This column will give you the opportunity to tap into the expertise of attorneys who are members of the Carlsbad Chamber of Commerce. If you'd like to submit a question for consideration, send it to [email protected]. The responses provided in the article are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. A response in this article by an attorney does not create an attorney-client relationship between the attorney and the reader. The opinions expressed at or through this article are the opinions of the individual author and may not reflect the opinions of the Chamber, its employees, agents, directors or members, Lee Sterling, guest editor
Human Resources Law
Louis A Storrow, Esq.
StorrowLaw, APC
Q: One of my employees posted a very negative comment about my company on Facebook. Can I use that as grounds for termination? We have a policy against making derogatory comments about the company in public.
A: Is your employment practices insurance paid up? You may need it if you fire this employee, as a number of companies have recently learned.
Federal labor law protects employees who discuss their working conditions with each other. But this is different, you say. This is one employee complaining to the world, and you have a written policy that prohibits public badmouthing.
Unfortunately, the National Labor Relations Board takes the position that if the employee directs her complaints to one other employee, even among two hundred online "friends", the complaint is protected as "concerted activity" and can't be the basis for termination. In one case, a Mercedes dealer had a sales event and served hot dogs and soda. One salesman complained online to co-workers that the employer was cheap. The salesman was fired. The NLRB took the case and awarded damages to the employee. It didn't seem to matter that the world could see the remarks, they were protected. My advice is to check with an employment lawyer before firing anyone for "cause" like this.
One exception to the new "Facebook Rule" would be if an employee posts comments that are generally offensive and unrelated to working conditions, calling a manager a "fat pig" for example. Those comments probably would not be protected.
Lou Storrow can be reached at [email protected]
Trust and Estate Law
Amanda K. Bare and Richard B. Macgurn
Law Offices of Richard B. Macgurn
Q: Whom should I designate as successor trustee of my living trust?
A: Choosing your successor trustee is an important decision which may affect whether your estate plan is properly administered.
Your choices are generally: 1) banks and trust companies ("Institutions"), 2) private professional fiduciaries ("PPFs"), 3) individuals who are not family members, and 4) individuals who are family members.
Institutions and PPFs may make sense for larger estates. They tend to be well-versed in applicable law. They are experienced at working closely with professionals. Institutions and PPFs tend to be conservative in their administrative decisions. They can be good choices when relationships among beneficiaries are strained.
Institutions charge minimum fees. There is no guarantee the trust officer the trustor spoke with will be working for the institution when the estate is administered. PPFs have many of the benefits of institutions, but may be more flexible with their fee structure, and you are hiring a person rather than an institution.
For small to medium estates, it is common to designate an individual as successor trustee, often a family member or friend. The person selected as successor trustee should be familiar with the terms of your trust and willing and able to fulfill its requirements. They should understand and accept the responsibilities that come with the role of successor trustee, be willing to hire professionals to assist them, and have the ability and time to oversee those professionals. Importantly, your successor trustee should be trustworthy and have an estate of their own as not to be tempted.
Amanda K. Bare can be reached at [email protected]
Immigration Law
Steven Riznyk
SanDiegoBizLaw
Q: As an employer, what should I know about immigration law?
A: U.S. immigration baffles many people and is considered the hardest area of law today. I will try to outline the system as succinctly as possible so you can use it to help you.
Let's start by stating there are four major areas of immigration: workers, relatives, investors, and students. There are sub-areas, such as those that cover waivers for people who have criminal records, appeals, and other such areas we cannot cover at this moment.
If you are hiring a worker, there are two main options: the H-1B visa for people with a four-year degree or equivalent, and the H-2B visa for employees required on a temporary need of 10 months or less. The main difference between the two is that the H-1B does not require you to advertise the position, whereas the H-2B does; this can kill the case.
The H-1B allows the person to apply for permanent residence while in H-1B status and extend the visa until the green card case is complete. The H-2B does not allow for a concurrent green card filing.
Both visas have numerical limits (65,000 + 20,000 for persons with a US Master's degree for the H-1B and 66,000 for the H-2B). The application period for the H-1B opens April 1st for people who want to work as of October 1st.
The last option is if you have someone you require immediately, they can create a business and you can be their major client. This is a complex process, and one that I plan to explore in a follow-up article.
Steven Riznyk can be reached at [email protected]
Human Resources Law
Louis A Storrow, Esq.
StorrowLaw, APC
Q: One of my employees posted a very negative comment about my company on Facebook. Can I use that as grounds for termination? We have a policy against making derogatory comments about the company in public.
A: Is your employment practices insurance paid up? You may need it if you fire this employee, as a number of companies have recently learned.
Federal labor law protects employees who discuss their working conditions with each other. But this is different, you say. This is one employee complaining to the world, and you have a written policy that prohibits public badmouthing.
Unfortunately, the National Labor Relations Board takes the position that if the employee directs her complaints to one other employee, even among two hundred online "friends", the complaint is protected as "concerted activity" and can't be the basis for termination. In one case, a Mercedes dealer had a sales event and served hot dogs and soda. One salesman complained online to co-workers that the employer was cheap. The salesman was fired. The NLRB took the case and awarded damages to the employee. It didn't seem to matter that the world could see the remarks, they were protected. My advice is to check with an employment lawyer before firing anyone for "cause" like this.
One exception to the new "Facebook Rule" would be if an employee posts comments that are generally offensive and unrelated to working conditions, calling a manager a "fat pig" for example. Those comments probably would not be protected.
Lou Storrow can be reached at [email protected]
Trust and Estate Law
Amanda K. Bare and Richard B. Macgurn
Law Offices of Richard B. Macgurn
Q: Whom should I designate as successor trustee of my living trust?
A: Choosing your successor trustee is an important decision which may affect whether your estate plan is properly administered.
Your choices are generally: 1) banks and trust companies ("Institutions"), 2) private professional fiduciaries ("PPFs"), 3) individuals who are not family members, and 4) individuals who are family members.
Institutions and PPFs may make sense for larger estates. They tend to be well-versed in applicable law. They are experienced at working closely with professionals. Institutions and PPFs tend to be conservative in their administrative decisions. They can be good choices when relationships among beneficiaries are strained.
Institutions charge minimum fees. There is no guarantee the trust officer the trustor spoke with will be working for the institution when the estate is administered. PPFs have many of the benefits of institutions, but may be more flexible with their fee structure, and you are hiring a person rather than an institution.
For small to medium estates, it is common to designate an individual as successor trustee, often a family member or friend. The person selected as successor trustee should be familiar with the terms of your trust and willing and able to fulfill its requirements. They should understand and accept the responsibilities that come with the role of successor trustee, be willing to hire professionals to assist them, and have the ability and time to oversee those professionals. Importantly, your successor trustee should be trustworthy and have an estate of their own as not to be tempted.
Amanda K. Bare can be reached at [email protected]
Immigration Law
Steven Riznyk
SanDiegoBizLaw
Q: As an employer, what should I know about immigration law?
A: U.S. immigration baffles many people and is considered the hardest area of law today. I will try to outline the system as succinctly as possible so you can use it to help you.
Let's start by stating there are four major areas of immigration: workers, relatives, investors, and students. There are sub-areas, such as those that cover waivers for people who have criminal records, appeals, and other such areas we cannot cover at this moment.
If you are hiring a worker, there are two main options: the H-1B visa for people with a four-year degree or equivalent, and the H-2B visa for employees required on a temporary need of 10 months or less. The main difference between the two is that the H-1B does not require you to advertise the position, whereas the H-2B does; this can kill the case.
The H-1B allows the person to apply for permanent residence while in H-1B status and extend the visa until the green card case is complete. The H-2B does not allow for a concurrent green card filing.
Both visas have numerical limits (65,000 + 20,000 for persons with a US Master's degree for the H-1B and 66,000 for the H-2B). The application period for the H-1B opens April 1st for people who want to work as of October 1st.
The last option is if you have someone you require immediately, they can create a business and you can be their major client. This is a complex process, and one that I plan to explore in a follow-up article.
Steven Riznyk can be reached at [email protected]