EDD slowly getting back to you? You are not alone....

A few of my clients were complaining to me about how slow it is for someone to get back to them. They've even sent a few emails with no response. Apparently, they are not alone. This article explains: "On Nov. 6, an Assembly committee held a hearing into the EDD problems. Several lawmakers said they'd heard numerous complaints from constituents, and some estimated nearly 150,000 claims had been delayed for weeks because of the computer system change." The new "system" has caused a great cloud of confusion and delays. It is frustrating! People are complaining to be waiting for months or even a year. Something that is set up as an "emergency fund" for people who were recently laid off should really act like an emergency fund. 

What an attorney (me) does for EDD (unemployment insurance) appeals....

Friends and colleagues ask me why an attorney (aka, me) needs to be involved in EDD (unemployment insurance) hearings. Can't people do it themselves? Yes, but....

In cases where the employer appeals the case, it is a little easier, but not always.

But in cases where the employee is the one appealing, the burden is on the employee to put on his/her case.

I really only get involved when there is a complicated issue at an appeal. Most of the time the time I help people file an appeal when their claim was outright denied. This is very common, since the claimant's first appeal with the entire EDD-entity is a short phone interview. It seems to me that most of the time, the first interview is where the person's story got lost. It almost seems logical to me that this first interview is where people should have a lawyer help them.

I have been successful helping people at their appeals hearing mostly because I help claimants put together their case. I figure out what is really at issue, and what the judge will focus his/her energy on in the short amount of time allocated to the hearing. Most of the times, when someone gets let go, they get really upset and emotional. This is understandable. But, this often makes the person focus on the wrong thing when they go to their EDD hearing. I  help clients bring their side of the story. I go through many phone interviews and fully understand what happened and what issues will come up at the hearing (and let them know not to worry, something they were embarrassed about is not going to come up). Sometimes I find a key evidence that the claimant didn't know was relevant.

Unemployment insurance codes and precedents (previous decisions) are a little quirky. Even seasoned attorneys in employment law don't necessarily understand the nuances of EDD. Sometimes a case can win in EDD but not as an employment lawsuit. I have talked to a few clients who went through a couple of attorneys who all told them they don't have a "case". Actually, they probably don't have an employment law case, but that doesn't mean they don't have a case for unemployment insurance.

Usually the claimant also has other underlying employment related issues, and getting unemployment insurance is my first step in helping them. Lawsuits can take a year, if not years, and labor board complaints can take a year or more to set a hearing. I usually recommend (and assist with) EDD hearings, then I help with other employment issues such as wrongful termination, breach of contract, discrimination, harassment, unpaid wages, misclassification of independent contractor, etc., all of which take much longer to resolve.

I believe this niche can really help people. Time is very rough for people who have just been fired or laid off or forced to quit. As an employment lawyer, my job is extremely emotional sometimes because I have to explain to them the reality of at-will employment. But, I explain that unemployment insurance is there to help people in this situation.

I am an attorney in California. I have successfully pursued cases against employers on behalf of my clients. If you feel that you have a case, let me know at attorneycharlottelin@gmail.com. See more information on employment law on my new website at www.lincharlotte.com.

Common theme: Misconduct with EDD (Unemployment Insurance)

This probably happened to someone you knew at one point or another.

You get let go.

You apply for unemployment. Maybe things went smoothly at first since you got your unemployment checks for the first few weeks. Then all of a sudden you get a letter in the mail. You former employer is claiming “misconduct” and why you shouldn’t be eligible for the unemployment checks that you are now depending on to pay your rent and bills. They even set in a few "write-ups" to EDD about you to prove how bad an employee you were. Perhaps you never even seen one or two of these write-ups until now. Words like “insubordination” suddenly shows up. 

Suddenly you feel like a criminal! Someone is accusing you of misconduct!

I get a lot of callers with this same problem. For most of them I can say that based on what they’re telling me, it doesn’t seem like “misconduct” at the EDD level. Then we have to take it to appeal and fight what the employer accused him or her of. Most people are angry or at least very upset when this happens.

First, I need to clarify that California is an at-will employment state. This means that your job is presumed to be terminable “at will” by either party. An employment, having no specified term, may be terminated at the will of either party on notice to the other. In general, your employer can let you go for any reason, as long as it is not an illegal reason (but that is the subject of another long blog yet to come). What I am explaining in this blog is whether the reason you are terminated qualifies or disqualifies you for unemployment insurance/EDD. This blog does not discuss wrongful termination or California employment law.

Ok, so a big bummer is that your employer can terminate you for any reason. There doesn't even need to be a reason. So, it is my belief that unemployment insurance is to help people in this situation.

I help clients with their EDD appeal hearing. Either they had their appeals hearing set right away, or I have to help them ask for a hearing so their case can be heard. As a caveat, I only assist with appeals and hearings, I don’t handle administration with EDD such as filing claim forms.

One very repetitive theme for EDD hearings is “misconduct”. Many employees get charged with Unemployment Insurance Code 1256, which is: An individual is disqualified for unemployment compensation benefits if the director finds that he or she left his or her most recent work voluntarily without good cause or that he or she has been discharged for misconduct connected with his or her most recent work. So at the appeal hearing, the issue is whether there was misconduct that rose to the level to deny EDD benefits. To me, that is a very hard threshold to meet. 

Rules within EDD appeals can get very complicated. “Misconduct” has many different subcategories such as aiding competitor, falsification of work application, cash shortage, improperly channeled complaint, disobeying orders, exceeding authority, use of drugs, damage to equipment, not meeting quality or quantity of work, neglecting duty on the job, poor relations with customers or coworkers, etc, etc etc. Each of these subsections also has it’s own sub-subsections, and the rules within each subsection or sub-subsection can be very confusing.

There is a huge list of reasons an employer can claim “misconduct” for EDD purposes, but each of those reasons have to be very specifically met. And that is usually what we are fighting over at the EDD hearing in front of a judge. The employer will argue that something constitutes misconduct for EDD purposes, and I will argue that it does not amount to misconduct.

Let’s take “quality of work” as example (which is a popular choice). An employer can simply say: we don’t like the employee’s work product, it’s not up to par with our standards. An employer may use this as a reason to fight the employee’s unemployment claim and argue “misconduct”. They may even write a few post-termination "write-ups" claiming that employee was insubordinate or that on xyz date they couldn't find employee at their post. These post-termination write-ups are very suspect with me. 

Under Title 22, Section 1256-38(b)(1): “Ordinarily inability or incapacity to perform the job or inefficient performance is not misconduct.” The explanation goes on to say that if the employee did poor work because of inability to do better, it is not misconduct. This means that if the employee only weighed 140 pounds, and was ordered to stack bags of concrete weighing 250 pounds each, the employee’s inability to do the job is not considered misconduct. Employee may also be unable to do the work as a result of physical, mental, or emotional problems not within employee’s control.

In a precedent decision by EDD, it was found that merely being inept to do the job is not misconduct.

Also, if the employee had a vision issue that caused him or her to not be able to perform their job, but did not consult an optometrist or refuse to wear corrective lenses, it is considered misconduct because the employee had the power to control the inefficiency.

And one more thing to consider is, did the employee have the ability to do better? If the employee was able to do better, and then all of a sudden the work performance deteriorated, with no explanation for the deterioration, there is misconduct. So, you cannot be the star employee for 3 months, and all of a sudden start to have performance problems. Usually, there needs to be some sort of warning from the employer before they can establish misconduct. But, an isolated instance of mistake by the employee does not count as misconduct.

Just to make it more confusing, this doesn’t mean you can simply start slacking and still get unemployment insurance payment. EDD rules that it IS misconduct if the employee willfully fail to perform to the best of his or her abilities. If the employee does nothing to improve his or her performance, or if the sub-par performance is entirely within his or her control, that is still misconduct. If the employee knowingly and willfully failed to perform to the best of his or her ability, it is considered misconduct. So, if you know you can do better (and there is documented performance reviews and awards to prove you did better), and you simply slacked off, you probably won’t win your case.

Every case is different, and not all rules will fit perfectly with your case. Some cases may have multiple reasons and theories. I can’t go into all the different rules and nuances within this blog here, but hopefully I shed some light as to this complicated issue.

I am an attorney in California. I have successfully pursued cases against employers on behalf of my clients. If you feel that you have a case, let me know at attorneycharlottelin@gmail.com. See more information on employment law on my new website at www.lincharlotte.com.

My "opinion" on Red Light Camera Tickets...

Lawyers cannot give guarantees. We may be able to give opinions, but even then it is hard. In general, defending traffic tickets will vary county to county. The outcome of your case will very much depend on the county you are in, the judge you get, the officer that wrote you the ticket, the police/sheriff/CHP agency's policy, and your own previous records. For these reason it's always hard for me to give an opinion on each individual's outcome because of different factors.

Defending these red light camera tickets are no different. It's really an art. Some defenses work on certain judges but not others. So if you are reading things online and see something that worked for someone else, don't expect it to guarantee to work for your individual situation. Sometimes the officer will be reasonable and dismiss on his own motion. Sometimes the judge will dismiss the case if the officer doesn't show up. Sometimes the judge will NOT dismiss the case and set a continuance and make both sides come back again if the officer had good cause not to show up. Sometimes you get lucky, sometimes you don't. Some judges will automatically reduce the fine, some judges need you to argue why your fine should be reduced, some judges will never reduce the fine. For red lights camera tickets, sometimes the judge will order the defendant in for trial (when in general for traffic tickets the attorney can appear on behalf of the defendant so the defendant does not need to take a day off to go to court). One thing I do when I talk to people about these tickets is based on my experience with xxx agency and xxx county (although I mainly practice in Ventura County), etc, what is the likely outcome, but of course I can't make a guarantee, then I let them decide if they want to hire me to help them.



I am an attorney in Ventura, California, and I do handle traffic and DUI cases.  I defend red light camera tickets (Oxnard or Ventura). See my case results here: http://lincharlotte.com/traffic-case-results/. 
If you need help with your upcoming traffic or DUI case, please contact me at 805-517-4LAW or 805-517-4529, or email me at attorneycharlottelin@gmail.com. Please visit my new website at www.lincharlotte.com for new traffic and DUI legal information. 

Red light camera ticket - the nomination form aka "snitch" ticket

I have been meaning to write about the "nomination" forms that accompany the red light camera tickets that comes in the mail. Once in a while a person gets one of these tickets in the mail, but they are not the real driver. The real driver is usually someone close to that person- gf, bf, parents, siblings, cousins, or friends. The person is then stuck with the decision to "rat out" the driver, making the ticket the real driver's problem. I defend traffic tickets in Ventura County. In Ventura County, these tickets start at $480. With fees to attend traffic school, AND traffic school fee, this can add up to $600. If the ticket is overdue, there can be up to $300 fine on top.

Without ratting out the real driver, one can try to fight this ticket in court. I have taken a few tickets to court in these situations where the wrong driver was identified. As a defendant, you have a 5th amendment right to remain silent, meaning you do not have to tell who the driver is. Also, the burden is on the government to show that you were the driver. The burden is not on you to show you were not the driver, nor is the burden on you to tell who the real driver is.

But, exercising these basic rights are sometimes easier said than done when it comes to these tickets. 

I had a personal experience of arguing with the clerks office over this nomination form. I had to get a on calendar for arraignment. The office "insisted" that a nomination form is the only way to get a ticket dismissed, and therefore they refused to set the case for arraignment. Not true. I had to argue with them on basic constitutional rights (especially on 5th amendment). And even then it was a pretty ugly battle. I thought to myself, would it be worth it for most people to go through this? Probably not. My guess is one would just pay it in hopes to avoid any sort of drama like this.   (After an hour of argument I was able to get the case on calendar. That ticket was actually dismissed in trial). 

In another situation, I also had the unpleasant experience when an officer confronted my client in front of me, basically asking him on the spot to turn over the real driver. I had reminded my client not to say anything to anyone, especially if anyone asks him about the identity of the driver. Thankfully he remembered not to cave in on the spot. The officer eventually scurried away, but the whole ordeal was uncomfortable. I can imagine this sort of thing happening to other people trying to go to court themselves to fight these tickets. (That ticket was also dismissed).


I am an attorney in Ventura, California, and I do handle traffic and DUI cases.  I defend red light camera tickets (Oxnard or Ventura). See my case results here: http://lincharlotte.com/traffic-case-results/. 
If you need help with your upcoming traffic or DUI case, please contact me at 805-517-4LAW or 805-517-4529, or email me at attorneycharlottelin@gmail.com. Please visit my new website at www.lincharlotte.com for new traffic and DUI legal information. 

My humble cost of starting/running a law practice...

I was doing some bookkeeping this weekend and pondered what was the true cost of running my law/business. I remember reading this blog a while ago from Lawyerist (http://lawyerist.com/the-cost-of-starting-a-solo-law-practice-and-keeping-it-going-for-at-least-a-year/). Lawyerist is also a great blog for solos and young attorneys if you don't already have it in your blog feed). Actually as I was writing this post I found out that the original blog has been updated with another blog (http://lawyerist.com/how-much-it-really-costs-to-start-a-law-firm/) that discusses the recommended cost of starting a practice. Apparently there was some controversy over the $3000 amount. So I thought it'll be fun to compare my experiences against both the theoretical $3000 vs the updated blog that claims to be more realistic.

I am by no means endorsing this as what I recommend, or claiming that this is the ideal budget. I am just listing this to show what my budget is at the stage that I am in. The budget will also depend on what stage you are in. And to clarify, the stage I am in is still the "experimental" stage, where I am still  figuring out what I really really want to pursue (in lean startup fashion). This means I may be doing things on a shoe-string budget while I am learning and refining, rather than investing in some big ticket items such as software licenses or expensive furniture.

So, my cost at my current stage:

The can't-get-away-with costs
Physical space- $130/month for virtual office for 8 hours a month.
I agree with the updated blog. In 6 months you WILL need to find an office or some kind of space to meet clients. Around this point meeting at starbucks or Panera (with my favorite startup clients actually) is just not enough. It is way too hectic, there is no privacy, and you have no way to make copies of important documents (details!). I was sitting outside starbucks on the patio and important papers flew out of my file, and the client had to run after it! (embarrassing?)

But in comparison, I did have an office in the beginning. In month one I just didn't have the traffic to justify the space (and paying the rent was quite a burden on my startup budget). So now I am exploring the concept of something in between- like a virtual office to rent for a few hours a week. But again this will depend heavily on your area of practice. If you are doing all contract work for other attorneys, you probably don't need an office.

Efax
$6/month
I always wonder why in 2013 we are bending over backwards to make an old technology work. Basically with efax we are transforming a "scan" into a "fax". This topic is beyond me. I just accepted the fact that most administrative agencies and courts will ask if you have a fax. I actually felt bad that a judge had to overnight an order to me rather than have the ability to fax it. So I caved in and bought a cheap efax service.

Google Phone
Free BUT cell phone charge =$100/month.


Lexis/Westlaw? Local library = FREE, but consider how many trips you will have to make.
Thankfully the law library is attached to my local courthouse. So I have a running list of books I need to pick up or caselaws or CEB chapters I need to download, and get them all at once when I make a trip down there. May be a bit inefficient, but I did sign up for one of these services at one point. The cost of using these services by the month will add up and it just doesn't justify my practice for now (this may be different if you were a full time researcher or litigator).

Bar Associations
$70 VCBA + varies for local section. Local sections may be important because of the ever important listserves.
I may add LACBA membership, but these fees add up.

MCLE = Varies
Practice guides to buy = varies
Some guides you can get at the library, but for some niche practice areas (like special ed or immigration) it may be pretty tough to find a copy from the library.

Ink cartridge = $12/month

Legal Malpractice insurance = $500 first year

Hosting service for websites = $5/month

Stamps = random

The costs I don't know if they count
Laptop/computer cost- well, I am still using the same one from my 3L year.

*update: may be doing the upgrade to an imac soon ($2000). I find I am more productive on a desktop. Plus it gets too hard to have to copy/paste from 2 windows or reference multiple windows to get some work done on my tiny 15 inch laptop.

Printer/scanner from costco = around 2-300. Should probably add this on your christmas wishlist!

health insurance = $114/month for now. But this is not all inclusive.

Buying domains = $12, but discount codes available. I also buy alot of domains so my budget here may be an outlier.

Hiring someone to modify wordpress= around $300 market rate

Auto insurance/gas - this counts if your job is to drive area to area.

Business cards from Vistaprint = $10 about
If you are doing direct marketing, the cost of envelopes and stationaries may add up substantially. For some reason the envelopes are exponentially more expensive than the letterhead.

marketing in general
Some you can get away with for free like Craigslist or free online yellowpages-type profiles.
If you get into google ads, the cost will go up depending on your practice area and keywords.
Then there's other traditional marketing.

Costs I haven't considered
incorporation- in CA would be $100 plus $25. Update: don't forget the yearly tax bill for a corporation! (I believe it is $800/year) This could make or break your first year budget.

secretary/paralegal. Many people would argue this is the key to a practice- getting help from someone who really knows the system. Also many argue how invaluable it is for someone to answer your phones. Right now, I am compromising by letting google voice filter out the calls.

But overall, even taking out the things I haven't considered, or things that don't really count, it's really still cutting it a bit close to claim you can start up a practice in less than $3k. Remember, everything here varies by the person, the practice, the geographic location, etc.

What's your startup budget??

inspiration blogs

Richard Branson's blog sparks inspiration and motivation in entrepreneurs and lawyerpreneur:
http://www.entrepreneur.com/article/226386

I also read this as refresher:
http://www.inc.com/geoffrey-james/8-pitfalls-on-the-path-to-success.html
Particularly important to me is the part about laziness/goal setting. It's too easy to get lost doing every little task imaginable (especially if you are truly "solo" like me and doesn't have the luxury of an assistant). Setting mini goals and long term goals are super important to keep yourself on track.
Also what is particularly important is the issue of being honest. You never want to overinflate or overexaggerate or give false promises on what you can do or if you can help someone when you truly can't.

Successful, yet humble entrepreneur Daymond John talks about past failures, and the importance of learning from it! (not a blog, though)
http://www.entrepreneur.com/video/playlist/11
my takeaway- keep figuring it out til I find that one key. don't start doing things I don't enjoy or aren't good at (and there are many things I am not good at, am not interested in, or just plain don't enjoy. I've learned to refer the out or not waste time pondering over them, but instead spend time learning/figuring out what does interest me and what I'm actually good at).

California wage and labor laws taken seriously...

I have been following California employment law lately. If you are an employer in California, you need to pay close attention to employment law and labor codes. Things like not paying wages or not paying overtime are serious. First, the employees can take you to court themselves. The employees can also take you to the Labor Board. If the violations are serious enough, the Labor Commissioner may get involved and initiate its own investigation and case. Also, California has the Private Attorney General Act (PAGA), which allows private attorneys to prosecute employers on behalf of the Labor Commissioner. The employee's private attorney can not only pursue the employee's claims but pursue claims on behalf of other employees --- which means collect all of those wages and penalties for other employees who didn't hire an attorney. The awards and penalties are then split among the employees and the Labor Commissioner. And finally, if the violations are serious enough to be criminal, the case can be forwarded to the District Attorney.

Some recent articles...

Employer got cited by Labor Commissioner to pay >$100k in overtime wages, plus penalties for failing to pay overtime, plus $300k for issuing improper itemized/ deduction statements. Apparently, the employer (garment maker in LA) pays its workers by the number of pieces they make. Even if paying by the piece, the itemized statements must show the number of pieces made plus the total number of hours worked. It seems that the employer violated the law by not providing proper pay stub information and used piece rate to go around the overtime laws, which is very highly frowned upon by the Dept of Labor.
http://www.marketwatch.com/story/california-labor-commissioner-fines-garment-contractor-for-wage-theft-2013-04-11

This one is a little more serious and involves more than just the Labor Commissioner. The case was serious enough to get forwarded to the DA. The 2 defendants are actually charged with criminal FELONY, with counts varying from worker's comp fraud, payroll tax evasion, sales tax evasion, and grand theft of labor. This shows that not paying workers can be considered theft, which is a crime.
http://sdgln.com/news/2013/04/09/college-area-restaurant-charged-not-paying-employees

Business owner faces criminal charges for circumventing worker's comp insurance laws. Business owner didn't carry worker's comp insurance as required by law. He didn't learn his lesson the first time around. When he was first charged with criminal violations, he provided evidence of insurance. Department of Labor was not happy to find out that he canceled the insurance a month after that, so now he faces criminal charges again.
http://www.lawyersandsettlements.com/articles/california_labor_law/california-labor-law-lawsuit-43-18651.html#.UXYG5ytAS9Q

I am an attorney in California. I have successfully pursued cases against employers on behalf of my clients. If you feel that you have a case, let me know at attorneycharlottelin@gmail.com. See more information on employment law on my new website at www.lincharlotte.com.

Proposed law will affect your rights to defend a red light camera ticket

Please sign this petition to stop the proposed law. This law will take away your right to defend a red light camera ticket in court in front of a judge ---- which you are constitutionally entitled to! Instead, there will be administrative courts set up by the city (funded by these ticket companies apparently), with absolutely NO constitutional protection. Most importantly, a defendant has a right to exercise 5th Amendment right to remain silent, meaning a defendant does not have to rat out the "real driver". This proposed law will destroy this constitutional right --- among other constitutional rights. Also, if you invoke your right to remain silent, you will be held liable for the fine.

http://stopab666.org/

Setting some short term (marketing) goals....

Solo life can be up and down. Some days you will have a billion things to do, and barely have any time to eat. Some days the phone will never ring and you take the dog out for a walk every other hour. So, to keep myself on track, and not lose focus or motivation on those off-days, I decided to set myself mini goals. I learned this from when I was working at a real estate office while I was waiting for my bar results. Realtors are really on top of marketing, and believe in the importance of marketing even when you are busy. The realtor I worked for sent out thank you cards to her former clients, even though her business was booming, and she was already working around the clock. She believed that in the short run it wouldn't matter if she didn't do any continuous marketing, but in the long run, her business will suffer. So now I always devote a portion of my time doing marketing. Marketing doesn't have to be the traditional sending out flyers kind of marketing. When you go to your local bar association happy hour and network with other attorneys, that is still marketing (at least I consider it to be). So alongside my calendar of project/cases, I have a separate section on my calendar with some of my short term marketing goals. Here are some goals I decided on. Some of these I give myself a goal to do once a week, or once a month, etc.

1. Reach out to another attorney for advice.
I will always need other attorneys for advice. There is just too much info out there for one attorney to possibly know. Different attorneys will always have different styles of doing things. I have always learned something from another attorney, regardless if I agree with them or not on the subject.

So, I set myself a goal of reaching out to an attorney for advice- either for an opinion on what I plan to do with my case, or for advice about marketing. I try to reach out to an attorney who is practicing in a different field, just so I can learn from a totally different angle. I do this by cold-calling, or cold-emailing even. I always respond when another attorney asks me about my appearance work (which I write alot about), so I hope other attorneys will respond to me if I seek their advice.

2. Reach out to a non-attorney.
Many attorneys rely on other attorneys for referrals and business. I also wanted to focus on reaching out to the potential clients, and letting them know about my services. I set myself a goal going to networking events that are NOT attorney-based. I go to the local chamber of commerce events to meet local business owners. One attorney told me to just put myself out there, and I took that advice to heart. Another attorney says to keep networking the old-fashioned way, and that it may be slow at first, but it will be good in the long run. I am an introvert and excruciatingly shy (even though I have a blog!), so going to networking event is really hard for me too. To combat this, I lock in one event on my calendar per week and commit myself to that event. This way I feel the pressure as if it was an actual job.

3. Write one blog (per week) to document my journey.
When I started out, I did a search all over the internet to find info and advice from other new solo attorneys. I didn't find much online. I was lucky in that I met other young attorneys whom I continuously call or email for advise all the time, for every little thing imaginable that they don't teach you in law school or in the books. I also found there was little to none advise (nor practice guide!) about doing special appearances. So I started blogging. And with the inquiries from other attorneys about my blog, I got the encouragement to keep going. Thank you!

4. Read one area of law that I am interested in. Or read up on an area of law that I had a few people inquire about, but I didn't know the answer at that time. Chances are, those are the kinds of problems that are out there and will come up again.

As an entrepreneur at heart, I read Inc. and Entrepreneur magazine like a junkie. One article stresses the need for small business to keep learning, and expand/shift as the market needs. I believe this applies to a law business as well. This is why I keep reading and studying on new and exiting laws or practice areas- either because I want to expand in that area, or I just want to keep afresh on the latest development. One trick I have learned from another attorneys is to set google alert for the topic I am focusing on, for example "red light camera ticket", and set aside 15-20 minutes each morning reading the trends and changes in law. This is important because I need to keep up with the latest developments in order to better advise my client. I also go to the law library and pick up a practice guide on a subject I am interested in. These books are huge (Matthew Benders, CEBs, etc.). I found a really good alternative is actually the Nolo guides--- yes, attorneys read them too. I find they have the best short-to-the-point summary (though it is really written for how a layperson would proceed with the matter, so it wouldn't advise an attorney how to proceed with the matter). Sometimes I read the book and decide to "pass" on a certain area I am just not interested in. Sometimes I read the book and decide this is really an interesting and fun subject, and devote more time becoming an expert in that area.

While I am on the subject of marketing...
Keep up with online marketing. If you are trying out online marketing, like doing google ads, don't give up just yet. I have been told it takes anywhere from a month to 6 months for the effect of online marketing to pay off. I actually believe this. I have done marketing on the internet and have almost gave up after a few months. Right when I was about to give up, something follows through.

Deferred Action (Part 2 Guidelines)

How do you show you met the guidelines? DHS will make determination on a case-by-case basis. Individuals will need to show they meet all the guidelines through verifiable documentations.

Guidelines you must meet for deferred action:

1. Under the age of 31 as of June 15, 2012
You also must be at least 15 (if you have never been in removal proceedings, or if you were in proceedings, that has been terminated before your application for deferred action). This doesn’t apply if you are in removal proceedings, meaning you can be under 15 in that situation.

2. Came to the United States before reaching your 16th birthday;
This can be: passport with admission stamp, Form I-94/I-95/I-94W, school records from the U.S. schools you have attended, any Immigration and Naturalization Service or DHS document stating your date of entry (Form I-862, Notice to Appear), travel records, hospital or medical records.

3. Have continuously resided in the United States since June 15, 2007, up to the present time;
This is the “travel” requirement. Travel on or after June 15, 2007, and before Aug. 15, 2012 can be considered brief, casual and innocent absence, and will not interrupt the continuous residence requirement if: the absence was short and reasonably calculated to accomplish the purpose for the absence, the absence was not because of an order of exclusion, deportation or removal; the absence was not because of an order of voluntary departure, or an administrative grant of voluntary departure before you were placed in exclusion, deportation or removal proceedings; and the purpose of the absence and/or your actions while outside the United States were not contrary to law. However, after Aug. 15, 2012, if you travel outside of the United States before USCIS has determined whether to defer action in your case, you will not be considered for deferred action under this process. If USCIS defers action in your case, you will be permitted to travel outside of the United States only if you apply for and receive advance parole from USCIS (advance parole requests will be considered on a case-by-case basis).

Evidence of your continuous residence may include: rent receipts or utility bills, employment records (pay stubs, W-2 Forms, etc.), school records (letters, report cards), military records, official records from a religious entity confirming participation in a religious ceremony, copies of money order receipts for money sent in or out of the country, passport entries, birth certificates of children born in the U.S,. dated bank transactions, social Security card, automobile license receipts or registration, deeds, mortgages, rental agreement contracts, tax receipts, insurance policies. You don’t have to show ALL of these, and there are other evidence you may use as well.

USCIS recommends that you submit documentation that shows you have been living in the United States from June 15, 2007 up until the time of your request, meaning documents showing you were living in the U.S. for each year of that period. Gaps in documentation may raise doubt to the continued residence requirement.

4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
You will need documentation to show that you were present in the U.S. on June 15, 2012, and the date you file your application.

5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;

6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and

To be considered “currently in school”, you must be enrolled in school (or a GED program) on the date you submit a request for consideration of deferred action under this process. If you are in a private program, USCIS has its own set of guidelines to determine if this qualifies under the guideline. You can show evidence you are currently in school may be: acceptance letters, school registration cards, letters from school or program, transcripts, report cards, or progress reports showing the name of the school or program, date of enrollment, and current educational or grade level, if relevant. You can show evidence that you have graduated from high school with a high school diploma, GED certificate, certificate of completion, certificate of attendance, or evidence you have passed a GED exam. In certain circumstances, you can also make the education qualification if you are enrolled in a literacy or career training program. If you are enrolled in an ESL program, you may meet the guidelines only if you are enrolled in an ESL program as a prerequisite for your placement in postsecondary education, job training, or employment and where you are working toward such placement. For educational guidelines, you must provide direct documentary evidence, not circumstantial evidence (meaning you will need concrete paper evidence).

7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

This part is more complicated than I can cover for purposes of this blog. If you do have an issue with meeting this part, you should consult an attorney first.

I am an attorney, please visit my website at www.lincharlotte.com. This blog post is not intended as legal advice. As I have explained in Part 1, all of this information can be found from the USCIS website. 

Deferred Action (Part 1 Overview)

I get a lot of calls regarding Deferred Action, or “Dream Act”. I took some time to go through the USCIS website, and summarized an overview in this blog. This is not intended to be legal advice. Please, always consult an attorney for specific details about the law. All of this information can be found from USCIS (U.S. Citizenship and Immigration Service), with more in-depth details as to the requirements and process.

What is deferred action? I’m sure most of you have heard on June 15, 2012, the Secretary of Homeland Security announced relief that allows certain people to request for “consideration of deferred action” (dream act/DACA).

This means if some one qualifies, removal action will be deferred for two years. The deferral can be renewed as well after the two years. Also, the person that qualifies for this relief can be eligible for work authorization (provided he or she can demonstrate “an economic necessity for employment”).

Who qualifies? There are requirements that must be met, BUT keep in mind this relief is a discretionary determination. Deferred action, like its name suggests, defers the case. Prosecutorial discretion is discretion to pursue a case for removal, and deferred action means deferring the case for removal. It is a temporary stay. Also, DHS makes it clear on the website: DHS can terminate or renew deferred action at any time, at the agency’s discretion.

However, keep in mind that deferred action does not provide an individual with lawful status. It does need to be renewed every two years, and so it is a temporary status. (Don’t confuse this with lawful presence. If the person approved for deferred action, that person is not considered to be unlawfully present during the period in which deferred action is in effect. Meaning, the period of deferred action will not count toward unlawful presence for future inadmissibility.) Also, deferred action does not confer lawful permanent resident status or a path to citizenship.

Purpose? The way Department of Homeland Security (DHS) explains on the USCIS website, DHS is making a change to prioritize its immigration cases. They explain that they are making “unprecedented effort to transform the immigration enforcement system into one that focuses on public safety, border security and the integrity of the immigration system”, meaning, they want to focus on the high priority removal cases first. The high priority cases will be individuals convicted of crimes with particular emphasis on violent criminals, felons, and repeat offenders. Therefore, DHS will use discretion to not waste time and resources on low priority cases.

Who are the low priority cases? People (mostly who came to the U.S. as children) who meet the guidelines can request consideration of deferred action.

Guidelines you must meet for deferred action:

1. Under the age of 31 as of June 15, 2012;
2. Came to the United States before reaching your 16th birthday;
3. Have continuously resided in the United States since June 15, 2007, up to the present time;
4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7. Have not been convicted of a felony, significant misdemeanor (for more on DACA and DUI), three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Please see next blog post for specifics as to the guidelines.

I am an attorney, please visit my website at www.lincharlotte.com. This blog post is not intended as legal advice. 

Small Claims... now from personal experience...

I actually had to go to small claims recently. Previously I blogged about the overall process of small claims. Now I can supplement that blog with a few pointers.

If you do file the paperwork with additional information, like the declaration, it will not be read until the day of the hearing. What does this mean? This means the case will be fast. The judge will not know any of the facts that you have prepared on your complaint until the day of. Oftentimes, there will be tens of other cases in the same time slot as your case. So you really have one shot at putting together your story--- be prepared!

I don't know about other counties, but in Ventura, there is a group of mediators assigned to small claims court. They will try to mediate every claim before it actually goes before a judge. This group of mediators in Ventura is really good in my opinion. They are really professional and quite friendly. They make the whole process easier and less stressful. In my case we actually did mediate to a settlement, so we did not need to have an actual trial. I don't know if this is standard practice for other counties, but in my opinion it is a pretty good resource. I would highly recommend pursuing mediation even if you have a small claims matter pending.

Bring all your evidence to small claims. Make sure you have a copy of all your physical evidence, because you will be required to provide that to your opponent. If you ever had to mail a demand letter or any other kind of evidence to the opponent that would be relevant to your small claims case, you should send this via certified mail. The reason for this is that the opponent might say that they never received it. If you have a receipt of your certified mail, that will make your claim stronger.

Also, if you are the plaintiff in a small claims case (you are the one suing), and the defendant (the person you are suing) has a cross claim against you, they have to serve you with notice of the cross claim in time. If they only notify you on the day of the hearing, you have a right to continue the case, because you were not served (or notified) of the claim against you. In my case it was waived, because we reached a settlement (and I did not want to have to come back to court). But if it is important to you to have time for a counter-defense, then remember you have the right to a continuance.

What to do when your employer appeals your EDD unemployment claim in California....

Recently, I helped a client do some work for EDD (unemployment) and another claim for unpaid wages. Interestingly, both processes could be done without a lawyer (you do not need to hire a lawyer to appear for you). But, the information and paperwork involved was complicated even for me to figure out, so it might be good to hire a lawyer to help you with preparing your case.

If you applied for EDD recently, and your employer is appealing your claim, don't panic yet. EDD will set an appeal hearing, where both sides will present their case. Hearings are set pretty fast. In the meantime you should put in some work to prepare your case. When EDD sends you the notice of appeal, they will send you the information on what it is the employer is appealing. This will include the code sections under Unemployment Insurance. Once you have those, look up those codes (EDD website should have this, or do a google search for that code). At the hearing, the judge will mainly be concerned over the issue in the code. So, don't spend too much time gathering details about unpaid meal breaks, when the issue is over whether you resigned voluntarily (because it will not be heard). You will need evidence to defend your position. This means paper documents- emails, screen shot printouts of texts, employee handbooks, contracts, or whatever it is that helps you prove what you are trying to prove. When you bring evidence to the hearing, you need to have 3 copies- one for you, one for the judge, one for the other side (also, always keep originals for yourself). It will be helpful if you have a witness go to the hearing with you to testify on your behalf. However, this is not always possible because your witnesses have work/school and it might be hard for them to take time off. If it is possible for them to be available over a phone during your hearing, do so. You will have to contact the appeal office and ask to set up a phone conference for your witness to call in during your hearing. If your witness cannot do either, then ask if they can prepare for a declaration. A declaration is a written statement under penalty of perjury, so make sure the witness is writing this and writing on what they know (do not write one for them and ask them to sign it; this is also why it will be a good idea to seek legal help on this). You should fax the declaration(s) to EDD early enough so they can prepare it for the judge and send a copy to the other side, prior to the hearing.

Here is the website for EDD if you need official information. This link is to the Employer page, which has info on the appeal.
http://www.edd.ca.gov/Unemployment/More_Employer_Information.htm

On the day of the hearing, they say to get there 15 minutes early. You should probably get there at least half an hour early. You will have to check in, and the office will give you your case file to review. This is a good opportunity to look through and see if the employer has sent in anything else that you have not been copied on. EDD hearings are conducted by administrative judges. The setting is informal compared to something like civil court, so it can be a little less stressful. Always, always, be respectful to the judge (and never talk over the judge!). If you do not understand something, ask. One tip from a colleague of mine- always answer the question that the judge asks. Take notes when the other side is testifying. You should note down things that you dispute. When it is your turn to ask them questions (or cross examine), you will ask questions about those items that you dispute. I recommend taking notes because the testimony will be fast, and full of information, and you will easily forget what issues you have to go back on. Also, before the hearing you should make an outline or checklist of facts you need to say at the hearing, and go back through them at the end to make sure those are brought up.

After the hearing is done, the judge will prepare a decision and mail it out to both parties. This can be quite fast. The decision itself can be quite lengthy because the judge will discuss EDD case laws (precedents). Also, you have a right to appeal the decision (see online). There is also a video on the EDD website on what to expect at the hearing that is pretty accurate. Overall the EDD website is really helpful, so spend some time on this before going in the hearing.

Hope this helps. I hope to write about pursuing unpaid wage claims in an upcoming article.

I am an attorney in California. I have successfully pursued cases against employers on behalf of my clients. If you feel that you have a case, let me know at attorneycharlottelin@gmail.com. See more information on employment law on my new website at www.lincharlotte.com.