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UNEMPLOYMENT BENEFITS APPEAL HEARINGS

To Prevail at Unemployment Benefits Appeal Hearings, You Should Get Familiar with NRS 612.385 and the Related Case Law.

Trained human resource professionals maintain detailed personnel files. A great deal of the information placed into those files is placed there for the purpose of ensuring that a terminated employee will not be eligible for unemployment benefits.
The Nevada Unemployment Compensation Program is administered by the Nevada Department of Employment, Training and Rehabilitation, also known as DETR. DETR makes available to all employers an Employer Handbook. The Employer Handbook provides tips and points to employers to assist them in prevailing against a terminated employee who seeks unemployment benefits.
The Employer Handbook cautions employers that future tax rates will likely be impacted when terminated employees qualify for unemployment benefits. In order to minimize the chances that benefits will be paid, DETR directs all employers to timely respond to all division notices, including the “Employer Notice of Claim Filed.” The employer should also provide sufficient facts which will allow DETR to deny the claim. Most claims are denied when an employer can demonstrate that the employee has engaged in misconduct. To substantiate claims of misconduct, the employer is encouraged to maintain written personnel records of all employees’ performance and conduct.
Employers can generally succeed in having unemployment benefits denied when the employer can demonstrate that the employee was terminated for conduct that was the subject of a prior disciplinary action. If the employer maintains a counseling statement (or disciplinary action form) for each instance of misconduct, the employer greatly increases the likelihood that benefits will be denied when the same or similar acts of misconduct are repeated by the employee because the employer will be able to show that the employee engaged in behavior that the employee knew, or should have known, was unacceptable to the employer.
When an unemployment benefits claim is denied, the employee can challenge the denial at an appeal hearing. Similarly, when a claim is approved, the employer can appeal the approval through the appeals process. When misconduct has been alleged, the employee and employer will be required to present facts and legal arguments at the appeal hearing. The pertinent statutory section regarding misconduct (NRS 612.385), however, does not define misconduct. Generally, the legal arguments stem from the approximately 20 Nevada Supreme Court decisions regarding misconduct pursuant to NRS 612.385. In order to present the best legal arguments possible, whether you are an employer or employee, you should become familiar with all Nevada Supreme Court decisions regarding NRS 612.385.

BREACH OF CONTRACT

When a party has breached a contract, the injured party may sue for damages. Generally, damages for a breach of contract fall into three categories: (1) expectation damages; (2) reliance damages; and (3) restitution.
Expectation damages are measured by the monetary value that the non-breaching, or injured, party could have reasonably expected to gain from the contract. The purpose of expectation damages is to put the injured party in the same position that he or she would have enjoyed had the contract been fulfilled.
Reliance damages are measured by the detriment the injured party may have incurred by relying on the party who breached the contract. The purpose of reliance damages is to restore the injured party to the position he or she would have been in if the contract had not been made in the first place.
Restitution is measured by the monetary value of the benefits the injured party conferred upon the breaching party. The purpose of restitution rests upon basic notions of fairness and justice.
Where a breach of contract involves damages of $5,000 or less, the case, in most circumstances, should be brought before the Small Claims Court. Generally, an attorney is not needed for small claims actions, and Nevada Legal Services provides free classes regarding Small Claims Court filings.
Where a breach of contract involves damages greater than $5,000, but not more than $10,000, the case, in most circumstances, should be brought before Justice Court. In cases where the breach of contract causes more than $10,000 in damages, the case should be brought before District Court.
For more information on breach of contract damages, you should consult with an attorney who regularly litigates breach of contract actions.
Statutes of Limitations are Not One-Size-Fits-All

Most, but not all, statutes of limitations may be found in Chapter 11 of the Nevada Revised Statutes. Others are a product of Nevada Supreme Court decisions.
Most torts have a statute of limitations of two years. Included within two-year statutes of limitations are the following causes of action: (1) intentional torts, such as battery, false imprisonment, etc.; (2) negligence; and (3) defamation, libel and slander. Fraud, also an intentional tort, carries a statute of limitations of three years. Three-year statutes of limitations are also imposed on actions for trespass, waste, and injury to personal property.
Causes of action with four-year statutes of limitations include: (1) accounting malpractice; (2) oral contract; (3) open accounts for collection; and (5) deceptive trade practices. Breach of contract and breach of a promissory note each carry a statute of limitations of six years.
One of the longest statutes of limitations in Nevada, fifteen years, is imposed on government takings of private property, also called eminent domain or inverse condemnation.
Computing the time for statutes of limitations, however, can be tricky. In some instances, the statute does not begin to run until the injury becomes apparent. Also, most statutes of limitations do not begin to run against a minor until the minor becomes 18 years of age. Other statutes of limitations do not begin to run until the last injurious act has been committed.
If you believe you have a cause of action, but you are concerned that the statute of limitations has run, a quick consultation with a trusted attorney can help you sort things out.
What Should I Not Do Before Filing For Bankruptcy?

There are many mistakes that people make when filing for bankruptcy. It could be in their paperwork or it could be failing to plan appropriately. Here are the top 5 things that people do wrong when filing for bankruptcy protection. If you have one of these issues and you need to file anyway, you should at least be aware of the problem prior to filing, look at the possibility of filing under a different chapter or seek another alternative completely.



1. Using Your IRA, 401k or other Qualified Retirement Plan

Nevada’s exemptions protect your IRA, 401K, etc. from creditor’s claims. The Nevada Legislature saw fit to protect those assets for you. They wanted people in Nevada to have a secure retirement. Why then would you use that money to pay unsecured creditors. Yes, you have a contract, promised or are feeling very guilty about this obligation. There are alternatives to liquidating your 401k. In a nutshell, these assets are protected from creditor’s claims either inside or outside of bankruptcy. So, if a debt collector tells you that your 401K will be garnished, he is lying. Also, if your kids are hitting you up for a loan, and your only source for the funds are your retirement plan, it may hurt, but you need to tell them no.



2. Protecting Your Tax Return

You do not need to wait until tax season to protect your tax return. Guess what? It is always tax time. Tax time starts in January and runs all year long. The time to think about protecting tax returns is now, not April 15, 2013. There are many things that people can do to protect their tax refunds, but it may require some planning. Nevada’s personal property exemptions do not leave room for errors like this. You should speak to an Attorney now if you are thinking of filing for bankruptcy and are due to receive a refund.



3. Preferential Transfers (Paying back friends or relatives before filing)

The bankruptcy code was designed to protect both debtors and creditors. In this way, the debtor will be protected from their creditors and creditors can be assured that actions taken by the debtor will be scrutinized to prevent debtors from liquidating all their assets prior to filing. Well, a preferential transfer to a friend or family member prior to filing for bankruptcy protection is a big no-no. It’s not that we don’t want Mom and Dad to be repaid, it’s just that we don’t want them to get paid to the detriment of the other creditors. Here, the bankruptcy trustee can and will sue the friend and family member to get the money back into your bankruptcy estate.



4. Transferring Assets Prior to Filing

Similar to #3 above is when a debtor starts transferring assets prior to filing bankruptcy. Nothing raises a red flag faster than a debtor who sells a car to a friend or family member at the very last minute. It happens all the time, and you should be cautious about this type of behavior. Such transactions can be done properly and in a way that will protect the debtor’s interests.



5. Loading Up the Credit Cards Before Filing

The best is saved for last. There is no reason to load up the credit cards prior to filing for bankruptcy, regardless of what your cousin’s sister’s brother in law told you. If you know someone who got away with this type of behavior, you have a better shot in the casino if you want to gamble. If you go out and go on a spending rampage, it may very well come back to bite you in the end. If such transactions have occurred, it is best to wait for at least 6 months before filing.

LEGAL LIFE IN ORDER

NOW is the best time to get your legal life in order.

Do you have advanced medical directives, or AMDs? There are three categories of AMDs: the living will, the power of attorney, and the health care proxy. AMDs are designed to outline your preferences and wishes with respect to medical treatment and interventions in the event that you are incapacitated. Your AMDs should be placed into your medical records. You may also place your AMDs into your mobile telephone. For more information on AMDs, speak with your family doctor and attorney.

Have you completed your estate plan? An estate plan is not just for those with huge estates. Whether an estate is big or small, an estate plan puts your affairs in order so that things are easier for your surviving friends and family when that inevitable time comes. An estate plan should begin with a simple will. As your estate grows, your will can grow with it. You may also wish to set up a trust. A trust is a vehicle which allows you to pass on assets to others without the need for them to go through the time-consuming and expensive process of probate court. For more information on wills and trusts, contact your attorney.

Do you have life insurance? If you have children, you should probably have life insurance. If you own a house that is not paid off, life insurance may be a great idea. You might be surprised how inexpensive a basic policy can be. Contact your insurance agent for more information about life insurance options. Then, ask your attorney about pouring over your life insurance benefits into a trust.

One thing is certain: we will all move on to greener pastures someday. For many of us, unfortunately, that someday could come as a complete surprise. That is why NOW is the best time for you to get your legal life in order by and through the creation of instruments and vehicles described above, as well as other legal tools.

5 TIPS FOR PROTECTING YOUR BUSINESS

5 Tips for Protecting Your Business

1. Non-Disclosure Agreements. A prudent business owner should require every employee to sign a non-disclosure agreement, also called a confidentiality agreement or an NDA. An NDA will help your business maintain privacy and secrecy of business affairs and client lists. An NDA will also prevent disgruntled employees or former employees from making disparaging remarks about your business. An NDA works best when it is specifically tailored to your particular business and the scope is not broader than necessary to maintain a reasonable level of confidentiality.

2. Embezzlement Protection. One of the simplest ways that a business can prevent embezzlement is to require two signatures on all checks. Contact your local bank to set up an account that requires two signatures. Also, you should have more than one person review your bank statements every month.

3. Limited Liability. If a business is structured as a corporation or limited liability company, the business owners are generally not personally liable for business debts or obligations of the business. Under these structures, when properly maintained in compliance with the required formalities, only the assets of the business entity are at risk, not the owners’ personal assets, such as cars, boats or houses.

4. Non-Compete Agreements. A prudent business owner should require every employee to sign a non-compete agreement, or NCA. By signing an enforceable NCA, the employee agrees to not work for a competitor for a certain duration of time and within a certain geographical region after he or she ceases to be employed by your business. Generally, an NCA is enforceable as long as it is not overly broad in its prohibitions against direct competition, and whether or not it is overly broad depends largely on the type of business and the geographic proximity of your business to similar businesses.

5. Trademarks. Your brand and image can mean everything. A trademark is a word, design, logo, symbol or phrase that identifies your business and distinguishes your goods and services from your competitors’ goods and services. You should protect your business’s brand and image by obtaining trademark protection; otherwise, other businesses can take a free ride on the coattails of your success and branding, essentially luring customers from the marketplace that could have otherwise been your customers.

Personal Injury

13 Things You Should Do If Involved in a Car Accident

1. Immediately call 911 for medical attention (remember, you might not know you are injured right away due to shock, so have a medical professional check you out);
2. Ask the 911 operator to send police;
3. Take photos of all vehicles involved and the area around the accident (you cannot have too many photos);
4. Take down the names and contact information of any witnesses;
5. Take notice of the status of the other driver, and if the other driver appears to be impaired by drugs or alcohol, tell the police officer;
6. Take note of the weather conditions;
7. Read the police report carefully before signing it (also take several photos of the report);
8. Get the other driver’s insurance information (take several photos of any insurance cards);
9. Keep track of all medical expenses, and lost income related to the injuries sustained in the accident;
10. Do not admit fault;
11. Do not sign anything besides the police report;
12. Do not agree to any quick insurance settlement; and
13. Call an experienced attorney you can trust.

Copy this list into a Word or Word Perfect document, type in the phone number of your preferred attorney(s) at the bottom of the list, print, and put a copy of this list in your glove compartment or console.

Introduction to Divorce

JURISDICTION & GROUNDS FOR DIVORCE:
Nevada only requires that one of the spouses live in the state for at least six weeks immediately before filing for a Nevada divorce.
Nevada is also a “no fault” divorce state. This means that the Court need not consider wrongdoing of either spouse when granting the divorce.

FILING FOR DIVORCE:
First, the petitioning spouse must file with the Family Court a summons and a complaint for divorce. Then, this complaint is then served on the responding spouse.
The responding spouse has 20 days to reply. The responding spouse can simply file an “answer” or may file an “answer and counterclaim” requesting the Court grant whatever property, support, custody, or visitation arrangement so desired. If he/she fails to respond to the complaint, then the Court will issue a “default” and give the filing spouse everything he/she requested in the complaint.

DIVIDING ASSETS AND LIABILITIES:
In order to determine what assets and liabilities are involved in the divorce case, the Court requires each spouse to submit the Financial Disclosure Form or “FDF.” This form can be found on the Family Court’s website at http://www.clarkcountycourts.us/shc/Supporting%20Documents/self_help_supportingdocs.html
The Financial Disclosure Form requires each spouse list all of their income, expenses, assets and debts. The Form must be filed with the Court and served on the opposing side within 45 days of the service of the summons and complaint.
Nevada is a “community property” state. This means that all property and debts acquired during a marriage are divided equally. Even if the property or debt acquired during the marriage only has one spouse’s name attached to it, the Court will still split that property or debt equally. Unless the spouses agree to divide the marital property differently, the Court will split the property and debts 50/50 between the spouses. However, any property or debts acquired by an individual before the marriage belongs to that individual alone.
The situation often occurs when couples live together prior to marriage that they acquire property or debts together proper to the marriage. These properties and debts will not be considered community property; however, it can become difficult to determine which spouse acquired the property. The Court will consider such factors as (1) which spouse’s income was used to acquire the property or (2) who’s name is associated with the property or debt.

SPOUSAL SUPPORT:
The Court may award spousal support to either spouse upon request after considering certain factors. A spouse seeking to obtain alimony must specifically request it in the complaint or answer/counterclaim. The Court will not award permanent spousal support. The general guideline is that, if the Court determine that spousal support is necessary, the Court will limit the duration of spousal support payments to half the duration of the marriage. For example, if you have been married for ten years, the Court may deny your request for spousal support outright, grant you spousal support for up to five years, but the Court will generally not award more than five years of support.
In determining the need, duration and amount of maintenance, the Court will consider:
1. Whether the requesting spouse worked during the marriage, stayed home with children, or was unable to work due to disability during the marriage;
2. The financial condition of each spouse after the divorce, i.e., whether the paying spouse earns more than the requesting spouse.
3. Whether a spouse needs support for the purpose of being trained or receiving an education in order to get a job or career.


CHILD CUSTODY & SUPPORT:
In any divorce case involving minor children, the Court will determine which parent will receive custody of the children. In figuring out who will have custody of the children, the Court will consider:
1. The wishes of the child if the child is old enough and capable of making an intelligent choice;
2. Whether either parent or any other person seeking custody has engaged in any act of domestic violence against the child, the parent, or anyone else;
3. Which parent provided for the child’s daily living needs during the marriage.

The Court will likely refer the parents to the “Family Mediation Program” located in the courthouse. A neutral mediator will meet with the parents to try to reach a Parenting Agreement that will be presented to the Court. The Court prefers to have the parents voluntarily make the custody and visitation decisions.

If the parties cannot agree to a formal Parenting Agreement, the Court will decide. The Court’s ultimate decision regarding child custody will come down to what is in the best interests of the child.
Both parents have a duty to provide financial support for their minor children. Child support is based on the Nevada Child Support Guidelines.
The Court may deviate from the Guidelines by considering the following factors:
1. The cost of health insurance
2. The cost of child care
3. Any special educational needs of the child
4. The age of the child
5. The legal responsibility of the parents for the support of others, such as elderly parents or other minor children who are not the product of the marriage in question
6. The amount of time the child spends with each parent. However, the Court generally will not reduce child support payments simply because a parent requests additional time with the child.
Once all of the issues regarding property, debts, spousal support, child support, custody and visitation are resolved, the Court will issue a final Decree of Divorce. Once the Decree of Divorce is signed by the Judge and filed with the Court, the divorce is finalized. The Court will keep the case open to resolve future issues regarding the children, but if there are no further disputes, the matter will be closed.
Yvette R. Freedman, Esq., is now the family law attorney here at John Peter Lee, Ltd. If you need assistance with your divorce; adoption; prenuptial agreement; custody, visitation, or child support dispute; or any other related issue, please call Ms. Freedman's assistant, Tim, at (702) 382-4044, and we will be happy to set up an appointment for you to meet with Ms. Freedman.

Tenants' Rights in Foreclosure

A new law passed by Congress and signed by President Obama provides protections for tenants whose landlords lose their home to foreclosure. The law is called the Protecting Tenants at Foreclosure Act of 2009. Under the law, tenants now have the right to stay in their homes after foreclosure for 90 days or through the entire term of their lease. This federal law does not apply to tenants who are the child, spouse or parent of the landlord or where the rent is substantially less than fair market value.

This new federal law preempts Nevada law which previously allowed a tenant to be evicted with as little as 3 days notice.

If you are a tenant or landlord and would like to discuss your concerns, please call our firm at (702) 382-4044 to set up an appointment to meet with Yvette R. Freedman, Esq.