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Miami

Cypen & Cypen
NEWSLETTER
for
JULY 31, 2008

Stephen H. Cypen, Esq., Editor

1. NEW SOCIAL SECURITY RETIREMENT ESTIMATOR:

A new Retirement Estimator from Social Security produces estimates that are based on your actual Social Security earnings record. Of course, retirement estimates will vary slightly from the actual benefit you may receive in the future because your Social Security earnings record is constantly being updated; calculators use different parameters and assumptions; and your actual future benefit will be adjusted for inflation. You can use the Retirement Estimator if you are not currently receiving benefits on your own Social Security record; you have enough Social Security credits to qualify for benefits; and you are not eligible for a pension based on work not covered by Social Security. There is also a neat chart for retirement benefits by year of birth, which lists age 62 reduction amounts and includes examples based on an estimated monthly benefit of $1,000 at full retirement age. Finally, something from the Government that is helpful. Check it out at http://www.socialsecurity.gov/estimator.

2. POLICE DISPATCHER, INJURED IN HORSEPLAY, DENIED DISABILITY PENSION:

Boston.com reports on a Massachusetts state appellate decision reversing an accidental disability retirement to a municipal police dispatcher who injured her wrist and elbow because of horseplay of a fellow employee. Damiano had just stood up at her desk, intending to go to the bathroom and then pick up some forms she needed, when a police officer placed her in a headlock (how nice) and the two crashed to the floor. Damiano was injured so badly that she never returned to work. Reversing a lower court ruling that overturned a decision by the Contributory Retirement Appeal Board, the Appeals Court of Massachusetts said that although Damiano may have been injured “as a result of” her job, she was not injured while in performance of her duties -- a requirement for public employees to receive disability pensions. (Note, in Florida, Chapter 175, Florida Statutes - Firefighters and Chapter 185, Florida Statutes - Police Officers, use similar language: “in the line of duty.”) The court went on to say that a public employee injured at work may be entitled to workers’ compensation, but not to accidental disability benefits by virtue of the same injury. The court said requirements for accidental disability retirement are stricter because the benefits are more generous. Caveat: we have not read the actual decision; there may be more to this case than portrayed in the article. From personal experience, we know non-lawyer reporters are notorious for getting things wrong.

3. CALIFORNIA EMPLOYERS MUST OFFER EMPLOYEES BREAKS BUT NEED NOT MAKE SURE THEY TAKE THEM:

A case transferred from the California Supreme Court to the California Court of Appeal involved alleged violations of laws governing rest and meal breaks. The trial court certified the matter as a class action without first determining elements of plaintiffs and real parties in interest (employees) claims against defendants. The court recognized that mandatory rest and meal breaks have long been viewed as part of the remedial worker protection framework designed to protect workers’ health and safety. The appellate court concluded that the class certification order was erroneous and must be vacated because the lower court failed properly to consider elements of plaintiffs’ claims in determining if they were susceptible to class treatment. Specifically, the court concluded that (1) while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken; (2) employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period; (3) employers are not required to provide a meal period for every five consecutive hours worked; (4) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and (5) while employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so. The court further concluded that because the rest and meal breaks need only be “made available” and not “ensured,” individual issues predominate and, based upon evidence presented to the trial court, they are not amenable to class treatment. Finally, the court concluded the off-the-clock claims are also not amenable to class treatment, as individual issues predominate on the issue of whether the employer forced the employees to work off the clock, whether the employer changed time records and whether the employer knew or should have known employees were working off the clock. Accordingly, the appellate court granted a peremptory writ of mandate, directing the trial court to vacate its class certification order and enter a new order denying with prejudice certification of plaintiffs’ rest, meal period, and off-the-clock subclasses. Brinker Restaurant Corporation v. The Superior Court of San Diego County, Case No. D049331 (Cal. App. 4th, July 22, 2008).

4. FLORIDA SENIORS NEED TO WORK:

According to the Orlando Sentinel (affectionately known around the state as the “Slantinel”), Florida senior citizens take jobs for extra cash and to relieve boredom. Whether it is for financial reasons or just to stay active, more seniors are forfeiting retirement and opting to work longer -- especially in Florida. Statewide, the number of employed people 55 or older jumped 50% from 2002 to 2007, compared with the nationwide increase of only 29% during the same period. In central Florida, senior-based organizations such as AARP and Experience Works report continuing increases in the number of older adults looking for jobs. And as baby boomers continue to age, the U.S. civilian labor force 55 or older is expected to increase by more than 46% from 2006 to 2016. In recent years, more seniors have re-entered the work force because their savings have been depleted or their retirement benefits are not sufficient. Other Gray Panthers return to work because they need some time away from their spouse or out of “pure boredom.”

5. SLEEPING IS A MAJOR LIFE ACTIVITY:

The Rehabilitation Act of 1973 prohibits federal agencies from discriminating in employment on the basis of disability, defined in part as “a physical or mental impairment which substantially limits one or more ... major life activities.” In a recent federal case, after being dismissed from the FBI Academy, Desmond sued the Attorney General under the Rehabilitation Act, alleging that the FBI discriminated and retaliated against him because of his post-traumatic stress disorder, a mental impairment that substantially limited him in the major life activity of sleeping. The district court granted summary judgment to the government on the discrimination claim, holding that Desmond had failed to demonstrate a substantial limitation in sleep, and that even if he had done so, he had failed to show that the FBI’s reasons for dismissing him were pretextual. Reviewing the matter de novo, the United States Court of Appeals for the District of Columbia Circuit held that (1) sleeping is a major life activity for purposes of the Rehabilitation Act; (2) Desmond had adduced enough evidence to allow a reasonable jury to find that he was substantially limited in that basic human function; and (3) by vigorously disputing the FBI’s professed reasons for his dismissal, Desmond created a genuine issue of material fact regarding credibility of the FBI’s explanation for its decision, rendering summary judgment on the pretext question improper. However, as for Desmond’s retaliation claim, which survived summary judgment and was rejected by a jury, the appellate court rejected Desmond’s challenges to certain documentary evidence and jury instructions. And even if there was error, it was harmless. Wake me when it’s over. Desmond v. Mukasey, Case No. 07-5139 (U.S. DC Cir., July 1, 2008).

6. … AND SO ARE SEXUAL RELATIONS:

Adams, a candidate for the United States Foreign Service, passed the required entrance examinations and received a medical clearance, only to learn thereafter that she had been diagnosed with Stage-one breast cancer. Upon hearing the news, the State Department, expressing concern that many of its overseas posts lack the follow-up care it believed Adams required, revoked her medical clearance, disqualifying her from the Foreign Service. Adams sued under the Rehabilitation Act of 1973, which prohibits federal agencies from discriminating in employment against disabled individuals, including those with a “record of” a disability. In her complaint, Adams alleged that her surgical treatment rendered her cancer-free and able to work anywhere in the world without requiring specialized follow-up care. Without allowing discovery, the District Court granted summary judgment to the State Department, concluding among other things that Adams had no record of a disability as defined in the statute. In a case of first impression in the circuit, the United States Court of Appeals for the District of Columbia Circuit decided that engaging in sexual relations qualifies as a major life activity. Because Adams provided sufficient evidence showing that she had a record of an impairment that substantially limited her in a major life activity, and because the government nowhere contested any of the evidence Adams offered in support of her disabled status, the appellate court reversed the district court’s grant of summary judgment to the State Department. (Although Adams remains cancer-free, has an excellent prognosis, no longer requires ongoing cancer treatments and has no particular limits on her work activities, “... I now find that the prospect of dating and developing an intimate relationship is just too painful and frightening. While I have overcome the physical disease, my ability to enter into romantic relationships has been crippled indefinitely and perhaps permanently.”) Adams v. Rice, Case No. 07-5101 (U.S. DC Cir., July 18, 2008).

7. COUNTY POLICIES CONCERNING PAYMENT FOR EXCESS ACCUMULATED VACATION HOURS VIOLATE CALIFORNIA LABOR CODE:

California’s Labor Code provides that when a public safety officer is disabled, whether temporarily or permanently, by injury or illness arising out of and in the course of his duties, he shall be entitled to leave of absence while so disabled without loss of salary. Part of the Workers’ Compensation Law, the statute’s purpose is to provide special benefits to police, sheriffs and firemen. The reason for such exceptional treatment for public safety officers is obvious: not only are their occupations particularly hazardous, but they undertake these hazards on behalf of the public. The Legislature undoubtedly sought to ensure that policemen and firemen would not be deterred from zealous performance of their mission of protecting the public by fear of loss of livelihood. In a recent case, the principal question was whether Los Angeles County’s policies concerning payment for excess accumulated vacation hours violated the Labor Code. Here’s the problem: normally, a deputy sheriff who has accumulated more than 320 hours of vacation time may defer the hours in excess of 320 to the following year. If the excess hours are not used by the end of that year, in reliance on County Code, the County pays the deputy for the hours. If this “cash out” payment takes place during the deputy’s final compensation measurement period (the period used to determine salary for purposes of retirement benefits), the cash out payment is “pensionable income.” However, a deputy who retires in the year following a disability leave of absence is compensated for the excess hours differently. The County will not cash out deferred excess hours if the deputy is on disability leave at any time during the deferral year. The hours remain in the deputy’s account, but if the deputy retires in the year following disability leave, he will never have the opportunity to cash out or use the hours. That deputy is compensated for the hours at retirement. Under established law, that payment is not pensionable income. So, for example, a deputy who has accumulated excess vacation hours, but who has never been injured on duty, might collect more in retirement benefits than a deputy who has been injured on duty, even if the two have the same employment history in terms of rank and credited service. It also means that a deputy who retires after taking leave due to a non-job-related injury, perhaps a ski accident, might collect more than a deputy who retires after having suffered an injury in course of his duties, even if the deputies are in other respects identical. Holding that this different treatment violates the California Labor Code, the California Appellate Court has affirmed a judgment in favor of public safety officers against the County of Los Angeles. Los Angeles County Professional Peace Officers’ Association v. County of Los Angeles, Case No. B200582 (Cal. App. 2d, July 22, 2008).

8. “DISABLED” FIREFIGHTER COMPETES IN BODYBUILDING CONTEST:

Boston.com reports that despite a claim that he is permanently disabled from a work-related bank injury, Boston firefighter Albert Arroyo competed in the International Natural Bodybuilding & Fitness competition in May. Only six weeks earlier, Arroyo reported falling and suffering a back injury so severe that his doctor wrote that Arroyo should be granted an accidental disability retirement because he is “totally and permanently disabled.” After the Fire Commissioner learned of Arroyo’s strict training regimen and record as a competitive professional bodybuilder, he urged the Boston Retirement Board to deny the pending disability application. Recently, the Department shifted Arroyo, 46, from injured leave to regular sick leave, after its chief medical officer determined that any injury was not work-related. Arroyo claims that bodybuilding helps ease his back pain, to which the Fire Commissioner responded “Hunya.” Oh, by the way, the first entry in a Google search reflects that this guy ran in the 23rd Annual Boston Firefighters 10k Road Race, finishing at 50:43 (that is, 6.2 miles at an average 8:11 per mile)! You can watch this invalid strut his stuff at http://www.boston.com/news/local/massachusetts/articles/2008/07/14/on_injury_leave_firefighter_stood_out_as_bodybuilder.

9. AND NOW ... “GOLDEN COFFINS”:

To the list of golden parachutes and golden handcuffs, add “golden coffins”: lavish death benefits for CEOs, which can include massive severance payments made to an executive’s estate after dies. According to hreonline.com, companies have promised their CEOs and their families death benefits of up to hundreds of millions of dollars. At Nabors Industries, for example, the CEO’s estate will receive a “severance” payment of at least $263 Million if he dies this year. The estate of Comcast Corp.’s CEO will receive a $298 Million severance when he dies. In many cases, these golden coffins comprise accelerated unvested stock warrants, giant severance payments and continuation of salary/bonuses for years after the CEO’s death. Some heirs have even been promised use of company cars, airplanes and offices for years after the executive passes away. The lavish golden coffins were brought to light by the Securities and Exchange Commission’s revamped rules for transparency on executive compensation, introduced in early 2007. And thanks to those new disclosure rules, golden coffins may soon be deader than a doornail at most companies. It’s no wonder people are dying to get into the business.

10. RECEIPT OF INITIAL POLICE REPORT TRIGGERS REQUIREMENT THAT AGENCY PROVIDE COPY TO DOMESTIC VIOLENCE CENTER:

Section 741.29, Florida Statutes, requires law enforcement officers investigating incidents of domestic violence to advise the victim of such violence that there is a domestic violence center from which the victim may receive services. Law enforcement officers are required to give victims immediate notice of their legal rights and remedies by providing them with a standard form developed by the Florida Department of Law Enforcement entitled “Legal Rights and Remedies Notice to Victims.” Regardless of whether an arrest is made following an investigation of domestic violence, the law enforcement officer investigating must make a written police report indicating that the alleged offense was an incident of domestic violence. The law enforcement agency is charged with sending a copy of the initial police report on the incident to the nearest certified domestic violence center within 24 hours after the agency’s receipt of the report. The statute clearly places responsibility of providing a copy of the initial police report on the law enforcement agency rather than on the law enforcement officer preparing the report or the officer’s supervisor who must receive a copy of the report. Thus, in response to the question of what event initiates the 24-hour time requirement, the Florida Attorney General determined that timely receipt of the initial police report by the records custodian of a law enforcement agency triggers the 24-hour time requirement for the agency to submit a copy of that report and other related reports to the nearest certified domestic violence shelter. AGO 2008-37 (July 23, 2008).

11. REFERENDUM REQUIRED TO AMEND MUNICIPAL CHARTER TO ABOLISH OFFICERS:

The following question was posed to the Florida Attorney General: “May the City of Indian Rocks Beach amend the city charter to abolish the charter offices of City Clerk and City Treasurer by unanimous vote of the City Commission pursuant to Section 166.031(5), Florida Statutes?” Currently, the city charter provides for, and sets forth duties and responsibilities of, an appointed City Clerk and an appointed City Treasurer. Section 166.031(1), Florida Statutes, provides the method for amending municipal charters. A referendum is required. The Attorney General was aware that Section 166.031(5), Florida Statutes, authorizes a municipality, by unanimous vote of a governing body, to abolish municipal departments. While the City Clerk and City Treasurer may be heads of municipal departments, these positions are designated “charter officers,” and the Attorney General has no authority to extend the clear language of the statute to include officers within its terms. Thus, the City Commission of Indian Rocks Beach may amend the city charter to abolish the charter offices of City Clerk and City Treasurer only if such amendment is approved by referendum of the qualified electors of the municipality pursuant to Section 166.031(1), Florida Statutes. Very important note: for purposes of the Florida Constitution, Article II, Section 5(a), dual officeholding prohibition, it does make a difference whether one’s position is an “office” or not. AGO 2008-38 (July 23, 2008).

12. HIGHLIGHTS OF MERCER’S 2008 COST OF LIVING SURVEY:

Contrary to the trend observed last year, the gap between the world’s most and least expensive cities now seems to be widening. Current market conditions have led to further weakening of the U.S. dollar, which, coupled with strengthening of the Euro and other currencies, has caused significant changes in this year’s rankings. Mercer’s survey covers 143 cities across six continents, and measures the comparative costs of over 200 items in each location, including housing, transport, food, clothing, household goods and entertainment. It is used to help multinational companies and governments determine compensations allowances for their expatriate employees. Here are the top five in terms of cost of living:

1. Moscow, Russia

2. Tokyo, Japan

3. London, United Kingdom

4. Oslo, Norway

5. Seoul, South Korea

New York, which is used as the “base,” comes in at number 22 (down from number 15 in 2007).

13. THE 25 GREATEST LEGAL MOVIES:

The ABA Journal, the lawyer’s magazine published by the American Bar Association, asked twelve prominent lawyers who teach film or are connected to the business to choose what they regard as the best movies ever made about lawyers and the law. Twenty-five were selected, but here are the top ten:

1. To Kill a Mockingbird (1962)

2. 12 Angry Men (1957)

3. My Cousin Vinny (1992)

4. Anatomy of a Murder (1959)

5. Inherit the Wind (1960)

6. Witness for the Prosecution (1957)

7. Breaker Morant (1980) [Huh?]

8. Philadelphia (1993)

9. Erin Brockovich (2000)

10. The Verdict (1982)

Personally, we would reverse the first two. We have been told that 12 Angry Men is used in graduate school to demonstrate the wonder of group dynamics. Bonus question: name the 12 actors in the movie. Double-bonus question: name them by juror number.
14. ANSWER TO BONUS QUESTION:

In order of juror number, here are the 12 angry actors: Martin Balsam, John Fiedler, Lee J. Cobb, E.G. Marshall, Jack Klugman, Edward Binns, Jack Warden, Henry Fonda, Joseph Sweeney, Ed Begley, George Voskovec and Robert Webber.

15. HUMOR FOR LEXOPHILES:

When the smog lifts in Los Angeles, U.C.L.A.

16. QUOTE OF THE WEEK:

“Courage is going from failure to failure without losing enthusiasm.” Winston Churchill


Copyright, 1996-2009, all rights reserved.

Items in this Newsletter may be excerpts or summaries of original or secondary source material, and may have been reorganized for clarity and brevity. This Newsletter is general in nature and is not intended to provide specific legal or other advice.


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