Douglas Factors in an MSPB Appeal of Federal Employee Suspension or Dismissal

Federal employees (and some postal workers) have a right to challenge an Agency's decision to suspend them for more than 14 days, terminate their federal civil service, or demote them to a lower-paying position. Appeals of these actions are filed with the Merit Systems Protection Board (MSPB). The MSPB is a quasi judicial agency that holds hearings to evaluate the merits of the above types of discipline for Federal Employees and some USPS employees.

Whenever a Federal Employee files an MSPB appeal challenging the above types of actions (also known as "adverse action"), the "Douglas Factors" are very likely to come up. So what are the Douglas Factors?

Douglas Factors
In short, the Douglas Factors are a tool that the Deciding Official should use in choosing the property penalty to take when a Federal Employee commits misconduct. They are called the Douglas Factors because they come from an MSPB case, Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981). The factors are a tool that the Deciding Official, and maybe the MSPB Judge, can use to evaluate whether the disciplinary penalty for the Federal Employee is consistent with the misconduct charged and promotes the efficiency of the Federal Civil Service.

Here, in abridged format, are the 12 Douglas Factors:

The nature and seriousness of the offense, the relation of the offense to the employee’s duties, whether the offense was intentional or inadvertent, or whether or not the offense was committed for gain, with malice, or repeatedly.
The employee’s job level and type of employment – supervisory or fiduciary, contact with the public, prominence of the position;
The employee’s past disciplinary record
The employee’s work record: length of service, quality of performance, and dependability
the effect of the offense upon the employee’s ability to continuing performing at a satisfactory level, and the effect on the supervisor’s confidence in the employee after the misconduct;
The consistency of the penalty with those imposed upon other employees for the same or similar offenses.
Consistency of the penalty with the Agency’s Table of Penalties (if any)
The notoriety of the offense and the impact on the reputation of the Agency;
The clarity with which the employee was notice of the rules violated in committing the offense, including warnings about the conduct;
The potential for the employee’s rehabilitation
Mitigating circumstances surrounding the commission of the offense (unusual job tensions, personality conflicts, bad faith issues, mental impairment, harassment, etc)
The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by this employee or others.
At The Hearing
At hearing, the MSPB Judge will want to hear the Agency Deciding Official articulate that and how he or she considered the relevant factors. Not all of the factors are relevant. If you take the Deciding Official's deposition, you can learn: a) what facts the Deciding Official considered for each of these Douglas Factors; b) what evidence or material he relied on for those facts; c) whether the Deciding Official considered the facts as a factor to mitigate the proposed penalty to something lesser, or d) whether the Deciding Official considered the facts as a factor to support the proposed penalty, or as aggravating to enhance the penalty beyond what was proposed. Without knowing these four things, it will be very difficult to argue that the Deciding Official did not properly consider the Douglas Factors.

At an MSPB hearing, contrary to some bad guidance on the internet and in the Federal Civil Workforce, the Judge will not always make his or her own independent consideration of the Douglas Factors. Generally speaking, so long as the Agency supports all of its specifications and charges in the proposal and decision letter, then the Administrative Judge can only consider whether the Deciding Official's consideration of the Douglas Factors was thorough and reasonable. If, however, the Administrative Judge does not sustain all of the Agency's charges, then he or she can independently weigh the Douglas Factors, and impose the maximum reasonable penalty under the circumstances.

Not all of the Douglas Factors apply in every case. However, while it is a rare case where all of the Douglas Factors apply, it is not uncommon for the Deciding Official to fail to consider one or more of the factors that may have affected his or her penalty choice.

http://www.employmentlawfirms.com/resources/employment/employment-termination/federal-employee-postal-appeal.htm

Florida Bad Faith Insurance Law - Great Article Illustrates Importance of Strong Law

The newspaper article reproduced below, written in 2003, does an excellent job of illustrating the importance of having strong bad faith insurance laws designed to persuade insurance companies to settle cases for fair value rather force every case to trial.

Florida's bad faith laws impose a duty on insurance companies to act in the best interests of their insureds (customers). If an insurance company can and should settle a case within its insured's policy limits, it should. If the insurance company refuses and a final judgment in excess of the limits is then entered against the insured, the company may be forced to pay the full judgment, not just the policy limits.

Whether or not the carrier must pay the full judgment depends on the manner in which it handled the claim. If, based on all available information, the carrier could have and should have settled the case within the policy limits, it may very well be required to pay the full judgment ... as it should for needlessly exposing its insured to a significant money judgment.

Without meaningful bad faith laws, insurance companies would never settle cases within policy limits. Knowing that the most they will ever have to pay is what they should pay anyway, i.e., the policy limits, they will force every case to trial. Their purpose in taking every case to trial will be to put plaintiffs' lawyers on notice that to avoid trial, every case must be settled for less than policy limits, even cases worth much more than policy limits.

Without strong bad faith insurance laws, the only parties that will be exposed to excess judgments will be the insureds, those who purchase the insurance coverage to avoid such a scenario.

Under Governor Rick Scott, the Florida Legislature will attempt to gut Florida's bad faith laws. From their point of view, insurance company profits are more important than protecting individuals.

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Bad faith in the law

By MARTIN DYCKMAN
Published December 21, 2003

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TALLAHASSEE - The malpractice debate last summer was an emotional roller coaster ending in bitter disappointment for Florida physicians whose leaders had convinced them that there would be no relief from high insurance premiums without a flat $250,000 ceiling on pain and suffering awards. That line came straight from the insurance lobby, which actually wanted something else a lot more, and got it.

To the insurers, the more important goal was to erode Florida's bad-faith law, which they blame for forcing them to settle cases they say they shouldn't. That premise is partly true; the law is intended to encourage settlements and avoid costly trials. But legislators heard only opinion, not evidence, as to whether there are really too many before agreeing to make the doctors the guinea pigs in a dangerous experiment.

To illustrate what's at stake, let's look at the outcome of an important trial at Clearwater earlier this month. It involved an automobile accident, not medical malpractice, but the principles are the same. My colleague William R. Levesque reported the story in the Dec. 5 St. Petersburg Times.

The plaintiff was Xiao-Cao Sha, a 41-year-old violinist who suffered severe shoulder and neck injuries in a collision that the defense conceded to be the fault of the driver who had run a red light and hit the car in which Sha was a passenger. Sha, who had left the Florida Orchestra to seek opportunities in major orchestras, can no longer play without severe pain and can practice only 15 minutes a day. The defense didn't question that either.

The other driver was unusually well insured - for $1.75-million, says Sha's lawyer, Tom Carey - and Carey offered to settle for that. He might have settled for even less, I gathered, but not for as little as the defendant's carrier, Liberty Mutual, was willing to pay.

According to Carey, "they never made it to $200,000."

So the case went to trial, where Liberty Mutual's lawyer contended that Sha should be awarded no more than $189,000 because there was no guarantee she could have fulfilled her dreams and might never have earned more than $30,000 a year, her former salary with the Florida Orchestra. She could still have earned that, the lawyer said, by teaching and performing solos.

Imagine for a moment that the victim had been a young doctor about to start practice as a neurosurgeon and an insurance company had proposed that he or she settle for pediatrics or some other specialty that earns much less. Any red-blooded jury would have socked that company at least as hard as Sha's did.

The jury took less than hour to award her $5-million, which included some $1,375,000 for lost future wages and $3,456,000 for pain and suffering. More than twice, all told, the limits of the policy that the defendant and her husband had paid for and Sha would have accepted.

But because of the bad-faith law, Liberty Mutual would have to pay it all. The policyholders' personal assets wouldn't be at risk because of the company having gambled on taking the case to trial.

In fact, there was a side bet - called a high-low agreement - which Carey and the defense counsel had reached without the jury knowing it. The terms don't permit Carey to say how much it was for, but he and his client were plainly pleased with it. The check was signed, the case is over.

"They never would have walked up to me proposing a high-low if it weren't for the law of bad faith. They got a little frightened," Carey said.

To do away with that law, he warned, is to tempt insurance companies to stiff every claim and say "So sue us." In that event, he said, "our lawsuits would quadruple literally overnight." Even the 84 new trial judges the Supreme Court says Florida needs wouldn't be nearly enough.

Defendants, meanwhile, would be on the hook for all the excess verdicts. Their only protection would be to buy larger insurance policies, if they could get them.

The Legislature left the bad-faith law alone (but for how long?) with respect to everything but medical malpractice cases. Under the law as it has been changed for doctors and hospitals, an insurance company has 210 days - seven months - after a suit is filed to accept or propose a settlement for policy limits. After so much time, plaintiffs' lawyers say, there's little chance of avoiding a trial. But so long as the offer is made, even on the 209th day, the insurance company is no longer on the hook for a larger verdict. The doctor is.

"They've shifted the gambling losses from the insurance industry to the doctors," says Richard Slawson, a Palm Beach Gardens attorney who specializes in bad-faith suits against insurance companies. His clients are doctors, motorists and other people whose insurance carriers gambled on going to trial, and lost. What the Legislature did to the doctors - with the eager encouragement of the Florida Medical Association - was, Slawson says, a "travesty."

I sought Liberty Mutual's side of the Sha story. It sent word that it doesn't comment on cases in litigation. Not even, apparently, when they're over.

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals - the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

Who Owns the Patent Rights? Employer or Inventor?

When an employee creates an invention and then patents it, who owns the patent, the employer or the employee? The general rule is that an individual owns the patent rights to the subject matter of which he or she is an inventor, even though the invention was conceived and/or reduced to practice during the course of his or her employment.

There are two exceptions to this general rule:

Where an employee has entered into an express contract which assigns the employee’s inventions to his or her employer
Where an employee is hired to invent something or to solve a particular problem
Differences in Types of Employment
However, simply because an individual is employed does not necessarily grant the employer ownership of the patent. If an employee's employment is "general", then ownership of the patent will belong to him/her. Each situation must be evaluated on its own set of facts.

Inventions By Company Officers
If an employee is an officer of the employer, then typically any inventions created by him or her will be owned by the employer. This is true, even if the employee creates the invention at home and on his/her own time. This is because an officer of a corporation has a fiduciary duty to assign all inventions created by him/her to the corporation.

Patents of General Service Employees
In contrast, if an employee is hired for general services and the employee invents something at home and on his own time, the invention is owned by the employee (regardless of any employment contract).

An Example Patent Case
In one illustrative case, a court found that the employer owned the patent where the following conditions were present:

The employee was tasked with the specific goal of solving the problem to which the invention’s subject matter related to
The employee spent 70% of his employment time on this project
The employee reduced the invention to practice using the employer’s resources, i.e., the employer’s tools and materials
The employee recognized the employer’s role in the development of the invention.
The fourth factor was deemed the “most important” one by the court.

Royalty Free, Non-Exclusive "Shop Rights"
Even in instances where the employer does not own the employee's patent, it may have a "shop right" to use the patent on a non-exclusive, non-assignable, royalty-free basis. A shop right entitles an employer to use, without charge, an invention patented by one of its employees without liability for infringement. In addition, the employer has a royalty-free, non-exclusive and non-assignable license to use the invention. The right is based on the employer’s presumed contribution to the invention through materials, time, and equipment.

Determining an Employers Shop Right to a Patent
In determining whether an employer has a shop right, the following factors have been considered:

The contractual nature of the relationship between employer and employee
Whether the employee consented to the employer’s use of the invention
Whether the employee induced, acquiesced in, or assisted the employer in the use of the invention
Therefore, in general, an employer will have shop rights in an invention in situations where the employer has financed an employee’s invention by providing wages, materials, tools and a work place. Other factors creating shop rights include an employee’s consent, acquiescence, inducement, or assistance to the employer in using the invention without demanding compensation or other notice of restriction.

Shop Rights to an Independent Contractors Patent
Shop rights are not necessarily limited to the employer-employee relationship. Where an independent contractor uses a company's resources, the company may also have shop rights to the invention.

Although the employer has a shop right, the employee retains full ownership of the patent and may issue licenses or even sell the patent to third-parties. However, even where the patent is sold to a third-party, the (former) employer retains its shop rights in the patent.

Patent rights vary greatly depending on the details of any one particular case. This article provides only general information regarding employee-employer patent rights. Always talk to an Intellectual Property Lawyer regarding any patent ownership issues.

Common Law Marriage

Common law marriage is a marriage that results from the actions of a couple, despite the fact that they have not obtained a marriage license or fulfilled the requirements of a state's statutory marriage laws. This typically means that the couple has cohabitated for a period of time, usually a year or more, while having an agreement to be married and holding themselves out to the world as husband and wife.

Not every state permits common law marriages. For example, Michigan has elimated common law marriage by statute, and no period of cohabitation will result in marriage. At the same time, where a couple became married under the common law of a different state or country, their marriage is likely to be recognized even in a state such as Michigan. The "full faith and credit" rule of the U.S. Constitution ordinarily compels the recognition of a marriage made valid under the laws of a sister state.

As a result of the laws of different states, actions which can result in common law marriage in one state may not provide any legal rights or protections in another. While in one state, a common law spouse might be entitled to a share of the marital estate and even to spousal support, in a state which does not recognize common law marriage that person may not be able to lay claim to jointly acquired assets titled in their partner's name and won't be eligible for alimony or "palimony". Similarly, if cohabitation does not result in common law marriage, one partner may not have any say in how the other partner is treated in the event of disability, may not even have a right to visit their partner in the hospital, and won't have any right to inherit unless expressly named in the partner's will or estate plan. You should also recall that if your common law spouse becomes disabled or dies, it will be up to you to prove the validity of your marriage if your spouse's family excludes you from medical decision-making or tries to exclude you from inheriting property. In short, it pays to know the laws in your state and that if you want your relationship with your partner to be officially recognized, to take the steps necessary to give legal effect to the relationship.

In states which recognize common law marriage, once the requirements have been met the marriage is typically treated in exactly the same manner as any other marriage. By the same token, a valid common law marriage must typically be ended through a formal divorce process. At present, approximately eleven states and the District of Columbia still recognize common law marriages.

States Permitting Common Law Marriage
Alabama
Colorado
District of Columbia
Iowa
Kansas
Montana
Oklahoma
Rhode Island
South Carolina
Texas
Utah
States Permitting Certain Common Law Marriages
Georgia (if the elements were satisfied before January 1, 1997)
Idaho (if the elements were satisfied before January 1, 1996)
New Hampshire (for inheritance only)
Ohio (if the elements were satisfied before October 10, 1991)
Pennsylvania (if the elements were satisfied before January 1, 2005)
In states which don't allow common law marriage, an unusual situation can arise - a couple which underwent what they thought was a valid, state-authorized marriage can find that their marriage was invalid. For example, a divorce may not be properly finalized before a subsequent marriage occurs, rendering that later marriage invalid. Usually, once the problem has been remedied, states will provide a remedy to correct the invalid marriage. For example, some states permit a secret wedding ceremony to be performed by a judge, with a backdated order of marriage, such that the marriage becomes valid from its inception and the rights of the spouses are protected.

Veterans Term Life Insurance

Veterans term life insurance is a policy for service men and women who are discharged from the United States military. If a soldier was injured in World War II, they would be eligible for a term policy. If their commitment in the military has expired, they are able to purchase a veterans universal life insurance policy. If the soldier served in Operation Desert Storm and now is out of the military, he is eligible as well. Regardless of the branch of military, the extent of the military service, or whether or not the soldier served during a time of war, eligibility is granted.

Many different types of companies do not like to guarantee life policies to former soldiers or current service men and women. Many companies feel that the nature of the military job is too dangerous and the risk is too high to provide a policy to them. Often times if a service man or woman has been discharged due to extreme medical disabilities the veterans term life insurance company will not insure the soldier. However, there are programs for those in such situations so they can purchase and acquire veterans universal life insurance or acquire a different protection plan. These types of alternative programs are typically government sponsored.

In order to obtain insurance, any applicant will need to provide documentation that they were a member of the armed forces. Most veterans term life insurance programs do not require a physical to qualify. Various companies that accommodate former soldiers want to make purchasing a policy as easy as possible. Some veterans universal life insurance companies may not require the traditional requirements such as a high credit score, proof of income, minimum income, etc. Some companies have the attitude and mindset that American veterans risked their lives to protect America so they should provide services to them as a gesture of gratitude."Man goeth forth unto his work and to his labour until the evening" (Psalm 104:23). A good and noble company will also provide a good investment rate and combined retirement plan for the veteran.

Dependent children and spouses of former soldiers are eligible to purchase policies. Even widow or widowers of veterans can purchase veterans term life insurance or purchase veterans universal life insurance. Most policies can be purchased at a reduced rate. The only major stipulation to purchasing and obtaining this type of specific policy is that the soldier must have been honorably discharged from the United States military. It is suggested that all those eligible seek out life insurance to protect themselves and their family!

Common Causes of Car Accidents Lawyers

What is the Extent of the Problem of Car Accidents?
Over 40,000 Americans die in car crashes every year. According to the National Highway Traffic Safety Administration, someone is involved in an automobile accident every ten seconds. It is estimated that a person will die in a car crash every 12 minutes. Car accidents are the leading cause of death for Americans 35 years old and younger.

What is the Leading Cause of Car Accidents?
The majority of car accidents are caused by irresponsible driving behavior. Statistics also show that 98 % of car accidents involve a single distracted driver. Some common causes include:

Rubbernecking: Drivers slowing down their cars to watch what is going on
Cell phones: Drivers using their commute time to make phone calls
Driver fatigue
Passenger distractions
Looking at scenery
Adjusting the radio
Rubbernecking is the leading cause of accidents and causes many traffic delays. There is also a trend to enact laws eliminating or limiting the use of cell phones in the car. When determining whether a driver was negligent, courts may look at factors such as driving above or below the speed limit, failing to signal, ignoring weather or traffic conditions, disobeying traffic signs, or driving under the influence.

What are the Other Causes of Car Accidents?
There are other causes of car accidents, including:

Drunk driving: It is estimated that every 30 minutes, a person dies in an alcohol-related crash
Reckless drivers: Drivers who drive recklessly or unsafely cause accidents through their aggressive driving ¿ this may come as a result of improper or excessive lane changing, speeding, or improper passing on the road
Automobile defects: A car accident may occur because of a defect in a driver's car in such a situation, the car manufacturer or supplier may be held liable
Poorly maintained roads
Malfunctioning traffic signals
Other highway defects
Do I Need a Lawyer Experienced with Car Accidents?
If you have been in a car accident and believe that the liability of the other driver, a car manufacturer or supplier, or even the government can be established, you may wish to consult with an attorney. A lawyer would be able to help you with your claim or claims and decide which, if any, to pursue.

Property Tax Lawyer

Anyone who owns real estate may need a real estate tax attorney because they are overpaying county or city taxes. Because so many factors are involved in the value of a property, mistakes are likely to happen. Fortunately, real estate owners can turn to attorneys who specialize in real estate tax-related cases. These individuals work hard to make sure that business and home owners don't overpay taxes to state, federal, and local governments. Not every situation merits the use of one of these lawyers, but when a situation does, it's important to choose one who has a reputation of excellence in this field. The benefit could be thousands of dollars in tax savings.

Every year business owners and home owners alike must pay taxes on their property to cities and counties. These funds support public services such as schools, public safety, local government, libraries, and many others. A property tax lawyer knows that they calculate these taxes on a number of factors, depending on whether the property is residential or commercial. The value of a home and the lot factors in for the taxes of homes. The quality of the neighborhood, building construction quality, and current market prices all factor in as well. A business's earnings and real estate value are factors involved in determining the taxes. This money must be paid to the government, or the owner will most likely have to pay fees on top of what taxes are owed. Jesus did say, "Render therefore unto Caesar the things which are Caesar's; and unto God the things that are God's" (Matthew 22:21). Yet, if Caesar (i.e. the government) is asking for the wrong amount, there could be a problem.

Before approaching a real estate tax attorney, it's important to make sure the situation merits one. Business or home owners must use available resources to make sure that they indeed are overpaying on property taxes. An increase in taxes could coincide with a rise in population, changes in the local economy, and/or steady growth in the local area. An increase or decrease may have occurred without all factors considered. For instance, a home owner may have a flood basement that was severely damaged. If the county isn't aware of this, that factor wouldn't be included in the tax revaluation. Therefore, the home owner would need to appeal the tax assessment. If the appeal is denied and the home owner still feels the increase was unfair, then it may be necessary to pursue an attorney and enter into a court case.

Business owners in unusual situations may find themselves benefiting greatly from appealing their property taxes. Unusual situations can include businesses with multiple units, property that is not entirely being used for profit, or a situation in which the property is being sold unit-by-unit. A property tax lawyer can research all of the factors involved and find out if any errors have been made on the part of the assessor. If so, they can move forward with an appeal. The business owner will need to supply all of their records necessary to prove the case. Depending on the size and type of business, the business owner could save anywhere from a few thousand dollars to millions of dollars in annual taxes.

Home owners who are questioning their property taxes will need to begin by visiting the county website where the home is located. Many larger counties have an easy to use website with answers to basic tax questions. Read over the provided list of frequently asked questions. If that doesn't provide the right answer, don't call a real estate tax attorney just yet. The next step is to contact someone at the local tax office. The larger counties will often also provide a way to either submit an appeal online or print out the necessary documentation for an appeal. This documentation should be detailed and submitted with proof. The home owner with the flooded basement should submit photos as proof of the damage. Smaller counties may require you to mail or submit all of this information in person. If there is no website or the site is unhelpful, call the tax assessor's office. If the appeal is denied, it may be time to find an attorney.

Choosing the right property tax lawyer is important because it could make or break a case. Whether the property is commercial or residential, the owner should start by asking people they know for recommendations locally. A local professional will stand out among less experienced colleagues. However, there could be many local options and narrowing down the field could be confusing. Start by checking with national associations that recognize professionals in this field. They may offer a list of firms in the area. Browse the websites for these firms and then give them a call. This phone call is an opportunity to ask specific questions such as "How successful has the firm been in these types of cases?". The real estate tax attorney may be interested in offering a free consultation. Bring all significant documentation to this meeting along with a list of questions. Find out what fees will be associated with their services up front, so there is no confusion later.

A business or home is an important investment that already costs a significant amount of money to maintain. Taxes, in addition to all other costs, can put a strain on some companies and families, especially if the amount is too high. Knowing what to do and where to turn when an appeal is denied can be tough. A property tax lawyer has all of the knowledge and experience necessary to determine if the property needs to be revalued. With the right attorney and all of the proper documentation, a tax property appeals case can be highly successful.

Adoption Attorney Why you need their services

If you are considering adoption, then at some point in the process you will likely need the services of an adoption attorney. An adoption lawyer can either be one who limits his practices exclusively to matters relating to adoption or who assists in adoption cases as part of his or her overall scope of practice. Usually, there is no specialty certification in adoption or a specialized course that lawyers take to learn adoption law. The level of expertise of a lawyer in adoption cases largely depends on their experience in the type of adoption you might be pursuing.

When undertaking an adoption through an adoption agency, the agency will usually prepare all the information necessary for the adoption court. Most agencies will provide an attorney to handle paperwork and court appearances during the proceedings for a fee. Alternatively, they may be able to recommend someone who has a good reputation or one who has helped them with such cases on a regular basis. When pursuing a domestic adoption, you can request assistance from a general practice attorney. In case of an adoption that is largely private and not involving a licensed agency, you will need an adoption attorney that is skilled and has some experience in that type of adoption. Having an experienced attorney in these types of adoptions is critical to ensure mutual agreements between the 2 parties because of the complexities involved. Make sure your adoption attorney fully understands adoption law in your state.

One of the things you will want to come into an agreement with your adoption attorney is the attorneys fees. Attorneys fees in adoption cases can range from a few hundred dollars to thousands of dollars. It is thus important to resolve payment issues early in the process. Come to an agreement about who will pay the costs and how the attorney will be charging you. A reliable attorney will be open as to his or her hourly rate. This is also a good opportunity to see how he or she treats his clients.

In case of an international adoption, try to find out if your adoption attorney handles immigration matters. Will he charge extra fees for handling immigration matters? Will he require a retainer fee? Get to find out all the relevant information since this will leave you and your adoption attorney with peace of mind and ensure a smooth adoption process.