CBA Blog

When my former employee is called during the process of a new job, what are they allowed to say/not say?

by Kelly Mulloy Myers, Lawyer Referral Service Panelist

An employer can lawfully give an employee a negative or poor job reference if it is truthful.  If an employer gives untruthful information about your employment or separation, the former employer may be liable for defamation.  Many companies have internal policies that restrict the information they will disclose in a reference check.  However, many employers will release whether or not the separation was voluntary and whether or not the employee is eligible for re-hire.  If you are terminated, ask what the policy is with respect to references.   It is also helpful to ask former supervisors and co-workers if they are willing to serve as a personal reference.  If you are concerned your former employer is giving you a bad reference, an attorney may be able to negotiate an agreement with the company to provide nothing more than neutral information.

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What is an ‘at-will’ employee?

by Kelly Mulloy Myers, Lawyer Referral Service Panelist

In Ohio, an employee is employed “at-will” if they do not have a contract of employment that sets forth the terms and conditions of employment or are a union member protected by a collective bargaining agreement.  “At-will” means the employer or the employee can lawfully terminate the employment relationship at any time without any reason or cause.  There are, however, many exceptions to the at-will doctrine.  For example, an employer may not fire an employee because of a protected characteristic (age, race, religion, national origin, gender, pregnancy, disability) or retaliate against an employee for engaging in protected activity such as complaining about discrimination, taking Family Medical Leave Act leave, or filing a workers’ compensation claim.

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What is my next step after I have been wrongfully terminated?

by Kelly Mulloy Myers, Lawyer Referral Service Panelist

If you believe you have been unlawfully terminated, you should speak to an attorney to discuss your concerns.  In addition to the anti-discrimination statutes, there are a number of other laws that protect employees in the workplace.  For example, the Family Medical Leave Act provides covered employees with twelve weeks of job protection because of absence due to a serious health condition or to care for a family member with a serious medical issue.  Employers are also prohibited from retaliating against an employee for engaging in protected activity such as complaining about discrimination, filing a workers’ compensation claim or taking FMLA leave.  An attorney can help you evaluate whether you may have a potential claim against your former employer.   An attorney can also provide advice and assistance on matters related to a termination such as negotiating a letter of reference and appealing a denial of  unemployment benefits.  There are statutes of limitations to file a charge of discrimination or initiate a lawsuit, so you should not delay in seeking advice.

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What constitutes discrimination in the workplace?

by Kelly Mulloy Myers, Lawyer Referral Service Panelist

There are a number of federal and Ohio state laws that prohibit employers from taking adverse action against a person because of certain protected characteristics.  An employer is prohibited from making employment decisions because of a person’s gender, pregnancy, race, national origin, religion, age (if the person is forty or older), and disability.  An adverse employment action can include failing to hire a person, passing a person over for promotion, or terminating a person because of a protected characteristic.

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If I sign my assets over to my children now, will they have to claim as income and be taxed?

by R. Dennison Keller, Lawyer Referral Service Panelist

If you give assets to your children, it will not be income to them.  It is a gift.  The gift will not be taxable per se unless the gift exceeds $14,000 and the giver has already given away $5.3 million during his/her lifetime.  Depending on the amount of the gift, the giver may have to file a gift tax return. Plus, if you give away an asset that has appreciated substantially during a lifetime, you may lose the step-up in tax basis and the recipient will likely have to pay a higher tax if he/she sells it in the future than if the recipient received it after death.

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Posted in Wills/Trusts/Other Probate | Tagged , , , , , , , | Leave a comment

How often should I update my estate planning documents?

by R. Dennison Keller, Lawyer Referral Service Panelist

Every 5 years is a good benchmark to update your estate planning documents, unless there is some intervening event or diagnosis that would require a change in planning.

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What is the most important piece of estate planning?

by R. Dennison Keller, Lawyer Referral Service Panelist

The most important piece of your estate planning at death is certainly a will or trust.  However, prior to that, the most important document is the Financial Power of Attorney.  Having someone you can trust handle your affairs for you while you are living, but disabled, is absolutely critical.

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How much can I recover for pain and suffering?

by John D. Holschuh Jr., Lawyer Referral Service Panelist 

In medical malpractice cases in Ohio, the most you can recover for pain and suffering is $250,000 or three times your economic damages to a maximum of $350,000 per plaintiff and a maximum of $ 1 million per occurrence. Special damages are medical bills or lost wages as a result of medical malpractice.  Say, for example, your medical bills and lost wages due to medical malpractice total $100,000. Triple that number, and the most you could get for pain and suffering is $300,000.

If there has been a catastrophic injury or the loss of a limb or bodily organ, or something that prevents you from doing the activities of daily life, the numbers go to $500,000 per plaintiff and $1 million per occurrence. There is no limit on recovery for medical bills or lost wages.  Again, these amounts are for medical malpractice cases only. The pain and suffering cap for other personal injury claims, such as auto accidents, differs.

In Ohio, there has been an issue as to the constitutionality of the current cap on the amount for medical malpractice damages. This issue has not been decided by the Ohio Supreme Court.

There are no set guidelines as to what is or what is not pain and suffering. It is strictly the amount a jury determines a person should be compensated for what he or she has been through.

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What costs should I expect in a medical malpractice case?

by John D. Holschuh Jr., Lawyer Referral Service Panelist 

Most medical malpractice cases are handled on a contingency basis. This means that attorney fees are only paid by the client if there is a favorable end result of the case.   Depending on the case, we may or may not require the client to pay the expenses of the investigation; those expenses are not part of attorney fees.

There are two expenses associated with investigating a medical malpractice case. One is the cost to obtain medical records and X-rays taken if necessary.  Hospitals and doctors have the right to charge you for copying your medical records for you. (In Kentucky, you can get a copy of your records for free.)  How much will that cost?  If you have been hospitalized for three or four weeks, getting copies of your medical records could run several hundred dollars.

The second expense is having a doctor review the records. Rates vary but it generally ranges from $300 to $500 an hour on the low end to up to $1,000 an hour on the high end, depending on the doctor and his or her specialty.  Attorneys may advance the expenses of the investigation depending on the facts of the case and its inherent strength.

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Will most doctors settle medical malpractice suits out of court?

by John D. Holschuh Jr., Lawyer Referral Service Panelist 

In today’s world, attorneys get calls all the time from people asking if doctors will settle medical malpractice claims to avoid court.  More often than not, medical malpractice cases end up in trial.  Clients should anticipate and presume that if there is a case, it will go to a jury trial and to be prepared for that.  It generally takes well over a year to get a case to trial. The majority of medical malpractice cases that go to trial come back in favor of the doctor.  Cases must have strong liability that there was malpractice, and damages have to be fairly catastrophic to justify the risk and expense in pursuing the case.

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