer. For example, a child should be asked direct, clear questions one at a time using age-appropriate vocabulary. Individuals should be described using names that are familiar to the child (e.g., “Uncle Johnny”) rather than pronouns. Children may say “I don’t remember” when they really mean “I don’t know” because they may believe that not knowing an answer can get them in trouble. The questioner should explain that “I don’t know” is an acceptable answer.

Q:       Can my son’s wishes or observations be presented to the court without making him testify?
A:        Yes. In fact, children do not ordinarily testify before the court in a divorce or custody case. In most cases, where there is a disagreement about who will have custody or the amount of time a child will spend with each parent, the court will appoint a guardian ad litem to investigate the child’s situation. Following this investigation, the guardian ad litem is responsible for reporting to the court what he or she believes is in the child’s best interest. However, even if the court appoints a guardian ad litem for your son, the judge or magistrate can still interview him. This type of interview, called an “in camera” interview, would occur in private with the judge or magistrate, your son and his guardian ad litem and/or attorney, and will be conducted without either parent being present. The court can use this method of interviewing your son and determining his wishes rather than requiring him to sit in the courtroom and answer questions in front of you and his other parent.  

Q:       What kinds of questions does a judge or magistrate ask a child in an “in camera” interview?
A:        Each judge or magistrate handles talking to a child differently.  The questions asked will differ depending on the age of the child and the issues that must be decided in the case. For example, children may be asked questions about their likes and dislikes and sometimes their memories of certain important events that may impact the court’s decision on the case.  

This “Law You Can Use” consumer legal information column was provided by the Ohio State Bar Association (OSBA). It was prepared by Joseph Nigh, a partner in the Columbus firm of Tyack, Blackmore, Liston, & Nigh, who practices primarily in the area of family law. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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Monday, July 7, 2014

What Are My Miranda Rights?


With the popularity of crime dramas on television, most Americans have heard the Miranda warnings, which law enforcement officers must give before you are taken into custody for interrogation by any U.S. local, state or federal government authority:
·       You have the right to remain silent.
·       Anything you say can and will be used against you in a court of law.
·       You have the right to talk to a lawyer and have your lawyer present with you while you are being questioned.
·       If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish.
·       If you give up your right to remain silent, and later wish to stop answering questions, no further questions will be asked.

While we have all heard them, comparatively few of us truly understand the impact of the 1966 United States Supreme Court decision in Miranda v. Arizona, 384 U.S. 436 (1966).

Q:       How do I know if I am in custody?
A:        Circumstances vary, but generally, if a reasonable person does not feel free to leave the presence of governmental law enforcement, then that person is said to be “in custody.” If you are in custody, you must be informed of your Miranda rights, and agree to waive those rights, before authorities may ask you any questions.

Q:       What happens if I waive my Miranda rights?
A:        Waiving your Miranda rights means that you agree to answer questions, even without a lawyer present.  Governmental authorities who routinely arrest and question individuals about alleged criminal acts often provide Miranda waiver forms. People can read their rights and sign the form to say they are giving up their Miranda rights and consenting to questioning while in custody. However, as long as you have heard and understood your Miranda rights, but go ahead and speak with authorities or answer their questions, then your behavior is a valid waiver of those rights, even if you have not signed any paper.

Q:       What if I want the authorities to stop questioning me?
A:        You cannot simply remain silent if you want authorities to stop questioning you. Instead, you must say, out loud, “I wish to remain silent” or “I am requesting legal counsel.” Then, authorities must immediately stop questioning you while you are in custody.

Q:       Is there any circumstance where police don’t have to give the Miranda warnings?
A:        Yes. There is a rarely-used exception that lets authorities take a suspect into custody without reading the Miranda rights when there is a risk to the public’s safety. This exception made headlines after Boston Marathon bombing suspect Dzhokhar Tsarnaev was apprehended.

Q:       If I say I want to remain silent, does my right to remain silent last forever?
A:        No. Even if you are in jail or in police custody, the police can question you again after 14 days.  Also, if, for example, you are arrested, remain silent, are released, and then are arrested a few days later, you need to re-assert your right to remain silent. Also, if you invoke your rights but then just keep talking, you lose that protection.

Q:       What if I am in government custody and authorities are interrogating me, but haven’t read me my rights?
A:        Assuming there was no public safety or other exception, your attorney will file a “motion to suppress” any incriminating statements you may have made to the authorities. In this motion, your attorney will ask the court to rule that the prosecutor may not use any of your statements at your trial because that would violate your rights. If the prosecutor has a very weak case and little evidence against you other than your statement, such a ruling may convince the prosecutor to dismiss your case or offer you a favorable plea agreement. Or, the exclusion of your statement may mean you will not be convicted. However, if you are caught by seven witnesses and 12 video cameras showing you swinging out of a bank vault with cash that is not yours, the outcome of government’s case against you is very unlikely to be affected by any failure to inform you of your rights.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Attorney Aaron T. Baker, a solo practitioner in Willoughby, Ohio, and Matthew C. Bangerter, a solo practitioner in Mentor, Ohio.  Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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Monday, June 30, 2014

Ohio Charitable Trust Act Authorizes Ohio Attorney General to Oversee Charities


Q:       How does the Ohio Charitable Trust Act affect me?
A:        The Ohio Charitable Trust Act gives authority to the Ohio Attorney General to oversee charitable organizations.  Under this law, the Attorney General can investigate charities to ensure they are being operated appropriately, their assets are used properly and their donors and beneficiaries are protected.  Every Ohio charity must meet certain obligations under the Charitable Trust Act in addition to following IRS rules.

Q:       I am starting a charitable organization. What are my obligations under the Charitable Trust Act?
A:        Charitable organizations have registration and reporting obligations.  They must register one time with the Attorney General’s office, a straightforward process that must be completed online at www.ohioattorneygeneral.gov/charitableregistration.  The Attorney General’s website resources will guide you through the process.  You will need to provide basic information including the charity’s  address, taxpayer identification number, date of formation, state charter number, bingo license number (if you have one), description and value of assets and copies of your organizational documents (articles of incorporation, federal tax exemption letter, bylaws, etc.).
Once you create an online account and register, you must file a report with the Ohio Attorney General each year.  This report is in addition to the Form 990 you may file with the IRS, but asks for much of the same information and is due at the same time each year. 

Q:       Are there fees involved in registration and reporting?
A:        There is no cost to create an online account and register with the Attorney General’s office, but a fee is due at the time you file your annual report.  The fee varies based on your assets and ranges from $50 for small organizations up to $200 for large organizations.

Q:       Must every Ohio charity register and file reports?
A:        Certain organizations are exempt from registration and reporting.  These include schools, churches and booster clubs or PTAs with less than $25,000 in assets and gross receipts. If you are not sure if you are exempt, ask the Attorney General’s office or request an exemption through the online system.

Q:       Exactly how does the Attorney General get involved with charities?
A:        The Charitable Trust Act allows the Attorney General to investigate a charity when board members, key staff or officers fail to meet their fiduciary duties and donors or beneficiary interests are threatened.  The Attorney General’s office also offers educational resources to help those involved with charities understand their duties and obligations.   

Q:       What are fiduciary duties and who has them?
A:       The Ohio Attorney General recognizes four fiduciary duties that must be followed by anyone in a position of authority with a charitable organization (including board members, officers and senior staff):
1)    Duty of Loyalty – you must put the interests of the charity first and avoid conflicts of interest;
2)    Duty of Care – you must be active in the governance of the charity and understand its mission and programs;
3)    Duty of Compliance – you must confirm the charity follows the law and meets its legal obligations of registration, reporting and filing tax forms;
4)    Duty to Manage Accounts – you must ensure the charity makes sound financial decisions and has responsible fiscal policies in place.

Q:       What educational resources does the Ohio Attorney General’s office provide for charities?
A:        The Attorney General offers resources through its website at www.ohioattorneygeneral.gov/Business/Services-for-Charities.  These materials explain fiduciary duties, help you avoid theft in your organization and clarify registration and reporting obligations.  The Attorney General’s office also publishes a newsletter and hosts webinars to discuss obligations and duties under the Charitable Trust Act.  You can also ask someone from the Attorney General’s office to provide in-person trainings in your community by calling 800-282-0515.
            The Attorney General also provides information for those wishing to donate to charitable organizations.  You can research specific charities through the website and can find “good giving” articles and brochures to help you make informed decisions about making contributions. You can find this information at www.ohioattorneygeneral.gov/Business-and-Non-Profits/Charity/Good-Giving.aspx.

Q:       What if my charity solicits donations or runs bingo games?
A:        In addition to its duties according to the Ohio Charitable Trust Act, the Attorney General regulates charitable solicitations through the Ohio Solicitations Act. Many charities hire professional fundraisers and solicitors to help them raise money. In Ohio, these professional fundraisers must be licensed and follow certain laws found at www.ohioattorneygeneral.gov/Business/Professional-Solicitors-and-Fundraisers.
            If you host bingo games to raise funds for your charity, you must comply with bingo license laws.  Learn more through the Attorney General’s “Bingo School” and online at www.ohioattorneygeneral.gov/Business-and-Non-Profits/Bingo-Operator.aspx.

This “Law You Can Use” consumer legal information column was provided by the Ohio State Bar Association (OSBA). It was prepared by attorney Mary Gallagher of the Ohio Hospital Association. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek the advice of a licensed attorney.

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Monday, June 23, 2014

Social Security Retirement Benefits: What You Need to Know


Q:       What is a Social Security “credit”?
A:        During your working years, you earn Social Security credits based on how much you earn in wages. The amount of earnings you need for one credit rises as average earnings levels rise. In 2014, you receive one credit for every $1,200 you earn in wages. You can earn up to a maximum of four credits per year. Most people need 40 credits (equivalent to 10 years of work) to be eligible for retirement benefits. For more information about credits, read “How You Earn Credits” at www.socialsecurity.gov/pubs.

Q:       My husband doesn’t have enough work credits to qualify for Social Security retirement benefits. Can he qualify on my record?
A:        A spouse receives one-half of the retired worker’s full benefit unless the spouse begins collecting benefits before full retirement age. If your husband begins collecting benefits based on your Social Security record before he reaches full retirement age (age 65 - 67, depending on the year he was born), the amount of his benefit is reduced by a percentage based on how many months short of full retirement age he is.

Q:       How early can I begin receiving Social Security retirement benefits?
A:        You can get a reduced benefit as early as age 62. The 1983 Social Security Amendments raised the full retirement age for people born in 1938 and later, but it did not change the minimum retirement age.

Q:       Is there any penalty for beginning to take my benefits at age 62?
A:        Yes. If you start taking your benefits before your full retirement age, the amount you can collect will be lower than the amount you can collect at your full retirement age. (If you wait until full retirement age, your benefits will be about 33 percent higher, and your benefits will be about 76 percent higher if you defer them to age 70.) Also, if you begin taking benefits at age 62 while you are still working, $1 in benefits will be deducted for every $2 you earn above $15,480 (for 2014). Visit the “Retirement Estimator” at www.socialsecurity.gov/estimator for more information.

Q:       When I start receiving benefits, will the amount stay the same for the rest of my life?
A:        No. Generally, your benefit amount increases every year to protect you against inflation. An increase in the consumer price index will give you a cost-of-living adjustment (COLA). For 2014, that COLA adjustment is 1.5 percent. Your benefit also may increase if you work and continue to pay Social Security taxes while receiving benefits. If your earnings for the year are higher than those used to compute your benefit originally, the Social Security Administration will substitute the new year of earnings. The higher your earnings, the more your refigured benefit might be. If your earnings are high enough for the Social Security Administration to deduct excess earnings from your benefits, your benefits will be recomputed when you reach retirement age. This effectively increases your benefit because the months when benefits were reduced or withheld due to excess earnings are left out.
            Your monthly benefit may seem to decrease, however, if health care costs rise faster than the COLA. A rise in Medicare premiums can offset any COLA increase. A special rule called “Hold Harmless” protects your monthly benefit from being reduced. To learn more, visit
https://secure.ssa.gov/apps10/poms.nsf/lnx/0601001004.

Q:       How do I apply for retirement benefits?
A:        You can apply online or make an appointment with a Social Security representative at a local office. Generally, it is easier and faster to apply for benefits online at www.socialsecurity.gov. The process takes as little as 15 minutes and, in most cases, you’re finished once you’ve submitted your electronic application. Usually, there are no forms to sign or documents to mail.

The information for this “Law You Can Use” column was provided by the Social Security Administration. It was prepared by the Ohio State Bar Association. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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