Alternative Advertising Is The Best Way To Promote Business Products

As time changes day by day, many things are changing accordingly. Hand sanitizers have been introduced to the market which is an important tool of cleanliness. These are useful items which can be very helpful for the people. They could not make a right place in the society due to lack of advertising. Manufacturers do not realize the importance of promotion of these products in the current advertising world. Today, to survive in the business world, every company needs proper promotion of their products and services.

Making people aware of your business products or services, owners can catch their attention with ease. These days, you will hardly come across any advertisement space of the hand sanitizers being used. Now, with the help of alternative advertising, the producers can promote their products easily. Taking the help of this service, business owners can make the common public aware about their products. This service has given a new way to the business people by which they can make the individuals aware of these helpful items.

Hand sanitizers are very essential in today’s time and people are using them in their homes and offices. By using the mall advertising, you can attract target audience towards your brand. Companies are using this technique as it is very effective and helpful. Earlier, business people promoted their products with the help of logo or mementos like coffee mugs, pens or banner advertising. However, advancement in technology has given them a new way called alternative advertising by replacing all the earlier traditional ways.

The best places of promoting these products are malls. Many people visit malls in their free time or to hang out with their friends and relatives. While visiting, they will surely use the hand sanitizers and by which your brand will get the maximum exposure and visibility. Using hand sanitizers not only free people from serious health problems but also teach them about the benefits of using them. It is good to promote your product in the crowded places.

Simply by advertising your products to those areas, you will easily catch the attention of people. To know more about alternative advertising, you can go through websites. Full information regarding this advertising is given in brief. Therefore, to promote your products in a nice way, it is good to take the help of mall or alternative advertising. As time changes day by day, many things are changing accordingly. Hand sanitizers have been introduced to the market which is important tool of cleanliness. These are useful items which can be very helpful for the people. They could not make a right place in the society due to lack of advertising.

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Inadvertently Defeating At-Will Employment

California Labor Code section 2922 provides: “An employment, having no specified term, may be terminated at the will of either party on notice to the other.”[1] Simple enough, right? Unless an there is an agreement that an employment relationship is going to exist for a specific period of time, the relationship is considered “at-will” and may be terminated by either the employee or employer, with or without cause, for any reason or no reason at all. Not so fast. What constitutes an agreement between an employer and employee? The answer is, many events may convert “at-will” employment relationships into “employment for a specified term” within the meaning of Section 2922.

Many employers incorrectly assume that their employment relationships are protected by provisions in employee handbooks. Unfortunately, even clearly worded disclaimers, specifically stating that all employment relationships within their company are “at-will” are often insufficient to avioid a finding that an employment contract exists. In fact, California courts have held that, notwithstanding such disclaimers, an employer’s past practices, policies, actions and communications may result in an assurance of continued employment that defeats the presumption of “at-will” employment.

Employers regularly rely on generic employee handbooks purchased from Internet sources or office supply stores. Still others believe their business is adequately protected by a handbook the employer prepared based on his or her experience over the years. A poorly drafted employee handbook may itself defeat the presumption and create an employment relationship that may be terminated only for cause.

Probationary or Introductory Period

Many employee handbooks describe a probationary or introductory period at the beginning of the employment relationship. This provision usually exists to, among other things, define when the employee is entitled to receive company sponsored benefits. Care must be taken to insure that the introductory period provision does not imply that the “at-will” relationship exists only during that period.

Disciplinary Procedures

Employee handbooks typically include descriptions of conduct and behavior that may subject an employee to discipline. These provisions often include disciplinary procedures that result in sanctions of increased severity upon repeated violations. If not well thought out and carefully prepared, an enumeration of offenses for which an employee may be disciplined, and disciplinary procedures, may well be read to imply that “at-will” employment does not exist. A poorly drafted description of disciplinary procedures can be intrepted as establishing conditions that must occur before employment may be terminated. Further, such provisions may be read as a promise that the employee relationship will not be terminated even upon an employee’s subsequent breaches of the minimum conduct standards set forth in the handbook.

The obvious question is, given the potential pitfalls, why do I need an employee handbook to begin with? There are many advantages to a well crafted employee handbook, drafted after careful consideration of your specific business and its unique needs and circumstances.

Standardize Application of Policy

The actions and communications of managers to employees have been found by courts to have created implied employment agreements. Employee handbooks provide employers the opportunity to establish policies relating to the actions and communications of their managers and supervisors and standardize the application of these policies to their employees.

Evaluation of Current Practices and Procedures

As noted above, an employer’s past practices and policies may create an implied promise of future employment. An employee handbook requires an employer to examine the existing practices of his or her company and modify them if necessary to comply with applicable state and federal laws.

Limit Litigation Exposure

Employee handbooks can not only protect the “at-will” nature of employment relationships, they can also limit an employer’s exposure in the event of litigation. Establishing a procedure for employees to follow in the event of workplace harassment, such as reporting and investigation procedures, can be beneficial in defending against employee claims of such a nature. A well drafted employee handbook containing procedures to for employees to follow in the event of workplace harassment, including a defined reporting and investigation procedure, make available the argument that the employer exercised reasonable care to prevent and correct the harassment and the complaining employee failed to take advantage of the preventative or corrective opportunities made available to him or her.

Just as industries and market conditions regularly change so does the law in the area of labor and employment on both the federal and state levels. Employers are well advised to remain current on these changes and adapt their operating policies and procedures to limit the exposure of their business investment. To this end, employee handbooks should be reviewed by legal counsel no less than annually.
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[1] Section 2922 defines “employment for a specified term” as employment for a period greater than one month.

20 Online Resources For Aspiring Entrepreneurs

Hi everyone, since it’s Good Friday, we though it would be good to do something different. So here’s an interesting post highlighting some excellent resources for all you budding entrepreneurs, enjoy.

Anyone who is interested in becoming an entrepreneur will find plenty of online resources to help them in their quest. From general resources and entrepreneurship training to financial and productivity tools, the web has everything needed to start your own business. Here are 20 specific resources that would be helpful to almost any aspiring entrepreneur.

General Resources

* Entrepreneur.com – The online version of Entrepreneur’s print publication offers just about everything an aspiring entrepreneur needs. The site hosts articles, videos, blogs, and detailed information about franchises and other business opportunities.
* Small Business UK – Small Business UK is dedicated to counseling and assisting small businesses. The organization offers free online training, information about grants, and tools for entrepreneurs.
* The Wall Street Journal – The small business section of The Wall Street Journal provides a list of businesses, assets, and franchises that are for sale as well as reports and articles for current and future entrepreneurs.
* About Entrepreneurs – This About.com site offers a blog, a community forum, and hundreds of articles for current and aspiring entrepreneurs.

Free Entrepreneurship Courses

* Sloan School of Management – MIT’s Sloan School of Management offers hundreds of free online courses that would benefit new and aspiring entrepreneurs. Popular courses cover topics like global entrepreneurship, managerial accounting, finance, and business strategy.
* Entrepreneurship and Business Planning – This free online course from Carnegie Mellon Professor Mark Juliano teaches students how to start a business, build a team, finance a venture, market a product, and more.
* How to Find Start-Up Funding – Trump University charges for most of their courses and learning products, but the Donald’s school does offer this free mini course which details how entrepreneurs can find start-up funding for business ventures.
* My Own Business – This nonprofit organization offers a free online course geared toward entrepreneurs who want to start their first business.

Budgeting and Finance

* Mint – Mint is an award-winning budgeting tool. The Mint site is widely considered to be one of the best places to manage personal and business finances online.
* Rudder – This free financial service makes it easy to manage your money and monitor all of your accounts in one place.
* MoneyStrands – This free money management software is designed to help people set up budgets, control spending, and stay on top of financial ventures.
* Wesabe – Wesabe is an online community and budgeting tool. Although the site was designed for personal finances versus business finances, it is a useful destination for anyone with financial goals or concerns.

Productivity

* actiTIME – With actiTIME, entrepreneurs can track time, schedules, and overtime. This free time tracking software also offers a basic reporting functionality and task management tools.
* RescueTime – This free time management software will help you track your time online–no data entry required.
* Remember the Milk – Remember The Milk is a to-do list for the 21st Century. This taskmaster can track almost anything from anywhere.
* Onepoint Project – This open source productivity app makes it easy to track workflow, outgoing costs, and ad hoc tasks.

Networking

* Ziggs – Many people use this site to network, but it is also a great place for an entrepreneur to build their online brand and market themselves to other people.
* Fast Pitch – Similar to Linked In, Fast Pitch is a place for business professionals to network and market themselves.
* Biznik – This award-winning community for entrepreneurs is specifically geared toward people who are starting businesses. Biznik brings people together to network, share resources, and collaborate on business opportunities.
* NFP – Also known as Networking for Professionals, NFP is a straightforward, easy-to-use site for entrepreneurs who want to network with other people online and in person.

Managing Your Finances Online With Satellite Internet

In a world where banking hours have become irrelevant and chats with your neighborhood teller a thing of the past, the convenience of banking has become a top priority in managing your finances. You’ve probably got nothing against friendly banter, but while trying to maximize time and money such social encounters are better off had during your leisure hours. When it comes to your finances, it’s best to operate like a business and keep things efficient and transparent.

For these reasons, online banking and financial management have become a must for individuals and businesses alike. If you’ve opted for satellite internet over dial-up, chances are your appearances in the city are even busier than usual. Use your satellite broadband connection to manage your monthly statements from your bank. Simply requesting a hold on paper statements will reduce unnecessary trash and keep hard copies of your records out of the hands of identity thieves. From the comfort of your own home — during your own banking hours — you can check to see if a check has cleared and when a transfer or direct deposit has come through. It’ll allow to keep a hand in your all-important balances so you can transfer between savings and checking accounts with the simple click of a button. Leave the deposit slips and envelopes for your bank branch to sort through.

The same goes for your credit card accounts. Switching to paperless statements will keep your mailbox from filling up over long weekends and keep the trees used for paper in the earth. Your satellite broadband connection will get you online whenever you want to take stock of things. Check your interest rates online, see what finance charges have been added, and schedule alerts to find out if your account has been accessed suspiciously. The ease of paying your bill right on the company portal will make this a winning choice.

In the meantime, you can keep track of any of your more complex investments. To track the progress of stocks and bond prices, navigate the many financial websites using your satellite broadband connection. You will stay on top of trends and see where the gains are going to be had, in real time. This area of life is the last place you’d want to use a sluggish internet service.

If you have grown tired of phone calls to your financial broker to find out how your stocks are doing, feel free to replace him with one of the online services. When you want an answer, you will be obliged within seconds. No one likes to talk to a computer, but when it comes to money it’s not a good idea to pussyfoot around. Get into the online trading websites, where stock trading is not only quick with satellite internet but also affordable. Commissions taken by the companies are very reasonable. If you factor in the time saved on top of the money, you’ll wonder what other essential services in your life can be handled in a few clicks. In fact, they’re out there: just browse around and find them.

Additional Relief For Your Social Security Disability Clients From an Employment Law Standpoint

Social Security disability attorneys or representatives are often not familiar with some of the civil rights laws and other remedies which may be available to their clients, beyond, or in lieu of, Social Security disability benefits, and which may result in additional or alternative sources of financial proceeds for their clients. Also, as Social Security disability claims have greatly increased due to the lagging economy, client advocates may encounter many persons who will not meet the stringent Social Security disability standards, but may be able to qualify for other relief. This article will explore some of these laws and remedies.

Due to the complexity of some of the remedies and the intricate interaction between them, which often require balancing and negotiation, it will be beneficial to client advocates to establish a relationship with one or more attorneys who practice in the areas of law noted below if they do not, in order to determine if other remedies may exist for their clients. As many of these additional remedies have stringent time deadlines, inquiries should be made as quickly as possible to other counsel as to whether a client has additional remedies and the viability of pursuing them. Indeed, failure of an attorney or a representative to consider these remedies may be the source of a professional liability issue depending on the outcome of a client’s case.

An applicant for Social Security disability benefits frequently has a history, such as his medical conditions or work history, which has brought him to the position of applying for this type of benefit, which requires that he is deemed unable to perform substantial gainful work for a minimum of twelve (12) months or he has a condition that will result in death. That history often involves his employment situation and the nature of that situation can serve as the basis for additional remedies. Therefore, a thorough interview with a potential client should determine:

• Whether that person suffered an injury at the workplace;
• Whether his employer terminated him as a result of suffering the injury after the employer was informed that it was a work-related injury;
• Whether the injury, work-related or not, still permitted him to work for his employer with a reasonable accommodation by the employer. The courts’ interpretation of “reasonable accommodation” is discussed below;
• Whether the employer refused to make the reasonable accommodation and instead laid off or terminated the employee;
• Whether the employee, who formerly did not have any or few performance problems, suddenly received discipline or write-ups after the injury;
• Whether the employer should have been aware that the employee was suffering from physical or mental problems, and instead of helping him manage those problems, terminated him, laid him off, or eliminated his position;
• Whether the employee had available to him short and/or long-term disability benefits, some type of retirement disability or union benefits for which he could apply.

THE AMERICANS WITH DISABILITY ACT AND ITS AMENDMENTS
Significant legislation has been enacted to protect employees who have been injured in and out of the workplace and who are suffering from an illness. The Americans with Disabilities Act of 1990 (hereinafter “ADA”) was intended to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C.A. §12101 et seq. The Act applies to employers with 15 or more employees and prohibits discrimination against qualified individuals on the basis of a disability in regard to job application procedures, hiring, advancement, termination, compensation or job training. See 42 U.S.C. §12112(a).

In the years since the Act’s passage into law, the U.S. Supreme Court has handed down specific opinions which have curtailed the reach of the ADA and have greatly limited the definition of a disability under the ADA. Large clusters of people, initially covered by the ADA, have been shut out from the intended far-reaching protections as a result of those court opinions. The result has put a heavy burden of proving a disability on the plaintiff, which was clearly against Congress’ intent. See Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) and its companion cases and in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). As a result of these Supreme Court cases, lower courts have found that individuals with a range of substantially limiting impairments are not people with disabilities.

In order to rectify this situation, Congress passed the Americans with Disabilities Act Amendments Act (hereinafter “ADAAA”), which became effective on January 1, 2009. The ADAAA greatly broadens the relevant definitions of the ADA and gives renewed hope to disabled individuals who are ready, willing and able to work with a reasonable accommodation. The Act’s new language also enlarged the definition to include a larger array of individuals who are “regarded as” having a disability. Additionally, mitigating factors are no longer assessed in the evaluation of an individual as disabled.

If one has a client who lost his job due to a negative job action and who is covered by the newly expanded ADAAA, but had no recourse but to initiate a Social Security disability claim, either because his condition worsened or because he could not locate another job with his disabilities, he will be required to file a claim with a government agency at the local, state or federal level in order to protect his rights and preserve his right to bring later litigation, if necessary. That government agency may hold a fact-finding conference or a mediation, depending on the agency’s practice, and while the matter is at the agency level it may be settled without resorting to litigation. Bear in mind that the ADA claim can proceed independently and concurrent to the Social Security disability claim.

Employers are required by the ADAAA to reasonably accommodate those employees known to have a disability to allow for the fulfillment of essential job functions. However, these employers will not be required to make accommodations which will cause an undue hardship. Under U.S.C. §12111(9), those reasonable accommodations include, but are not limited to, (1) making existing facilities used by employees readily accessible to and usable by individuals with disabilities, (2) job restructuring, (3) modification of equipment or devices, (4) appropriate adjustment or modifications of examinations, training materials or policies, and (5) the provision of qualified readers or interpreters.

It is the employee’s responsibility to inform his employer that an accommodation is necessary in order for that employee to fulfill his essential job functions. It is also important to know that the new amendments make it clear that employees who are simply “regarded as” having a disability are not eligible for the aforementioned accommodations. Once the eligible employee requests an accommodation, an interactive process with the employer regarding the appropriate accommodations will begin. U.S.C. §12111(10) enumerates factors that would cause an undue hardship on the employer when accommodating an employee and are thus not mandated under the law. That list includes: (1) the nature and cost of the accommodation, (2) the overall financial resources of the facility or facilities, (3) the overall size of the business and (4) the type of operation.

It is also significant to note that simply because an employee’s doctor sends a note to the employer limiting the employee’s ability to work, requesting time off for the employee, requesting reduced hours, or asking that the employee be assigned to light duty, the employer is not necessarily governed by the doctor’s request. Legions of employees have been terminated because an employer either did not feel the need to honor a doctor’s request or seized upon the doctor’s request to terminate an employee because, according to the doctor, the employee cannot do the job as required. An employee would be wise to seek legal help, if possible, in negotiating a disability accommodation from an employer.

It is not uncommon for employers to begin plotting for an employee’s termination shortly after they are informed, formally or informally, of the employee’s illness. Red herrings often used by employers to terminate or alternatively force an employee to resign include giving an employee a series of baseless poor performance evaluations, job restructuring rendering the affected employee’s position nonessential, suddenly changing absence policies, or engaging in poor treatment of an employee which encourages his resignation.

THE REHABILITATION ACT

The Rehabilitation Act Title V entitled “Nondiscrimination under Federal Grants and Programs” 29 U.S.C.A. § 720 et seq. protects those with disabilities from discrimination on the basis of those disabilities in programs organized by or receiving money from the federal government. The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in Title I of the Americans with Disabilities Act described above.

THE PREGNANCY DISCRIMINATION ACT
The two primary laws that protect women during pregnancy are the Pregnancy Discrimination Act and the Family Medical Leave Act (“FMLA”). An amendment to Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act was established in 1978. The Act requires employers with 15 or more employees to treat employees with pregnancy-related conditions in the same manner required by law as those with other health conditions. For example, if an employee with a serious medical condition is permitted to take leave or work a modified schedule under FMLA, the pregnant woman will be afforded the same options. The Act also prevents an employer from firing or refusing to hire a woman based on her pregnancy or ability to take maternity leave. In that same light, an employee cannot lose credit accrued for seniority or retirement benefits during her leave. Lastly, an employer is required to keep the job open and maintain health care benefits as though the woman was on sick or disability leave.

Pregnant women also rely heavily on FMLA. As previously discussed, expecting and new mothers can take up to 12 weeks off within a 12 month period to care for the birth of their child. One key distinction between FMLA and the Pregnancy Discrimination Act is that FMLA only applies to employers of 50 employees or more. Moreover, the employee must have worked either one full year or 1250 hours to request FMLA leave.

THE AGE DISCRIMINATION IN EMPLOYMENT ACT

The Age Discrimination in Employment Act of 1967 (“ADEA”) protects those employees over the age of 40 from workplace discrimination based on age. 29 U.S.C. § 621 et seq. It applies to employers with 20 or more employees, state, local and federal governments, and employment agencies and labor organization. Under this Act, it is unlawful for employers to discriminate against employees or job applicants with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, job assignments and training. As with the ADAAA, this Act also makes retaliation relating to the aforementioned unlawful.

Although an employee can be asked to waive their rights under the ADEA when signing a severance agreement, a clearly established protocol must be followed. The agreement must be (1) in writing and understandable; (2) specifically refer to ADEA rights; (3) not waive rights or claims that may arise in the future; (4) offer valuable consideration; (5) advise the employee in writing to consult with an attorney prior to execution of the waiver; (6) allow for 21 days in which the employee can consider the agreement; and (7) allow for 7 days within which the employee can revoke the agreement after signing it. Consider this protocol if a severance agreement concludes one’s client’s disability matter.

THE FAMILY MEDICAL LEAVE ACT

The Family Medical Leave Act, (P.L. 103-3, 107 Stat. 6) (“FMLA”) was enacted on February 5, 2003 for the purpose of helping people who were stressed about trying to balance the competing demands of work and family life. The FMLA allows an employee to take up to 12 weeks of unpaid leave in a 12 month period for the birth or adoption of a child, to care for a family member, or to tend to his own serious health problems. The employee has three options from which to choose when deciding how to take time off. He can take the entire 12 weeks at once, take leave as needed following proper procedures, or he can simply work a reduced schedule. Note that FMLA time off may be combined with paid time off and employers generally have an option of requiring that employees use up their sick/vacation/personal time prior to using FMLA time. Employers have the burden of providing employees with information, notice and guidance about FMLA requirements.

It is important that any FMLA documents completed by the client and their doctors be reviewed by an attorney if possible. Moreover, an attorney or representative should ensure that the FMLA documents conform or are at least considered when applying for other types of disability. Often these documents will have different or contradicting onset dates, diagnoses, prognoses, or levels of severity of condition which will complicate the Social Security disability application procedure. The FMLA leave documents can be of assistance and provide documentary support in a Social Security disability claim.

The Department of Labor’s Wage and Hour Division published a Final Rule under the FMLA in January 2008 which became effective on January 16, 2009, and an updated set of regulations by the Department of Labor were published. The FMLA benefits provided to military families (referred to as military caregiver leave and covered service-member leave) greatly expand the usual 12 weeks of FMLA leave up to 26 workweeks of leave in a single 12 month period to care for a covered service member with a serious illness or injury incurred in the line of duty on active duty. Also, the time spent performing light-duty work doesn’t count against the 12 week FMLA leave. The regulations provide added guidance of what a “serious health condition” is.

Implementation of the ADA and the FMLA sometimes cause friction between an employer’s right to know about an employee’s condition and an employee’s right to keep his medical conditions private. Relying on a medical treatment source for this information is not suggested, as doctors have been known to tell patients they are not required to reveal any information about their medical conditions, when that is not always the case, which can result in an employee’s termination for refusal to divulge information an employer has a right to know.

Generally, the information that must be revealed by an employee or his medical treatment sources under the FMLA must be enough to permit the employer to know how to best accommodate an employee, or to provide the information on Department of Labor Form WH-380E, which is a certificate of health care provider for an employee’s serious health condition. This information, requested from a doctor, includes, among other things, the beginning date of the condition, dates treated for the condition, probable duration of condition, medication prescribed, treatments, referrals made to other health care providers, and whether an employee can perform certain job functions.

Employees on FMLA must follow an employer’s usual and customary procedures for reporting an absence, barring an usual circumstance. Further, an employer’s direct supervisor cannot contact health care providers and cannot ask for additional information beyond that required on the certification form, as the Health Insurance Portability and Accountability Act (“HIPPA”) is invoked to limit this information. There are also provisions for certification of ongoing conditions and fitness for duty certifications.

FECA AND FELA CLAIMS AS OPTIONS FOR FEDERAL EMPLOYEES

The Federal Employees Compensation Act (“FECA”), 5 U.S.C.A. § 8101 et seq., provides federal employees with compensation benefits for work-related injuries or illnesses. Administered by the Department of Labor’s Office of Workers’ Compensation Programs, all claims generally must be brought within three years of the date of injury. The federal employee will continue to receive compensation benefits as long as they remain totally or partially disabled. The federal employee will receive two-thirds or three-fourths of their salary at the time of the injury depending on whether the employee has dependents.

Another piece of federal legislation that attorneys who handle disability matters should be familiar with is Federal Employers’ Liability Act (“FELA”). 45 U.S.C.A. § 51 et seq. This Act was initially meant to protect the rights of railway workers who were injured while at work in this country. Since its enactment, FELA has been greatly expanded. There is a three year statute of limitations from the date of the injury. Generally the statute begins running when the employee knew or should have known of the existence of the injury and that the FELA statute of limitations is triggered in an occupational injury case when the injured worker knew or should have known: 1) of the existence of the injury; and 2) that workplace exposure was a cause

SHORT AND LONG-TERM TERM DISABILITY POLICIES AND ERISA

Clients frequently are not aware that they are entitled to make a claim which entitles them to receive some form of some short and/or long-term disability payments as a general benefit of their employment, membership in a union or because they have opted to receive additional benefits paid for through payroll deductions. Employees may also have disability coverage they have purchased privately.

However, simply because this type of benefit exists does not mean that it is easily procured. Disability insurance carriers may be reluctant to approve clients for benefits, particularly long-term disability benefits, and if they are approved, carriers often attempt to terminate the employee prematurely. Employees are sometimes lulled into thinking that because they have received short-term disability benefits easily that receiving long-term disability benefits will also be an easy process. Moreover, if an employee is receiving long-term disability benefits, this normally indicates that the injury is not work-related, because a worker’s compensation claim would ensue instead.

Insurance disability carriers tend to have little respect for the fact that a claimant has been awarded Social Security disability benefits prior to or even after an ALJ’s decision, and this type of award does not have significant impact on a carrier’s decision to award long-term disability benefits. However, a detailed decision by an ALJ judge, the Appeal’s Council or a court, will usually be helpful in a long-term disability claim. In the event that a client suffers from physical and mental impairments, because many policies limit the number of years of benefits for mental impairments, carriers may seize on a decision and allege that the mental impairments take priority over the physical impairments, so one should use care in emphasizing the nature of the disability claimed.

Most insurance carriers require that a successful applicant for long-term disability benefits apply for Social Security disability benefits, and if that claim is successful, those benefits will be offset against any amount paid to the applicant under long-term disability coverage, after the deduction of any attorney’s fees. If that claim is not successful, it should not impact on private disability insurance benefits.

There are several levels of administrative appeal in the long-term disability denial process and insurance carriers frequently extend the administrative process as long as possible, hoping to wear out the applicant. It is important that each stage of the administrative process be followed, and that any and all medical evidence is submitted to the insurance carrier during the administrative process. This is because there is case law which states that evidence submitted after the administrative process cannot be introduced if a denial is later litigated under The Employee Retirement Income Security Act of 1974 (“ERISA”), found in the U.S. Code beginning at 29 U.S.C. §1001.

ERISA is a federal law which mandates minimum standards for most voluntarily established pension and health plans in private industry. The result is additional protection for individuals with covered plans. Long-term disability appeals are included in the health care plans covered by ERISA. Being familiar with ERISA is particularly important when dealing with denials of long-term disability benefits in that this federal law preempts the vast majority of state and local laws pertaining to similar subject matter.

ERISA dictates an administrative process which must be fulfilled in its entirety before the employee obtains the right to sue. The administrative processes differ from policy to policy but the common thread running through every policy is that stringent timelines must be followed in order to safeguard the claim. ERISA also provides for an internal appeal process. Once this process is complete, a lawsuit can be brought.

UNEMPLOYMENT INSURANCE BENEFITS

Although there may be risks if a claimant applies for both unemployment insurance (“UI”) benefits and Social Security disability benefits contemporaneously, for those who don’t have a financial choice, one is not precluded from filing for both benefits contemporaneously. In order to receive UI benefits, one must assert that he is ready, willing and able to work but cannot find employment. Conversely, to file for Social Security disability benefits one must show that his medical condition prevents him from working in his previous position or any other field and he is not currently seeking employment.

Although there appears to be an inherent conflict in these positions, in Cleveland v. Policy Management Systems Corp, 526 U.S. 795 (1999) the U.S. Supreme Court held that: (1) claims for Social Security Disability Insurance (SSDI) benefits and for ADA damages did not inherently conflict, and (2) an employee was entitled to an opportunity to explain any discrepancy between her statement in pursuing SSDI benefits that she was totally disabled and her ADA claim that she could perform essential functions of her job. A similar analysis can be applied to the receipt of UI benefits where one alleges an ability to do some type of work.

Administrative law judges may not look favorably upon Social Security disability claims where the employee is receiving UI benefits, but they should consider a claimant’s application for and/or receipt of UI benefits as only one of the statutory factors adversely impacting the claimant’s credibility in assessing the ability to work, and it should be considered as part of the five step sequential evaluation process and the totality of circumstances.

Holding oneself out as being able to work is not the same as being able to work and perform substantial gainful activity. Also, a mere desire to work is not proof of the ability to work, because many employers will not hire someone with a myriad of medical problems, despite that person being willing to make a work attempt.

A November 15, 2006 Memorandum from Chief Judge Frank A. Cristaudo to Regional Chief Judges and Regional Office Management Teams, states that “[t]his is a reminder that the receipt of unemployment insurance benefits does not preclude the receipt of Social Security disability benefits. The receipt of unemployment benefits is only one of many factors that must be considered in determining whether the claimant is disabled. See 20 CFR 404.1512(b) and 416.912(b).” The Memorandum states that Social Security Ruling 00-1c incorporates Cleveland. A long line of Appeal’s Council and ALJ Decisions prior to Cleveland support this analysis, which requires consideration of all of the evidence and the totality of circumstances, making the ability to receive both types of benefits possible.

Some advocates delay the date of onset of the condition in a Social Security disability claim paving the way for a client to receive UI benefits for a period of time. However, the Social Security disability process can be quite lengthy, and may not always be successful for claimants, so it may be desirable for them to have a stream of income pending the Social Security disability process. UI benefits are not offset by Social Security disability and therefore can serve as additional funds for claimants during the Social Security disability application process.

THE PUBLIC POLICY EXCEPTION AS APPLIED TO EMPLOYEES AT WILL AND EMPLOYEES WITH WORKER’S COMPENSATION CLAIMS

Since 1891, Pennsylvania common law held that in the absence of a specific statutory or contractual restriction, an at-will employment relationship could be terminated by either the employer or the employee at any time, for a good reason, a bad reason or no reason at all. Henry v. Pittsburgh & Lake Erie Railroad Co., 139 Pa. 289, 21 A. 157 (1891). It was not until almost 100 years later that this holding was reevaluated in Geary v. United States Steel Corporation, 456 Pa. 171, 319 A.2d 174 (1974). In Geary, an employee was terminated for warning his fellow coworkers of the valid dangers posed by the new product the company was manufacturing. Interpreting Geary, Yaindl v. Ingersoll-Rand Co. held “when the discharge of an employee at will threaten public policy, the employee may have a cause of action against the employer for wrongful discharge.” 281 Pa.Super. 560, 422 A.2d 611, 617 (1980).
Some states may have statutory or common law making it a violation to terminate an employee who has been injured during the course of employment. In Pennsylvania, for example, the courts have established a narrow exception to the standard employment at will doctrine which permits employers to terminate their employees for minimal reasons, stating that it is a violation of public policy to terminate an employee who initiates a claim of worker’s compensation. Rothrock v. Rothrock Motor Sales, Inc., 810 A.2d 114 (Pa.Super. 2002). However, this is often a difficult standard to meet and employers often ignore this exception, taking the risk that an injured employee will not have the substantial resources necessary to sue the employer for violation of the policy.

In September 2009, a record setting consent degree was entered into between Sears, Roebuck and Co. and former employees who were allegedly discriminated against when Sears maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees rather than providing them with reasonable accommodations for their disabilities in violation of the ADA. The case was docketed as EEOC v. Sears Roebuck & Co., N.D. Ill. No. 04 C 7282. The Chicago based U.S. Equal Employment Opportunity Commission declared that the class action lawsuit it had initiated would be settled for $6.2 million with additional remedial relief. Many attorneys in the workers compensation field believe that this settlement will lead to important changes in how companies structure their leave policies.

However, the Pennsylvania public policy exception to the employment at-will doctrine will not apply where a statutory remedy is available. For example, an employee who was terminated based on race, color, religion, national origin, or sex is entitled to file under Title VII and similar state statutes, although he may be permitted to raise the exception as an ancillary state claim.

SEVERANCE AGREEMENTS IN LIEU OF COURT PROCEEDINGS

Another helpful tactic which should be considered if Social Security disability standards cannot be met but an employee must leave his position because he can’t perform his job duties due to some disability and/or his employer can’t reasonably accommodate his disability, is negotiating a severance agreement to include additional funds for a client and/or lengthen his entitlement to health insurance benefits. The agreement will be enforceable so long as the scope is reasonable, no laws are violated, consideration is present and the agreement is knowingly and voluntarily entered into.

Employers are oftentimes willing to enter into a severance agreement to avoid the lengthy discrimination agency or litigation process. It may be far more cost effective for an employer to give these concessions early in the negotiation process. It is important to exhaust all other remedies discussed earlier if a severance agreement is to be signed because standard severance agreements terminate the employee’s right to sue the employer for any actions that took place during a certain time frame, with the possible exception of worker’s compensation claims, depending on state law.

CONCLUSION

It is not unusual to have a client suffering from a job-related injury or illness who would have been able to continue to work given a reasonable accommodation under the ADAAA or following a FMLA leave. Instead, many employers terminate, lay off, or force these employees to resign in violation of the law and the public policy exception to the employee-at-will doctrine and the aforementioned statutes, depending on state law. That client, in addition to the receipt of Social Security disability benefits, could potentially receive worker’s compensation benefits, short and/or long term disability benefits, retirement disability and/or a settlement from an employer due to alleged violations of one of the civil rights acts or policies. Note that there may be financial offsets from receipt of more than one of these types of benefits. Also, a negotiated severance agreement or settlement may include severance pay, extension of insurance benefits and attorney’s fees and costs for a client.

In conclusion, there is no doubt, as outlined by the various remedies above, that the disability field of law is often confusing as it requires interaction with various laws and policies which often have not only varying, but conflicting, burdens of proof. However, a practitioner who is at a minimum familiar with other possible remedies can be of great help to his client. Also, this help may result in additional sources of income to the client and to the practitioner who undertakes these additional claims or refers them to other attorneys and is able to collect referral fees depending on state guidelines.