Law Blog

LegalMatch just conducted a study looking at age-discrimination issues and found an overall increase in queries over the past 12 months.  Why the sudden increase in people seeking legal help for their age discrimination claim?  And what other trends have recently surfaced in the area of age discrimination law that effect everyday people?

Let’s start with the basis for any age discrimination claim: The Age Discrimination in Employment Act (ADEA).  The ADEA provides that discrimination of individuals over the age of 40 based on their age is illegal and a prosecutable offense.

Currently, the majority of age discrimination cases we see at LegalMatch are employment related: hiring, firing, and forced retirement contexts.  This trend is not limited to one employment sector but rather affects both blue collar and white collar employees alike.

The most obvious culprit affecting these age discrimination numbers is the rising nationwide unemployment rate, currently hovering around 9.1%.  Any time there is an economic downturn, people lose their jobs.  When alternative jobs aren’t immediately available, a layoff that normally would be ignored can turn into an age discrimination lawsuit.

Interestingly enough, the Supreme Court recently made it much harder to win an age discrimination suit by ruling that the employee now bears the full burden of proving that age was the determining factor in his or her layoff, firing or demotion.  This is a significant departure from the previous balancing test the Court employed, and makes this type of lawsuit especially difficult because rarely would an employee be present when their employers are discussing their future- a key piece of evidence.

A recent article in the Wall Street Journal looked at another interesting aspect of age discrimination in the wake of layoffs- reverse age discrimination.  The article examined the rise in younger employees being laid off, often times in numbers equal or greater than their older colleagues.  Employees in their 20s and 30s are finding themselves more at risk of a layoff, as employers look to avoid age-discrimination lawsuits by adopting a last-one-in, first-one-out policy.

The LegalMatch study also confirmed this trend as a number of the age-discrimination inquires were disgruntled employees under the age of 40.  One of the big problems with this trend is that this younger age group does not have the same legal recourse.  There is no similar protection as the ADEA in place provided for the younger generation.  Essentially, by laying-off the younger members of the company, employers are shielding themselves from an age discrimination lawsuit.

Although the standard for age discrimination has been raised, the potential for suits is alarming and laying off younger workers is seen as a solution.

Groucho Marx once said that “Marriage is the chief cause of divorce.”  Finding the lighter side of such an emotionally exhausting proceeding is always a good approach.  In America, divorce used to be very difficult to get absent a good reason such as adultery, abuse, or abandonment.  The availability of divorce has changed dramatically.

Today, divorces are granted on request of one party with or without fault (in almost every state) or consent of the other party.  One researcher estimated that the introduction of no-fault divorce laws accelerated divorce rates upwards of 25%.

Whatever the cause, the high divorce rate in America is unlikely to lower significantly from it’s roughly 50% rate.  Divorce is everywhere.  Celebrity and reality star divorces generate a tremendous amount of publicity and often makes those individuals much more famous than when they were married!  Divorce is one subject that celebrity and non-celebrity couples have in common- they are both on the rise.

A study conducted by LegalMatch confirmed this trend as there was a large increase in the number of divorce lawyer requests as well as divorce-related questions within the past 12 months nationwide.  Thousands of inquiries pertaining to getting a divorce and the corresponding issues dwarf the marriage-related searches.

Although this trend may not be a surprise, it should nevertheless be a concern.  Perhaps the answer is in making it a little more difficult to get a marriage.  Either way, it is always a good time to be a divorce lawyer!

It is no surprise that the economy is having a major impact on family life, and more specifically on divorce-related issues.  Child support has been one of the more unfortunate areas to feel the impact of parental job loss and changes in a parent’s financial stability.  One in four divorced Americans is supposed to receive child support payments every month, according to the U.S. Census Bureau in a study conducted in 2007.  However there is becoming an increasing discrepancy between what is supposed to happen and what is happening as it relates to child support

Within the past 12 months thousands of clients have come to LegalMatch with child support-related issues.  The top concern among the requests: increased payment, decreased payment, and issues relating to enforcement.  Hundreds of these requests specifically involved people unable to pay due to job loss or changes in financial circumstances.

Courts face a tough process when it comes to these child support modification hearings because, in most cases, the money (and the paying job) is no longer there.  In those instances, the judge is looking for a solution to a problem that will probably persist for a while.

The typical recourse for a non-paying parent is garnishment of wages or jail time.  The problem with these two options, especially in such an economically volatile time like this, is that the first is rarely an option and the latter will produce little if any payments and will likely further prolong the lack of payment problem.  These reductions in payments have forced many families to apply for welfare for the first time, risk eviction, and drastically change the circumstances relating to the family’s living situation.

A recent article about Going to Court for Child Support discussed the top 5 tips to help collect child support:

1.) Find out why the support is not being paid.

2.) Don’t delay the problem

3.) Mediate your child support

4.) Move quickly to get to a courtroom

5.) Get additional help

The one solution on either side of the divide is communication and cooperation with the system that is in place to benefit children.

With the U.S. economy spiraling further down the seemingly endless pit of economic ruin, it’s no surprise that unemployment rates are on the rise across the nation.  Almost every industry has been hurting, especially those in the technology sector.

To the lucky few fortunate enough to have dodged the wave of layoffs, as they say, go the spoils.  Only in this case instead of getting those same old boring rewards, this elite group gets the extra special gift of actually keeping their menial soul-draining jobs, but without all that unnecessary stuff, like shorter hours or, you know, more money.  At least they’ll get yolked (it’s slang people, get with it) since they’ll have to do the work of three people just to keep said soul-crushing job.

But with being fired inevitably comes the stages of job loss (which by the way seem suspiciously similar to some other grief process – I think the Kübler-Ross estate might have a lawsuit).  There’s no better feeling than finally getting over being let go, picking yourself up by your bootstraps, and then hiring an attorney to file a wrongful termination suit against your old employer.  Ahhhh, sweet revenge, I’ve missed you…

All joking aside, wrongful termination is a real and serious issue.  Homelessness is on the rise and as this economy continues to tank, more and more people will likely be fired from their jobs.  Unemployment doesn’t only destroy a person’s financial livelihood.  It can also damage a person’s self-worth, not to mention obliterate a marriage.  Finding out whether you’ve been wrongly terminated from your job can be difficult, especially in a bad economy where an unjust firing can easily be passed off as a cost-cutting layoff.  But if there’s one thing that is certain, when people are pushed into a corner, they’ll likely fight back.

In fact, according to our client case database, in the month of June alone LegalMatch.com has seen a nearly 100 percent increase in the total number of wrongful termination cases brought by our clients when compared to the same month in 2008.  Furthermore, the average number of wrongful termination cases handled by LegalMatch.com has consistently increased by approximately 20 percent over the past four fiscal quarters.  Those employed under at-will contracts in the retail, transportation, or manufacturing industries were most likely to bring a claim for wrongful termination, making up nearly one-third of all wrongful termination cases LegalMatch.com received.  These figures increased in portion to the sagging US economy.

So what can you do if you think you’ve been wrongly terminated from your job?  First thing would be to see if you qualify under any of these exceptions:

• Discrimination – The employer cannot terminate employment because the employee is a certain race, nationality, religion, sex, age, or in some states, sexual orientation.
• Retaliation – An employer cannot fire an employee because the employee filed a claim of discrimination or is participating in an investigation for discrimination. This “retaliation” is forbidden under civil rights law.
• Contractual Employees – Generally, an employee with an employment contract can only be terminated for the reasons stated in the contract. Employment contracts for specified periods of time or permitting terminations only for specific reasons are rare today.
• Illegal Acts -An employer is not permitted to fire an employee because the employee refuses to commit an act that is illegal.
• Family or Medical Leave – Federal law permits most employees to take a leave of absence for specific family or medical problems. An employer is not permitted to fire an employee who takes family or medical leave for a reason outlined in the Family and Medical Leave Act.
• Not Following Own Termination Procedures – Often, the employee handbook or company policy outlines a procedure that must be followed before an employee is terminated. If the employer fires an employee without following this procedure, the employee may have a claim for wrongful termination.

However, the best way to find out whether your termination was wrongful would be to consult with a qualified employment lawyer who can sit down with you and walk you through your options.  Otherwise you might end up like this guy.

Lawyers get a bad rap.  The public often sees attorneys as conniving opportunistic people who are only out to make a quick dollar by capitalizing on the misery of others.  Ask most people to describe what they think the typical attorney is and you’ll likely get the stereotypical view of the fast-talking imposing dark-suited figure with slicked back hair and a total lack of morals.

The media doesn’t help this image either.  For every Atticus Fitch, there is a multitude of Lilah Morgans.  It’s no wonder then why so many distrust attorneys.  With a reputation like that, who would ever want to deal with one, let alone be forced to hire one to represent them?

Though as bad as a Lilah Morgan can be, what hurts the image of attorneys more are the Lionel Hutzes, the incompetent lawyer who takes your money and does absolutely nothing in return.  This image is in many ways much worst then the evil money-grubbing one.  Chances are most people would rather have an amoral competent attorney than an amoral idiotic attorney.  Couple this fear with the terrifying prospect of actually being involved in a legal dispute where the only way out is to retain a lawyer, and you’ve just described hell.

This fear can be described in two simple words: legal malpractice.  This horrible phrase inevitably lingers in the back of the mind of every person who has hired a lawyer.  Because poor representation not only means you’ll likely lose whatever legal issue you’re involved in, but it also means that you’ll probably have to deal with the expensive headache of cleaning up your lawyer’s mess afterward.  Not to mention the additional nightmare of bringing a new lawsuit against your old attorney.  To some people, this prospect is enough for them to want to represent themselves rather than to retain a lawyer.

But is legal malpractice really something you should be afraid of?  Yes, it is.  But is it really all that likely to occur?  Probably not.

Legal malpractice isn’t as common as the public may think.  Lawyers are subject to constant scrutiny, from the court, their respective state bars in the form of continuing education, and their clients.  Furthermore, the process of becoming a lawyer is no easy task in of itself.  To be admitted into law school takes top grades and a high LSAT score, not to mention the three years it takes just to finish law school.

In fact, the total number of legal malpractice cases handled by LegalMatch.com in California alone is on average 50 percent less then the number of medical malpractice cases handled in just the northern half of California.  This statistic is true almost uniformly across the board.  Personal injury, family law, even wrongful termination cases on average total more in number than legal malpractice cases.  In a sense, it’s much easier to find a good attorney, than it is to locate a good doctor, employer, or spouse!

Nobel Prize winning economist Gary Becker performed a now famous study on the effects of income in marriage back in 1977.  What he discovered was that any change in income, positive or negative, makes a family more susceptible to divorce.

The results of this study are still proving true over 30 years later as the current recession in the U.S. and California specifically has seen a rise in money-related divorces, and also led to an increase in problems associated with an ancillary issue to divorce- alimony.

Popular divorce site Divorce360.com recently blogged about this very alimony trend.  Because the financial situations of many California couples seeking divorce, or already divorced, has changed so drastically in the past year, there has been a huge increase in requests for alimony modification.

We’re seeing similar trends at LegalMatch.  According to statistics compiled from all people seeking alimony legal assistance in California within the last 12 months, the overwhelming majority of inquiries involved either collection of past due alimony or termination of alimony payments.

The high level of interest in these two categories is even more interesting because they are polar opposites and come from different sides of the divorce- one being the spouse looking to alimony as income and needing all back payments, and the other being the spouse looking to alimony as a financial pitfall that he or she is trying to get out of to save needed funds.

The numbers are high and the reasons aren’t surprising.  The recession is fully reflected in all aspects of California divorce proceedings and the trend will continue as long as these tough economic times persist.

First, what is social medial marketing? Essentially, social media is a blend of social outreach and internet technology, achieved principally through blogs, Facebook, MySpace, Twitter, and Linkedin.  While these Internet tools allow people to connect to other people of all age groups, they have also become the new “feeding ground” for employers seeking to learn more about a potential employee than they can discover through a resume. In fact, according to employeescreenIQ, 56% of what is written on a resume is padded.  (Company Unveils List of 2009 Background Screening Checks)

In 2006, CareerBuilder.com reported results of a survey that they conducted of over 1,000 hiring managers.  Results indicated that 12% of these managers used social media websites to verify information about a job candidate, with 63% not hiring a candidate based upon the information that they found. (Background Check News)

Today, as quoted from one blog, almost 40% of employers have used Facebook and other social media sites to obtain information about job candidates, and greater than 80% of employers found negative information about the potential employee that may have lead to the candidate not being extended a job offer.  (Employment Background Checks) 

Clearly, taking control of one’s public persona is critical for anyone in the job market.  However, employers could also subject themselves to litigation for negligent hiring practices through the use of social media when making employment decisions.  So, far, no one has made this challenge but expect this to come.

Social media marketing is not only being used by prospective employers but a new crime is on the rise – social media identity theft.  St. Louis Cardinals MLB team manager Tony La Russa was a recent victim.  An identify thief created a Twitter account using Tony’s name and image, posting defamatory remarks on the account.  La Russa sued Twitter and the case is currently pending in court.  La Russa wasn’t alone; impersonators hacked into President Obama’s Twitter account, as well as the Twitter accounts of Britney Spears and Bill O’Reilly at Fox News.  (Twitter, Social Media Indentity Theft & Personal Background Checks)

Prosecutors are also using social media to their advantage.  A 22-year old woman charged with a fatal DUI, faced a 5 year sentence after photos of her on her MySpace page after the accident depicted her with tequila, shot glasses and a T-shirt labeled, “Jail Bird?” came up at trial despite the warnings of her defense attorney.  (Unrepentant on Facebook? Expect jail time)  And, a YouTube video was elevated to fame in 2008 when Ms. Trisha Walsh Smith made a video about her acrimonious divorce from Phillip Smith, a Broadway giant.  Smith complained about her prenuptial agreement and made disparaging remarks about her then current husband.  The New York County judge granted the husband a divorce on the grounds of cruel and inhuman treatment.  (Inside the YouTube Divorce)

If these stories don’t cause you to rethink what you may have posted on social media sites such as Twitter and Facebook, maybe they should give you pause for thought.  Depending upon what you have posted, you could lose a job opportunity or worse.  Count on LegalMatch to continue to monitor these trends; we expect more litigation to revolve around the use of social media.  But, don’t say we didn’t warn you.  Be careful what you write!

You’ve always paid your mortgage on time but now you find yourself unemployed.  You’ve tapped out your savings. You haven’t paid your mortgage in 3-months and discovered a Notice of Default in your mail.  Not only are you put on notice of a default, but since this notice is also recorded with your County Recorder’s office, there are others on the lookout, too.

Take the experience of Charleen Trana a 78 year-old widow living in her San Fernando home of 50 years, worth at least $350,000.  (Dreams Foreclosed: The Rampant Theft of American’s Homes Through Equity Stripping Foreclosure “Rescue” Scams) Because her disabled son was having difficulty maintaining jobs, Trana took out a $100,000 mortgage on her home to help him.  However, when Trana’s health began to fail, her costs skyrocketed.  She fell behind in her mortgage payments. Trana received a notice of default, but that wasn’t all that she received.  Some very nice men approached her days later and offered to rescue her home from foreclosure. Desperate, Trana signed her property deed over to these men for a small sum down.  She also signed inch-thick documents with the promise that these rescuers would not only pay off her mortgage but, in exchange for rent, Trana could continue to live in her home.  But, there was a catch; the rescuers failed to pay-off the mortgage, leaving Trana on the hook both for the mortgage and the rent while they held the deed (and equity) to her home! 

Trana’s story is not atypical.  Indeed, the Federal Trade Commission (FTC) just announced a new crackdown in foreclosure equity stripping schemes.  (Federal and State Agencies Crack Down on Mortgage Modification and Foreclosure Rescue Scams)  One of these schemes concerns loan modification scams.  Firms involved in these scams use on-line ads, spam, and direct mail targeted to homeowners in financial distress, promising high success rates at modifying their mortgages and saving their homes.

While LegalMatch does not specifically track foreclosure equity scams, we have had an explosion of customers contact us during the past year either because a foreclosure had been filed against them or because there was a foreclosure judgment. 

RECENT EXPLOSION OF LEGALMATCH CUSTOMERS SEEKING ASSISTANCE WITH FORECLOSURES

If you suspect that you’ve been approached by a rescuer, contact your local District Attorney and report the individual(s) to the FTC.  If you’ve been a victim of a loan modification or a foreclosure equity scam, you may either be able to file criminal charges or bring a lawsuit against the rescuer for damages.  LegalMatch has many experienced real estate attorneys who can assist you in determining the best course of legal action.  Whatever you do, don’t sign your property deed over until you’ve consulted your local agency or licensed attorney to ensure that you aren’t a victim of a foreclosure equity scam!

Federal Trade Commission Home Equity Scams

National Consumer Law Center

U.S. Dept. of Housing and Urban Development Guide to Avoiding Foreclosures

Nearly 80% of Americans carry credit cards and about 44% of those individuals with credit cards carry credit balances.  On an annual basis, credit card companies have earned $15 billion in penalties for late fees alone!  (A New Era for Credit Cards)

President Obama attributes the practices of credit card companies to contributing to the down market economy.  While Obama expects American consumers to be responsible in paying their debt, he also expects credit card companies not to saddle already debt laden consumers with retroactive interest rate increases and other unfair credit practices.  Some of Obama’s sweeping legislation requires credit card companies: 1) to post their credit agreements online, 2) to provide 45-days advance notice if the credit card company plans to change its terms and conditions, 3) to standardize payment due dates rather than to shift payment dates to different dates each month, and 4) to apply excess payments to the highest interest rate balance first.  (White House Fact Sheet)

But, to keep the credit card companies in check, U.S. consumers will still need to proactively review their credit card records for accuracy and to (politely) challenge the credit card companies if there is a reporting error or a violation of the new White House reforms.

Americans are entitled, by law, to one free credit report per year from each of the three major credit reporting agencies: Equifax, TransUnion and Experion.  (Credit Reporting Rights)  After reviewing these reports, if there are inaccuracies, consumers have the legal right under the Fair Credit Reporting Act to dispute this information and to have it corrected, usually within 30-days. (A Summary of Your Credit Reporting Rights) Keeping your credit record accurate is important not just to obtain a mortgage or a short-term loan, but employers are also increasingly checking consumer records as part of their background screening process.  (Employers and Consumer Reports)

Even though U.S. consumers have these rights, some credit reporting agencies may be less than compliant. Always put your request for correcting reporting inaccuracies in writing, specifically identify the inaccuracy and provide verification of the reporting inaccuracy in your request for a reporting correction.  As a first step, write a demand letter.  Examples of demand letters can be found through Nolo press or through other on-line resources. (Credit Repair) When mailing a demand letter, send the letter by certified mail and keep a record of the delivery receipt so that there can be no denying that you’ve made an attempt to notify the credit reporting agency.  (7 Steps to Fixing Your Credit Report)

If these measures are ineffective, LegalMatch can help. Sometimes it is only with an attorney as your advocate that credit reporting inaccuracies can be more quickly resolved.  During the past five years, we’ve assisted nearly 2,000 consumers who have required the assistance of an attorney to correct inaccuracies in the credit reports and another 2,100 who have requested an attorney to assist them with other credit reporting issues.  It is obvious not just to our President, but to LegalMatch, that credit card companies and their reporting agencies need to be kept in check.

According to the U.S. Census Bureau, by 2030, about 20% of the U.S. population will be age 65 or older and by 2050, this aging segment of the U.S. will represent 88.5 Million people versus the 38.7 Million in 2008. (See U.S. Census Bureau) The increasing age of the Baby Boomer population comes with a significant transfer of wealth either through wills, trusts or through state mandated intestacy laws.  And, it raises an issue concerning how prepared Americans are in developing their estate plans, whether their estate is valued in the millions or in the thousands.

Contributing to this significant transfer of assets is an increase in the number of will contests being brought today, particularly as it relates to step-families.  Children of these families are rapidly learning that the second (or third) spouse often has significant if not greater rights than the children; intestacy shares can range from 1/3^rd to as much as ½ of the decedent’s estate when there is no will.  (Before Your Parent’s Say ‘I Do’ Again)

Even when there is a will, sometimes a new spouse will change not only the family dynamics but also the dynamics of the will or family trust.  Most Americans are familiar with Anna Nicole Smith’s short-lived marriage and protracted court battles that continue even after her death. (Daughter to Inherit Mother’s Estate ).  Anna’s litigation, however, is not atypical although most people’s estate assets are significantly less than the Marshall fortune.

In fact, some children are proactively approaching their parents about their estate plans before their parents die.  SmartMoney.com profiles Neil Finkel whose 80+ year-old father placed a large percent of his multi-million dollar estate into a trust for his son.  However, Finkel’s Dad married a woman 30 years his junior. Amy, the new spouse, and Neil subsequently waged a 2-year court battle over the father’s dwindling assets which were being eroded by the spending habits of the new wife.  Although the case was settled, it’s unlikely that the rift in the family will be healed and it could erupt again after Dad Finkel’s death.  (Before Your Parent’s Say ‘I Do’ Again)

During the past five years, tens of thousands of people have used LegalMatch to find an attorney to represent them in filing a lawsuit to contest a will or to defend the estate against a will contest.  Not surprisingly, many of the most popular states for will contests have a high concentration of residents age 65+.  Plus, this top 10 state list comprises over 55% of LegalMatch’s will contest customers: 

Your will or trust will have lasting implications on your heirs after your death, particularly in those families where there are step-children or multiple spouses.  Probate litigation is generally protracted and can tear families asunder.  Developing a proactive estate plan, even if your estate assets are small, should help to reduce family tension after your death.  However your estate plan is crafted, you will be communicating a strong message to your family. The properly drafted will can stand the tests of probate court and ensure that your intent is followed after death.