Legal

2020-spring-marijuana

Dazed And Confused About Medical Marijuana And The Pa Workers’ Compensation Act

On April 17, 2016, Governor Tom Wolf signed “The Medical Marijuana Act” (MMA) into law. That law went into effect in January 2018. While you may (or may not) agree with the use of medical marijuana, there are thousands of patients who are eagerly using their card at dispensaries across the state. Over the past […]

On April 17, 2016, Governor Tom Wolf signed “The Medical Marijuana Act” (MMA) into law. That law went into effect in January 2018.

While you may (or may not) agree with the use of medical marijuana, there are thousands of patients who are eagerly using their card at dispensaries across the state. Over the past two years, more than 100,000 patients have been certified, and more than 60 state-approved dispensaries have opened.

So, what does the use of medical marijuana mean to an injured worker in Pennsylvania?

Short answer: a lot.

Under the MMA, physicians who have been certified by the Department of Health can recommend (not prescribe) medical marijuana to patients with one of 22 serious medical conditions. Several of those qualifying medical conditions – including neuropathies and severe chronic or intractable pain – are relatable to workers’ compensation claims.

Notwithstanding the state legality of medical marijuana, barriers still exist in the employment arena – particularly when it comes to workers’ comp. The first issue is whether the use of medical marijuana gives an employer a viable defense to an otherwise compensable claim.

Under the PA Workers’ Compensation Act, employers are responsible for injuries that occur in the course of employment. However, there are exceptions to liability. For example, if an employee was violating the law when he/she was injured, the employer has a defense to the claim. The Act specifically cites the illegal use of drugs as one such violation of the law. Additionally, injuries that occur due to an employee’s intoxication are excluded. But if an employee has a valid medical marijuana card – what law are they violating?

Medical marijuana legally obtained and used under the provisions of the MMA is not a violation of state law. However, marijuana, including medical marijuana, remains illegal under federal law. So, can an employer still invoke a “violation of law” defense to a Pennsylvania work injury? Probably not. Workers’ compensation is a state matter. Thus, state law should dictate whether a claimant is in violation of the law. But this may not prevent your employer from conducting a drug screen post-injury or otherwise enforcing an employment policy. After all, should you really be operating heavy equipment at a job site if you have cannabis in your system? In fact, medical marijuana must be labeled with various information and warnings, including, “This product might impair the ability to drive or operate heavy machinery.”

Further complicating the issue is Pennsylvania’s DUI laws, which establish that it is illegal to operate a vehicle if there is any level of a Schedule I drug in your system. This appears to be a real problem for employers that have employees driving company vehicles.

Moving past marijuana use as a defense to a workers’ compensation claim, questions also exist as to whether an insurance carrier is required to pay for medical marijuana for an injured worker. Under the PA Workers’ Compensation Act, carriers are required to pay for reasonable and necessary treatment, including medication. However, marijuana is still a Schedule I drug under federal law, and carriers universally exclude medical marijuana from coverage. Section 2102 of the MMA specifically states, “Nothing in this act shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana.” While the PA Workers’ Compensation Act is silent as to the issue of reimbursement, several other states (Arizona, Florida, and Illinois) have written into their medical marijuana laws that workers’ comp carriers are not required to reimburse workers for medical marijuana use for work injuries.

Even though carriers may have a legal basis to deny payment for medical marijuana, some offer reimbursement to the injured worker. Given the current opioid crisis and the escalating costs of prescription medication, there is a financial incentive for a carrier to reimburse the modest monthly cost of a marijuana prescription. In January of this year, a New Jersey appeals court ruled that a contractor was required to reimburse a former employee for the cost of the medical marijuana that he uses to treat his incessant pain from a work-related injury. Given the addictive nature of opioids, it seems that it would benefit both the injured worker and insurance companies if the carrier would be obligated to pay for medical marijuana prescriptions.

As you can see, medical marijuana is certainly a “hot topic” in the workers’ compensation arena. While insurance carriers and attorneys try to speculate on what liabilities exist, there is little guidance from the Court. Indeed, many practitioners are waiting for that seminal case to further identify the rights of the injured worker and the obligations of the employer when it comes to the interpretation of the MMA. Whatever the outcome, the focus should remain on workplace safety and advancing the humanitarian purpose of the Workers’ Compensation Act.

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The Eastern District of Pennsylvania Leads the Charge on Former Inmate Reintegration

It is no secret that incarceration rates in the United States are higher than in most large western democracies. On the Federal level, high incarceration rates can be traced to sentencing guidelines, mandatory minimum sentences for drug and violent crimes, and increased plea bargaining. However, our society cannot simply value punishment without rehabilitation, because after […]

It is no secret that incarceration rates in the United States are higher than in most large western democracies. On the Federal level, high incarceration rates can be traced to sentencing guidelines, mandatory minimum sentences for drug and violent crimes, and increased plea bargaining. However, our society cannot simply value punishment without rehabilitation, because after all, those who go to prison will eventually be released and come home to our communities.

This past summer, I had the privilege of working for the United States Attorney’s Office in Philadelphia, an experience I will carry with me during my professional career. This article discusses my experience with the Supervision to Aid Reentry Program (hereinafter “STAR”), a first of its kind reentry program developed by jurists and legal professionals within the Eastern District of Pennsylvania, geared toward helping former federal inmates reintegrate into society. Since its creation, the STAR Program has become a model post-release reintegration program adopted by many additional federal and state jurisdictions across the United States.

In 1984, the United States Congress passed the Sentencing Reform Act, which eliminated parole for all federal defendants convicted after November 1, 1987. All federal inmates are required to serve their full sentences, which in many cases are heavier than state sentences because of sentencing guidelines and statutory minimums. Additionally, inmates do have an opportunity to earn up to 54 days per year for good behavior. Upon release, former inmates are typically placed under “supervised release” and monitored by officers of the United States Probation Office. However, recidivism rates, which are the percentage of former prisoners who are rearrested and charged with similar offenses, remained high, with many former federal inmates being sent back to prison for probation violations or convictions for new crimes.

In 2007, members of bench for the Eastern District of Pennsylvania created the STAR Program, better known as Reentry Court, to help recently released federal inmates, who had served lengthy prison terms, reintegrate into the community. The program is voluntary and typically lasts for 52 weeks. The eligibility criteria include individuals with a significant risk of recidivism and/or history of violent crimes, who are Philadelphia residents. The groups, or classes, contain up to 20 participants currently on supervised release, who appear as a group every two weeks before U.S. Magistrate Judge Timothy R. Rice or Third Circuit Court of Appeals Judge L. Felipe Restrepo. The bi-weekly meetings allow the program participants to report on their progress regarding developments with employment or with their personal lives. U.S. Probation Officers, together with Federal Prosecutors, Defense Attorneys and Judges, assist participants with obtaining an education, employment, housing support, and financial literacy. The program culminates in a graduation ceremony attended by Judges of the Third Circuit Court of Appeals, U.S. District Judges (many of whom were the original sentencing judges), U.S. Magistrate Judges, Federal Prosecutors, Defense Attorneys, and most importantly, friends and family members of the graduates. From my modest experience as an aspiring attorney, it is a rare instance where a courtroom is a place of celebration, where leaders of the Pennsylvania legal community come together to ensure the post-release success of those who have duly served their time.

Punishment can come in many forms, and the failure of the justice system or the community to help properly reintegrate former inmates who served their sentence punishes them further and harms the legitimacy of the justice system’s major tenet of rehabilitation. As citizens living within the Eastern District of Pennsylvania, we should be proud of the federal jurists and legal professionals who came together and created such an important program which addresses the struggles and barriers faced by an often neglected population: those who have served their time and now must reenter the community. Thomas Paine once said, “An avidity to punish is always dangerous to liberty . . . . He that would make his own liberty secure must guard even his enemy from oppression; for if he violates his duty, he establishes a precedent that will reach to himself.”

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2020-spring-politics

Politics In The Workplace: Avoiding The Potential Landmines

“Let’s have a calm, rational discussion about why your political beliefs are entirely incorrect and why my beliefs are clearly correct.”  A statement said recently by no one, ever.  What is more likely to occur in today’s world is one party yelling “Feel the Bern” while the other party screams “Trump 2020” or “bring back […]

“Let’s have a calm, rational discussion about why your political beliefs are entirely incorrect and why my beliefs are clearly correct.”  A statement said recently by no one, ever.  What is more likely to occur in today’s world is one party yelling “Feel the Bern” while the other party screams “Trump 2020” or “bring back Ross Perot!”  While the political arguments occurring are disruptive when they occur on a bus, the grocery store, or at a family holiday, such discourse has the potential to significantly and detrimentally impact a workplace.

Employers, however, struggle with what they can do to limit the possible issues which may result from employees discussing politics in the workplace.  Many employers, and more importantly employees, believe that they are free to discuss their political beliefs while at work, regardless of the problems it may cause because they have a “First Amendment Right” to engage in this behavior.  While employers may permit employees to discuss politics in the workplace, employees of private employers have no “First Amendment Right” to engage in such discussions while in the workplace.  Additionally, employees may be disciplined by employers for statements made outside of the workplace if they have an impact on the workplace.

In this regard, the First Amendment provides protection from intrusion by the federal government into an individual’s free speech.  The keywords in the foregoing are “intrusion by the federal government.”  Someone working for Target, the local manufacturing company, or a private accounting firm is generally not being employed by the “federal government.”  Accordingly, if Bob in sales who works for ABC, Corp. decides he wants to put “Trump 2020” posters all over his workspace and berate his co-workers about their political beliefs, ABC, Corp. can inform Bob that he can do so at another place of employment.

The same logic extends to postings that employees place on social media websites.  Courts have routinely stated that an employer is free to have clients and customers who are both Republicans and Democrats.  As such, if an employee posts a disparaging comment about a Democrat or a Republican, an employer can inform the employee that it needs to remove the posting or be subject to discipline.  Depending on the nature of the comment or posting, an employer may be able to terminate an employee if the language is severe, profane, obscene, is of a harassing nature, or if the employee’s conduct constitutes insubordination.

Based upon the previous, employers should develop internal policies and procedures which dictate how they are going to handle political discussions in the workplace.  An internal policy should indicate that the employer encourages its employees to take an interest in politics, but specifically state that such activities should not occur in the workplace.  A well-crafted policy should also provide examples of what is and is not appropriate behavior in the workplace. It should cite to the employer’s other impacted policies and procedures (e.g., an anti-harassment and discrimination policy and the employer’s disciplinary policy).  The policy should further state that any violation will result in disciplinary action, up to and including termination of employment.  Finally, the policy should include a disclaimer that it does not prevent or prohibit employees from engaging in activities which are protected by law, specifically the National Labor Relations Act (which protects employees who are engaging in discussions about the terms and conditions of employment, such as wages or benefits, not whether the government should pay for everyone’s college or build a wall).

Managers and supervisors must be provided with training on the employer’s political policies and how to handle issues when they arise.  By way of example, if a supervisor overhears a political discussion, the supervisor should understand how to intervene and prevent the discussion from becoming a problem.  Managers and supervisors should also be specially trained on how to consistently apply the policies of the employer.  If a manager or supervisor does not apply a policy consistently, it may result in a bigger headache for an employer in the nature of a claim of discrimination.

If an employer does not adopt a specific political activity policy and train managers and supervisors on the policy, any issues of “political discussions” in the workplace will be handled on a case-by-case basis, if at all, which is more likely to lead to potential liability for an employer.  Regardless of whether a company’s employees “Feel the Burn,” believe in “No Malarkey” Joe Biden, or want “Trump 2020”, they will all agree that an employer who discriminatorily applies its policies will not receive their vote.

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The End of the Stretch: What to Do about the SECURE Act and Its Momentous Effects on Your Retirement Plan and Estate Plan

The SECURE (Setting Every Community Up For Retirement Enhancement) Act, passed by Congress and made effective as of January 1, 2020, made momentous changes to the Federal Tax Code and its rules regarding distributions from retirement accounts including 401(k) and 403(b) plans, IRAs, and tax-qualified annuities (referred to in this article as “Retirement Plans”).   […]

The SECURE (Setting Every Community Up For Retirement Enhancement) Act, passed by Congress and made effective as of January 1, 2020, made momentous changes to the Federal Tax Code and its rules regarding distributions from retirement accounts including 401(k) and 403(b) plans, IRAs, and tax-qualified annuities (referred to in this article as “Retirement Plans”).   These changes might affect you, as the owner of one or more Retirement Plans during your life, as well as the persons who inherit these accounts as the named beneficiaries of your Plan at your death.   Because the Act can result in unexpected income and tax and other consequences to you and your beneficiaries, you should speak with your estate planning attorney about these changes now.   In the meantime, let us review the Act’s most significant changes briefly.

How Will the Act Affect You as Owner?   The answer is a favorable one.    Among its many changes, the SECURE Act changes the age at which a Retirement Plan owner must begin taking Required Minimum Distributions (RMDs) from the Retirement Plan.   Prior Federal tax law required an owner to begin taking RMDs by April 1 of the year after the year in which he or she turned 70     The SECURE Act has extended this age to 72 and applies to those who turn 70  n 2020 or after.  This change might make a Roth IRA conversion advantageous for persons under age 72.

Another change by the Act is that there is no longer an age limitation for funding traditional IRAs.   Prior Federal law restricted deductible and nondeductible contributions to a traditional (non-Roth) IRA to qualifying persons under the age of 70 1/2.   The SECURE Act has removed this age cap.    In certain situations, this change might allow for certain additional opportunities to fund a Roth IRA.

How Will the Act Affect Your Beneficiaries?   The answer is … It depends.    Most notably, the SECURE Act has dramatically restricted the ability of certain account holders of inherited retirement accounts to “stretch” their distributions over their life expectancy.   Prior law permitted certain beneficiaries to stretch the distribution of their inherited retirement accounts over their life expectancy, thereby allowing the undistributed balance in their accounts to continue to grow tax-free.   Prior law also allowed one to leave one’s retirement account to a trust which, if properly drafted to satisfy Federal tax law, could direct distributions to a beneficiary for life while also protecting such distributions from creditors of the beneficiary, and allowing the balance remaining in the account at the beneficiary’s death to be held for one’s other family members.

The SECURE Act has curtailed these very favorable prior options, thereby curtailing additional years of income tax deferral and of tax-free growth.  Most beneficiaries under the new Act must receive the entire amount of their inherited retirement account within 10 years of the death of the person who funded the Retirement Plan.   There are, however, 5 excepted categories of designated beneficiaries to whom this new rule applies:   (1) your surviving spouse, (2) your minor children (but not your grandchildren), (3) disabled individuals, (4) chronically ill individuals, and (5) individuals who are not more than 10 years younger than you.  Note that on the death of the eligible designated beneficiary or the attainment of majority of a minor child, the 10-year payout rule will apply.

Given the potentially complex effects of the Act on your Retirement Plans and your estate plan, what action should you and your estate planning attorney take right now?

  1. Review your current beneficiary designations of each of your Retirement Plans.
  2. Review your current estate plan, including your Will, any trusts you have created (either as part of your Will or as one or more independent trust documents), and your financial/legal Power of Attorney.
  3. Review the projected changes to distribution and income taxation of your beneficiaries under actions 1 and 2, above, given the Act’s new rules.     Are these consequences what you intended, or must you make changes to prevent unintended or unfavorable results?

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Protecting Your Business From Employment-Related Claims: The Importance Of Training

We all know that it’s coming, and there is nothing that we can do to stop it.  January 1.  New Year’s Day.  A time to reflect.  A time to turn our attention to making “changes” that we know we need to make.  New Year’s resolutions. Eat better. Exercise more. Unplug from the Matrix!  Easy to […]

We all know that it’s coming, and there is nothing that we can do to stop it.  January 1.  New Year’s Day.  A time to reflect.  A time to turn our attention to making “changes” that we know we need to make.  New Year’s resolutions. Eat better. Exercise more. Unplug from the Matrix!  Easy to say, but often difficult to do.  Like Jerry Seinfeld once said: “You know how to take the reservation, but you don’t know how to hold the reservation.  And that really is the most important part of the reservation!”

The same is true for employers across the country.  You know that there are things that you can and should do to limit your potential liability for employment-related claims.  You often commit to doing these things, but either don’t follow through or find some excuse for not doing them.  Here is one New Year’s resolution that is a MUST for all employers in 2020.

Train your employees.  I don’t mean to train them with respect to how to make widgets or how to operate machinery.  I mean, train them in the critical areas of employment law.  When is the last time that you conducted harassment training for your employees?  In light of the #MeToo movement, harassment training has become even more critical to protecting employers from potential liability.  The only way to establish the affirmative defense to harassment liability is to show that you did two things: (1) took reasonable steps to prevent harassment in the workplace; and (2) took prompt and appropriate corrective action once you had knowledge of the harassment complaint.

In order to establish that you took reasonable steps to prevent harassment, you must be able to show that you “regularly train your employees with respect to harassment.”  Regular training is not once every 2 or 3 years.  In order to show that your business is committed to preventing harassment at work, you will need to show that you conduct at least annual harassment training.

Sticking your employees in front of a computer for on-line harassment training, however, will not satisfy this requirement.  In the EEOC’s “Guidance on Harassment,” it has clearly warned employers that on-line harassment training is not sufficient.  According to the EEOC and some states that have adopted mandatory training statutes, in order to be effective, harassment training must be “interactive” and conducted by a live instructor who can answer questions from attendees and involve them in hypothetical situations or role-playing exercises.   This type of “live” training forces attendees to be involved in the training, to think about the issues, and to answer questions. They cannot simply turn off the volume and click their way to a certificate of completion.

Your harassment training also has to be tailored to the appropriate audience.   Supervisors and non-supervisors should not receive the same training.  Although many of the issues will be the same, supervisors require specialized training that teaches them about their obligations to protect employees from harassment and to take prompt and appropriate corrective action in response to complaints.  Supervisors not only need to know what harassment is, but they must also understand that they play a critical role in the prevention and elimination of harassment in the workplace.  They must understand that failure to satisfy these responsibilities could lead to potential personal liability.

Finally, in order to be effective, the training must devote the necessary time actually to cover the subject matter.  Thirty minutes is not enough.  This is not a tanning session or a nail appointment.  It is not a pizza delivery guarantee.  At a minimum, your non-supervisor training must be at least one hour, and your supervisor training needs to be two hours.  Anything less is nothing more than window dressing, and the EEOC will view it as such.

Beyond harassment training, have you trained your supervisors with respect to how to be a good supervisor?  Have you provided your supervisors with any training in these critical areas:  interviewing, handling employee complaints, investigations; performance evaluations; ADA and FMLA issues, disciplining and terminating employees; and the importance of proper documentation?  When you hired someone as a supervisor or promoted someone from a non-supervisory position, did you simply assume that they knew how to be a good supervisor?  Did you assume that they had all of the skills necessary to effectively manage other employees?  Did you assume that they could just figure it out?  I am sure that I don’t need to remind you what happens when you assume things.

Most new supervisors have no idea how to interview potential employees, how to conduct a proper workplace investigation, or how to prepare a performance evaluation.  They also don’t understand how asking the wrong question in an interview, botching an investigation, or creating an inadequate performance evaluation can result in significant potential liability for the employer.

Supervisors everywhere are busy.  It is a universal truth.  Because of this, they often fail to document critical employment-related issues:  performance counseling, behavioral problems, disciplinary steps; employee meetings; and many others.  Unfortunately, when faced with an employment-related claim, this documentation is absolutely critical to protecting the employer from liability.  Without it, the employer’s ability to defend itself (and its supervisors) will be significantly limited.

The only way to ensure that your supervisors have these critical skills and understand the importance of these critical issues is to train them.  Yes, the training will undoubtedly have a cost.  Yes, it is easy to convince yourself that you don’t need it.  Yes, you’ve gotten this far without training, and its never been a problem.  In this regard, however, I have a saying that I frequently share with employers: “It’s not a problem until it is.  And when it is, it will undoubtedly be a BIG problem.”

Happy New Year!  Time to go.  I’m meeting a friend for lunch (salads) and then I have to hit the gym.  Time to eat better and exercise more!

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A Financial Power of Attorney is an Important Estate Planning Tool

If you become incapacitated or are not mentally capable of making decisions, who will handle bank accounts in your name alone, sign checks, deal with your retirement accounts, or otherwise make financial decisions for you? Following a traumatic incident, you and your family may not have the time or ability to address those issues, but […]

If you become incapacitated or are not mentally capable of making decisions, who will handle bank accounts in your name alone, sign checks, deal with your retirement accounts, or otherwise make financial decisions for you? Following a traumatic incident, you and your family may not have the time or ability to address those issues, but a bit of advance thought and planning can be extremely beneficial and potentially save significant time, money, and heartache. You may think if anything happened to you that your spouse or kids could automatically take care of your financial affairs, but that may not be true. To avoid issues and make things easier on your family should something happen to you, it is best to have a comprehensive Durable Financial Power of Attorney in place.

What is a Power of Attorney?

Generally speaking, a Power of Attorney is a document in which you (the “principal”) designate someone to act for you (the “agent”), either for your convenience or because you become physically or mentally incapacitated. Under a financial power of attorney document, you appoint an agent to handle your financial affairs-for example, pay your bills or handle your bank accounts, real estate, business interests, IRAs, other retirement accounts, and insurance. A power of attorney may also authorize your agent to make gifts on your behalf or create or change a retirement plan or insurance beneficiaries, among other things. Given those broad powers, your agent must be someone you trust, such as your spouse, your child(ren), or a trusted friend. Generally, Pennsylvania law requires i) the principal of a financial power of attorney to sign the statutorily required notice, ii) the principal’s signature or mark to be witnessed by two individuals (not the agent or the notary) and acknowledged before a notary public, and iii) the agent to sign the approved acknowledgment to essentially act in good faith. The agent must act in accordance with, and within the scope of, the specific powers set forth, act in accordance with the principal’s reasonable expectations, if known, and, otherwise, act in the principal’s best interests. The Power of Attorney remains in effect unless and until revoked by the principal or by court order. The agent’s authority to act under the Power of Attorney ceases upon the principal’s death.

What makes a Power of Attorney durable?

In the context of a Power of Attorney, Durable means the powers conferred upon the agent are exercisable even if the principal subsequently becomes disabled or incapacitated. Under Pennsylvania law, and absent language to the contrary, all powers of attorney are presumed to be durable.

What are Some Benefits of a Power of Attorney?

Choosing your agent.  For the vast majority of us, it is critically important that we decide who makes decisions on our behalf. Most of us would rather name and appoint our agent(s) to handle our finances and make financial decisions for us, rather than rely upon the court to later appoint a guardian (who you may not even know) to do so. By creating a Power of Attorney, you control who will act for you and can consider the specific powers or limitations of your agent, the best person for the position given your particular assets and circumstances, as well as give thought to your particular family dynamics, such as a second family situation. The power to select an agent of your choosing cannot be overstated.

Opportunity to review with your agent.  Advance consideration, thought, and preparation of a Financial Power of Attorney provides an opportunity for you to discuss your needs and expectations with your agent before a disabling physical or mental illness or condition undermines that opportunity. You may discuss your specific intent and wishes in detail with your agent, so your agent is prepared to act when the time comes or discuss how your needs are likely to change as your family changes or as you get older.  Through a properly drafted Durable Power of Attorney, you can address all of those issues with your agent.

Avoid confusion.  With your intent and wishes specified and set forth in a properly executed Power of Attorney, you typically avoid confusion and uncertainty regarding how your affairs should be handled during your lifetime in the event you become incapacitated. A well-drafted Power of Attorney can remove the disputes between family members regarding how your financial needs should be handled. Should you become legally incapacitated, your family members should not spend time fighting over how your finances should be addressed.  Instead, there should be someone ready and willing to step in and make the necessary decisions.  If you plan ahead, with the assistance of a durable Power of Attorney, you can avoid most of those disputes.

Avoid time and expense of legal guardianship proceedings.  In the event you become incapacitated and are without a Power of Attorney, your family members (or some other interested party) may be required to file for the appointment of guardian to act for you. Guardianships are legal proceedings where an interested party files a petition with the court requesting the court to appoint a guardian (most often a family member but in frequent instances an attorney or another unrelated third party) to act for you due to your incapacity. Once appointed by the Court, the guardian handles your financial affairs under the supervision of the Court. Not only can guardianship proceedings be time-consuming and expensive, as well as be emotionally painstaking for your family, but your assets/finances (for most of us sensitive and private information) will be reviewed by the Court, or court-appointed third parties. You can generally avoid this situation by executing a Durable Financial Power of Attorney while you are healthy; in fact, your Power of Attorney may actually name who you would like to be your guardian if future circumstances so require. You make the decision about who is to act for you in the future, not the Court.

Provide flexibility for asset protection. This becomes particularly important when an individual enters a nursing home.  If someone fails to take proper steps to protect their assets before becoming a nursing home resident, those assets could be taken to pay for nursing home care. Through a properly drafted Power of Attorney, your agent may take certain steps to properly shelter your assets or a portion of your assets.  For example, your agent may deed real property or make gifts that help protect your assets.

The Durable Power of Attorney is an important component of one’s estate plan, along with a Will and Health Care Power of Attorney/Living Will. So, while healthy, take the time to protect the assets you worked so hard to acquire and accumulate by preparing a well-drafted and comprehensive Durable Financial Power of Attorney.

This article is intended as general legal information and not as legal advice. Should you have any questions regarding the subject matter of this article or wish to discuss your particular circumstance or situation, please contact the author.

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Hey Doc, is that Prescription a License to Drive?

As societal norms have changed in recent years, the use of controlled substances, legal and illegal, has increased exponentially. While there are divergent views on whether we benefit from a more medicated populace, one thing is certain. We all agree that the roadways should be safe from impaired drivers. Just because you hold a prescription […]

As societal norms have changed in recent years, the use of controlled substances, legal and illegal, has increased exponentially. While there are divergent views on whether we benefit from a more medicated populace, one thing is certain. We all agree that the roadways should be safe from impaired drivers. Just because you hold a prescription from a physician, that does not mean you can, or should, operate a motor vehicle as that prescription is not a license to drive.

We are all familiar with the statistics. At least ten states have completely legalized the use of marijuana. More than 40 states permit some form of medicinal marijuana, and most of those states have decriminalized the possession of a small amount of marijuana for personal use. Recent studies have shown that one-half of everyone in the United States has taken a prescription medication within the past thirty days. More than 85% of those over the age of 60 are regularly prescribed medicine. More than 10% of adults use anti-depressants. Millions of children, including driving-age teenagers, take central nervous system depressants for attention deficit disorder and similar conditions. Tens of millions of adults are prescribed analgesics for pain. Add all of the preceding to those who take over-the-counter medications or who use controlled substances illegally, that is without a prescription from a licensed prescriber, whether recreational or due to an addiction, and it is evident that you and nearly everyone with whom you have contact ingests something into their body which is intended to have a physiological effect on the mind or body.

Every State prohibits the operation of a motor vehicle “while under the influence of alcohol.” Even though there is no scientific method to determine whether someone is actually under the influence of alcohol, there is a consensus that having a blood alcohol concentration of .08% or greater has a physiological effect, which makes the inherently dangerous task of operating a motor vehicle much more difficult and dangerous. Accordingly, all States make it an offense to drive with that level of alcohol in one’s body.

Given the thousands of controlled substances – narcotics, hallucinogens, stimulants, depressants, anti-depressants, anti-psychotics, to name a few – and all of the illegal drugs like cocaine, heroin, and methamphetamines, and the infinite combinations and permutations of controlled substances and illegal drugs, the scientific community has not been able to quantify at what levels of ingestion someone is so impaired to render his operation of a motor vehicle dangerous. Consequently, every state has made it illegal to operate a motor vehicle “while under the influence of a controlled substance, drug or any combination thereof,” without reference to a level of impairment.

So, if your physician prescribes medication for your chronic back pain, or if you are taking an anti-depressant or anti-anxiety medication in strict accordance with the instructions of your physician or pharmacist, you can still be charged with, and convicted of, operating a motor vehicle “while under the influence of” that medication if your driving is affected.

Without a scientific determination of impairment due to ingestion of controlled substances or drugs, most states, including Pennsylvania and New Jersey, permit police and law enforcement officers, with no or minimal medical training, to render an opinion in court that they believe someone has operated a motor vehicle while “under the influence of” a substance. These opinions are often the only evidence used to convict someone of driving under the influence offenses.

So, consider the following scenario. You are driving home from work one evening with the right-of-way, obeying the speed limit and all other traffic laws, when, without prior notice, another driver does not stop at a red light and crashes into your car. Fortunately, you are not injured. The police arrive at the scene to investigate the accident. You are asked if you used any medication, legal or illegal, prior to the collision. You truthfully tell the police officer that you took your physician-prescribed anti-anxiety medication that afternoon, which occasionally causes you drowsiness or has some other minor side effect. You are upset that your car has been damaged in the collision, which impedes your ability to think clearly and to communicate with the police officer. The officer, both observing you and considering your admission that you took medication, and further taking into consideration the other driver’s insistence that his light was green, decides to arrest you for driving while under the influence of a controlled substance – your prescription medication. It happens. How are you going to demonstrate in court at a later date that you were not drowsy, and therefore not under the influence of your prescribed medication when you were driving?

Likewise, consider the same scenario above, but instead of you, it is your employee who is on-duty. The other driver who ran the red light is severely injured in the collision with your company vehicle, which is driven by your employee. Even though the other driver was at fault, he makes a claim for injuries because your employee was arrested for driving under the influence, or even if not arrested, admitted to taking the medication prior to driving.

The decision of whether or when to operate a motor vehicle while using medications, and the consequences of driving in this hyper-medicated society, requires deliberation and consultation with your physician because a prescription to use medication is not a license to operate a motor vehicle and does not grant immunity from a driving under the influence charge or from civil liability.

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2020-winter-unleash-your-niche

Unleash Your Niche!

What is niche marketing?  According to businessdictionary.com, niche marketing is defined as Concentrating all marketing efforts on a small but specific and well-defined segment of the population. Niches do not ‘exist’ but are ‘created’ by identifying needs, wants, and requirements that are being addressed poorly or not at all by other firms, and developing and […]

What is niche marketing?  According to businessdictionary.com, niche marketing is defined as Concentrating all marketing efforts on a small but specific and well-defined segment of the population. Niches do not ‘exist’ but are ‘created’ by identifying needs, wants, and requirements that are being addressed poorly or not at all by other firms, and developing and delivering goods or services to satisfy them. As a strategy, niche marketing is aimed at being a big fish in a small pond instead of being a small fish in a big pond. Also called micromarketing.

Pretty self-explanatory, right?  So, what does it have to do with those who work in professional services?  You know, accountants, architects, engineers, financial planners, IT consultants, lawyers, and management consultants.  Niche marketing has everything to do with these folks if they want to build a profitable business, and maybe have some fun while doing it.

As food for thought, the following are possible niche markets.  The accountant can create a niche representing the legal industry.  The lawyer can market legal services to the accounting industry.  We have seen many lawyers with niche practices such as cemetery law, food law, self-storage law, and equine law to name a few.  The architect can market her expertise in all things regarding historic homes and buildings.  A civil engineer can market a niche targeting school design and building.  The management consultant can build a niche helping family-owned business or women-owned businesses.  The possibilities are endless as long as there is a market for your services.

The benefits of building a niche are plenty.  You can become a true leader in a narrow space.  With this leadership, you can create a premium brand.  As we all know, people will pay more for a premium brand – so be that brand.  Also, premium brands, by their nature, are more in demand.  Using simple math, your niche allows you to charge more, and there is a higher demand.  That is a formula for high profits and a huge success.

Because this concept is not new to us, we have heard many of the common arguments against this approach.  Niche marketing is about marketing.  We have clients that will push back and tell us, we do more than that.  Don’t fret, you can do other things, just market appropriately to the niche. Just because an accountant has many law firm clients doesn’t mean she can’t have a restaurant client.

As mentioned earlier, for a niche marketing to be successful, there has to be a market for the services.  For the youngsters out there, you may not remember Y2K. Many lawyers thought that Y2K was going to be the next legal boom. They put all their marketing eggs into the Y2K basket.  It was a bust. The point is to make sure there is a buying market for your niche.  It may not be a good idea for the architect to market a historic building niche in a rural area with no historic buildings.  However, maybe this architect can develop a niche, designing buildings for the agriculture industry.

Also, we highly recommend that whatever niche you choose, you have a passion for it. Or, at least an interest. Marrying your passion with your job can be very lucrative as well as fun and satisfying.  We love the legal industry, saw a need for high-level marketing services in an underserved market.  This was the birth of ESQuisite Marketing.

So, to sum, identify a niche that will have demand, build the niche using a strategic marketing plan, try to include a passion, make more money, and have more fun.

ESQuisite Marketing is a professional service marketing company with a niche in the legal industry. Clients include large and small law firms, solo practitioners, certified legal nurse consultants, public speakers, financial services firms, and nonprofits in the Lehigh Valley and throughout the U.S., including New Jersey, Florida, Nevada, Michigan, Tennessee, and New York.

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fall-2019-marijuana

Passing the Smell Test – How Does it Work When it Comes to Medical Marijuana

Other than the fact that all marijuana is a Schedule 1 drug under the Controlled Substances Act, and illegal at the federal level, there is nothing simple and straight forward about the law on marijuana use in Pennsylvania (or in any part of the country) right now.  From law enforcement to business owners, there is […]

Other than the fact that all marijuana is a Schedule 1 drug under the Controlled Substances Act, and illegal at the federal level, there is nothing simple and straight forward about the law on marijuana use in Pennsylvania (or in any part of the country) right now.  From law enforcement to business owners, there is a struggle to understand what is legal as courts and agencies are hard-pressed to keep up with the legalization of marijuana and the conflict between state and federal laws.

On April 6, 2016, Pennsylvania passed the Medical Marijuana Act (the “Act”) which legalized the use or possession of medical marijuana in the Commonwealth.  By February 15, 2018, medical marijuana was available for distribution at Pennsylvania dispensaries for patients who meet certain requirements.  Specifically, the patient has to have one of seventeen enumerated “serious medical conditions,” receive certification from a practitioner to acquire the marijuana from an approved dispensary in Pennsylvania and be in possession of a valid identification card issued by the Pennsylvania Department of Health at any time they are in possession of medical marijuana.  The patient must also be under the ongoing care of the practitioner who issued the certification during any in-person visit to the dispensary.  There is no reciprocity between the states, meaning that a patient must have a Pennsylvania certification to get medical marijuana from a Pennsylvania dispensary.

The Act confirms that medical marijuana may only be dispensed as a pill, oil, topical form (including gel, creams or ointments), vaporization or nebulization, tincture or liquid.  Smoking marijuana is not permitted by the Act.  Likewise, marijuana in edible forms, such as brownies, is illegal unless it is done to aid ingestion by the patient – the medical marijuana cardholder.    Despite these clear designations and protections under the Act for the legalized use of medical marijuana in Pennsylvania, the rest of the state’s legislation remains unchanged.

Recently in the case of Commonwealth v. Barr, the Honorable Maria L. Dantos of the Lehigh County Court of Common Pleas granted the Defendant’s motion to suppress evidence that claimed the  search of a vehicle by the police was improper since it was based upon the smell of burnt and raw marijuana through the open window of the vehicle and a passenger in the vehicle possessed a medical marijuana card.  In his defense, the Defendant produced an expert who testified that the odor of ingesting medical marijuana with a vaping pen was the same as the odor of smoking regular marijuana from an unlawful source.  The arresting officer admitted she was not aware that the odor was the same.  In rendering the decision, Judge Dantos highlighted that this search and subsequent arrest of the Defendant for possession of marijuana (amongst other charges) demonstrated the “clear disconnect between the medical community and the law enforcement community” with regard to the legalization of medical marijuana and found that the smell of marijuana alone does not provide law enforcement with probable cause to conduct a search.

This decision raises many questions for business owners and their interactions with their employees.  For instance, what happens when an employer encounters an employee who smells of marijuana but shows no evidence of any other impairment?  Will the smell of marijuana be enough to create the reasonable suspicion needed to demand a drug test?  Will the smell of marijuana potentially place an employer on notice of a possible disability?  Does the employer have to give the employee the opportunity to provide a legitimate medical reason for smelling of marijuana before it can take any employment action?  How do the answers to these questions change when the employee is in a safety-sensitive position?  There is little, if any, guidance from the courts on these scenarios; however, applying the reasoning in the Barr case, the smell test, alone, is likely not enough for an employer to take adverse employment action against its employee.

As these types of decisions continue to be made, the legal landscape surrounding marijuana use in Pennsylvania will only evolve.  Where do we go next?

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fall-2019-business-divorce

Business Divorces in Pennsylvania

This year is the 40th anniversary of the release of the Oscar-winning movie Kramer vs. Kramer.  Kramer vs. Kramer which starred Dustin Hoffman and Meryl Streep was one of the first movies to depict the turmoil that ensues when the dissolution of a marriage and the battle for custody of a child makes its way […]

This year is the 40th anniversary of the release of the Oscar-winning movie Kramer vs. Kramer.  Kramer vs. Kramer which starred Dustin Hoffman and Meryl Streep was one of the first movies to depict the turmoil that ensues when the dissolution of a marriage and the battle for custody of a child makes its way into the courtroom.  By now these custody fights are ingrained in our pop culture and can be witnessed on an almost daily basis on television.  There is another type of divorce that can be just as emotional and bitterly fought as the custody fight in Kramer vs. Kramer: that is the business divorce.

Business divorces involve the break-up of a small closely-held business.  Although these cases are at times referred to colloquially as “business divorces” they are more appropriately referred to as shareholder (or member in an LLC) oppression suits or minority shareholder (member) freeze-out cases.  These cases arise because unlike publicly traded corporations, the ability of minority shareholders to sell their shares of a small business is extremely limited.  As such, Pennsylvania law has established procedures to protect minority shareholders which are balanced against a natural reluctance to interfere in the operations of businesses.

Pennsylvania Courts define shareholder oppression as conduct that substantially defeats the reasonable expectations of a minority shareholder.  A freeze-out happens when a minority shareholder is removed from office, or his power or compensation is substantially diminished.  The majority shareholder or member’s conduct is measured against the business judgment rule.  The question that courts require to be answered is whether the majority shareholder had a rationale belief that he was acting in the best interest of the company.  If the majority shareholder is acting in accordance with the business judgment rule, then the owner has nothing to worry about.  If she is not, then the consequences may be significantly more severe than those suffered by Dustin Hoffman in Kramer vs. Kramer.

In Kramer vs. Kramer, Dustin Hoffman’s character ended up in court because he was spending too much time at work and not enough time with his family.  Just like in marital divorce cases, there are certain behaviors that will almost assuredly land a majority owner in court.  The most frequent misbehavior is failing to provide the minority with financial information about the business.  It is remarkable how frequently majority members take the position that it is their company, and the books are not the minority owner’s business.  Not only is that attitude shortsighted, but it is also completely contrary to Pennsylvania law.  Minority owners have a statutory right to see necessary financial information so long as the request for information is legitimate.  If the minority owner offers a legitimate reason to review the records, a court will compel the inspection of the financial records.

Other behaviors that can lead to a finding of minority oppression include:

  • Failing to observe corporate formalities. Refusing to have corporate meetings or not adopting necessary resolutions will be perceived as denying necessary information to the minority shareholder.
  • Terminating the employment of a minority owner. Since most owners of a closely held business also work for the business there is nothing that will get a minority shareholder to a courthouse quicker than the majority owner firing a minority owner.
  • Paying the majority owner excessive compensation or the corollary, paying the minority owner an inadequate salary.
  • Failing to award dividends or distributions. If the business is profitable, minority shareholders have a reasonable expectation that they will reap the benefits.  If too much money is tied to the salary of the majority member, it will engender the type of ill-will that leads to litigation.
  • Diverting corporate assets for the majority’s personal benefit. Just because you are the majority owner does not allow you to use the company credit card for the first-class vacation to Europe.
  • Usurping corporate opportunities. Courts frown when majority owners get involved in competing businesses in their personal capacity, which should have been brought to the corporation for the benefit of the corporation and all of its shareholders to enjoy.

Just like in custody cases where courts have broad authority to fashion an award, courts have a number of tools at their disposal to remedy shareholder oppression.  The most significant and detrimental tool for the majority owner to be aware of is that the court can award both compensatory and potentially punitive damages to the oppressed shareholder.  Courts can also appoint a receiver to run the business on a temporary basis while the parties are litigating their dispute.  Courts can always order the dissolution of a business if the owners are not able to work with each other.  Dissolution is most appropriate when the shares of the company are equally owned, and the owners can no longer run the business together.

The key to avoiding a business divorce is the same as avoiding a marital divorce: communication.  The majority owner has a fiduciary duty both to the corporation and to the minority owners.  Keeping all of the owners informed about day to day decisions will go a long way to keeping the business and its owners away from the turmoil that Dustin Hoffman and Meryl Streep’s characters endured.

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