Monday, October 29, 2012

Ohio Law Helps Offenders Turn Lives Around


Q:       I’ve heard that Ohio law now makes it easier for criminals to turn their lives around. How?
A:        Ohio’s Senate Bill 337, effective September 28, 2012, includes a variety of changes to the criminal justice system that are designed to make it easier for people who get into trouble to move on with their lives. Two of the bill’s provisions are outlined in this article:  1) the creation of “certificates for qualification of employment” for individuals convicted of certain criminal offenses and 2) changes in the laws governing the sealing of criminal records. Other criminal justice system changes provided by this new law, but not covered in this article include: a decrease in the penalty for illegal use or possession of drug paraphernalia; changes to juvenile law and court procedures; changes regarding child support determinations; and changes in penalties for driving under suspension.
           
Q:       What is a “certificate for qualification of employment”? 
A:        An individual who has been prohibited from getting certain employment or occupational licensing as a result of a guilty plea or conviction for a criminal offense now may be able to get a certificate of qualification for employment. With some exceptions, this certificate lifts the automatic bar of employment or occupational licensing (known as a “collateral sanction”) that may otherwise result from a criminal conviction. The process for getting a certificate for qualification of employment requires a decision-maker to consider on a case-by-case basis whether to grant or deny an occupational license or employment opportunity.
            Lifting a collateral sanction may mean, for example, that the offender could get a license restored to return to work. If, however, the offender commits a felony offense after getting a “certificate of qualification for employment,” the certificate may be revoked.
            Also, the law would not eliminate a barrier to employment for someone whose prior conviction is directly related to an occupation (for example, someone who was convicted of check fraud and then applies for a job at a bank).

Q:       How do I get a “certificate for qualification of employment”?
A:        After you have been released from jail or prison following a guilty plea or conviction for a criminal offense, you can petition for a “certificate for qualification of employment.” In the petition, you must include specific information and file it either directly with the court of common pleas where you live or with the deputy director or other representative of the Division of Parole and Community Services of the Department of Rehabilitation and Correction (DRC-PCS). If your petition is complete, the DRC-PCS will forward it to the court. For the petition to be granted, you must show that you have a “substantial need” for the relief to live a law-abiding life and that granting the petition will materially assist you in getting employment or occupational licensing. In addition, you must demonstrate to the court that granting the petition will not pose an unreasonable risk to the safety of the public or any individual.
           
Q:       When may I apply for a “certificate for qualification of employment”?
A:        If you committed a felony offense, you may file a petition for a certificate after one year from the date of your release from incarceration or your final release from all other sanctions imposed for that offense. If you committed a misdemeanor offense, you may file a petition for a certificate after six months from your release from incarceration or your final release from all sanctions imposed for that offense including any period of supervision.
           
Q:       Is it possible for me to have my criminal record sealed?
A:        If you are an “eligible offender” (meaning you have not been convicted of more than one felony offense, two misdemeanor offenses if the convictions are not for the same offense, or more than one felony and one misdemeanor offense in Ohio or any other jurisdiction), this law allows your criminal record to be sealed. “Sealing” means that, if you qualify, any record of your previous offense will no longer be public and cannot be seen by potential employers or others.  Before this law was passed, only “first offenders” could have their records sealed.
However, this change in the law does not mean that every “eligible offender” can have records sealed. Before your record is sealed, a hearing must be held and the probation officer or county department of probation must make certain inquiries about you, including an inquiry about any child support obligations you may have.

Q:       Where can I get more information and find out about other provisions of this law?
A:        To see the full summary of Senate Bill 337 and all of its provisions, visit: http://www.legislature.state.oh.us/bills.cfm?ID=129_SB_337. The Ohio Department of Rehabilitation and Correction, Division of Parole and Community Services (the PCS Division) is responsible for adopting rules for the implementation of a the “certificate of qualification for employment,” as well as the petition to be used to apply for it. You can get more information at http://www.drc.ohio.gov/web/offenderreentry.htm.


This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). Articles appearing in this column are intended to provide broad, general information about the law. For information about a variety of legal topics, visit the OSBA website at www.ohiobar.org. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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Monday, October 22, 2012

Federal Tort Claims Act Allows Certain Claims To Be Brought against U.S. Government


Q:       If I am injured by a federal employee, can I sue the United States?  
A:        Maybe. Generally, you cannot sue the United States of America for injuries or property damage based on the common law doctrine of sovereign immunity—the concept that you “can’t sue the king.” However, through the Federal Tort Claims Act (FTCA), the United States permits injured persons to bring certain tort claims against the government.  
            Let’s say, for example, that you are hit by a U.S. Postal Service van driven by a postal employee who is delivering mail, or you are injured as a result of negligent medical treatment you received at a VA hospital.  The FTCA allows you to pursue claims for injury or loss of property, personal injury or wrongful death caused by a federal employee’s negligence as long as a similar claim would prevail against a private person in the state where the negligent act or omission occurred. So, if Ohio law prohibits a particular cause of action, you cannot pursue that claim against the United States. Also, under the FTCA, you can only bring a claim against federal employees for injuries caused when they are acting in the scope of their employment, and the statute does not apply to claims against a government contractor.

Q:       Are there claims I cannot pursue against the federal government?
A:        Yes. The FTCA contains several exceptions that prohibit you from filing a claim against the United States even if Ohio law permits it. For example, the FTCA prohibits claims for certain intentional torts committed by federal employees, such as for assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contract rights, unless the claim arises from a negligent act  committed by a United States investigative or law enforcement officer.

Q:       How do I pursue a claim against the United States under the Federal Tort Claims Act?
A:        In most cases involving personal injury, wrongful death or property damage, you can head straight to court to pursue your claim. If your case falls under the FTCA, you must first file an “administrative claim” directly with the agency you believe is responsible for your injuries.  Using the previous examples, your claim for property damage or injuries caused by a postal vehicle would be filed with the United States Postal Service, and a medical malpractice claim resulting from care at a VA hospital would be filed with the Department of Veterans Affairs. If you try to skip this administrative step and file a claim directly in court, your claim will be dismissed. 

Q:       Is there a time limit for me to pursue my claim?
A:        Yes, and if you miss any deadlines, your claim may be dismissed. Your administrative claim under the FTCA must be filed within two years from the date of injury. Once your claim is filed, the agency has six months to respond. An agency can agree or admit to the claim or an agency can reject or refuse to pay any damages alleged for the claim. If the agency rejects the claim or refuses to pay, you have six months from the date the rejection/refusal is mailed to you to file a lawsuit in court. The six-month filing deadline doesn’t begin until the agency actually issues its rejection. If the agency doesn’t issue any ruling within the six-month administrative review time frame, you can choose to wait for the agency’s decision or file your claim in court. A lawsuit for an FTCA claim can only be filed in court after all “administrative remedies” have been exhausted.

Q:       What information should I include in my claim?
A:        You must include facts, identify witnesses and provide information sufficient so the agency can review the merits of your claim. You must include an exact amount of monetary damages along with any supporting documentation to verify the amount of claimed damages. The federal government has created a standard form, known as Standard Form 95 or SF 95, to use when submitting an administrative claim. The form is available online or from any federal agency. You don’t have to use this form when submitting your administrative claim, but it is a useful tool. Special care in calculating the administrative claim for current and future losses is needed, since any federal court lawsuit is limited to only the amount that had been requested in the claim.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Cincinnati attorney Theresa Nelson Ruck of Sams, Fischer, Packard & Schuessler, LLC. 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, October 15, 2012

What You Should Consider When Choosing Auto, Homeowners and Umbrella Insurance


Q:        What should I know about keeping costs down when I buy auto, homeowners or umbrella insurance policies?
A:        To receive discounts and reduce premiums, you can generally get the best overall coverage and the best overall price by purchasing auto, homeowners and umbrella insurance from the same company and the same agent. Make sure your agent gives you comparative quotes from various companies for various limits. This allows you to see the full picture and make an informed decision. It is important to review your insurance coverage with your agent every year. Your needs as well as the price of insurance may change if you buy a new vehicle, have speeding tickets or claims (or claim-free years), or if your teenager starts to drive.

Q:         What is “umbrella coverage?”
A:         Umbrella coverage is a separate policy or coverage that significantly increases your liability and uninsured/underinsured policy limits.  It operates above and on top of your regular auto and homeowners policies, and because it only comes into play on very substantial claims, it is relatively inexpensive.  

Q:        What should I know about “state minimum coverage” for auto insurance?
A:        You should be aware that the state minimum insurance limits are the minimum limits you need to avoid driving illegally.  In the event of an accident, however, the “state minimum coverage” can leave the victim and the person at fault largely unprotected—leading to incomplete recovery of damages and, sometimes, bankruptcy.

Q:        Can I rely on advertising when choosing an insurance company?
A:        No. Good ads do not necessarily equal good insurance companies. Some very entertaining ads come from companies with poor claims practices. To determine which companies have the best claims records, talk to an attorney who deals with claims or ask an independent insurance agent (one who can sell more than one brand of insurance) to recommend companies known for good customer service.

Q:        What about buying insurance online?
A:        When you purchase insurance online without an agent, you may not get what you expect, and you may not be able to determine if the coverage you’re buying is adequate until you need to use it. When dealing with a claim, having an agent who is accessible and represents your interests can be invaluable.

Q:        If I forget to renew my driver’s license expire, will I still have insurance coverage when I’m driving?
A:        The Bureau of Motor Vehicles has a 90-day grace period after your license expires before you have to retake the driver’s examination. However, many insurance companies today include provisions that require the insured to have a “valid” license, and they do not extend coverage on an expired license, even within the 90-day grace period. It is essential that you renew your license before it expires. If it does expire, don’t drive until your license is renewed; you may not be insured.

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by attorney Stuart F. Cubbon of Cubbon & Cubbon Co., LPA in Toledo. For more information on a variety of legal topics, visit the OSBA’s website at www.ohiobar.org. 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, October 8, 2012

The Facebook Background Check: Using Social Media to Vet Candidates

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An estimated 91 percent of employers use social media to aid in their decisions of who, and who not, to hire. While this practice is becoming increasingly common, employers should be aware of the pitfalls of seeking information about potential employees through Internet searches.

Q:       What kinds of things might an employer learn about a potential employee through a social media source?
A:        An employer can learn, for example, that a candidate demonstrates poor communications skills, has lied about his or her qualifications, posted inappropriate comments, trashed a former employer, or divulged corporate confidential information, any one of which could legitimately disqualify the candidate from further consideration. Conversely, an employer can discover that a candidate is creative, demonstrates solid communication skills, has received awards or accolades, or is well regarded or recommended by his or her peers.

Q:       What should an employer consider when conducting Internet searches to learn about job applicants?
A:        Despite the legitimate information an employer can discover about job applicants through social media and other websites, conducting such informal Internet background checks carries risks. First, information uncovered through Internet social media may be unreliable and unverifiable. Further, there is a genuine risk that an Internet search will disclose “protected” information such as age, sex, race, religion or medical information.

Q:       How can information be “protected” if it’s shared on a public website?
A:        Consider the following example: Jane Doe submits a job application to ABC Corp. The hiring manager types her name into the Facebook search bar. What happens if the search reveals that Ms. Doe belongs to a breast-cancer-survivor group? If ABC declines to interview Ms. Doe, or hires another candidate, it is opening itself up to a claim that it failed to hire her because it regarded her as disabled or because of her genetic information. Now, the company is placed in the unenviable position of having to defend its decision not to hire Ms. Doe. It may be very difficult for the company to refute a claim that the hiring decision had nothing to do with its discovery of her medical information.

Q:       Can an employer require a job applicant to turn over a Facebook password as part of the hiring process?
A:        Reports that some employers are requiring job applicants to turn over their Facebook passwords as part of the hiring process have been reported in the media, and the outrage against such a practice so great that some United States senators are calling for action to outlaw it. Three states—Maryland, Illinois and California—have already passed legislation banning it, and many other states (including Ohio) are considering similar legislative prohibitions. Facebook has also officially weighed in on this issue, via a post on its blog by its Chief Privacy Officer, which asserts that it is “a violation of Facebook’s Statement of Rights and Responsibilities to share or solicit a Facebook password.”
            As employers make decisions about hiring practices, they should consider broader questions such as: What type of employer do you want to be? Do you want to be viewed as Big Brother? Do you want a paranoid workforce? Do you want your employees to feel invaded, with no sense of personal space or privacy? Or, do you value transparency? Do you want HR practices that engender honesty, and openness, and honor their employees’ lives outside of work?

Q:       Assuming that most employers will not go so far as to demand social media passwords from job applicants, are there legitimate benefits to be gained from gathering information about candidates from Internet sources?
A:        Yes. Despite the risks, Internet searches on job candidates hold value for employers, as long as they are done carefully. To minimize risks when doing Internet searches, employers should:
·       Consult with an employment attorney to develop policies, procedures, and guidelines for the gathering and use of Internet-based information without conflicting with discrimination and other laws.
·       Include on the job application a disclaimer stating that Internet searches may be conducted for publicly available information, either through sites such as Facebook, LinkedIn, and Twitter, or through the use of search engines such as Google and Bing. Obtain the applicant’s signed permission to conduct the search.
·       Only conduct a search after making the candidate a conditional job offer.
·       Consider using a third party to do the searching, with instructions not to disclose to you any sensitive or protected information that may be uncovered. This third party can either be a trained employee insulated from the hiring process or an outside vendor specializing in background searches.
·       Make sure not to use Internet searches as the only form of background screening, but rather to use this information as part of a larger, more comprehensive background screening program.

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by Cleveland attorney Jonathan T. Hyman of Kohrman Jackson & Krantz P.L.L. 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, October 1, 2012

Ohio Provides Two Types of Guardianships for Minor Children


In unfortunate situations, such as when parents die or are unable to act in their children’s best interest, minor children may need to have a legal guardian appointed for them. Ohio provides for two types of guardianships in such cases.

Q:       My brother recently died, and his wife died several years ago. What is going to happen to his minor children?
A:        The probate court of the county where the children live will appoint a guardian to act in the best interest of your brother’s minor children. The probate court, which has exclusive jurisdiction over guardianships in Ohio, is a division of the Court of Common Pleas.

Q:       Before he died, my brother named me to be the guardian of his children in his will. What should I do now?
A:        You will need to file an application with the probate court of the children’s residential county asking to become their guardian. The court will review your application, and, assuming the court approves it, you will be appointed to be the children’s guardian at a hearing.

Q:       Is there more than one type of guardianship?
A:        Yes. The probate court can appoint a guardian of the person, a guardian of the estate, or both.

Q:       What is a guardian of the person?
A:        A guardian of the person protects and makes decisions for the benefit of the minor children based upon their best interests. The guardian of the person is also responsible for providing suitable care and education for the minor children, taking into consideration the assets held by the guardian of the estate.

Q:       What is a guardian of the estate?
A:        A guardian of the estate collects and inventories the property left to the minor children. Any and all funds the guardian receives must be placed in an Ohio bank. All funds must be invested in a lawful manner and should not be subject to large market fluctuations. Lastly, and most importantly, the guardian must not spend funds on behalf of the minor children without prior court approval.

Q:       Can the court appoint one person to be the guardian of the person and another person to be the guardian of the estate?
A:        Yes. Your brother could have chosen to appoint one person to become guardian over his minor children and another person to be named guardian of the minor’s inheritance. He could also have appointed only one person to serve as both the guardian of the person and the guardian of the estate.
                        The nomination of a guardian normally is set forth in a will, but it can also be made through a separate document executed in the same manner as a will. The document must be dated and signed by the individual nominating the guardian. It must also be witnessed by two disinterested parties.

Q:       How long will the guardianship last? Does a guardianship of the person last the same length of         time as a guardianship of the estate?
A:        Both types of guardianships continue until the minor children reach the age of majority, which is 18 years of age in Ohio. However, if a child has a mental or physical disability that requires the guardianship to continue in adulthood, then a new guardianship application must be filed.  A minor guardianship cannot be changed into an adult guardianship without a separate court order.

Q:       Does the court have to appoint an individual to be a guardian just because that person was named in a will?
A:        No. The court will give priority to a guardian nominated in a document by an individual, but does not have to appoint that named person. The court will look at the facts and circumstances and determine first whether a guardianship is necessary, and second, whether the nominated person is suitable to serve as a guardian. The court will make the final decision about who will serve, but a minor over the age of 14 also may recommend a guardian and ask the court to appoint that person.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Columbus attorney Jay E. Michael, an OSBA-certified specialist in estate planning, trust and probate 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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