Following is a partial list of personnel records and a recommended retention time for these records:

Permanent:

• Application for employment
• Offer letters
• Changes in salary and position
• Changes in beneficiary designations
• Performance evaluations
• Awards to employees
• Record of training provided to employee
• Record of termination and reasons for termination

 Six years or longer:

• Wage attachments or garnishments

 Five years or longer:

• Attendance records
• Disciplinary actions
• Records of leaves of absence

Employers need to also remember that non-public employees are allowed to inspect their personnel records that have been used to determine that employee’s qualifications for employment, promotion, compensation, termination, or other disciplinary action, including any grievances.  There are records that are not subject to this rule including records of an investigation of a possible criminal offense or records that were obtained before the employee’s employment.

For employee privacy reasons, an employer should also not keep all records in the personnel file.  Records that should be segregated from the personnel file include:

• Worker’s Compensation claims and related documents
• Verification of right to work in the United States
• EEOC and DFEH charges of discrimination and related documents
• Medical Information under the American’s With Disabilities Act or California   Confidentiality of   Medical Information Act

If you have any questions regarding which personnel records should be retained or for how long a personnel record should be retained,  please consider contacting one of the Janssen Malloy LLP attorneys.

It is worth fighting to protect your rights, with or without an attorney.  The average speeding ticket will count for one point on your DMV record (Vehicle Code § 12810) and three of those points in a year will result in a license suspension.  Fines for tickets can also be very high.  A chart of the 2012 California traffic fines can be found at www.courts.ca.gov/documents/Final-2012-JC-BAIL.pdf.

Finally, at least in Humboldt County, you don’t have much to lose if you fight the ticket.   Fighting a speeding ticket will not necessarily result in the loss of your right to attend traffic school as many believe.   (Traffic school is an important option for speeders since completing a course of traffic school can erase points from your DMV driving record. )  Inquire with the court clerk whether this is true for you.

In sum, you should not concede without a fight if you feel you are innocent.

The issues associated with cloud computing vary from one provider to another and based on the type of delivery models used to access the cloud and whether services are delivered through public, private, hybrid, or managed clouds.  A company’s needs and the potential risks associated with cloud computing dictate the company’s right cloud computing options.

Unfortunately for small to medium sized companies, most cloud computing providers do not offer customizable contracts to these smaller customers.  Instead, users are presented with non-negotiable “click-wrap” licenses and terms of use, much resembling standard, non-customizable software licenses.  Because these contracts are created by the providers, they invariably favor the provider over the user.  Users should carefully read these contracts and compare the terms offered by several providers before clicking the “I agree” button.  Many times, the liability assumed by the cloud vendors is not on par with the risk delegated to users when trusting their vital data to the cloud.  When reviewing a licenses and terms of use, users should be sure they understand the security features, service level agreement, and other risks and liability provisions of the contract.

One of the largest concerns associated with cloud computing involves privacy and security of a user’s data and the user’s data use patterns.  Once data is transferred to the cloud, customers must rely on the physical and information security measures of their provider.  Users must ensure that the services offered are adequate to protect their data, and that the protections in place comply with applicable laws requiring specific levels of security and encryption of personal data.  Cloud users should also be aware that cloud vendors service and have access to data from multiple customers.  Cloud users may want to ensure that their vendor will not compare its customers’ data and use of data for any purpose, including predicting business trends.  One way to reduce this risk is for the user to ensure that its contract with the provider specifies that its data usage patterns are the user’s confidential property.

Other concerns arise from the fact that data stored in the cloud is transferred from one server to another, often across state and international borders.  This creates jurisdictional questions relating to whether cloud users subject themselves to the laws of the jurisdictions where their data is stored, even temporarily.  The transitory nature of data stored on the cloud may also create issues for companies whose data is subject to auditing or who must otherwise account for the location of their data.

Cloud users should also consider the possibility that they may eventually want to remove their data from the cloud, due to problems with the cloud provider or with cloud computing in general. Users should consider their ability to control how and when the provider will deliver their data.

While cloud computing has been gaining ground over the past several years, the implications of these and other potential legal issues are still the subject of speculation and research.  If you or your business is considering transitioning from traditional computer networking to cloud computing, careful consideration of your business needs, provider contracts, and the possible unknown implications of cloud computing is essential.  Should you need assistance with this or other business matters, Janssen Malloy LLP stands ready to assist.

Leaving urban myth aside, the preponderance of the evidence standard has been a part of the common law since the adoption of the jury system.³    The function of a standard of proof is to instruct the fact finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.⁴    As Justice Harlan explains:   [I]n a civil suit between two private parties for money damages . . . we view it as no more serious in general for there to be an erroneous verdict in the defendant’s favor than for there to be an erroneous verdict in the plaintiff’s favor.  A preponderance of the evidence standard, therefore, seems peculiarly appropriate for, as explained most sensibly, it simply requires the trier of fact to believe the existence of a fact is more probable than its nonexistence before he may find in favor of the party who has the burden to persuade the (fact finder) of the fact’s existence.”⁵

Further, this standard normally applies to each element of proof.  Thus, the more complex the case, the more occasions where an element must be proven by a preponderance of the evidence, thus decreasing the likelihood that a seriously injured party will be fully compensated.

The “clear and convincing” standard has generally been required only in those cases where the interests at stake are deemed more substantial than the loss of money, such as those involving a significant deprivation of liberty or moral stigma.⁶  To equate the loss of money to loss of liberty may be fashionable, but it still defies logic.

Mr. Kirkland argued that increasing the standard of proof was necessary because a plaintiff could recover damages under “such vague legal standards”  as whether the defendant has acted with “reasonable care.”  Respectfully, presuming  that “reasonable care” is a vague standard, one is hard pressed to understand how it is made less vague if reasonable care is required to be proven  with “clear and convincing” evidence as opposed to a preponderance.  To the contrary, this simply adds an additional layer of confusion.

Also, who gets to determine what is a “large damage” award?  Is this done in hindsight after the award is rendered?  Often, the reason that a matter has gone to trial is a dispute between the parties as to the value of the case.  Should the jury have different levels of proof depending on how much money they decide to award?  For example,  if a jury awards less than $500,000.00,  the jurors are only required to find with a preponderance, but, if the jurors decide to provide more compensation than that, the level of proof would increase?

Presuming, however,  that the level of proof should depend on the amount of economic turmoil confronting the country in any given year, should we adopt a sliding scale of proof depending on the level of the Dow?  Perhaps if the Dow Jones Average is trading above 14,000  we could  use “preponderance,”  and if the Dow is below 6,000, we could require “beyond a reasonable doubt”  with “clear and convincing”  reserved for the remainder.

Notably, Mr. Kirkland focused his proposition solely on tort cases.  As we know, the largest verdicts in the country are those in business versus business litigation.  Verdicts in business disputes certainly have a much larger impact on the distribution of existing wealth than damage awards to injured victims.  Perhaps, then, we could simply be straight forward and have the clear and convincing standard applied only to lawsuits by the poor against the wealthy.  That would be easier to determine at the outset and achieve the desired goal of the article.

NOTES

 ¹AAJ, Debunking the Myths.

²See Center for Justice & Democracy.

³See Riley Hill General Contractor, Inc. v. Tandy Corp., 303 Or. 390, 394-395,737  P.2d 595, 598 (1987).

⁴Addington v. Texas, 441 U.S. 418, 423 (1979).

⁵In re Winship, 397 U.S. 358, 371-372 (quotations and footnotes omitted).

⁶Riley Hill, supra, 737 P.2d at p. 602.

Senate President Pro Tem Darrell Steinberg is sponsoring Senate Bill 1528 to reverse the impact of the Supreme Court’s Howell decision.   Senator Steinberg’s bill would positively affect California’s budget, by insuring that the State’s Medi-Cal program is adequately reimbursed in tort cases for the cost of providing care to eligible beneficiaries.

Janssen Malloy LLP’s lawyers have seen first hand the impact of the Howell decision on the extent of damages that can be recovered for our clients.  Janssen Malloy LLP partner Patrik Griego serves on the Board of  Governors for Consumer Attorneys of California, which is also behind Senator Steinberg’s SB1528 bill to allow injured plaintiffs to present the full amount of their damages in the form of the billed amounts for their medical care.

Eureka law firm Janssen Malloy LLP was one of three firms which represented the class of seniors and dependent adults who claimed to have received insufficient care at skilled nursing facilities.   On July 6, 2010, after a seven month trial, a Humboldt County jury returned a record $677 million verdict against one of the nation’s largest nursing home chains, Skilled Healthcare, for violations of California’s Health and Safety Code at 22 of its skilled nursing facilities, five of which were located in Humboldt County.  The parties then settled the case before the jury heard evidence about punitive damages.

Janssen Malloy LLP Partner Patrik Griego stated:  “It is our honor to be able to give these funds to our local Area 1 Agency on Aging.  Our focus on obtaining justice and dignity on behalf of seniors has shown us that Area 1 Agency on Aging provides vital support for some of the most vulnerable segments of our community.  Area 1 deserves our community support because it is committed to the preservation of essential services and programs that help our seniors maintain their independence and live healthy lives in their own homes.”

For more information about services provided by  Area 1 Agency on Aging visit their website at www.a1aa.org.

The private equity firms claim that, even though they are “for profit,” they can still  provide excellent care for seniors.  However, recent studies show that is simply untrue.

In a recent study published in Health Services Research by the University of California, San Francisco, the authors found that for-profit nursing home chains reduce staffing in order to lower costs and help enhance their corporate profits.   In doing so the studies show that there were fewer nursing hours on average and fewer registered nursing hours in particular.  The researchers also found that for-profit nursing home care centers receive 36% more deficiencies when surveyed by the California Department of Health than those facilities that were either nonprofit or government sector nursing homes.  Further, the deficiencies were found to be 41% greater in their severity.

If that weren’t enough, because of budgetary cutbacks the California Department of Health is simply not living up to its task to appropriately inspect those facilities for problems.  In a February 27, 2012 report by the Office of Inspector General which examined how the California Department of Health handled investigations at three nursing home facilities, they found that the California nursing home inspectors underestimated the severity of the problems 13% of the time and that, in 77% of the cases that required nursing homes to follow corrective action plans, the State accepted plans that did not meet federal requirements.  In addition, the inspectors did not verify that the facilities corrected their problems in four of the nine surveys conducted.

Is it any wonder, then, that nursing home litigation continues to increase?  Until the root causes of this problem – both investment by private equity firms with no significant stake in the health and welfare of the residents, and a lack of adequate regulatory oversight – are resolved, families must be extremely wary about putting their loved ones into such homes.

Michael Crowley and Amelia Burroughs, partners of  Janssen Malloy LLP, presented the check to Marylee Bytheriver, Executive Director of Hospice of Humboldt.   “It is our honor to be able to give these funds to Hospice of Humboldt.  Our work on behalf of nursing home residents has shown us that Hospice provides heartfelt care and services to people facing the end of their lives,” said Michael Crowley.

“Hospice serves patients wherever they live,” said Marylee Bytheriver, “including skilled nursing facilities.  We are so appreciative of this gift and we will use it to help pay for the construction of the Ida Emmerson Hospice House, an inpatient facility dedicated to providing specialized end of life care to the whole person.”

Hospice of Humboldt has been serving families locally for over 32 years and has a staff of over 80 employees and 125 volunteers.  Hospice provided end of life care to 584 patients last year who, as a result, were able to die with dignity and in comfort. For more information about services provided by Hospice of Humboldt visit their website at www.hospiceofhumboldt.org

Assembly Bill 1082 modifies an agent’s ability under a power of attorney to disclaim, reject or release a principal’s share in or payment from an estate, trust or other fund.  It requires a court order if the disclaimer, rejection or release is adverse to the principal’s interest.

The Estate of Stoker (2011) 193 Cal.App.4th 236  is an interesting California case which holds that a will executed before witnesses, but not signed by the witnesses may still be valid if it can be established by clear and convincing evidence that the testator intended the will to be the testator’s will.

The case of Kucker v. Kucker (2011) 192 Cal.App.4th 90 should be a help to persons who did not properly fund their revocable trust before dying.  This case holds that a Settlor’s general assignment to a revocable trust of “all property owned by me” was sufficient to establish that the Settlor’s securities were trust property.  This case is applicable to personal property, but not real property.  Instead of a probate, the trustee was able to petition the court and obtain an order that the securities were trust property.

The case of Bellows v. Bellows (2011) 196 Cal.App.4th 505 is relevant to Trustees who are trying to distribute an estate to the beneficiaries in that it holds that the Trustee cannot require the beneficiaries to sign a release as a condition of the distribution.  This case may require that the Trustees petition the court for approval of the distribution to fully protect the Trustee.

On the down side for local taxpayers, Humboldt County is being asked to sign a contract guaranteeing a minimum amount of revenue to American Airlines.  In other words, the County would have to pay the difference if actual revenues don’t measure up to the agreed amount (currently American is asking for $2 million– $1 million per year for two years).

The County is expected to enter into an agreement by the end of this week and the Board of Supervisors has approved entering into a contract, though nothing final has been signed.  The Headwaters Fund is reported to be working on raising $1 million from the private sector to sponsor this new airline service to Los Angeles.  Stay tuned!