Selecting an Advantageous Trust and Estate Lawyer

    





    

 
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Trust and Estates is a rapidly growing area of practice in the law that includes estate planning, managing your estate during life and disposing of your estate at your death through the use of trusts, wills and other planning documents.
Learn about Distinctive Legal Practice Areas.
You can easily become familiar with the different practice areas to determine the type of lawyer who will work best on your legal matter. For the purpose of asset protection and estate planning you will need a lawyer well versed in Trusts and Estates.
You will want to hire an attorney who regularly handles matters in the areas of concern in your particular situation, and who will know enough about other fields to question whether the action being taken might be affected by the laws in other areas of law. For example, if you?re going to rewrite your will and your spouse is ill, the estate planner needs to know enough about Medicaid to advise you about whether it?s an issue with regard to your spouse?s inheritance.
Unfortunately, there are some attorneys who hold themselves out as experts in trusts and estates, but who have little or no experience in this area of practice. They recognize that the aging America represents a business opportunity for them and they hope to ?cash in?. So you will want to be particularly careful in narrowing down your selection of a trust and estate planning attorney.
Finding a Lawyer May Be Easier Than You Think.
Creditable and trustworthy resources are already available to you on the Internet. For instance, www.lawyers.com offers a complete database of lawyers sorted geographically and by expertise.
Finding a Lawyer May Seem Like a Monumental Task.
You?re already anxious because you have a legal problem. A creditor may have sued you or you may have been injured in an auto accident. Perhaps you want to start a business, adopt a child or finally tackle your estate planning needs. In these situations, you need a lawyer to protect your rights, but each situation requires very different skills. Yet many people don?t know how to find a lawyer that is right for them, which only raises their anxiety level.
Not surprisingly, recent studies suggest that the vast majority of consumers (81%) wish there was a resource to help them find competent lawyers. The study also suggests that 62% would like to have access to legal resources on the Internet. This article outlines the basic steps to finding a lawyer and using Internet resources already available to you.
Check Out the Database of Lawyers in Your Community.
You can use www.lawyers.com. Other Internet resources can help as well. Lawyer referral services, operated by your local bar association, can assist in finding a lawyer who is right for you. Visit www.abanet.org/referral/ to find a referral service close to home. If you qualify financially, consider contacting your local legal aid service by clicking on www.abanet.org/legalservices/probono.html. You can also contact a legal professional association or the American College of Trust and Estate to fin d the best attorneys in your area.
Yet some things can not be done on the Internet! In all cases, be sure to interview the lawyer to assure yourself that he or she has the expertise and experience you need, and that you have a comfort level that will allow you to be honest and open with him or her. Usually, you will not be charged (or charged very little) for this initial consultation.
Copyright 2006 Ronald Hudkins

About The Author

Ronald E. Hudkins aggressively coordinates with government agencies, organizations and field experts to compile information designed to help consumers avoid deceptive business practices. He is currently publishing his site that specializes in asset protection and estate planning. The site includes how to find, research credentials, interview and hire an estate planning attorney. The site overviews community based services available for long-term care and provides massive information resources. Estat e documentation (personal and financial) is overviewed and an Estate Planning Checklist is included. The site covers Medicaid planning and eligibility requirements as well as a legal frequently asked questions section and much more. A description of his education and experience can be found at http://www.AssetProtectNow.com.

    
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Sarbanes Oxley Act Sox And Not The Ones On Your Feet

    





    

 
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Sarbanes Oxley Act falls under 'Corporate and Auditing Accountability, Responsibility, and Transparency Act' or 'CAARTA' act which was passed by the US Senate Banking Committee with the support of President Bush. This act was passed to strengthen corporate governance and improve investor confidence. Sarbanes Oxley Act ensured the accuracy and reliability of disclosures from the corporate world. This came into force to avoid any financial scandals fro m corporate giants.
Sarbanes Oxley Act is more often known as SOX or Sarbox but is actually officially termed as Public Company Accounting Reform and Investor Protection Act of 2002. It is the single most important piece of legislation that affects the corporate governance, financial disclosures and the practice of public accounting. Sarbanes Oxley Act prevents the large corporate giants to commit and financial frauds. This act also punished such corporate that showcase irregularities in their financial accountings. After the Sarbanes Oxley Act came into affect is strengthened investor confidence as this law bring the defaulters to justice and protects the interest of workers and shareholders.
According the Sarbanes Oxley Act the large companies need to meet the financial reporting and certification mandates for any year end financial statements. This act is organized into 11 titles but in actual case only subset of these titles relate to the compliance to the complete law.
Sarbanes Oxley Act established new standards for corporate boards and audit committees. This law implements criminal penalties on large corporate companies for defaulting and sets new accountability standards. Sarbanes Oxley Act gives more freedom the external auditors to set new standards of governance. This act also issues accounting standards and oversees public accounting firms.
With the increase of regulatory norms, more and more companies are coming under the scrutiny of Federal government. Those companies that specially obtain lists and store personal information come under special scrutiny of Sarbanes Oxley Act. Lately, there had been review stating that Sarbanes Oxley Act has been too stringent on the companies. The most talked about section of the Sarbanes Oxley Act is the Section 404 which seeks to enhance reliability of internals controls over financial reporting. These tightened internal control implemented as a result of Sarbanes Oxley Act has lead strains on companies as well as the accounting firms.
A proper regulatory framework with more stringent rules and a company with proper internal regulatory body delivers the most accurate and transparent financial reporting. This law is administered by Securities and Exchange Commission. This body sets rules and deadlines for the compliance and published rules on the requirements.
The three rules of Sarbanes Oxley Act regulate the management of electronic records. The first rule refers to the falsification, destruction and alteration of records. The second rule states the retention of records by any company so as to how long the records should be stored. The third rule refers to the type of business records that need to be stored.
A total comprehensive study of the Sarbanes Oxley Act and its implementation by the corporate bodies deliver the most transparent and factual financial records for the company.

About The Author

Earl Powers, US Lawyer and Sarbanes Oxley Compliance expert at Aquest Group LLC ( http://www.404-sarbanes-oxley.info ) publishes other articles related to Sarbanes Oxley Compliance at http://www.sarbanes-oaxley.info and http://www.sarbanes-oxley-training.info.


    
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Promote Your Law Practice Online

    





    

 
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Offering legal services via the Internet offers Lawyers endless possibilities. While we focus our attention on New Jersey based lawyers, the same is true no matter where your practice is located.
The interesting fact however is that out of the 20,000 plus practicing attorneys in New Jersey only just over 600 of them have a web presence. Could it be that this many (otherwise intelligent) attorneys are missing the boat?
Even if you are an attorney within a larger firm there are still plenty of opportunities to take advantage of web-based marketing for the legal profession. Offering your services on the Internet is not about how well developed your programming or web-design skills are.
It's about how you present and provide your services to your clients.
It's about your message.
It's about how you "Educate" your prospective client.
The potential is endless. You can provide your services to clients nationally, state wide or exclusively to residents of a particular county by "targeting" your client base. It doesn't matter which practice area you specialize in, you will experience tremendous benefits with a web presence.
Every lawyer has a unique view on his or her area of practice. And, odds are you are already promoting that view to your clients and deriving your income based on those principles. But have you ever thought about "educating" your clients about your views and generating even more clients by utilizing the powerful reach of the Internet?
In fact, promoting your law practice online, using Education-Based-Marketing is, arguably the most overlooked yet fertile opportunity on the Internet. Even though it requires minimal effort and costs very little to create a legal marketing website, most lawyers fail to do so.And what about the few lawyers who do attempt to take advantage of this medium?
Well, the effort leaves much to be desired. Either they put up a "me too" website that is little more than a billboard in the desert (that no one ever sees) OR they hire a so called "webmaster" who's legal marketing skills are non existent. The sad fact is, neither of these approaches is either effective or efficient.
In order to attract clients to your practice, (without word of mouth referrals) you must successfully educate and convince that client that you are:
1) Known to be the best lawyer in your particular area of practice.
2) Known to over deliver on your service.
3) Known to be competitively priced. (no matter how high your fees)
4) Known to provide the exact legal solution that he or she is seeking.
Bottom line? You gotta get KNOWN!
In order to succeed at attracting and retaining clients online, you need to establish a relationship with them. Designing a content-rich, "education based" website and newsletter that builds trust and is credible, is the only way to develop and solidify your relationship. Only after you establish a relationship will your prospective clients begin to respond.
Most lawyers assume that because the Web is a global medium, it's not a relevant advertising option for a locally based law practice. Nothing could be further from the truth. After all, if your practice is based here in New Jersey, it's unlikely anyone outside of a one-hour driving radius is going to hire you for legal services. Right? Wrong!
That's "stinkin thinkin" Why?... Because a web presence gives your law practice a distinct advantage over your local legal competitors. Particularly when you are trying to grow your current client base. The fact is today more and more prospective clients are relying on the Internet as their primary source of information about purchasing products and services, including your "legal services".
So now your Web presence allows your potential client to get to know you and your service better than a "also ran" Yellow Page ad ever could. You have the opportunity to give your client a confident and secure feeling about making the decision of which lawyer to hire.
Your Education Based legal website has given S/he a more open-to-hire frame of mind. Since we already know that MOST of your competitors (only 600 out of 20,000 in NJ) don't offer this option, you have a serious edge on getting that follow-up contact about your legal services. After all, who do you think prospective clients are going to retain -- a friend or a stranger?
Add to that, the benefit of links and referrals, pointing to your site, from some highly trafficked legal websites like this one and you have the formula for a successful legal website.
But there are a million options when it comes to creating the right website. Where do you turn? Let's cut through all the noise and hype surrounding legal website design and marketing of legal services on the web.
Do It Yourself. That's right. DIY No body knows more about you and your legal services than you do. You are the expert on you. Think you can't do this by yourself? Think again. Here is the solution to creating the perfect legal website designed to attract your "perfect clients". Clients that you have systematically educated, informed and built a solid trusting relationship with even before you ever talked to them.
This is for those lawyers with a vision. It's The Most Overlooked Opportunity on the Net. Start building an ever-growing client base until you can say "I'm sorry I'm not taking new clients at this time"
An SBI (built by you) Education-Based-Legal Marketing Site is perfect because every law practice revolves around a theme.

About The Author

Tony Merlino is webmaster and legal marketing consultant at http://www.JerseyJustice.com, a legal information and marketing portal for clients and their lawyers in New Jersey. For more information on creating the perfect legal website visit http://service-selling.sitesell.com/tmerlino.html.

    
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Prenuptial Agreements Who Needs THem

    





    

 
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Asking serious questions about how you see finances in the marriage partnership may save you pain and money later - and might even save your marriage.
A premarital agreement may also be called an antenuptial agreement. The terms are synonymous. Prenuptial or antenuptial agreements refer to a contract between two persons planning to marry which governs the rights and liabilities of the parties if they should happen to get divorced or in the event one spouse dies. In short, a prenuptial agreement determines the rights of parties to property, responsibility for debt and may even determine whether spousal maintenance (alimony) is paid. Prenuptial Ag reements, however, cannot affect rights to custody or child support since such determinations must be made based on a best interests of the child standard and subject to court review.
Prenuptial Agreements are valid in all 50 states and the District of Columbia. It doesn't matter whether the state is a community property state or an equitable distribution state.
Why Prenuptial Agreements are Prudent
A premarital agreement acts as a safeguard for both you and your spouse-to-be. It protects your assets and may prevent expensive and acrimonious litigation if a divorce should occur by defining the rights and responsibilities of the parties in advance. With today's divorce rate hovering around 50%, a prenuptial agreement may be one of the most prudent decisions in your life. This is particularly true for business owners who may wish to preserve what they have worked so hard to build.
In order to ensure that your prenuptial agreement is binding there are certain key ingredients you should include in your prenuptial agreement.
List all assets, liabilities, income, and expectations of gifts and inheritances. A full disclosure is a critical element of a prenuptial agreement to ensure that it is binding.
Describe how premarital debts will be paid. This will help to identify which debts will be satisfied by marital resources or premarital resources.
Resolve what happens to your premarital property in reference to changes in value including appreciation, gains, income, rentals, dividends and the proceeds of such property in the event of death or divorce.
The marital residence is often an issue that can become contested in teh event of divorce. Decide who, or if both of you, will own the marital residence and secondary homes in the event of death or divorce. How will any proceeds from those homes and real estate assets be divided in the event of a divorce.
Clarify what will happen to each type of property, whether jointly or individually owned, such as real estate, art work, collectibles and jewelry.
Alimony, maintenance, or spousal support, is another particularly contentious issue. Prenuptial agreements allow parties to allow for a waiver or property settlements instead of support. Some states are reluctant to limit recovery in this regard and, as a result, it is very important to understand your State laws.
Decide what will happen in the event of a divorce with regard to medical, disability, life or long-term-care insurance coverage
Prenuptial agreements have certain requirements. Generally, they are as follows:
there is a full and fair disclosure of the earnings and property of each party, and
the parties have had an opportunity to consult with legal counsel of their own choice.
As a general rule, the agreement must also be:
1. in writing;
2.executed in the presence of two witnesses; and
3. acknowledged by the parties before a person authorized to administer an oath (notarized).
In most cases prenuptial agreements are upheld. It is only in cases where there was not full disclosure or the agreement becomes substantively unfair at the time of the divorce that Court's strike down the validity of such agreements. An agreement may deemed substantively unfair if the circumstances on which the agreement was based have changed so drastically that enforcement would not comport with the reasonable expectations of the parties at inception.
Prenuptial Agreements & Spousal Maintenance
Courts most sometimes find antenuptial agreements substantively unfair with regard to provisions seeking to limit or eliminate spousalmaintenance (alimony) payments. Some Courts have ruled that there is sound public policy rationale for not strictly enforcing such provisions which, even though entered into in good faith and reasonable at the time of execution, may have become unreasonable or unconscionable as to its application to the spouse upon divorce. The Courts are essentially attempting to preve nt ex spouses from becoming wards of the state. If one spouse's health and employability have greatly deteriorated during a marriage, Courts may be reluctant to enforce the maintenance provisions of an antenuptial agreement.
Some cases that have been decided:
Invalidated an antenuptial agreement which sought to preclude spousal maintenance where the lesser earning spouse contracted a venereal disease from he husband resulting in medical expenses;
Invalidating an antenuptial agreement which sought to preclude spousal maintenance where the marriage was long term (more than 20 years) and the wife had been out of the work force for some time and suffered from an emotional disability. The trial court concluded that unforeseen circumstances invalidated the antenuptial agreement by rendering it unconscionable.
To avoid problems with your prenuptial agreement, it is important to contact an experienced lawyer in your State. Remember, as Benjamin Franklin stated, "an ounce of prevention is worth a pound of cure." Visit us at www.divorceinstitute.com.

About The Author

Maury D. Beaulier is a recognized leader in family law and divorce issues including complex and high profile cases in Minnesota and Wisconsin. The firm and its members are recognized leaders in the U.S. Immigration and Naturalization process including asylum cases, work visas, investor visas and family based immigration. You may reach Mr. Beaulier at (952) 746-2153 or through his website located at www.divorceinstitute.com.

    
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Post Divorce A New Beginning

    





    

 
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The divorce is finally over.
No more fighting over who gets to keep the home and other real estate. Those leather couches, and the expensive art hanging on the walls of your summer home. A drop in the bucket compared to the company that both of you slaved over to build or the family pet that made your kids so happy. But even now, all that looks small compared to the most important issue of all: child custody. But hey—all of this is over. Resolved. Now you can breathe a sigh of relief. You’ve probably been wondering about your future – without your x. Yes, being single again definitely has its benefits. Maybe you’re going out more, enjoying life, and watching your diet. It’s those little things you haven’t enjoyed in a long time that suddenly make life worth living–again.
Most people who choose divorce and feel this kind of relief, are –in the end--happy with the decision they made. What you both needed was peace. And now you have it. And happy to have a new chance to find that RIGHT special someone to build a life together. But that’s not where the story ends. You might wake up one day, and feel like changing your life completely. Maybe you decide that your financial security and personal happiness are somewhere, anywhere other than where you are right her e and now. Somewhere outside of New York you may be thinking. Maybe a better job is waiting in another state. Maybe you have health reasons or better yet, a new relationship. A voice deep in your heart keeps telling you to move. So maybe you do need a new start: to realize your dreams, to focus on your career, and to build a new home. You have every right to want to leave the old memories behind. But how can you do that when you see the same places you once shared? And with someone who may have broken yo ur heart. So, a new opportunity and a new chance to build a new life in a new state with new friends sounds great. Even Newsweek lists the ten best cities to go live in. You might be thinking that you’ll go to the web looking for info sites detailing how to build a healthy home. Now, maybe you decided your destiny is to live with the stars under the shining lights of Hollywood. And well, hey at least the weather is nicer, the water is clean and the sand is soft. Right? But what about your fantasti c plans to leave the country? If you plan on taking the kids anywhere out of the country or even out of the state, here’s what you need to consider.
Planning is everything.
First, leaving with your kids without permission from your x spouse, is against the law. In fact, it’s a serious felony called “Parental Kidnapping”. Most attorneys know very well that the FBI works in cooperation with local law enforcement agencies to ensure that parental kidnappers are brought to justice. They are arrested. They are prosecuted. And they are sent to prison. Unfortunately, some parents think more with their heart than their minds. The result? A tragedy for everyone. Parents--no matter how good their intentions-- who get arrested for kidnapping their own children, have to hire a criminal defense lawyer. But wait--that’s money that could be better spent improving your life. Not exactly what you had in mind. So how do you take your children legally without hassles and headaches?
What does the law say?
First, if possible, get permission. If asked nicely, maybe your x-spouse would agree to give you sole custody of your child and eliminate the need to proceed to Court. If you obtain sole custody this way, you do not need to read on because you are almost home. However, if that is not possible then your former spouse may agree on a joint custody agreement with a passport waiver clause. Such a clause would allow you to apply for a passport on behalf of your child without the need to consult with your f ormer spouse, and thereby giving you the option of going abroad on vacation, with your child - in peace. However, if your mission is to live with you child permanently out of state, the custody agreement needs to say that-- exactly and clearly. In New York, the law says that barring parental permission, a spouse or a custodial parent may take the children out of the state by Court Order. Usually, when there’s been a difficult relationship between both x- spouses, one spouse will not permit the othe r to take the kids out of state, much less the country. In these situations, the former spouse may try to use your desire to move as an opportunity to get money from you. The usual offer is that they’ll let you leave the state, if you agree to drop all child support proceedings or any existing child support court orders. If that happens to you, the most logical step is to go to Court. Normally, a Family Court Judge decides whether or not the relocation out of state with the child would be allowed .
It’s your choice—use your voice.
Understanding the practical reasons behind the legal challenges that you’ll face, are easier to accept when you fully appreciate the intentions behind them. The way the courts see it, in you taking your child outside of the state of New York, you are effectively denying your x-spouse their visitation rights. They think that this basically deprives your former spouse of a meaningful opportunity to maintain a close relationship with your kids. Now you may say that your x-spouse is welcome to visit anytime, or that you’ll send the child back to New York anytime that your x wants. And in order to do this you may ultimately be prepared to drive the kids cross state lines, both to and from your former spouse’s home (like taking a cross-country road trip every weekend). Maybe the fact that your move would make it much more difficult for your former spouse to exercise their visitation rights does not entirely dampen your desire for geographical relocation. However, you should understand tha t a court must seriously consider the well being of the child first and foremost. Specifically, they consider the following seven issues:
1. Whether the move would be in the child's best interest.
2. Whether it is feasible for your former spouse to make a similar move to the same state.
3. Whether your move involves an economic hardship or necessity. (e.g. a job offer).
4. Whether your move involves a new marriage to someone who lives in the state where you’re moving.
5. Whether you’re moving for health and medical reasons.
6. Whether your move will negatively impact the relationship between the child and your x.
7. Whether your former spouse has a good faith reason for opposing the move.
There’s one part of this that really isn’t understood by most parents, is the “Best Interest Test”. This test is the way the Courts try to understand the effect that the move may have on any of your family relationships. In determining what the child needs most, the courts generally look at many things. For example, whether your move will hurt your child's ties to your former spouse and the community. These reasons are generally looked at by the court only when those ties are v ery strong. So if your child has a hard time getting along with your former spouse (and the blame is not attributed to you) then those possibilities are not weighed as heavily.
Sample Case.
If your parents and your former spouse’s parents are also in New York and you’re planning on moving to New Jersey, then it’s also likely that your children will not see their grandparents as much as they would have in the past. The quality of the parental relationship usually suffers as a result of moving. The same is true of your child’s relationship with their grandparents. If your child has a hard time getting along with their grandparents (and the court decides is not your f ault) then you have a better case for getting court approval for the move. However, most judges usually have enough experience to know when the former spouses are trying to hurt each other by proposing or opposing a residential move. Generally, although a court may deny you of the right to move with the kids, most “good faith requests” are seldom denied.
In the end, it all works out.
Ultimately, it’s the courts who determine, with the help of your lawyer, (and based on all of the proof you have) whether you have proven that the welfare of your child will not be hurt by a move.

About The Author

Odalis M. Encarnacion, is a New York City Family Lawyer in private practice. For more information you may call him @ (718) 651-5283 or visit him on the web: http://www.encarnacionlaw.com.
info@encarnacionlaw.com

    
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Permanent Residency The Green Card

    





    

 
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Permanent Residency. Permanent residency is often referred to as having a Green Card. There are two primary categories of immigration: Immigrant status and Non-immigrant status. Immigrant status allows permanent residency in the United States. Non-immigrant status provides an authorization to aliens for temporary residency that expires upon the occurrence of a specific event.
A Permanent Resident is commonly referred to as a "Green Card" holder. Permanent residents have many rights which include the following:
The right to live in the United States permanently;
The right to reenter the United States after traveling out of the country abroad;
The right to apply for U.S. Citizenship after continuously living as a Permanent Resident in the United States for five (5) years
The right to employment in any work that is legal;
There are four main categories for green card permanent residency and even more subcategories under each main category. The main green card categories include Family Sponsored Immigration, Employment Immigration, DV Lottery, and Asylum and Refugee status.
Family Sponsored Immigration Green Card. Foreign family members of U.S. citizens and permanent residents may qualify for an immigrant visa. However, the United States sets strict limitations on the number of immigrant visas allowed each year. The closer the relative is the higher that person falls on the priority scale for obtaining an immigrant visa. Immediate family members of U.S. citizens are given the highest priority. Foreign parents, children under the age of 18, and spouses fall outside of the q uota system and usually qualify quickly for an immigrant visa. Extended family members of United States citizens and family members of permanent residents may also qualify. However, the waiting period may be much longer. In some cases, the wait for a visa may exceed 10 years. The priority list for family sponsored immigration is as follows: (1) F-1 - Unmarried Sons or Daughters of U.S. Citizens over the age of 21; (2) F2-A -Spouses and unmarried Children of Permanent Residents under the age of 21; (3) F2-B -Unmarried Sons or Daughters of Permanent Residents over the age of 21; (4) F-3 -Married Sons or Daughters of U.S. Citizens over the age of 21; (5) F-4 - Brothers and Sisters of U.S. Citizens.
The relationship is only one criteria in determining preference. A second criteria includes the country of the relative?s origin. Economically poor countries such as China and India tend to have the longest waiting periods.
Employment Immigration Green Card. Aliens seeking permanent residency in the United States for employment purposes must fit into one of five categories. The first category is "Priority Workers" which includes Intra-Company Transferees of Managers and Executives, Outstanding Professors and Researchers and Aliens of Extraordinary Ability in the Sciences, Arts, Education, Business and Athletics. The second employment category is "Aliens of Exceptional Ability in the Sciences, Arts or Business" which includ es Professionals with advanced degrees. The third category includes "Professionals with Bachelors Degrees not qualifying in the 2nd Preference, skilled workers, and unskilled workers in special needs professions. The fourth category is very narrow encompassing "Religious Workers" who are here to carrying out their religious mission. Finally, the last category is based on economic development and includes individuals who invest one million dollars ($1,000,000.00)in a new "commercial enterprise" or in a "tro ubled business" or those who invest Five Hundred Thousand Dollars ($500,000.00) in a "new commercial enterprise" or "troubled business" in a "targeted employment area."
DV Lottery Green Card. 55,000 immigrant visas each year are available to those winning a Visa Lottery. The number of lottery visas are apportioned to countries that have fewer visa applicants. To apply, an immigrant must fill out a number of forms detailing their background with the INS. Each year lottery contestants are drawn and notified if they have won. A winning alien may make application for an immigrant visa.
Refugee/Asylum Status. Refugee and Asylum status allows foreigners fearing persecution to seek refugee status in this country. Foreigners outside of the United States may seek refugee status. Foreigners already in the United States may seek asylum to prevent deportation. After approval of Refugee or asylum status, the alien is allowed to enter or remain in the United States and may seek an adjustment of their status to one of permanent residency after one year.
For legal assistance Call (952) 746-2153.

About The Author

Maury D. Beaulier is part of a 29 attorney immigration law firm handling cases for clients across the United States and abroad. The firm and its members are recognized leaders in the U.S. Immigration and Naturalization process including asylum cases, work visas, investor visas and family based immigration. You may reach Mr. Beaulier at (952) 746-2153 or thorugh his immigration website located at www.workvisalawyers.com.


    
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Patent Writing India

    





    

 
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The Patents (Amendment) Act, 2002
The Patents (Amendment) Act, 2002 was passed by Parliament in May, 2002 and notified in June, 2003. The Act has been made effective from May, 2003 and has brought about lot of changes.
Salient Features:
The salient features of the Patents (Amendment) Act 2002 are as follows:
A. Modification of term invention:
The Sec. 2 (1)(j) of Patent (Amendment) Act 2002, defines the term ?invention? as "a new product or process involving an inventive step and capable of industrial application" Where ?Inventive step? means a feature that makes the invention not obvious to person skilled in the art.
Earlier ?invention? means any new and useful -
(i) Art, process, method or manner of manufacture;
(ii) Machine, apparatus or other article;
(iii) Substance produced by manufacture;
and includes any new and useful improvement of any of them, and an alleged invention.
B. Examination of application (Sec. 11(b)):
India has opted for a deferred examination system. This means the Controller will not initiate examination of the application. Examination of an application will now be taken up only upon request by applicant or in the Form 19 with fees of Rs.1000 for individual applicant or Rs. 3000 for legal entity other than an individual, at the appropriate office of the Patent office (Rule 24).
The request is to be made within forty-eight months from the application filing date. Where an application was filed prior to May 20, 2003 (i.e. before the commencement of the Patent (Amendment) Act 2002), a request for examination is required to be made within a period of twelve months from May 20, 2003 or forty-eight months from the filing date, whichever is later. Upon failure to request examination, the application shall be treated as withdrawn by the applicant. The applicant or agents can also with draw the application at any time (before the grant of the patent) after filing the application.
C. Publication/Notification of the Application (Sec. 11 (a)):
After the expiry of 18 months from the date of filing or the date of priority whichever is earlier, the Controller will notify the contents of the applications falling within the provision in the Gazette of India Part-III Sec.2 (Rule 25).
D. Term of Patent (Sec.53):
The term of patent has been enlarged to twenty years for existing patents and patents granted on pending applications. This term is calculated from the date of filing of the application.
Earlier the term of patent for method or process of manufacture of substance (e.g. food, medicines, drugs etc.) was five years from the date of the sealing of the patent, or seven years from the date of patent whichever period is shorter and in respect of any other invention, fourteen years from the date of the patent.
E. Burden of proof (Sec. 104 A):
The burden of proof in a proceeding for process patent infringement has been reversed and imposed on Defendant.
F. Fees (First Schedule):
The fees for filing a new application for patents has been reduced from Rs. 1500 to Rs. 750 in the case of an individual applicant and from Rs. 5000 to Rs. 3000 in the case of legal entity.
G. Prohibition to apply abroad (Sec. 39):
No person shall file an application or patent for an invention without applying in India or without the written permission of the Central Govt. If the applicant is not interested to secure a patent in India or the invention is not patentable according to the Indian law, he has to mandatorilly file an application for the said invention and has to wait for the expiry of six weeks after filing the application and then only file the corresponding application abroad for the same invention.
H. Date of Patent (Sec. 45):
The date of every patent will be the date of filing the application for patent. According to The Patent Act 1970, the date of patent was the date of filing of complete specification. The date of patent is very important to determine the term of parent.
I. Rights of patentee (sec.48):
The rights can be consider as negative because the rights of patentee, in the case of product patent, prevent third parties without the consent of the patentee, from making , using, offering for sale, selling or importing into India and the rights in the case of process patent, prevent third parties without the consent of the patentee, from the act of using that process and offering for sale or selling in India or importing for those purposes the product obtain directly by that process, provided that th e product obtained is not patentable under the Act.
J. The Powers of the Branch Office (Rule 4):
The branch offices of the Patent office have been vested with more powers. Under Sec. 68 the actions such as making a request of sealing of patents, registration of assignment (under Sec. 68) etc has to be made in the appropriate Branch offices of the Patent office and not at the Head Office as the case earlier.
K. Appellate Board (Sec. 2 (1a)):
Appeal Board appointed under the Trade and Merchandise Marks Act 1999 shall be the Appeal Board for purposes of Patents Act. This Appellate Board hears and decides appeals from the decision of the controller. The Head Quarter of the Appeal Board is to be in Chennai.
It is clear that the definition of term invention in Patent Act, 2002 has enlarged the scope of protection. The controller has also been vested with the power to consider the question of obviousness of the invention disclosed while conducting the examination of application for considering the grant of a patent for the invention. In this context it should be noted that in the Patent Act, 1970 the Controller has no direct power to consider the question of obviousness. The power is only for the opponents w hile opposing the draft of patents under Sec. 25 of the Patent Act, 1970. The effect of this amendment is that it may not be possible to get a patent for trivial modifications.
L. Time for placing the application in order for acceptance (Sec. 21):
The time frame for putting an application in order for acceptance subsequent to its first examination has been shortened to 12 months (non-extendible) from the date of First Examination Report (FER). The first reply to the first examination report is required to be made within 4 months of the date of its issuance.
M. Unity of Invention (Sec. 10(5)):
The concept of 'unity of invention' has been broadened to include a group of inventions linked so as to form a single inventive concept. The claims in a specification should relate to a single invention or a group of invention linked so as to form a single inventive concept. Now, by this amendment it may be possible to claim more than one process in a single application if these processes fall under one group and are closely linked.
N. Electronic Communication (Rule 6):
The documents can also be filed by electronic transmission duly authenticated. In that event the document should be clear, properly addressed and mailed and its original has to be submitted within fifteen days from the date of receipt of communication. The drawings can also be filed electronically.
O. Statement and Undertaking (Rule 12(4)):
For filing the Statement and Undertaking on Form 3 a provision has been provided to seek extension beyond three months.
P. Declaration of inventor-ship (Rule13 (6)):
The declaration of inventor ship on Form 5 should be filed along with the complete specification. An extension of one month beyond this period can be secured by filing a request on Form 4 with the fees Rs. 250/- pm if the applicant is an individual or Rs. 1000/- pm if the applicant is a legal entity.
Q. Abstract (Rule 13 (a) to (d)):
While filing the application accompanied with a complete specification, an abstract of the invention maximum 150 words have to be filed.
R. Application (Rule 20 (1)):
An application for patent corresponding to International application (PCT application) has to be filed on Form 1 A.
S. Licenses of right (Sec. 86 to 88):
The Provisions relating to "licenses of right" deleted.
T. Restoration of lapsed patent (Sec. 60):
The time for filing the request for restoration of the lapsed patent has been extended from one year to eighteen months.
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Patent Seven Ways To Keep You From The Wolves

    





    

 
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You have an invention or an idea for an invention. The first people you may hear about - or even may contact you - are from an invention development company. They advertise on radio and TV, and in magazines that cater to the inventive mind - and even some newspapers.
Invention development companies are private and public research companies that purport to help inventors develop, patent, and promote their ideas so they can be commercially licensed or sold. While many of these organizations are legitimate, some are not.
I state my stand on the use of such companies on my website - www.gadgets-gizmos-inventions,com. But, you may want to go that way anyway to develop your patent or invention. If that?s the case, here are seven helpful tips for you to make smart patent and invention development decisions:
?1. Learn About the Patent Process.
?When you understand the basics of how to get a patent, you will know when invention marketers are making promises they, or the patent system, can't deliver. Knowing the steps to do a patent search, and what is required, as well as knowing what happens in the patenting process can only help you in making the right decision. You will have a better idea about whether the company you are talking to knows what they are doing for you - and not just their pocketbook.??2. Do Your Homework.
?Check the organization's references, ask for credentials, and then check them. Ask them for statistics on how many successes they have had compared to how many total clients. They are required by law to offer you this type of information. In fact, the American Inventors Protection Act of 1999 gives you the following rights when dealing with invention promoters.
Before an invention promoter can enter into a contract with you, it must disclose the following information about its business practices during the past five years:
? how many inventions it has evaluated,
? how many of those inventions got positive or negative evaluations,
? its total number of customers,
? how many of those customers received a net profit from the promoter's services, and
? how many of those customers have licensed their inventions due to the promoter's services.
This information can help you determine whether the promoter has been selective in deciding which inventions it promotes, and how successful the promoter has been. Ask for names of ?successful? clients, and talk to them.
Invention promoters also must give you the names and addresses of all invention promotion companies they have been affiliated with over the past 10 years.
This information can help to determine whether the company you're considering doing business with has been subject to complaints or legal action.
You can call the U.S. Patent and Trademark Office (USPTO) at 1-866-767-3848, and the Better Business Bureau, the consumer protection agency, and the Attorney General in your state or city, and in the state or city where the company is headquartered to check them out.??3. Be Realistic.
?Not every invention is patentable. Know that very few ideas - even the good ones - become commercially successful. Be wary of any developer willing to promote virtually any invention. If you are presented with the phrase - "We think your idea has great market potential" - beware, and take it for what it is - in a lot of cases, just a sales pitch. ??4. Know Where Your Money Is Going.
?Ask the organization how your money will be spent. Be on guard against large up-front fees and find out exactly how the money is spent. If the company gives you something like - "Our company has evaluated your idea, and now wants to prepare a more in-depth research report. It'll be several hundred dollars" - ask them if the idea is good enough for more research why don?t they foot the bill. ??5. Protect Your Rights.
DO NOT disclose your invention to a developer over the phone (or at any time) before first having them sign a confidentiality agreement. You could forfeit valuable patent rights. A sample confidentiality agreement is available on my website. ??6. Track Your Invention's Progress.
?If you decide to use an invention development organization, deal directly with the agent or patent attorney who will be handling your patent application. A lot of these type of firms outsource the work which is not good for you.
Many invention promotion firms also may claim to perform patent searches on your idea. Fraudulent invention promotion firms usually do patent searches that are are incomplete, conducted in the wrong category, or unaccompanied by a legal opinion on the results of the search from a registered patent attorney.
Because unscrupulous firms promote virtually any idea or invention without regard to its patentability - they may go ahead and market an idea for which someone already has a valid, unexpired patent. In that case, you may be the one subjected to a patent infringement lawsuit - even if the promotional efforts on your invention are successful. Most probably, the way the infringement suit is attracted is through a successful product.??7. Don't Get Discouraged! ??The patent process can be very complicated, s o you will probably need professional help. There are many good patent agents and attorneys that can help you. The U.S. Patent and Trademark Office maintains a nationwide register of attorneys and agents who meet the legal, scientific and technical requirements of the office.
The first step should be a patent search done by a reputable searcher. Your patent attorney can help with this, and should review the search for a package price, depending on the complexity of the invention.
Hang in there. It is a long and complicated process. But if your idea passes the initial search test and evaluation, there is a good chance you can receive a patent - in two or so years.
For information on registered patent attorney and agents, you may visit the USPTO's Office of Enrollment and Discipline Web site at http://www.uspto.gov/go/oed.
© 2006 Gary Cogley

About The Author

Gary J. Cogley, JD, after being a musician, a TV Producer/Director/Writer, and an entertainment and IP attorney, now writes about all kinds of gadgets, gizmos and inventions. He also gives tips and info on patents, and scams to watch out for. Get info at: http://www.gadgets-gizmos-inventions.com

    
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Patent Filing India

    





    

 
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Patent Act 1970
What is Patentable?
Any Invention which is not obvious and is novel and not previously published in any country.
Any new and useful:
art, process, or method of manufacture;
Machine apparatus or other article;
Substance produced by manufacture.
What is Not Patentable?
1. Inventions contrary to law, morality and public health;
2. Which is Frivolous or claims which is obviously contrary to well established natural laws;
3. Mere new use or mere discovery of new property or new use of known substance or property;
4. Mere admixture resulting only in aggregation of properties;
5. Mere arrangement and rearrangement of known integers functioning independently;
6. Method for agriculture/horticulture;
7. Process for treatment on human beings, plants or animals.
8. A presentation of information;
9. A mathematical or business method or a computer program per se or algorithms.
Filing Requirements for Patent Application
1. Specification (Provisional or complete), Claims and Drawings; Name, address and nationality of the applicant;
2. Name, address and nationality of the inventor(s);
3. Details of the basic application in case any priority is claimed;
4. Authority/Power of Attorney.
Various Stages up to Grant
1. Examination - Patent applications are now not examined automatically. One has to file a request for examination within the period of 48 months from the date of the application.;
2. Grant of Patent in case there is no opposition.
Opposition to Grant
Opposition may be filed by any interested person within 4 months of notification of acceptance in the Gazette
Term of Patent
Patent is granted for the period of 20 years from the date of application.
Revocation of a Patent
Validity of a patent granted under the Act, may be challenged only in a High Court in revocation proceedings Under Section 64. The revocation petition cannot be filed before the Controller of Patents.
Rectification of Register of Patent
1. An application for the rectification of patent can be filed by any person aggrieved, before the Appellate Board on any one or more of the following grounds:
2. On account of absence or omission from the register of any entry; or
3. On account of any entry made in the register without sufficient cause; or
4. On account of any entry wrongly remaining on the register; or
5. On account of any error or defect in any entry in the register.
Infringement Action
Unauthorized making, using, selling or distributing of a patented product/process amounts to an infringement. Action against infringement may be instituted in a District Court or High Court having jurisdiction. Criminal action does not lie unlike in Trade marks and Copyright. In case of any infringement of pending patent, no action can be taken unless the complete specification has been advertised as accepted.
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Overdue Library Books Can Hurt Your Credit Score

    





    

 
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As municipal governments increase efforts to collect unpaid parking tickets, dog-catcher fines, library fines and the like, some consumers are seeing a surprising impact?a radical drop in their credit scores.
To each individual consumer, the fines in question may be very small and collection actions may seem petty and unnecessary. For many cities, however, these unpaid fines and fees add up to millions of dollars a year. Those dollars can be collected with little investment by the cities if they?re turned over to private collection agencies.
Private agencies typically charge a percentage of the balance actually collected, so there?s no risk to the government. The risk to consumers who don?t make those payments in a timely manner, however, is significant. That?s because collection agencies report delinquencies to the three major credit reporting agencies. A single collection item can drop your credit score as much as 100 points. Many consumers don?t know that charges like this can affect their credit.
While not all municipalities use private collection firms, the trend is increasing across the country. As government collection activity rises, so does the number of consumers surprised to discover that they?re paying higher interest rates?or being turned down altogether?because the kids lost a library book or they neglected to renew Rover?s license.
If such charges are already appearing on your credit report, you may be able to negotiate their removal in exchange for payment. Getting items removed from your credit report can be a long and stressful process, though, and there?s no guarantee that you?ll be successful. The best defense is to be aware of the risks and make sure you pay those parking tickets on time.

About The Author

Tiffany Sanders is an attorney who has published two books. Her articles have appeared in numerous newspapers, magazines, newsletters, and web resources in the United States and Australia. She writes bankruptcy law news and articles for www.TotalBankruptcy.com, where sponsoring attorneys provide extensive consumer information and resources related to bankruptcy filing and rebuilding credit after bankruptcy.
(C) 2006, Total Bankruptcy, Inc. This article may be reproduced in its entirety without limitation and without notice, except that any reproduction must include the entire article, which may not be modified in any way, and must include the author bio information contained herein, including the URL and, if published online, a live link to the URL included therein.

    
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No Win No Fee Solicitors

    





    

 
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It is a sad reality that people meet accidents. The physical toll of an accident-related injury can vary from slight inconvenience to, at the very worst, debilitating injuries that could affect not only a person?s ability to earn money but also his quality of life. The stress that results from the accompanying problems that crop up after an accident can also have a major negative effect on the victim. For every kind of accident, the party or parties responsible for the commission of the accident should face up to their liabilities.
But the sad fact is, most people who meet accidents do not usually pursue any legal actions against the guilty party or parties, for the simple reason that legal fees can be very expensive. Already faced with the expenses for medical care and medicines and sometimes even rehabilitation, and the ability to earn a living already compromised, most accident victims just grin and bear it and opt not to file any charges or legal complaints. This is a reality that most accident victims have to contend with.
But accidents victims should always remember that they have the legal right to compensation for the injuries they have suffered from accidents, especially if there is a clear fault of negligence from certain individuals or entities. But far from the compensation that they will get for the injuries and lost revenue that they have suffered there is also a more important reason for filing legal charges for accidents. It is their responsibility as a citizen to have these incidents reported and, if possible, prosecuted so that the accident will not happen to other people. These parties who have caused the accident or have, through their negligence, precipitated certain factors to cause it should be made culpable for their actions.
Fortunately, there is one way for victims to file the necessary legal charges for the injuries that they received from accidents without necessarily worrying about the costs. In some cases you can use a system where you only need to pay the legal fees if you win the case. This is called a conditional-fee agreement, or a ?no win, no fee? agreement.
A ?no win, no fee? agreement can help pay solicitor costs, unless the case involves family dispute or a matter of a criminal nature. Under this agreement, the victim?s solicitor will take on the case but he understands that if the case loses then he will not get paid. It should be made clear though that there are other costs involved that are not covered by the agreement. For example, even with a lost case, the complainant will still pay the opponent?s legal costs and the disbursements of the complainan t and the defendant. But an insurance can be taken to cover the aforementioned payment if ever the case is lost. This can be arranged by the solicitor. If the complainant wins the case, he will pay the solicitor along with his disbursements. A solicitor may also charge a ?success fee? as a means of compensating the solicitor for taking the risk of not being paid if the case is lost.
Truly, with a ?no win, no fee? agreement, the dispensation of justice for the victims of accidents does not have to stop because of limited funds.

About The Author

Mark Lawson is the webmaster for Accident claim http://www.accidentclaim.uk.com a legal information site. This article is free to republish provided this bio box remains with working hyperlinks.

    
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New York Scaffold Law Protects New York Construction Workers

    





    

 
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There is a great deal of misinformation concerning the New York Scaffold Law. The Insurance and Business Community are wrong when they say that construction workers who are ?lax about wearing safety gear? and fall from a height and are injured can hold their employer liable under New York Labor Law Section 240, the ?scaffold law.? The Court of Appeals ruled definitively in /Cahill v. Triborough Bridge and Tunnel Authority/ that if a worker has been i nformed about and given safety equipment and fails to use it ?for no good reason,? the employer cannot be held liable under the scaffold law for any resulting injuries.
Indeed, under the scaffold law, if a worker is the sole cause for whatever reason of his or her injury, the owner or general contractor cannot be held liable. An owner or general contractor can be held liable for a worker?s injuries only if their failure to provide appropriate safety equipment for work at an elevated height, like harnesses and properly constructed scaffolding, was the cause of the injuries.
The authors are also wrong when they blame rising contractor liability insurance on the scaffold law. In recent years, contractor liability insurance premiums have risen just as fast or even faster in many states ? and in some countries ? that have no scaffold law. In the United Kingdom, contractors report that liability insurance hikes of up 300% and more are putting many of them out of business.
Enforcement of construction safety by the U.S. Occupational Safety and Health Administration has been weak and ineffective. Without the scaffold law, the numbers of construction worker injuries and deaths in New York would surely be greater.

About The Author

Angelo G. Faraci is the founding partner of Faraci Lange, one of Western New York's leading personal injury firms. He can be reached at (585) 325-5150 or info@faraci.com. You can also visit us at www.faraci.com.
    
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My Fathers Will

    





    

 
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The year was 1981, the state was Florida, and I had just flown back from Germany for my father's funeral. My sister and her family were down from New York, and, a few days after the funeral, we were sitting with my mother in a lawyer's office in downtown Pensacola. My mother had just learned that she didn't have any say over what happened to the money she and my father had saved over the years, and she didn't have any control over what happened to the house they had paid for together. She was at the mercy of the State of Florida because my father had died intestate - without a Last Will & Testament.
Fortunately, she and my father had raised their children well. All that was required was for my sister and me to sign a paper relinquishing our claims to any part of the estate. Had we not signed, however, the estate, including the house, all the money in savings, and the $40,000.00 in Certificates of Deposit would have been divided among the three of us. That was the law, and that was the result of my father not having a will.
My sister and I did not hesitate for an instant. We signed without any problem, but how many families could say that all the possible heirs would be so compliant and agreeable? Even worse, each state has its own way of dealing with the distribution of assets to the heirs of someone who dies without a last will and testament.
There are a lot of options available in addition to the commonplace will for protecting the distribution of assets upon someone's death, including such things as living trusts, but the Last Will & Testament still ranks as one of the simplest and best ways of insuring that your heirs will get what you want them to get without the intervention of courts and lawyers. Taking that for a fact, a Last Will & Testament is one of the most important legal documents a person can create during his or her lifetime: it is the document that determines who receives the assets of that person upon his or her death.
The laws of most states are designed to provide the assets of an estate first to the surviving spouse and then to any children of that person if the spouse is no longer living, but this hierarchy of distribution is not always guaranteed. Indeed, in our case, all three of us, my mother, my sister, and I were considered to be equal in our claims upon the estate. When you think about it, my mother and father had paid for the house without any help from us, and for most of the years she had worked as a gr ade school teacher, my mother had willingly put every penny of her paycheck in their savings account in the expectation of them having that money in their senior years. The laws of the State of Florida said that she no longer had an unchallenged claim to that house or money.
Setting aside just a few minutes to visit a lawyer or fill out a legal Will form is simply smart estate planning. A Last Will and Testament will guarantee that your family receives the assets of your estate in the manner you desire when the time comes. Why allow the uncertain vagaries of state laws and the decisions of someone who knows nothing of you or your family affect your spouse's finances or your children's finances after you die?
Creating a legal Last Will and Testament document allows you, the maker of the Will, to specify exactly who is to receive the assets of your estate. Creating a Will shortens the any legal processes exponentially, as the only major question remaining before the distribution of assets is the authenticity of the Will, which can easily be proven by the signature of the notary. Creating a Will removes nearly all questions about the distribution of the assets of an estate and speeds the transfer of those asse ts to the designated survivors.
Even though the obvious value of having a will may fall victim to a person's uncertainty about choosing a lawyer, or the costs associated with hiring an attorney, there are many other options available today. Many office supply stores have forms for a Last Will and Testament, and there are many sites on the internet where you can find forms, software, or services which will help you prepare a perfectly legal Will for a fraction of what an attorney would charge. You can even write your own will if you wish, but be aware that it is easy to say the wrong thing if you are not aware of the requirements of the law, and a good form or software program will help protect you against most simple errors. Of course, someone with a large estate, or someone with a complicated distribution problem should contact an attorney rather than attempting to prepare a Last Will and Testament themselves.
Copyright 2006 Donovan Baldwin

About The Author

Donovan Baldwin
Retired from the Army, the author has worked as an accountant, purchasing agent, optical lab manager, restaurant manager, instructor and long-haul truck driver. An active internet marketer since 2000, he now makes his living online. He offers a selection of legal software and forms at http://www.legal-forms-supermarket.com/.
    
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Misconduct Investigations When Punting Can Save the Game

    





    

 
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A bungled investigation can quickly turn a reasonable, still employed complainant into a hurt, damaged and angry former-employee-plaintiff. --Anonymous
For Tammie C. Allen, former admin assistant to MTSU President Sidney McPhee, the unsolicited advances, kisses, groping and requests for sexual activities from her boss were less injurious than the humiliating and biased sexual harassment investigation that followed her complaint. She expressed this outrage in a civil complaint, seeking monetary redress for incurred medical expenses and "severe emotional distress, mental anguish, indignation, wounded pride, shame and despair." Among the allegations: the investigators were under the direct supervision of the alleged offender; Ms. Allen?s attempts to provide the investigators with more witnesses to the alleged sexual harassment were ignored; Allen took a polygraph test in November to prove her case, but the TBR refused to consider that as a piece of evidence; her request for a meeting to discuss the findings of the investigation was denied; she received an involuntary transfer following the investigation that resulted in less responsibility, prestige and pr omotional opportunities.
Just the FACTS
The integrity of the investigatory process will be jeopardized if the investigator is perceived (rightly or wrongly) as partial or sympathetic to one view or another. In some situations, the conclusion of an internal investigation and the action it took based on the investigation will be questioned either as a whitewash or as a pretext for firing the individual without breaching his contract. This is just one of the circumstances where it pays to bring in an outsider. However, until March of this year, third-party investigations of employee misconduct were subject to the notice and consent requirements of the Fair Credit Reporting Act of 1970. At the same time, Supreme Court decisions in Ellerth and Faragher [Burlington Industries, Inc. v. Ellerth, 73 Emp. Prac. Dec. (CCH) ?45,340 and Faragher v. City of Boca Raton, 73 Emp. Prac. Dec. (CCH) ?45,341] made it imperative for employers to conduct investigations of harassment allegations in order to meet the second prong of the affirmative defense. Employers were in a double bind, attempting to comply with the requirements for a reasonable investigation while also complying with the FCRA requirements.
Third-party investigations of employee misconduct are no longer subject to the notice and consent requirements of the Fair Credit Reporting Act of 1970 (FCRA). On December 4, the President signed the ?Fair and Accurate Credit Transactions Act of 2003,? P.L. 108-159. Section 611 of the new law amends the FCRA?s definition of ?consumer report? to exclude communications made to an employer in connection with an investigation of (1) suspected misconduct relating to employment, or (2) compliance with federal , state or local laws and regulations or pre-existing written employer policies.
The 2003 FCRA amendments clarify that communications to an employer by outside third parties hired to investigate employee misconduct or compliance with the employer?s pre existing written policies will not be considered ?consumer reports? and will not require advance notice or authorization. If any adverse action is taken based on the communication, however, the employer generally will be required to disclose to the employee a summary containing the nature and substance of the communication.
The Trend Toward Outsourcing
However, even before the FACT Act was signed, many employment attorneys and human resource professionals had begun advising employers to pay more attention to conducting a reasonable investigation than worrying about avoiding the FCRA requirements. There were some court decisions that pretty much dismissed the FTC opinion letter and follow-up opinions of the FTC General Counsel. Recent opinion has shifted toward using third party investigators, with or without full compliance with the FCRA, as interpret ed. Part of this advice was EEOC-driven. Chairwoman Castro has repeatedly emphasized the EEOC?s position with respect to the importance of using outside investigators to conduct investigations into suspected discrimination or harassment. Specifically, Chairwoman Castro noted that the use of outside investigators is important:
1) where the employer lacks the resources to conduct investigations in-house 2) where the employer wishes to have an objective and unbiased party investigate the conduct at issue; 3) where the conduct complained of was perpetrated by very high-level employees within the company.
Although the EEOC does not generally require employers to use outside parties to conduct investigations into harassment claims, the EEOC has expressed the view that using outside investigators is important in certain circumstances, and may even be necessary where the accused harasser is a senior company official or where there is otherwise a conflict of interest. Examples of such conflicts include situations where an investigator:
* Has a personal relationship with either party.
* Has witnessed any alleged material occurrence.
* Has very strong feelings about either the complainant or the accused
Thus, employers who indiscriminately conduct internal investigations not only lose what advantages exist for having neutral third parties conduct such investigations, they risk running afoul of EEOC guidance.
When to Outsource ? And Why
While most employers are mainly concerned about liability to the victim of misconduct, there is a growing trend among employees who are accused of and disciplined for misconduct to strike back and accuse their employers of violating their rights during the investigatory or disciplinary process. Conducting a fair and thorough investigation reduces the risk that an employee will be disciplined or discharged for something he or she did not do and provides a powerful defense against a claim that the company condoned unlawful conduct in the workplace.
Employers should consider using an outside investigator for four reasons:
1) Promptness. Despite the need to promptly investigate allegations of misconduct, investigations are not always management?s number one priority.
2) Expertise. Outside investigators are specialists whose expertise results in a more thorough investigation, especially where the organization involved is a small one. This expertise is particularly critical when the allegations are serious in nature and the stakes are high, such as sexual assault. In addition, outside investigators have the courtroom experience that will make them a powerful witness should the complaint eventually go to trial.
3) Impartiality. Although the employer hires the investigator, Morgan believes there still is the sense that the investigation is not an ?inside? job. Based on my experience conducting investigations, I believe people are more open and more willingly share more information with an outsider, especially when the allegations are against a high-ranking individual in the organization. The objectivity of an internal investigation in that scenario is more easily quest
4) Confidentiality. There is a strong need for confidentiality for the persons who are asked to report what has happened. They are often concerned about retribution, so the ability to offer a considerable blanket of protection is helpful. When I am hired to conduct an investigation, I want to know to what degree the comments I gather will be held in confidence by management.
The Bottom Line Increasingly, the scales are tipped in favor or employers who use outside investigators to investigate misconduct allegations, particularly when they involve a potential conflict of interest, possible litigation, or high-ranking individuals.
Checklist: Advantages of Using An Outside Investigator Now that employers are relieved of some of the notice and disclosure requirements of the Fair Credit Reporting Act when investigating allegations of misconduct, they may want to consider some of the following advantages to bringing in an outside investigator.
- Knowing that he or she will not have to ?live? with either the accused or the accuser after the investigation may help the investigator remain impartial.
- The outside investigator has no previous experience with any of the parties involved and so comes to the investigation without the kinds of prejudices that arise from knowing someone?s past performance or history.
- Witnesses may be more forthcoming with an outsider, not having to fear that what they tell the person may someday become ?conversation around the water cooler.?
- Using someone from an outside investigation firm may benefit the investigation as he or she could be familiar with the type of investigation needed and have questions to ask or tools to use that might not have been thought of internally.
- The outside investigator will be brought in specifically for the purpose of carrying out the investigation and will not require that someone from the organization find time in his or her schedule to do the work.
Copyright 2006 Joni Johnston

About The Author

Joni E. Johnston is a clinical psychologist and CEO of WorkRelationships, (www.workrelationships.com) an employee relations training and consulting company that helps employers turn employment liability into employee productivity.
    



    
    
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