Comprehensive and Informative Commentary on State and Federal Legal Matters
August 30, 2012Posted by on
For all those out there suffering under the abject tyranny of their employer’s oppressive social media policy, hope is on the horizon. According to a report published last month by the National Labor Relations Board (NLRB), the social media policies enforced by a number of Virginia employers may be overly broad, and therefore unenforceable.
The Board’s report, now the third of its kind, examines seven cases in which acting General Counsel Lafe Solomon found fault in the social media policy enforced by an employer on its employees. In six of cases, Solomon concluded that “at least some of the provisions in the employer’s policies and rules are overbroad and thus unlawful under the National Labor Relations Act.”
To help differentiate between lawful and unlawful policies, the report cited the following provisions as examples of overly broad and, therefore, unlawful policies:
TREAT EVERYONE WITH RESPECT
Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline, even if they are unintentional. We expect you to abide by the same standards of behavior both in the workplace and in your social media communications.
OTHER [EMPLOYER] POLICIES THAT APPLY
Think carefully about ‘friending’ co-workers . . . on external social media sites. Communications with coworkers on such sites that would be inappropriate in the workplace are also inappropriate online, and what you say in your social media channels could become a concern in the workplace.
In each of these examples, it was determined that the wording overstepped the boundaries of labor laws by failing to properly define the parameters of the policy and by infringing on the employee’s ability to communicate with co-workers via social media.
A full version of the Board’s report, which includes a full-length example of a lawful social media policy, can be found in the links on the NLRB’s site, here. For more information on contract law, or to discuss the legality of your employer’s social media policy, feel free to contact Westlake Legal Group. You can find us on Twitter and Facebook via the links at the bottom of this blog.
May 7, 2012Posted by on
NOTE: All of the policies and procedures addressed below are based on the standard practices of Westlake Legal Group and are not intended to be construed as anything other than such.
To begin with, it is important to understand that a Chapter 13 case follows the same initial process as a Chapter 7 case. After the initial consult, a “means test” is applied in order to determine eligibility under Chapter 7. Once it is determined that you are not eligible for relief under Chapter 7, we will begin to prepare your application for relief under Chapter 13.
When filing under Chapter 13, we will typically propose to the Chapter 13 Trustee a payment plan that sends him/her your disposable income to be used to pay off your creditors. The payment plan cannot exceed your disposable income and the plan cannot exceed 60 payments (5 years). Unless your plan allows you to pay off all your debts in fewer than 60 payments, you should count on a 60 month plan. At the end of the plan term, the remaining debts (with a few exceptions) are eliminated, just as in a Chapter 7 case. While the plan is in effect, you do not pay interest on most debts. You may also pay a portion of your legal fees through the plan
At the moment Westlake Legal Group files your Petition for relief under Chapter 13, legal and collection actions must stop. This “stay” applies to foreclosures, garnishments, repossessions, and any other lawsuit. The first payment of the plan is due no later than 30 days after filing. This payment is due even if the plan is not ultimately approved. Failure to make this payment will result in an automatic dismissal of your case.
One other important obligation, incurred as a result of being granted the “stay” upon filing, is that you must keep all of your regularly incurring debts current. These include house payments, car payments, and any other secured installment payment.
It is also important to realize that the Trustee will not send you a monthly reminder. It is up to you to make sure your payments are received by the Trustee on time. In addition, the Bankruptcy Code requires that a payroll deduction order be entered so that your employer pays the Plan payment directly to the Chapter 13 Trustee. However, you are responsible to ensure the payment is made. If your employer fails to make the payment for some reason, your case can be dismissed.
It is important not to miss any payments to the Trustee. If you miss a payment, the Trustee cannot pay your creditors as called for by the Plan and the Trustee may be obligated to file papers with the Bankruptcy Court asking that your case be dismissed. If your case is dismissed, your creditors will be notified, and they may resume collection against you. If there is a serious change in your circumstances that affects your ability to make payments under the plan, contact Westlake Legal Group immediately. Do not miss a payment. We will notify the Trustee. We will also review your status, and possibly seek to modify your plan.
Once the Petition and plan are filed, if the Trustee recommends approval of the plan, you will receive a Confirmation Order setting forth the duration of the plan, the amount of payment, and other obligations. If the Trustee does not initially approve the plan, or a creditor successfully objects to the plan, we have to file an amended plan or attend a hearing. It is imperative that you continue to make your plan payment even if there is an objection or a request to submit an amended plan.
After the plan is filed, as in a Chapter 7 case, the Trustee will conduct a hearing to verify the accuracy of your Petition and to determine the status of your assets and income. Creditors have 90 days from that hearing to file a proof of claim in order to receive some payment from the plan (governmental units, like the IRS, have 120 days). Usually within six months of filing, the Trustee’s office will send a report called “Notice of Intent to Pay Claims.” You will have 30 days to object to any amounts claimed in the report, otherwise the debt will be deemed valid and paid in the Chapter 13 case.
If the plan does not call for paying all debts in full, every year you will be required to provide signed copies of your Federal and States tax returns to the Trustee within 10 days of their filing. Westlake Legal Group will also assist you in determining the proper number of tax exemptions to take from your employer, as all tax refunds in excess of $250.00 must be paid to the Trustee as an additional payment for the benefit of your creditors.
Every six months, you will receive a report from the Chapter 13 Trustee’s office listing the payments received and to whom payments have been made during that period. This report should be reviewed to ensure consistency. Approximately 6 to 8 months after filing, the Chapter 13 Trustee will conduct a short, half-hour meeting to review your case.
Information regarding your Chapter 13 filing and the specifics of its administration are available as matters of public record, and the financial details of your case will be disclosed to parties in interest.
When you are finished making all of the payments in the plan, as directed by the Confirmation Order, the closing procedure will begin. If you are paying less than 100% to your unsecured creditors, you must file all the appropriate tax returns in order for the case to be closed. After all required information and payments have been received, the Chapter 13 office will issue an order to stop your payroll deduction. Any overpayments will be refunded after your case has its final audit. If you pay 100% of your debt, you can pay your case off early. After all the requirements of your case have been satisfied, you will receive your discharge papers from the Court in approximately four to six weeks.
For more information about the Chapter 13 process, or to schedule a personal consultation, please feel free to contact Westlake Legal Group and we will be glad to meet with you.
April 24, 2012Posted by on
One of the first things people think of when they think about divorce is the division of marital property. Regardless of which side of the divorce they may fall, it seems that most people are interested in having this aspect of the process work out most favorably for them. Given this, let’s take a few minutes to briefly explore how property is allocated during divorce proceedings.
In a divorce action, property is categorized three ways : Marital Property, Separate Property, and Mixed Property. One of the major goals of any divorce action is to preserve property. Thus, many times, one will allege a fault ground, if such a basis exists, so that the Court can immediately make a temporary ruling with regard to the use and disposition of marital property. In deciding how to allocate property, the court is required to make an “equitable” distribution of property. Please note that “equitable” and “equal” do not mean the same thing.
1. Marital Property: Marital property is all property that is either jointly titled or acquired during the marriage other than by gift from third persons or by inheritance. This includes that portion of pensions, profit-sharing or deferred compensation or retirement plans of whatever nature, acquired by either spouse during the marriage, and before the last separation of the parties, if the separation was intended to be permanent. The Court’s powers with regard to titled property are limited. The Court may award jointly titled property to either party, or order the sale of jointly titled property and the proceeds split a certain way. However, separately titled property cannot be given to the non-title holder. Nevertheless, the Court can award monetary compensation to the non-titled owner to offset any gain in marital distribution derived from being the sole titled owner. When making a monetary award, the Court can consider the following factors as identified in Virginia Code Section 20-107.3(E):
a. The contributions, monetary and non-monetary, of each party to the well-being of the family;
b. The contributions, monetary and non-monetary, of each party in the acquisition and care and maintenance of such marital property of the parties;
c. The duration of the marriage;
d. The ages and physical and mental condition of the parties;
e. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce;
f . How and when specific items of such marital property were acquired;
g. The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;
h. The liquid or non-liquid character of all marital property;
i. The tax consequences to each party; and
j. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.
2. Separate, non-marital property: Separate, non-marital property is all property acquired before the marriage in the sole name of either party, and all property acquired during the marriage by gift from third persons or by inheritance, or with the proceeds of separate property, as long as the proceeds of such non-marital property have themselves been kept separate during the marriage. Income derived from separate property is deemed to remain separate property. The Court has no authority to order the division or transfer of separate property.
3. Mixed property: Separate property can be partially converted to marital property and is referred to as mixed property. Income from separate property can be considered martial property to the extent that it is attributable to the significant personal efforts of either party. The non-owning spouse has the burden of showing that the increase is due to his or her personal efforts. When separate and marital property are commingled, the class of property is considered transmuted to the category of property receiving the contribution unless the contributed property is retraceable by a preponderance of the evidence, and was not a gift. When separate and marital property are commingled to purchase or acquire other property, the newly acquired property shall be considered marital property unless the separate property is traceable.
For more information on this topic, or to schedule an in-person consultation, contact Westlake Legal Group at 703-406-7616
April 19, 2012Posted by on
When considering bankruptcy, it is imperative that one considers all of the options available and the unique, intricate aspects of each. In this particular post, we will explore the characteristics of one of the most popular forms of bankruptcy–Chapter 7. In particular, we will focus on the process through which ones files for Chapter 7 bankruptcy in Virginia. Since I can only speak to what I know, all of the procedures outlined below are based off the practices adhered to here at Westlake Legal.
As you might have guessed, the bankruptcy process often begins in an attorney’s office. If you feel you want to discuss your options for filing for bankruptcy relief in the Commonwealth, please feel free to schedule an appointment with our firm, Westlake Legal Group. Regardless of which firm you chose though, be sure to bring a complete list of your assets and your current bills with you. Typically, you will be asked to fill out a questionnaire with regard to those assets and bills. In our office, we will also ask you to authorize a credit check that will be ordered and sent to us. The attorney will also provide you with certain required notices to help better inform you of your responsibilities down the line.
After we get your information, we will apply what is called the “means test.” This test, which is based on income, will give a preliminary determination of your eligibility to apply for relief under Chapter 7. You are automatically eligible to wipe out your debts with a Chapter 7 bankruptcy if you are below the average income for your family size inVirginia. As of April 19, 2010, the averages for Virginia are:
|Family Size*||One Person||Two People||Three People||Four People||Five People|
*Add $7500 for each person in excess of four
If your family income falls below those listed above, you are automatically entitled to relief under Chapter 7. If you exceed those limits, an additional analysis needs to be performed.
If your family income exceeds the average as identified above, you may still be eligible for a Chapter 7 filing. To determine that, Westlake Legal will evaluate your specific case. We will determine your “disposable income” after deducting certain expenses from your overall pay.
If your projected disposable income over the next five years is less than approximately $175 per month, you will likely be eligible for Chapter 7 relief. If you have more than approximately $175 disposable income per month, you may only be allowed to use Chapter 7 if you can demonstrate special circumstances, such as on-going medical situation. Otherwise, you may have to consider filing under Chapter 13.
Once we have determined that you are eligible for filing under Chapter 7, we will ask you to take an online credit counseling course. This is usually done in our office. Once completed, we will prepare the necessary paperwork, with your assistance, and file with the Bankruptcy Court.
Once we have filed, you will be required to take another online course, this one on financial management. This is also usually done in our office. This must be completed before you can receive a discharge.
Approximately 30 days after filing, the Trustee will conduct a hearing to verify the information placed in the Bankruptcy Petition and to ask questions about any equity in highly valued assets. After the Trustee’s hearing, the Trustee sends notice to creditors and gives them approximately 60 days to make inquiry and object to the discharge, if a reason exists. After the 60 days, assuming there are no objections, the Court enters a final Order of Discharge and the case is ended.
For more information on the Chapter 7 process, or if you would like to schedule a personal consultation, please feel free to contact us at any time.
We are a Debt Relief Agency.
We help people file for Bankruptcy Relief under the Bankruptcy Code.
March 22, 2012Posted by on
If, having exhausted all other attempts at resolving marital issues, you find yourself facing divorce as a viable option, there are a few things you should consider before any initial action is taken. Among the important decisions to be made is the decision of whether to file for divorce on a fault or a no-fault basis. In this post, we will take a look at each of these types of filings in the hopes of shedding some light on the differences between fault and no-fault divorce filings.
“Fault” bases for divorce usually involve contested divorce actions. These are usually expensive, time-consuming, and emotionally draining. If the fault resulted in an economic impact, fault bases for divorce can be beneficial from a financial stand point as a judge is able to allocate marital property and assets in a way to compensate for the fault. A judge is also able to order the faulting party to pay the non-faulting party’s attorney fees. Fault is usually alleged as a reason to begin a divorce suit, so that one can ask the court to freeze marital property, award temporary support and custody (pendente lite relief), and to be able to seek discovery from the other side (requiring your spouse to produce documents and answer questions under oath), which cannot be done without having first filed a divorce suit. Fault is also used as “leverage” for a settlement; divorce files are public records, and the threat of finalizing a divorce on fault grounds may produce a settlement, one term of which is usually finalizing the divorce on “no fault” grounds.
“No fault” divorces, on the other hand, require a separation period of one year (six months if there are no minor children and there is a separation agreement). To establish grounds for being separate, the parties must provide independent evidence, to meet the standard of preponderance of the evidence, that not only are the parties not engaging in marital relations, but they are not holding themselves out to the public as a married couple. Parties may live separate and apart under the same roof, as long as they limit their interactions in such a way that does not mimic a martial relationship.
While we hope that this information has been helpful, please keep in mind that this is a simplified explanation of a potentially complex legal matter. For a more in-depth determination of your specific situation, contact Westlake Legal Group today to schedule your personal consultation.
March 19, 2012Posted by on
For anyone considering seeking bankruptcy relief, understanding the bankruptcy system is of utmost importance. For this reason, we have created a number of short articles that briefly explain some of the most essential aspects of the bankruptcy process. In this particular post, we will be discussing the difference between Chapter 7 and Chapter 13 bankruptcy.
The laws regarding bankruptcy are found in Title 11 of the United Stated Code. Each Chapter of the Title deals with certain parts of the bankruptcy process. For example, Chapter 1 provides general provisions and definitions as they apply to the bankruptcy process. Several chapters deal with specific relief for specific types of debtors. Chapter 11 provides the rules and law for the reorganization of large companies that want to keep operating. Most individual debtors are concerned with either Chapter 7 or Chapter 13.
Chapter 7 is the most common chapter used by individuals in debt. It is considered to be the quickest and least expensive way of obtaining relief. When filing under Chapter 7, most of your unsecured debts are discharged–meaning they are eliminated and cannot be collected. Usually you cannot eliminate taxes, student loans, or child support. You also may not be able to eliminate some debts associated with a divorce. At Westlake Legal Group, we can analyze your debts and give you an accurate prediction of the likelihood of their discharge.
Chapter 13 is referred to as an adjustment of debt and is used when a debtor has regular income and can pay his or her living expenses, but cannot make all the payments on his or her regular, scheduled debts. Essentially, the debtor cannot make all his payments but can make some contribution to paying back his debt. Often people with higher incomes are required to initially file under Chapter 13. Under a Chapter 13 filing, the Court adopts a payment plan you can afford. The plan stops the accrual of interest on unsecured debt and can require payments for up to five years. If all the debt can be paid off sooner once interest is stopped, the plan may be for a shorter period. One is eligible for Chapter 13 relief if his or her unsecured debts are below $360,475 and his or her secured debts are less than $1,081,400.
For more information regarding Chapter 7 or Chapter 13 bankruptcy, follow this link to a helpful site, or give us a call at Westlake Legal Group to set up an appointment.
Pursuant to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), please be advised that:
We are a Debt Relief Agency.
We help people file for Bankruptcy Relief under the Bankruptcy Code.
March 12, 2012Posted by on
Given the most recent decision of the Virginia Supreme Court with respect to passive “operation” of a vehicle and the application ofVa. Code § 18.2-266, I wonder how many more citizens of the Commonwealth have to die before the General Assembly and the Supreme Court stop providing unintended incentives for drunk drivers to stay on the road.
In January of last year, in Nelson v. Commonwealth, 281 Va. 212 (2011), the Virginia Supreme Court affirmed the conviction of a man who, after being found asleep behind the wheel of his car with the radio running, was charged with DUI. In support of this conviction, the Court reasoned that, by placing the car in the “on” or ‘accessory” position so as to activate the radio but not the ignition, the defendant was, in effect, operating the vehicle and was therefore in violation of Code 182.-266. Alarmed by the implications of this ruling, I have been anxiously anticipating some form of retort or rebuttal from the legal community for the last year. On March 2nd, that response finally arrived. Unfortunately, it was not exactly the response I was looking for. Instead of objecting to or overturning last year’s ruling, the Supreme Court of Virginia further solidified their opinion by affirming the DUI conviction of a man found sleeping behind the wheel. Enriquez v. Commonwealth, 2012Va. Lexis 49,March 2, 2012. In doing so, I believe the Supreme Court has inadvertently signed the death warrant of untold drivers and passengers onVirginia highways.
In Enriquez, the Defendant was originally investigated by the police after a parking meter attendant tried to ticket his car for being illegally parked in a bus zone and discovered him asleep inside. Unable to rouse the man by knocking on the window, the attendant called the police and the situation progressed from there. Ultimately, he was charged with (and later convicted of) DUI because he had the keys in the ignition so he could listen to the radio while his engine was off and car in park.
While some may not question the Defendant’s eventual conviction, my issues lies with the logic applied by the Supreme Court in reaching its decision. Following previous cases, the Supreme Court engaged in an analysis that focussed on whether a key was in a particular position in the ignition. Va. Code § 18.2-266 prohibits a person under the influence from driving or operating a motor vehicle on the highways. In Enriquez, the Supreme Court spends considerable effort stretching the definition of “operate” to now include merely having the keys in the ignition, even if the engine is off and the car is in park. In its efforts in expanding the logical definition of “operate”, the Supreme Court has created a perverse incentive for drivers that will result in more deaths on theVirginia highways.
Because the Supreme Court’s reasoning criminalizes the simple act of turning on the heat on a cold night, or of listening to the radio, while being drunk in a car, this opinion creates an incentive for drunk drivers, or those who feel the beginnings of impairment, to stay on the road. There is no benefit to these drivers in stopping and resting and ensuring they are going to be safe. As such a driver faces a criminal penalty if he stops and is caught, he has an incentive to keep going and to try to reach the safety of home. Frankly, that is the last thing I want: implicit encouragement to drunk drivers to stay on the road. Based on the Court’s extension of previous cases, I fully expect it to find that the mere possession of car keys, when one has a push button ignition in his car, to be construed as “operating” the vehicle. Again, more incentive not to stop, more incentive to stay on the road, more likelihood of killing someone.
I understand that drunk driving is a hot political button. Every officer in the state makes a DUI inquiry during every traffic stop. However, in non-alcohol related cases, the General Assembly has already provided an incentive for tired drivers to get off the road. Under Virginia Code 46.2-830.1, the act of parking one’s car on the shoulder in order to rest is encouraged by removing any serious penalty for drivers who do so because they are feeling drowsy or tired. Conviction for sleeping on the side of the road is a no demerit point offense. The General Assembly has recognized that it wants tired drivers to get off the road. It shouldn’t matter if he is tired because he has been up for twenty-four hours or because he has had too much to drink. That driver needs to be off the road. Instead, if the driver who has too much to drink does what society wants and pulls over to sleep, he faces a greater chance of being discovered and punished as a criminal, especially if one were to pull over in winter and need heat to stay alive while he sleeps. Faced with that outcome, many a drunk driver will take the chance of getting home. And, more people will be in accidents and more people will die. It is the law of unintended consequences.
Now that the Supreme Court has spoken in Enriquez, our only hope is that the General Assembly overturns the Supreme Court’s decision through legislation. I am not holding my breath.
March 1, 2012Posted by on
The purpose of this post is to inform Loudoun County residents of their ability to file a civilian complaint against any deputy or employee of the Loudoun County Sheriff’s Office, should they find reason to do so. As a disclaimer, I have no intention of being malicious or confrontational towards the Sheriff’s department, nor do I mean to suggest that they have done anything as of late to warrant a complaint. I was simply motivated by watching the following YouTube video, in which a number of citizens are threatened, harassed, and even arrested solely because they asked how to file a complaint with their local police department.
Fortunately, Loudoun County residents should never have to worry about being subjected to such extreme treatment for filing a complaint, as the Sheriff’s Office provides an online form that allows complaints to be sent in at any time. For a link to that site, click here.
If you are a resident of any other county in Virginia, or if you would like assistance in filling out a complaint, please feel free to leave a message at the bottom of this post and we will do our best to provide you with further information.
February 17, 2012Posted by on
In Virginia, the initial spousal support award, both temporary and permanent in nature, is awarded in accordance with Virginia Code Sections 20-103 and 20-107.1. If someone is granted a divorce based on the fault ground of adultery, the adulterous spouse will normally not be awarded spousal support. The Court considers the following factors when deciding whether to award spousal support and the amount of such award:
1. The earning capacity, obligations, needs and financial resources of the parties, including, but not limited to, income from all pension, profit sharing or retirement plans, of whatever nature;
2. The education and training of the parties and the ability and opportunity of the parties to secure such education and training;
3. The standard of living established during the marriage;
4. The duration of the marriage;
5. The age and physical and mental condition of the parties;
6. The contributions, monetary and non-monetary, of each party to the well-being of the family;
7. The property interest of the parties, both real and personal, tangible and intangible;
8. The provisions made with regard to the marital property; and
9. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
For more information about divorce in the Commonwealth, check out our other blog posts on the topic or feel free call Westlake Legal to schedule your in-person consultation.
February 9, 2012Posted by on
As a criminal defense attorney, I routinely encounter people who could have avoided legal trouble if they had simply known how to exercise their rights when talking to the police. Every time I see this, I lament the fact that so few Americans have a real, working knowledge of their rights. It seems to me that whether the topic is traffic stops or full-scale police searches, most people have little or no knowledge of their rights and how to exercise them in daily life.
In an effort to help people become more informed about their rights, I’d like to share the following video, “10 Rules for Dealing with the Police.” I originally came across this video series while perusing the internet, but,after watching it, I am convinced that it is a phenomenal resource for all citizens. Personally, I think all Virginians (and Americans, for that matter) should watch this video and take the time to properly educate themselves about their rights and how to use them.