Category Archives: Business Law

Monitoring Employees

Monitoring Employees

Technology has made monitoring employees easier than ever now that almost every mode of communication has gone digital. As many as three out of four companies reported that they monitored their employees to some extent, with the most commonly monitored activities being internet use and email.

Employers understandably don’t want employees surfing inappropriate websites, trading stocks, or playing poker while on the clock. More important to many companies, however, is that employees aren’t engaging in corporate espionage, selling trade secrets, or using workplace computers to harass other coworkers.

As an employer, the law generally allows you to monitor your employees’ communications while on the job and within reason. The major exception to this is if the monitoring runs afoul of an employee’s right to privacy. Each form of monitoring has its own rules and exceptions, so it’s important to know how the law treats each type of monitoring.

Monitoring Internet Use

Monitoring general internet use is probably the least restricted form of monitoring. Employers are allowed almost without exception to keep track of internet sites that their employees visit. Employees generally have no right to privacy regarding their viewing history, and many companies install software that either severely limits what websites may be viewed or how much time employees can spend on non-approved sites.

Monitoring Emails

Emails are the modern form of letters and correspondence and accordingly have more protection based on precedent than something like general internet viewing habits. However, courts have generally sided with employers and allowed them to read the email of their employees unless the employer has indicated that emails will be private or confidential. This policy can be communicated to employees explicitly, by telling employees that emails are confidential, or indirectly, by giving employees unique passwords that only they know.

To be careful, as an employer you should try to always have an established reason for viewing employee emails, such as a policy justification or a record of an incident which prompted the monitoring. Courts have rarely denied an employer the right to read employee email if there was a justification in place before the employer read the employee’s email (such as reports of harassment).

Monitoring Phone Calls

Phone calls are the most protected form of employee communication and employers should be especially careful when monitoring phone calls. Almost all states allow an employer to monitor or record employee conversations with customers for quality assurance purposes. Although only a few states require that you announce that the call is being recorded, it is a good business practice to let customers know they are being recorded.

The major exception to monitoring rules for phone calls is when the employee makes a personal call. Although federal law allows employers to monitor calls without warning or announcement, once the employer realizes that it is a personal call, the employer must stop monitoring the call. The only caveat to this is that if the employee has explicitly been told not to make personal calls from the particular phone, then the employer may be allowed to continue monitoring the call.

Monitoring Voice Mail

Voice mail is a gray area of the law and it is likely that the rules in place for other forms of monitoring apply here. Employers are likely able to access an employee’s voice mail, provided that the employer hasn’t given employees the impression that their voice mail is private. The best practice is to have a good work-related justification established before monitoring an employee’s voice mail.

How to Keep Your Monitoring Legal

Employers generally have access to employee communications while on the job, but there are a few steps to always take before monitoring employee communications:
• Establish a Policy: Don’t let there be any confusion about whether a particular form of communication will be monitored or not. Create a clear policy that outlines what forms of communications are monitored, why they are monitored and under what circumstances they are monitored. To be extra careful, consider having employees sign a consent form acknowledging that they understand and agree that their workplace communications will be monitored.
• Have a Justification for Monitoring: Courts are far less likely to find you liable for violating an employee’s right to privacy if you had a good, work-related reason for monitoring communications. If you’ve had past experiences that prompted monitoring or have received complaints, these all qualify as perfectly good justifications for monitoring employee communications.
• Be Reasonable: Be smart about how and when you monitor employee communications. If you create a draconian atmosphere of surveillance or implement a system that seems excessive given the potential problems, a court is much more likely to find that you are violating employee privacy rights. Ensure that your monitoring system is proportional to any potential problems because overreaching is a good way to ensure a lawsuit from a disgruntled employee.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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Invention Licensing Verses Manufacturing

Invention Licensing Verses Manufacturing

In most situations, inventors can make money off of their inventions in two different ways: Either license the rights to make, use, and sell their inventions to other manufacturers or manufacture and sell their inventions themselves. There are vast differences between these two options, both in terms of how you will make your money, and in terms of the financing needed to get started. Whichever you choose will depend on your means, skill level, and what level of involvement you want with your invention.

Making Money on Your Invention: Two Choices

Choosing between licensing your invention to someone else and manufacturing and selling your invention on your own will depend much on your personality and what you like to do. Many inventors decide to license their inventions in order to make money because it does not require as much legwork or capital as does manufacturing an invention on one’s own. If you find that you have a passion for the world of business, then you may want to consider manufacturing and marketing your own invention.

It is not always just the personality of the inventor that will make the decision between licensing and manufacturing your invention, though. Sometimes the complexity of the invention will force the inventor’s hand.

Licensing Inventions

In its simplest form, a license is an agreement between you (the “licensor”) and another party (the “licensee”) allowing the licensee to make, use, and/or sell your invention. In exchange, the licensee often agrees to give the license-holder a license fee as well as royalty payments for every unit sold that uses the invention.

The biggest advantage of licensing is the lack of risk. Under a licensing agreement, the licensee will have to take on all expenses relating to marketing and all risks associated with the product itself. All the inventor has to do is to wait by his mailbox for the checks to arrive. Perhaps the biggest risk that inventors face when licensing is getting a license at all. According to at least one study, only 13 percent of all inventors that attempted to license their inventions were successful.

If you do decide to license your invention, you should first find the people would want to see inventions like yours, such as a convention involving your target industry. If your invention is physical in nature, you should try to get enough funding to build at least one working model (or prototype). But make sure you protect your invention while shopping it around, perhaps with a non-disclosure agreement.

Keep in mind that you have the option of licensing your invention to more than one party, as long as you don’t give exclusive rights to one party, which can increase your earning potential.

Assigning the Rights to Inventions

As an alternative to licensing your invention, you may decide to permanently assign the rights to your invention to another party in exchange for money. Unlike a license, an assignment is a permanent transfer of all rights you have to your invention. If you assign your invention, you become the “assignor,” while the person buying your invention becomes the “assignee.” You should think about assignment as analogous to selling your home — once you have sold it, you no longer have rights to it.

There are some circumstances in which a license will look like an assignment. For example, sometimes inventors grant indefinite, exclusive licenses. Under such a license, the licensee gets sole rights to the invention for an indefinite period of time. Understandably, this looks much like an assignment of rights; but an attorney can help you sort it out. Remember that once you assign your rights to your invention, you cannot (in most circumstances) get them back.

Entrepreneurial Inventor

For entrepreneurial inventors that have business skills in addition to their inventing skills, the risks and financial rewards associated with licensing their inventions don’t make the cut. Instead, these inventors will take the time and effort to form a company and produce and market their own inventions. However, these inventors will require much more capital than will the inventors that seek only to license or assign their inventions.

At least one study has found that close to half of the inventors that choose to make and market their own inventions turn out to be successful. Before you decide to market your own invention, though, you need to be aware of just how much time and effort it will take for you to succeed. If you feel that you do not have this drive, you may want to consider licensing your invention.

Perhaps that biggest argument for making and marketing your own invention is the higher financial rewards that are possible. However, starting a company to make and market your invention can be incredibly risky.

Different Finances for Different Choices

When it comes to the financial backing needed for licensing your invention versus marketing and selling your invention, the difference is staggering. You will need far fewer finances to license your invention than if you chose to start your own business.

If you choose to license or assign the right to your invention, you will generally need financing to:
• Create a prototype of your invention, or create presentation materials if your invention cannot be prototyped;
• Market your invention to potential licensees;
• Create molds and acquire tools to mass-produce;
• Mass-produce your invention;
• Distribute your product;
• Collect money from your buyers; and
• Enforce your patent rights.

In addition to these expenses, you may also choose to form a corporation or take on business partners in order to get the production of your invention off the ground.

Before Making the Decision, Analyze Your Personality

Many inventors are tempted by the riches that they see just over the horizon if they can just make, market, and sell their own inventions. But you really need to be sure that you have a strong entrepreneurial drive. To help you figure out whether this path is right for you, take the time to answer these questions:
• Are you a great salesperson?
• Can you manage people well?
• Can you transfer your inventiveness to the business world?
• Are you willing to take risks?

If you feel that you can answer all of the questions in the affirmative, then maybe taking your invention to market by yourself could make you a lot more money that you could get through licensing.

Patent Troll: A Last Option

There has been an ever increasing trend for people with patents to not take either option. These people do not want to license their inventions, nor do they want to enter the market. In the legal world, these people are called “non-practicing inventors” or, pejoratively, “patent trolls.” Much like the trolls that lurk under bridges in fairy tales, these patent holders wait for the right moment to jump out and assert their patent rights against those that they think have infringed.

These patent trolls sometimes make a lot of money in patent infringement lawsuits. However, the chances are very good that if you hold onto your patent without licensing it or entering the marketplace, the technology will pass you by well before you ever have the opportunity to bring a patent infringement lawsuit.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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Workers Compensation FAQ

Workers Compensation FAQ

You are a small business owner with a couple dozen employees. Last week, one of your long-time employees slipped and fell while walking through the breakroom. Now he has filed a workers’ compensation claim.

Q: How do I know whether an injured worker is covered by workers’ compensation?

A: Determining whether or not your workers are covered by workers’ compensation can sometimes be complicated. Generally, there are two main factors that determine covered status: first, whether the person is an employee (as opposed to an independent contractor, for example) and second, whether the injury occurred as a result of employment.

It should be noted that neither of these factors is an absolute guarantee that the worker will be covered by workers’ compensation. For example, depending on the rules in place in your state, some employees (such as agricultural workers) are not covered by workers’ compensation. Also, if the injured worker was intoxicated at work or intentionally injured him- or herself, the worker may not be covered by workers’ compensation.

Q: If an employee is receiving workers’ compensation benefits, but returns to work, does the employee still get to receive workers’ compensation benefits?

A: The answer to this question is “maybe.” If the return to work enables the employee to receive wages equal to or greater than he or she was earning prior to the injury, then it is likely benefits will be stopped. If, however, the employee is still experiencing a wage loss due to his or her injury, he or she may continue to receive wage loss benefits, although the benefits will most likely be for a lesser amount.

Q: Can an employee recover workers’ compensation benefits, no matter what he or she did, because it is a “no-fault” system?

A: No. Although most injuries are covered by workers’ compensation, that does not mean that employees have free reign to injure themselves, or act in any manner in which they choose, and then collect benefits. Generally, if an employee sustains injures as a result of intoxication or illegal drug use, benefits may not be payable.

Q: Can an employee recover workers’ compensation benefits, even if he or she was not actually at the workplace when injured?

A: The answer to this question will depend on the laws in your particular state, and the facts of the specific case. Generally speaking, if the injury “arises out of” and occurs “within the scope of employment,” it is covered. For example, if an employee is a traveling salesperson and is injured in the hotel where he or she is staying for business purposes, compensation may be appropriately paid.

Similarly, if an employee is running an errand that takes him or her outside of the workplace, at the request of the employer, compensation benefits may be payable if an injury occurs in the course of running that errand. If the employee is on a business errand, but has stopped or deviated from that errand for personal reasons, then a closer examination of the rules and facts is necessary.

Finally, employees injured while attending an employer-sponsored recreational event, like a company picnic or outing, may be able to receive workers’ compensation benefits even though they were not physically on the employer’s premises.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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Sexual Orientation Discrimination in Employment

Sexual Orientation Discrimination in Employment

In the past, members of the lesbian, gay, bisexual, and transgendered (LGBT) community have found little relief or protection from sexual orientation discrimination. In recent years, however, more attention has been given to LGBT needs; thus, more laws and regulations are being passed to protect against sexual orientation discrimination in the workplace.

Federal

Federal laws currently prohibit employment discrimination based on race, color, sex, religion, national origin, age, and disability, but not sexual orientation or gender identity. However, Congress is currently proposing a bill, the Employment Non-Discrimination Act (ENDA), which would make it illegal for private employers to discriminate based on sexual orientation. Without this bill, LGBT persons have no federal protection against employment discrimination in the private sector.

The federal government does prohibit sexual orientation discrimination and gender identity discrimination in the federal workplace. In 1998, President Clinton amended an executive order that includes “sexual orientation” as a protected class in the federal government’s equal opportunity employment policy. This means that employees of the federal government and people applying for jobs within the federal government cannot be discriminated against based on their sexual orientation. In 2009, President Obama did the same thing for gender identity, but the remedies under this law are more limited.

Just because there is no federal law prohibiting sexual orientation discrimination in the private sector, does not necessarily mean that employers are free to engage in such discrimination. If an employer is in a city or state whose laws prohibit sexual orientation discrimination, that employer must follow that local or state law.

State

As of 2015, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Vermont, Washington and the District of Columbia have policies that protect against sexual orientation and gender identity discrimination in employment. This protection applies to both the private and public sector. New Hampshire, New York and Wisconsin have laws that protect against employment discrimination based on sexual orientation, but not gender identity.

Local

There are about 200 cities and counties across the U.S. that have laws prohibiting sexual orientation discrimination in the workplace. Check your state labor department or fair employment office to find out about your state, county, or city antidiscrimination labor laws, or visit Lambda Legal to do a search by state of antidiscrimination laws.

Company Policies

Even in cities with no local or state laws, some private companies develop their own antidiscrimination policies. As long as these policies are more and not less protective of people’s antidiscrimination interests, they are legally legit. An employee of one of these companies who feels that he or she has been discriminated against, as is defined by the company’s antidiscrimination policy, should contact management or human resources. If a complained to personnel does not take the claim seriously, this employee may have a legal claim, such as breach of employment contract or breach of company policy, against the employer.

Other Legal Theories

A wise employer will not make decisions (like ones that are based on sexual orientation) that are not based on the employee’s job performance and abilities alone, regardless of what applicable laws say. Besides discrimination, there are a number of legal theories under which employees who feel they have been discriminated against can sue:
• Breach of employment contract
• Harassment
• Defamation
• Public policy violation
• Invasion of privacy
• Intentional infliction of emotional distress
• Negligent infliction of emotional distress
• Assault
• Battery

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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Worker’s Compensation

Worker’s Compensation

Workers’ compensation insurance policies cover the expenses associated with job-related injuries and illnesses.

Although workers’ compensation (or workers’ comp) is regulated at the state level, most employers in the U.S. are required to carry a certain amount of coverage relative to the risks associated with the job. This section includes information about handling a claim, how to maintain adequate coverage without paying too much, links to state-specific resources and other topics pertaining to workers’ comp from the employer’s perspective.

Worker’s Compensation: Employer Responsibilities

In most states employers are required to purchase insurance from their employees from a workers’ compensation insurance carrier. In some states large financially solvent companies are allowed to self-insure, while very small companies may be exempt from carrying workers’ compensation insurance at all. Unless they fall within limited exempt categories employers without workers’ compensation insurance are subject to fines, criminal prosecution, and civil liability.
In addition to providing workers’ compensation most states include additional duties. These may include;
• posting a notice of compliance at each job site,
• providing immediate emergency medical treatment for workers’ injured on the job,
• furnishing further medical attention if a worker can’t select a doctor,
• completing a report of the injury and submitting it the local workers’ compensation board and their insurance company
• making a written report of every accident resulting in personal injury that causes a loss of time from regular duties beyond the working day or shift when the accident occurred or that requires medical treatment beyond first aid or two treatments by a doctor,
• complying with all requests for further information by the workers’ compensation board or the insurance company.

An attorney also has a responsibility not to retaliate against workers who file compensation benefit claims. Acting against such an employee can result in civil actions against the employer for retaliation or “retaliatory discharge” if they are fired.

Handling a Claim: Employer and Employee Responsibilities

When an employee is injured while at work the employer has certain responsibilities and must follow certain procedures in order to avoid liability beyond that arising from the accident itself.

Employers must first attempt to avoid workplace accidents. If an employee is injured the employer must file the required report with the company’s workers’ compensation carrier and cooperate with the carrier and their attorneys when they investigate the matter. The employee must be permitted to seek treatment and must be welcomed back to work when they are well enough to resume employment. The employer is also responsible for assisting the state workers’ compensation board in curbing fraud.

Employees also have responsibilities when an accident happens on the job. Workers must act responsibly at work. The employer is not responsible where workers are intoxicated, committing a crime, or knowingly violating a policy or code. Employees must also report workplace injuries as soon as possible. This may include filling out forms or reports about the incident. Employees must seek treatment promptly, since minor injuries can become serious without treatment. Employees must responsibly manage information provided by the employer and workers’ compensation carrier. They should cooperate with any requests made by the insurer and be responsible for their actions in and outside of work since insurance companies may hire private investigators to prevent fraud. Finally, employees are responsible for determining how to proceed with their claim.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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Rehabilition Rights Of Injured Workers

The Importance Of Cash Management

Business Lawyers

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Ascent Law St. George Utah Office

Ascent Law Ogden Utah Office

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


Recent Posts

Workers Compnsation Glossary

Rehabilitation Rights Of Injured Workers

The Importance Of Cash Management

Business Lawyers

Estate Planning Lawyer

Divorce Lawyer and Family Law Attorneys

Ascent Law St. George Utah Office

Ascent Law Ogden Utah Office

The Importance Of Cash Management

The Importance Of Cash Management

Cash Management Basics

Business analysts report that poor management is the main reason for business failure. Poor cash management is probably the most frequent stumbling block for entrepreneurs. Understanding the basic concepts of cash flow will help you plan for the unforeseen eventualities that nearly every business faces. Below, you will find useful information regarding the importance of cash management for your small business.

Cash vs. Cash Flow

Cash is ready money in the bank or in the business. It is not inventory, it is not accounts receivable (what you are owed), and it is not property. These can potentially be converted to cash, but can’t be used to pay suppliers, rent, or employees.

Profit growth does not necessarily mean more cash on hand. Profit is the amount of money you expect to make over a given period of time, while cash is what you must have on hand to keep your business running. Over time, a company’s profits are of little value if they are not accompanied by positive net cash flow. You can’t spend profit; you can only spend cash.

Cash flow refers to the movement of cash into and out of a business. Watching the cash inflows and outflows is one of the most pressing management tasks for any business. The outflow of cash includes those checks you write each month to pay salaries, suppliers, and creditors. The inflow includes the cash you receive from customers, lenders, and investors.

Positive Cash Flow

If its cash inflow exceeds the outflow, a company has a positive cash flow. A positive cash flow is a good sign of financial health, but is by no means the only one.

Negative Cash Flow

If its cash outflow exceeds the inflow, a company has a negative cash flow. Reasons for negative cash flow include too much or obsolete inventory and poor collections on accounts receivable (what your customers owe you). If the company can’t borrow additional cash at this point, it may be in serious trouble.

What Are the Components of Cash Flow?

A “Cash Flow Statement” shows the sources and uses of cash and is typically divided into three components:

1. Operating Cash Flow: Operating cash flow, often referred to as working capital, is the cash flow generated from internal operations. It comes from sales of the product or service of your business, and because it is generated internally, it is under your control.

2. Investing Cash Flow: Investing cash flow is generated internally from non-operating activities. This includes investments in plant and equipment or other fixed assets, nonrecurring gains or losses, or other sources and uses of cash outside of normal operations.

3. Financing Cash Flow: Financing cash flow is the cash to and from external sources, such as lenders, investors and shareholders. A new loan, the repayment of a loan, the issuance of stock, and the payment of dividend are some of the activities that would be included in this section of the cash flow statement.

How Do I Practice Good Cash Flow Management?

Good cash management is simple. It involves:
• Knowing when, where, and how your cash needs will occur;
• Knowing the best sources for meeting additional cash needs; and
• Being prepared to meet these needs when they occur, by keeping good relationships with bankers and other creditors.

The starting point for good cash flow management is developing a cash flow projection. Smart business owners know how to develop both short-term (weekly, monthly) cash flow projections to help them manage daily cash, and long-term (annual, 3-5 year) cash flow projections to help them develop the necessary capital strategy to meet their business needs. They also prepare and use historical cash flow statements to understand how they used money in the past.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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Rehabilitation Rights of Injured Workers

Rehabilitation Rights of Injured Workers

The word “rehabilitation” in the area of workers’ compensation has two very different meanings. When most people think of rehabilitation, they think of physical therapy or rehabilitative care aimed at overcoming an injury and regaining functionality. Did you know that there is also vocational rehabilitation? In many states, injured workers who cannot return to their former employment are entitled to this type of rehabilitation at the expense of their employer’s workers’ compensation carrier.

• The amount and type of vocational rehabilitation provided to injured employees, as with any other workers’ compensation law, varies greatly between jurisdictions. Some of the services which an injured worker may be entitled to include:
o On-the-job training
o Transferable skills analysis and testing
o Resume and job application completion services
o Interview skills and techniques assistance
o Labor market surveys
o Job analyses
o Job search assistance
o Wage assessment evaluations
o Vocational Rehabilitation Counseling
o Ergonomics assessments
o Americans with Disabilities Act (ADA) reasonable accommodation assistance
o Medical case management
o Education and Tuition payments for retraining

• The actual vocational rehabilitation benefits to which an injured employee will be entitled are not only limited to the specific situation which the employee is in, but also must comport with statutory and regulatory limitations.

• In many states, the only specific employee responsibility in connection with vocational rehabilitation is that they must “accept” it. Inherent to this responsibility is the requirement that the employee cooperate with vocational rehabilitation efforts and make a valid attempt to return to suitable employment. Other states have different types of requirements. In Massachusetts, for example, an employee is not required to participate in either physical rehabilitation or vocational rehabilitation.

A Notable Difference: In California an employee needs to make a request for vocational rehabilitation, but may make the request at anytime within 15 years from the date of injury!

Warning to Employees: If an employee refuses to cooperate with rehabilitation service providers, the workers’ compensation carrier may reduce, if not suspend, wage loss benefits for the period of non-cooperation.

• An employer (or its workers’ compensation carrier) also has statutory or regulatory responsibilities that they must comply with. For example, in Minnesota, an employer must offer rehabilitation counseling services to any employee who has an injury that has resulted in 60 days of lost time from work. The offer must be made within five days after that threshold has been reached. However, if the employee sustained a back injury, they only need lose 30 days of work in order for the employer to be required to offer rehabilitation counseling. In Missouri, however, an employer must offer vocational rehabilitation within 120 days if the injury resulted in a loss of suitable gainful employment
Note: The laws regarding the responsibilities of both employers and insurers vary by state. Make sure that you have reviewed your state’s laws and that you understand both your rights, and your responsibilities.

In some states, an employer may be required to pay for items such as tuition, living expenses, room & board, child care expenses, and travel expenses in addition to regular wage loss benefits while an employee is participating in certain vocational rehabilitation programs.

• In some states only specifically qualified individuals are allowed to provide vocational rehabilitation assistance to injured workers.

For example, only individuals who are Certified Rehabilitation Counselors (CRCs), Certified Disability Management Specialists (CDMSs) or Certified Case Managers (CCMs) may provide vocational rehabilitation assistance to injured employees in some jurisdictions.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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Workers’ Compensation Glossary

Employer Responsibilities for Worker's Compensation
Workers’ Compensation Glossary

Do you know what an AWW is? How about TTD? TPD? PPD? PTD? It seems as though workers’ compensation practitioners are sometimes speaking a language all their own. Do you understand what they are saying? While workers’ compensation statutes may vary significantly from state to state, there are some common concepts which can generally be considered as equivalent in any jurisdiction, although the actual method of calculating the ADW, SSDI offset or PT entitlement may be different in each state. The following is a glossary of some common workers’ compensation terms.

Average Daily Wage (ADW): The ADW is a calculation of an injured employee’s average daily earnings and is sometimes used to determine entitlement to wage loss benefits following an injury, particularly where the AWW would not be an accurate representation of the employee’s earnings.

Average Weekly Wage (AWW): The AWW is another method which may be utilized in calculating entitlement to wage loss benefits. The average earnings, by week, for a fixed period of time are calculated and wage loss benefits are computed according to that amount.

Independent Medical Examination (IME): In many situations, an employer and insurance company will want to have an injured employee seen by a particular physician in order to obtain on objective evaluation of the employee’s health. An employee may initially be seen by a company physician, or a physician of their own choosing, However, if litigation commences over the extent of the employee’s injuries (or whether the employee has any injury at all), the employer and insurer will likely be entitled to require the employee to appear for an IME with a physician of their choosing.
Permanent Partial Disability (PPD): PPD benefits are payable, in most jurisdictions, to an employee who has sustained a permanent, but not complete, disability. Many state statutes have pre-set values for a host of different PPD injuries involving specific body parts or conditions.

Permanent Total Disability (PTD): PTD benefits are available if an injured employee is permanently and totally disabled from work.

Physical Therapy (PT): Many injured employees are entitled to receive physical therapy as a form of medical treatment to recover from injuries. On forms, or in medical records, you may see a reference to “PT.” That is short for “physical therapy.”

Social Security Disability Benefits (SSDI): SSDI benefits are payable to disabled individuals through the Social Security Administration. Many state workers’ compensation statutes have specific provisions which dictate whether an injured employee may receive both workers’ compensation benefits and SSDI benefits at the same time. Generally, if both benefits are appropriate for the same individual, a complex calculation will be performed to “offset” the benefits so that the individual does not receive more money than they are entitled to from both programs.

Statewide Average Weekly Wage (SAWW): The statewide average weekly wage is a computation of average wages paid to workers in a jurisdiction for a set period of time and is generally used to calculate the minimum, and maximum, amounts of workers’ compensation benefits that an injured employee will be entitled to receive.

Temporary Partial Disability (TPD): TPD benefits are payable when an injured employee is able to work despite their injury. The benefits are available only for a limited period of time, in recognition of the fact that the employee will recover fully enough in the future that they will be able to resume employment without a wage loss.

Temporary Total Disability (TTD): TTD benefits are available to employees whose injuries leave them totally unable to work for a period of time. The benefits are no longer payable when the “temporary” disability clears and the employee is able to resume working. In some states, if the employee must return to work at partial hours or at a wage loss while his disability resolves he may be entitled to payment of TPD benefits after receiving TTD benefits.

Vocational Rehabilitation (VR): Vocational rehabilitation generally includes a melting pot of services that are offered to injured employees to help them return to work following a work injury. VR may involve transferable skills assessments, educational courses, job search assistance, and many other vocational aids. Vocational rehabilitation is sometimes also referred to as “occupational rehabilitation.”

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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Who Can Look At Employee Personal FIles?

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Who Can Look At Employee Personal Files?

Who Can Look At Employee Personal Files?

In addition to the employer, employees often have the right to view certain portions of their own employee personnel files as well. In most circumstances, employee personnel files should be treated as private records that belong to you and the corresponding employee. Many times these files contain very private information like performance evaluations, salary levels and private reports. You don’t want to leave these files open for anyone to go through.

Who Has the Legal Right to View Personnel Records?

However, certain employees often have the legal right and need to view information that is contained within personnel files. For instance, supervisors may often need to look at past performance evaluations when making decisions about who to promote within the company. Human resources may have to look through personnel files in order to figure out what kind of salary to offer an incoming employee that is hired to replace someone. Lastly, employees in most states are allowed to view their own personnel files.

Confidential Files

You should always treat personnel files just like any other private documents within the company. Normally personnel records are kept within a locked file cabinet that only certain people have access to. You should make sure that these files are only available to the people that have a legitimate and valid reason to look at the files.

As a suggestion, you may want to set up a company policy that the only people that are allowed to access an employee’s personnel record are the human resources manager, the employee’s supervisor or manager, and the employee himself. By setting up such a policy, you will protect the confidentiality of these files, your employee’s privacy and also limit the opportunities for false documents to get into the files. In addition, by having a policy in place, you have the right to discipline anyone that breaks the policy.

Since, like everything else these days, employee personnel files are likely to be available in electronic form, your policy should also address who has access to the databases where employee records are kept. You should limit electronic access to those people and groups listed above.

Medical Records Should Be Kept Separate

There are special rules that you need to be careful of when you decide to keep medical records of your employees. The Americans with Disabilities Act (ADA) has very strict rules regarding the handling and storage of employee medical records. Employers that must abide by the ADA have to keep medical records confidential and separate from the personnel files of their employees.

Information contained in these medical records may only be given to safety workers or those administering first aid, and only if the information is necessary to treat the employee or for evacuation procedures. In addition, the medical information can be given to the employee’s supervisor if the employee has a disability that requires special (but reasonable) accommodation. Lastly, the information can be given to government officials as required by law, and to insurance companies that require a medical examination.

In addition to the ADA, the Health Insurance Portability and Accountability Act (HIPAA) also places privacy requirements on employers that enroll their employees in group health care plans. However, employers that administer their own health care plans and have less than 50 employees enrolled do not have to comply with the requirements of HIPAA.

Employers that are fully covered by HIPAA must designate a person to be the “in-house privacy official,” adopt and apply the policies and procedures mandated by HIPAA, and notify their employees about their privacy rights.
There are also some states that have their own laws designed to protect the privacy of employee medical records. These laws often restrict the people that have the right to view medical records, and also limit the reasons that can be given for viewing employee medical records.

An Employee’s Right to View Personnel Files

A large number of states have laws that give current employees (as well as former employees in some states) the right to access and view their own personnel files. How much of the file that an employee is allowed to view varies from state to state. However, if your state allows employees to inspect their own personnel files, these laws also often give you the right to have yourself or another supervisor present during the inspection to ensure that no improper documents are added to any personnel files.

In some states, employees are allowed to make copies of certain documents contained within their personnel files. As an example, a state law could allow an employee to have copies of all documents relating to their salaries, but not to any performance reviews. If an employee wants a copy of a certain document within their file that they have a legal right to, be sure that you, and not the employee, are the one to make the copy.

In most circumstances, you will not be required to show an employee their entire personnel file. If, for example, you have been using the personnel file to collect information about an upcoming termination for cause, you may not have to show the employee that part of their file. In addition, if files in an employee’s personnel file also include private information about another employee, you may not have to show that document to your employee.

If your state does not have laws that specifically allow employees to view their own personnel files, you still may want to institute a company policy that allows employees to see certain portions of their files.

The “After Discovered Document”

By allowing employees to view their personnel files, you may avoid the problem of the “after discovered document.” This problem arises when terminated employees find documents in their personnel files that were not present before they were fired. Such situations often lead employees to believe that the documents were created after the termination. However, if you allow your employees to view their personnel files before termination, you can potentially avoid this problem.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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Utah Workers’ Compensation: The Important Distinction Between Accident And Disease

Utah Workers’ Compensation: The Important Distinction Between Accident And Disease

What is an industrial accident?

The answer to this question is of paramount importance to both employers and injured workers in Utah. The amount of benefits available to an injured worker, and potentially owed by an employer, are directly impacted by whether an industrial injury is classified as an “industrial accident” under the Utah Workers’ Compensation Act, or an “occupational disease” under the Utah Occupational Disease Act.

Utah workers’ compensation law is somewhat unique in that it allows for apportionment in occupational disease claims. Apportionment allows a court to identify all causes of a medical condition, and then adjust the benefits awarded to reflect only the percentage of the injury actually caused by the employment. This system ensures fairness as the worker is paid for the industrial portion of her injury, no matter how slight, and the employer is released from liability for any non-industrial causes of the worker’s condition.

In contrast, apportionment is not available in industrial accident claims. A worker injured by “accident” is awarded full benefits for her entire condition upon proving her claim—even if the industrial accident only slightly contributes to, or aggravates a primarily non-industrial injury. The tradeoff is that, unlike in occupational disease claims, the employment is not assumed to be a legal cause of the worker’s condition. Instead that causal connection must be proven by the worker, the failure of which completely bars an award of benefits.1
Historically, Utah courts drew a common-sense dividing line between the two types of claims. An “industrial accident” was logically defined as a distinct, injury-producing event at work (e.g., falling off a ladder). An “occupational disease” was considered a medical condition that developed gradually as a result of a worker’s exposure to the regular duties of employment (e.g., extensive use of a ladder every day for months or years, resulting in a damaged knee).2

Unfortunately, Utah courts have since departed from that common-sense distinction. In the 1940s, Utah passed an exceptionally restrictive statute that essentially limited occupational disease claims to only a few, specifically identified types of conditions. The courts reacted by steadily expanding the definition of “industrial accident” to cover those gradually developing conditions which fell outside the narrow coverage of the new occupational disease statute, but which also failed to meet the original definition of “industrial accident” due to their gradual onset. Unfortunately, this initially well intentioned expansion has proceeded unchecked for nearly 75 years, and has now far exceeded the bounds of necessity. The courts’ current interpretation of the law essentially allows all gradually developing conditions (even those arising over a period of years) to be claimed as “industrial accidents.” This unbridled expansion has essentially caused a de facto repeal of the Occupational Disease Act and its apportionment provision.

The Utah Legislature has, somewhat recently, indicated its desire to reverse this unnecessary judicial expansion. In 1991, a new Occupational Disease Act was enacted, eliminating the restrictions of the original Act, and expressly providing compensation for “all” injuries and conditions gradually caused by the duties of employment. However, in the 23 years since its enactment, the Utah appellate courts have not been presented with the opportunity to interpret the “new” statute and define its impact upon the current expanded interpretation of what constitutes an industrial accident. As a result, the lower courts have maintained the status quo, continuing to apply the judicially expanded interpretation of the now superseded Occupational Disease Act. Through a currently-pending appeal before the Utah Court of Appeals, our firm has provided the Court with the opportunity to interpret the new statute. In doing so, we have requested that the Court give force to the Legislature’s intent that there be a clear and logical distinction between “industrial accidents” and “occupational diseases.” In issuing this challenge to the Court, we acknowledge the general hesitance of appellate courts to overturn longstanding precedent. However, we are hopeful that the Court will see the overwhelming need for clarification and reform in this hotly contested area of law.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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