Death is a hard subject to discuss with your loved ones and it is not always easy to get their attention when it comes to discussing who should get what in a Will.  Some relatives shy away from this type of discussion while others want to argue over such matters.  It is much easier to plan ahead than to wait until you are sick or elderly to draw up your Will.  If you plan ahead, it will only take a day or two out of your schedule to write down your most significant property interests and to decide how you want those interests divided at your passing.

The biggest asset most people have is their home.  Thus, a home provides a good example for division or distribution in a Will.  First, decide how you want to dispose of the home in your Will.  You can do this by either instructing that it be sold and the proceeds divided among your named relatives, friends, or others (such as businesses or charities) or you can choose to distribute it (transfer it at death) to one or more persons or entities at the time of your passing.  This decision should be made with your spouse if you are married.

Once you have made a list of all your assets and the manner in which you alone or you along with your spouse want the property distributed or divided, you should look for a reputable attorney to help you transform your wishes into a Will.  As with many other purchase decisions, cost is a relevant factor but choosing an attorney based solely on price can be dangerous.  You should look for a competent lawyer that will sit with you to discuss your wishes, look at your property interests, and decide with you the best option to achieve your goals.  Talking with the attorney is the best way to gauge if he or she is reliable and competent to draw up the legal document that will convey your goals in distributing your assets at the time of your demise to the probate court.

Once you have chosen an attorney and the Will is created, it is best to choose a secure location to keep the Will.  Many people keep their Wills in a bank safety deposit box along with other important documents.  Of course, it is crucial that you notify someone of the whereabouts of your Will.  You should usually notice the “Executor,” the person named in the Will to carry out distribution of the assets, of the existence and whereabouts of your Will.   After you have completed these important steps, you can rest easier knowing that your property and your loved ones will be taken care of at the time of your passing.

Sullenger Law Office, PLLC would be proud to assist you with planning and drafting your Will, power of attorney, or other estate planning document.  Contact our office at (270) 443-9401 or visit www.sullengerfirm.com/estate/index.html.

The U.S. Constitution provides for protection from illegal searches and seizures. However, when a police officer asks to search, most drivers agree to allow the search.  This consent to search allows the officer to acquire potentially damaging evidence against a driver without having to first establish probable cause for the search or obtain a search warrant.  Some officers will even sternly state that the search of the vehicle can be done “the easy way” or “the hard way.”  This form of intimidation is intended to get the driver to consent to a search of the vehicle without having to get a search warrant.

Only three exceptions exist to the search warrant requirement.  First, where an officer has probable cause to believe a evidence of an illegal activity is located in the vehicle, he or she does not need a driver’s consent or a search warrant to search the vehicle.  Probable cause can best be explained as a very good reason for an officer to search a vehicle upon a routine traffic stop.  For example, if a driver is pulled over for speeding and the officer approaches the vehicle and smells marijuana, he has “probable cause” to search the vehicle because of the obvious indication that the driver of the vehicle is in possession of an illegal drug.

The “plain view” doctrine is a second exception to the warrant requirement.  If an officer sees something illegal in “plain view” on his approach to the vehicle, he can search the vehicle for that item and any other illegal items.  The officer can search the vehicle because he or she has witnessed contraband or illegal items in the possession of the driver of the vehicle.

The conduct of an arrest is third and last exception.  If a driver is arrested, the police have the right to search the vehicle without a warrant.  The driver cannot refuse the search in this situation, either.

Despite the three noted exceptions above, a driver’s best option is to refuse the search when an officer asks.  Denying consent may or may not prevent the police from searching your vehicle.  However, a citizen does have the right to refuse when asked for consent to search and should not feel pressured to comply just because the person asking has a badge and gun.

Kentucky courts apply several factors in evaluation the BIOC, including:

1.                  The wishes of the child’s parent or parents and any de facto custodian as to his or her custody;

2.                  The wishes of the child;

3.                  The interaction and interrelationship of the child with the parent or parents, siblings, and any other person who may significantly affect the child’s best interest;

4.                  The child’s adjustment to home, school and the community;

5.                  The mental and physical health of individuals involved in the custody issue;

6.                  Information, records and evidence of domestic violence;

7.                  The extent of which the child has been cared for by a de facto custodian;

8.                  The intent of the parent or parents in placing the child with the de facto custodian; and

9.                  The circumstances under which the child was placed with or allowed to remain in the custody of the de facto custodian.

Many of the those factors are subject to interpretation and can be disputed by either party to the case.  The court will take into consideration these factors relating to all parties seeking custody in the matter.  If one or both parties seeking custody has engaged in detrimental conduct, the court will weigh the factors from both sides and make a decision based on the least detrimental environment for the child.  In certain situations, if both parents are unable to be a placement choice for the courts, such as incarceration or incapacitation, the court can, in its own discretion, appoint a temporary custodian for the child.  Many times this temporary custodian is a relative willing to take on the responsibility of caring for the child while the parent(s) is incapable of being the caretaker(s).  Most often, though, parents are not in this situation and are both able caretakers.

The United States Supreme Court has recognized that “the right of the parents to exercise control, care and custody of their children is one of the oldest fundamental rights.”  Troxel v. Granville, 530 U.S. 57.  The right to control to care for and maintain custody of a child is limited only by factors that the courts will view as detrimental to the child’s welfare as gauged by the BIOC.  Where the custody dispute is simply between two parents who are no longer living in the same residence, the court first looks to the parents for a resolution of the custody arrangement.  If an agreement cannot be reached, the court uses the BIOC standard to decide which parent will be the custodial parent, or the parent with whom the child will physically live.

In conclusion, the BIOC test is used when an amicable agreement between the parties cannot be implemented.  When deciding to launch a custody battle, parents should be aware of the court’s path of deciding this type of dispute.  Not all parents can come to an amicable resolution where their children are concerned.  And when custody is in issue, the court will make the decision for the parties based on its own discretion and interpretation of the BIOC.

More information is available at http://www.sullengerfirm.com/family.htm.  For more information or assistance with any sort of custody dispute, call the Sullenger Law Office, PLLC at (270) 443-9401.

The Fair Labor Standards Act requires all employers to pay their employees at least the minimum wage.  The law also prohibits employers from paying an employee at the minimum wage rate then taking deductions or charge backs from the employee’s pay check that reduce the employee’s effective pay rate to below minimum wage.  Of course, employers have to make required deductions such as payroll taxes.  They cannot, however, deduct for loans made to the employee, uniform expenses, money lost through employee negligence, etc. to an extent that violates the minimum wage requirement.

In this case, though, the employee could not show the employer dropped her below minimum wage when it collected the loan it made her so she could attend the police academy.  The employee signed an agreement that she would repay eighty percent of the loan amount if she left the police department within five years after her police training.  When she did, the employer issued her a final check for the total wages she earned during her final two-week pay period.  It then separately billed her for eighty percent of the cost of her police academy training.  This did not violate the minimum wage requirement because, although the amount the employee owed exceeded the total amount of her final paycheck, the employer did not deduct that amount from her paycheck.  An employer can collect on loans it made to an employee; it simply cannot do so by deducting the balance from the employee’s paycheck if the deduction would drop the employee below minimum wage.

Here, the employer handled the situation correctly.  Many employees have problems with deductions, though.  Employers often deduct from employee wages for dishes broken by servers or cooks, cash lost from retail employees’ tills or cash drawers, money or properly lost from theft during an employee’s shift, and similar matters.  Such deductions are illegal at least when they drop the employee below minimum wage (and in other situations under some states’ laws).

In Hunter v. Valley View Local Schools, a school janitor took several medical leaves over the course of two years.  The FMLA provides eligible employees with up to twelve weeks of unpaid leave during a one-year period.  Employers are required to restore employees to their jobs and are prohibited from retaliating against employees who use FMLA leave.  In this case, the employee took intermittent leave over a long time period to deal with nerve damage and a foot injury.  The school district terminated the employee based, in part, on her excessive absences over the time period.

The trial court dismissed the employee’s lawsuit.  It concluded the school district would have terminated the employee even if she had not taken FMLA leave.  The appellate court reversed, though.  It held that the school superintendent’s testimony that the employee’s excessive absence provided direct evidence of an FMLA violation.  By taking into account the employee’s absences, the school district had also taken into account her FMLA leave.  Thus, the school district violated the FMLA because it was motivated, at least in part, by the employee’s FMLA leave when it decided to terminate her.  The court sent the case back to the trial court for a trial to determine whether the school district would have terminated the employee even if she had not taken FMLA leave.

This case reaffirms that employers cannot hold FMLA leave against employees.  Employees who are eligible for FMLA leave are entitled to return to their jobs so long as they are able to do so within twelve weeks.  Employers cannot take adverse actions against employees who take qualifying FMLA leave even if the leave is inconvenient to the employer or its workplace.

Our case involved a woman who worked in a chemical manufacturing plant.  She performed very physical work that involved significant amounts of climbing, bending, and stooping.  She had disclosed when she was initially hired in 1992 that she suffered from severe scoliosis and had steel rods surgically implanted in her back to control the condition.  Despite the limitation this placed on her movement, she performed her job well for fifteen years.

In late 2007, though, the employee had an accident at work.  The employee had to take some time off to heal a muscle condition she suffered in the accident.  While she was off, the company’s safety director sent an e-mail to each of the company’s thousands of employees worldwide in which he described the employee’s medical history, even stating that she had been seventeen years old when she had the rods implanted in her back.  When the employee returned to work, her co-workers asked her about her back and she overheard a number of other employees talking about her condition.  This caused significant distress to the employee, who had never disclosed her condition to her co-workers because she did not want to be seen as different from other people.

The ADA recognizes that employers will obtain medical information about their employees.  Because of the sensitive nature of that information, though, the ADA places strict limits on the use of medical information.  Employers are required to keep medical information in a locked file cabinet separate from its general personnel files.  Further, employers are not allowed to disclose an employee’s medical condition, medical history, or other information except to those employees who have a need to know such information in order to provide emergency services.

This employee had never voluntarily disclosed her medical history and every member of the company certainly did not need the information to provide emergency services.  As a result, we were able to resolve the case favorably for the employee.

Unfortunately, this sort of thing seems to happen fairly often but is rarely reported or challenged.  Many people think the HIPAA law protects them, but it generally does not provide employees with any rights.  The ADA, however, provides rights and protections for employees who have had their medical information or medical history involuntarily disclosed.