Are Felons the Next Protected Class?

According to the National Employment Law Center, a labor-affiliated advocacy group, one-in-four adult Americans in the U.S. have a criminal record. That’s sixty-five million Americans.  It is no surprise that policies are changing regarding whether employers can exclude individuals from employment based solely on a past conviction. That means employers should and are reconsidering blanket criminal background checks on employment applications.

Policy changes are being spearheaded by the Equal Employment Opportunity Commission and the private-sector under the ban-the-box campaign; new laws are appearing across the United States.

First, the EEOC warns private-sector employers that they could expose themselves to substantial liability unless they narrow the use of arrest and criminal convictions when making employment decisions. For example, when a minority applicant is disqualified for a job based on a criminal background check, there is support for a finding of racial discrimination.  Employers are being investigated by the EEOC for blanket criminal background checks even without direct evidence of blatant discrimination.

Second, arrest records, unlike criminal convictions, do not establish criminal culpability. As such, the EEOC says that employers should not use them in hiring decisions. Employers should wait until further into the hiring process before asking about criminal history and should only ask about incidents that are job-related.  Consistent with the EEOC recommendations, several states and local governments have “banned the box,” removing questions about criminal convictions from job applications.

In addition to a “ban on the box”, the EEOC recommends that private-sector employers use individual assessments that consist of multiple factors before making an employment decision based on criminal history.

Regardless of the EEOC’s findings, a Certification of Rehabilitation or Expungement may help with future employment opportunities for those with a criminal history.

Certification of Rehabilitation

A certification of Rehabilitation is a court certified document that declares the person is now obeying laws and demonstrating good moral character. The purpose is to restore rights of citizenship to ex-felons and some misdemeanants who can prove that they are rehabilitated.

To apply for a Certification of Rehabilitation, there are several requirements under Cal Pen Code section 4852.01.

The benefit of a Certification of Rehabilitation is that the person will receive the right to vote and other civil and political rights related to citizenship previously denied. However, a Certification of Rehabilitation does not erase the underlying record of conviction.

Expungement

Expungement is a petition to the court to dismiss a person’s criminal conviction. Generally, to qualify for an expungement in California, a person must be convicted of a misdemeanor and never given probation or the person must have completed their probation.

If convicted of a felony, a person can request an expungement if they have completed probation (where required) and if they were not sentenced to a state prison.

Expungement is beneficial because a criminal conviction will not be accessible by employers or other private-sector entities.

Personal Injury Claims against the Government

Under early British common law, the antecedent to American legal principles, lawsuits against the government were not permitted. At the time, all law was the purview of the sovereign and no monarch was interested in allowing themself to be sued. As more democratic systems of government developed, the argument evolved. In early American law, claims against the government were bared on the ground that the government was essentially composed of the people and it seemed antithetical to principals of collective action to allow the negligence of a single government employee to drain the public coffers.

This governmental immunity from liability was first waived in California with the passage of limited express exceptions in 1923. During the years that followed, common law developments and judicial decisions somewhat expanded the short list of exceptions, particularly with regard to dangerous properties. The result was a complex and uncertain collection of exceptions and exceptions to exceptions that produced varying outcomes even among similar cases.

Tort Claims Act

In 1963 the California legislature passed the California Tort Claims Act, now codified in Government Code 815 et. seq., to level the playing field. The comprehensive law eliminated most of the previous body of law with regard to governmental immunity and replaced it with a unified set of requirements that every potential plaintiff must follow before suing a public entity. Principal among the new regulations was a requirement that an injured party file an official claim with the entity in question no longer than six months after learning of the injury. Only after an agency denied that claim, either in whole or in part, could a person continue with a traditional lawsuit against the government.

What kind of lawsuits qualify?

The Tort Claims Act also specifically defined the circumstances under which a governmental entity could be held liable for personal injury. Specifically, the following five elements must generally be present.

1. The injury must occur on public property


2. The property must be dangerous


3. The risk of injury must be reasonably foreseeable


4. The dangerous condition must have been created by the negligence of a government employee acting within the scope of employment or the agency must have had reasonable notice of the danger and time to correct it.

In addition, a plaintiff must be able to prove that the dangerous condition was the proximate cause of the injury; a legal term-of-art that essentially means the injury must be an expected and normal result of the dangerous condition.

Suing government employees?

Under the law, government employees are generally liable for their actions in the same way as are private citizens. However, the government will step in to cover the damages of a liable employee if the plaintiff’s injury resulted from actions the employee took while acting in the scope of employment. However, there are a number of specific immunities and other requirements that apply to certain situations so careful investigation of the underlying circumstances is imperative.

Filing a claim

In order to bring a lawsuit against the government under the Tort Claims Act, the injured person must file a sufficient claim with the public agency in question within six months of learning of the injury. This requirement is somewhat complex in that claims must be legally sufficient and properly filed. However, public agencies are required to simplify the process somewhat by maintaining a public notice regarding how to file a claim against that agency. In addition, agencies must respond to claims within certain specific time frames and their failure to either post a sufficient notice or respond timely to claims may waive their immunity under the law.  This area of the law is complex and care must be taken when preparing and filing claims.

Childhood Sexual Abuse

Under a recent change to the Tort Claims Act, claims for injuries resulting from sexual abuse which took place after January 1^st, 2009 are handled differently than most other types of injuries. Such claims have an extended filing requirement.

Mandatory Duty

Certain public agencies are required by law to take steps to prevent some types of injury to the public. In cases where an agency fails to fulfill its duty under such a law, injured parties may have additional expanded options for recovering from the agency. However, the plaintiff’s injury must be of the type the agency was supposed to protect against.

Bottom line

Suing the government is not easy. A number of specific legal hurdles have been developed to give governmental entities special protection against liability. If you have been injured on public property or by a government employee, you may have even less time than usual in which to take legal action. You cannot afford to wait until you are feeling better or until you have all the facts collected before starting the legal process. The good news is that there are ways to recover from a public agency if you fulfill all the prerequisites such as timely filing a completed claim with the agency. Act quickly to protect your legal rights.

Insurance Bad Faith

Insurance Bad Faith Law Gets an Update

California has long been considered a benchmark state with regard to the development of insurance bad faith law. What California pioneers, many other states often implement. As such, updates to California’s bad faith landscape have wide reaching impact on the larger body of insurance bad faith law. For consumers and attorneys alike, maintaining at least a basic understanding of the state of the law in California can have significant benefits.

What is bad faith?

For the layperson, bad faith law essentially makes insurance companies liable if they treat their clients unfairly. What exactly constitutes unfair treatment is complex, and currently under some flux, but the summation is as follows; implied in every contract is a commitment to treat the other parties fairly as the contract unfolds. Known as the implied covenant of good faith and fair dealing, this provision ,imposed on every contract by operation of law, requires parties to act in good faith as they carry out their duties under the agreement. In playground terms: No Cheating.

In the insurance setting, the list of things that constitute “cheating” by an insurance company is fairly long. Some types of bad faith are defined in specific laws while others are simply enforced by courts based on reasonable expectations. Some of the most common mistakes an insurer might make, and thus leading to potential liability, include:

1. Withholding information from an insured, the beneficiary of a policy.


2. Refusing to settle a claim for which liability is reasonably clear, otherwise known as “gambling with a client’s money.”


3. Low-balling, or giving extremely unreasonable, settlement offers.


4. Wasting everyone’s time with baseless delays; legal or procedural.

Third-party rights

In the world of insurance litigation, a third-party is anyone who stands to collect a benefit, such as monetary payment, from an insurance contract owned by someone else. This might include hospitals which provide treatment to an injured person based on an expectation of later receiving payment out of an insurance settlement or the injured plaintiff themself in any lawsuit that may ultimately be covered by a defendant’s insurance policy. While the definition of a third-party is relatively clear, what rights those entities may have has changed somewhat over the years.

In August the California Supreme Court ruled that, while third-parties cannot sue an insurance company for bad faith unless they have some contractual relationship with that insurance company, other avenues may cover the same ground. In other words, bad faith is a legal remedy reserved for people who are actually contracted with an insurance company and is designed to help those people gain the full benefits of their arrangements. That is, the policies for which consumers pay good money for, should give a benefit in the event of an occurrence. But this understanding of bad faith law does not preclude lawsuits based on other legal theories just because the underlying facts might support both types of suits.

Other avenues

The Court’s ruling leaves open some potentially novel avenues by which third-parties, typically the plaintiffs in personal injury lawsuits, can pursue insurance companies for bad-faith like practices, even in circumstances traditionally blocked by limitations to third-party suits. In another recent decision, a California Court of Appeal further expanded these options when it allowed a third-party to sue a defendant’s insurance company for bad faith, failure to notify the injured party about a claims reporting deadline, under a med-pay clause of a policy for which primary liability had already been settled.

Plaintiff’s bottom line

While the full extent of these rulings will not be known until more cases come down the pipe dealing with these issues, recent rulings may provide injured plaintiffs with an expanded range of possible options for recovering their damages in some situations. This ultimately makes it more likely that your attorney will be able to get you the settlement to which you are entitled. Stay tuned as we continue to monitor the ongoing developments in this critical area of personal injury law.

Pedestrian & Bicycle Accidents

Vehicle accidents are bad; vehicle accidents involving pedestrians are worse. If you have been hit while jogging, riding your bicycle, or just crossing the street, we can help. Drivers are required to operate their vehicles with due care, and when they act negligently it can have potentially dangerous consequences.

There are many different causes for pedestrian or bicycle accidents, but most involve vehicle collisions with innocent bystanders. Some of the more common collision occur when:

• A driver is distracted because of actions that he taking while driving, i.e. texting, eating, sleeping
• Drivers fail to yield because they do not know the California Vehicle Code
• Drivers fail to give right of way to pedestrians because they are in a rush
• Drivers lose control of the car due to excessive speeding and improper lane changing
• Drivers disobey traffic signals because of lack of due care
• Drivers fail to utilize headlights when conditions require that they be utilized.

Survivors of any of these types of accidents often have a long road to recovery and can incur large medical bills in the process, not to mention the pain, suffering and disruption of normal life activities they face. A good personal injury attorney can help to simplify the process by working with insurance companies, dealing with the other parties involved, and arranging for appropriate medical coverage as necessary. If you've been inured in an accident, don't jeopardize your legal rights or postpone your medical treatment, contact an attorney immediately.