California Courts and Courtrooms Closing

Due to severe budget cuts of the Judicial Branch of Government, a huge number of courts  and courtrooms in approximately 29 counties throughout California have closed, and some have had severe reductions in services. The Judicial Council of California has reported that over 50 Courthouses and over 200 Courtrooms have been closed as a result of past and ongoing cuts of the Legislature since 2008.  The impact is huge since it hampers the opportunity for timely, effective and meaningful access to justice. This impact has negatively affected the Criminal, Civil and Family Courts statewide. It is reported that this massive problem affects about two (2) million California residents. Because it will undoubtedly only get worse, it is critical that the Legislature restore the funding to our court system.

What strains credulity is the extremely large increase in tax revenue during the most recent years are  in the hands of the Legislature and Governor, while most of us hardly ever give much thought to the billions of dollars collected, administered and disbursed. That is why some commentators opine that government keeps getting bigger in nearly every other area when a free society needs to uphold the rule of law. Our judicial system is the place where disputes can be resolved and laws can be enforced and/or challenged in a rational manner with evidence and thru the eyes and ears of an impartial judge or jury.  Although the Lady of Justice is depicted as blindfolded with a scale to weigh the facts and circumstances in an effort to balance truth and fairness, the demeanor of the parties and witnesses is a critical component viewed thru the eyes of all those present in the courtroom.

BULLYING: There Is No Place For It In The Workplace!

From the meek child on the playground tormented by a bully, to the workplace where a co-worker or supervisor targets and harasses an employee, there is no place for bullying. The laws are changing to address this, and so too must the policies in the workplace. Any workplace policies should be geared towards defining, identifying and deterring such “abusive conduct” in order to bring an end to bullying in the workplace.

Recently, California has passed a law requiring training in supervisors to prevent “abusive conduct” in the workplace. While actual anti-bullying laws have yet to be enacted, one who is in a protected category (such as age, gender, race, etc.) does have the law on their side. Bullying or targeted misconduct at a person based upon their protected status IS grounds for action under the law. However, this still leaves unprotected those who are bullied but who do not stand in a special category.

As of January 1, 2015, the new law in California for employers with 50 or more employees require anti-bullying as part of the mandated sexual harassment training. California Government Code 12950.1. Regardless, workplace policies must reflect the new legislation effective January 1, 2015 requiring employers with 50 or more employees to train supervisors regarding prevention of abusive conduct:   For purposes of this section, “abusive conduct” means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.

https://leginfo.ca.gov/pub/13-14/bill/asm/ab_2051-2100/ab_2053_bill_20140220_introduced.pdf.

There are now entire organizations, websites and programs dedicated to ending bullying in the workplace such as: https://www.workplacebullying.org/tag/california-healthy-workplace-advocates/, the Workplace Bullying Institute. There are now even many government resources dedicated to ending bullying: https://www.stopbullying.gov/laws/california.html.

Bullying is not limited to the supervisor-employee relationship. Due to poor interpersonal problems, competition, and expected team collaboration, co-workers are just as likely if not more to be a bully. This can take the form of gossiping, making up rumors, taking credit for others’ work, excluding/ignoring, and teasing through sarcasm. These often covert behaviors make it difficult to have quality work experiences and can often keep one excelling in job performance. Work supports are critical for motivation. Tattling to the boss just makes one look like a complainer and not a problem solver. What is needed is more solution focused communication training at all levels of the hierarchy.

 

Additional resources:

PACER’s National Bullying Prevention Center:  https://www.pacer.org/bullying/
National Crime Prevention Council:  https://www.ncpc.org/topics/bullying
Education. com  https://www.education.com/topic/school-bullying-teasing/

For more information related to Employment Law, click the following link: https://www.spitalaw.com/san-diego-employment-law-attorney/

 

Identity Theft – What is the Real Story?

Identity theft can be characterized as a major scourge in society today. It has become a  growing danger, and as such it  currently is often labeled cybercrime and/or cyber espionage, with this fraud on the public becoming so pernicious that even major nationwide firms such as Target, eBay and Home-Depot; as well as financial giants such as JP Morgan Chase, Citigroup and Etrade have been hacked; regardless of the size of the business, there are many others that have been invaded but not yet discovered by their respective IT mavens, causing total havoc to millions of people all over California, the United States and even international destinations. This is the theft and use of an individual’s name, personal information, social security number, credit card and bank number, or illegally using any one, two or more of these pieces of extremely private and personal items, social information and/or data.

Were you aware there are cell phone tracking devices that also allow data to be collected? Stingray is a product of the Harris Corporation, which has annual revenues of approximately $5 billion dollars with about 14,000 employees and claim they not only serve government, but commercial businesses in over 125 countries. The Stingray and similar products track the whereabouts of cell phones, but can also be used to spy and eavesdrop on telephone calls as well as text messages. While there clearly are legitimate interests served, we are on the threshold of a new era in technological advances that unfortunately impact the meaning and purpose of the Fourth Amendment right to privacy. At the time of writing this Blog, Israel has announced it is taking measures to become a cyberwar superpower. Their program is being launched in high school with a national goal of creating cyberwarriors in their pursuit of cybersecurity.

Often the unsuspecting public responds to a telephone call, an email or text in which the person sending it is located in a foreign country but that is not necessary and even if so, it may not be obvious or apparent. These criminals perpetrate their fraud by gaming the unsuspecting public. In some cases, the thief elicits private information on the pretense they are going to provide a free cruise or gift; at other times, they claim to offer a refund; in some cases they might report your account as having been hacked (by someone else) and they want to confirm you are the true owner in order to correct the crime and, therefore, under the pretense of good will ask to verify your personal and private information, only to commit identify theft. When they use correspondence more frequently than not, they duplicate logos and other official looking names (for example, they may use what appears to be an authentic bank email, but change a letter, number and/or use a different web mail system). In addition, by steering you to links and attachments to emails to what may appear to be safe invitations, secure and legitimate websites, they instead are able to hack your computer, cell phone, laptop and/or tablet, which thereby causes problems that can be insurmountable. Your electronic device then is mined without you knowing for otherwise private and seemingly protected data. The hackers have the ability to seize your computer, mobile device,  laptop and cell phone,  and if they choose lock it so you cannot operate your device. Then, they have the ability to literally take over and steal all of your banking information, photos and images, and otherwise have access to everything you choose to maintain on such devices, becoming an open book to your entire private and social life.

With stolen information, an unscrupulous thief using your personal data can and will often apply for a tax refund, and then in filing a tax return request the refund be sent to a different address. It appears at the present time the IRS in its effort to get a refund processed quickly does not possess and/or utilize software to first perform adequate and complete cross checks to prevent this from happening. By the time it is caught, the thief has found other sets of private information for countless other individuals and uses it to obtain multiple refunds again and again sent to different addresses as well. Your identity and social security number can be used unlawfully to obtain unemployment benefits, file insurance claims, and nearly every other illegal enterprise they think they can master and, therefore, you have become a victim of identity theft.

If you believe you will not be exploited by using digital communications (perhaps even without identity theft taking place), ask yourself if you or anyone you know has included a particular subject in an email, text or correspondence only to find in minutes there is an advertisement involving the same subject matter that pops up on your screen. This is how the search engines gather data to finance their operations as they sell leads to advertisers.  Sadly, the more information on one’s social media pages and ease with which it is mined also serves to enhance the criminal’s credibility by supporting the otherwise protected identity that is stolen.

Perhaps knowing the above may prevent identity theft if you choose to not open an email, text message or respond to a call if it is, or you have reason to believe, even remotely suspicious. Some choose to select the incognito setting so when they navigate the internet their searches are ostensibly private. However, that is inaccurate since  your search is not concealed from the websites you navigate for information, nor the internet service provider you use, and can still be accessed by your employer.

The Federal Government National Security Agency (NSA) forbids the reporting the very fact the government has made a request and the release of personal information they seek, for example,  from the internet  search engines and social media sites. The Government has for many years accessed internet communications and telephone records on the grounds it is necessary for the safety of the public in their efforts to identify and catch those that engage in criminal activity and/or terrorists. More recent in their endeavors have been the required production of emails, video chats, texts, and pictures to name a few of the data streams they continue to request. However,  several of the major entities recently were able to reach a settlement allowing them to disclose to the public limited information they provide to the government every six months. On October 7th, Twitter filed a lawsuit against the FBI and the U.S. Department of Justice arguing on the basis of the First Amendment to the Constitution and freedom of speech that Twitter should not be barred from full disclosure to the public of the surveillance being done by the government.

There are a few steps you can take if you are a victim of identity theft. First and foremost, be extremely cautious before opening any email, text or communication unless you are certain from whom it came, being totally adverse to opening attachments unless you are 100% confident they are safe and secure. You can purchase software programs that are designed to prevent malicious software from taking over your computer; it will alert as to whether the internet site you wish to navigate and explore is safe and secure, or dangerous. But, these safeguards afford no 100% guarantee.

If you are a victim of cybercrime, identity theft or cyber espionage, contact law enforcement to report the crime and get a copy of the incident report that is created after you filed the report as this will be your hard evidence to corroborate a future claim (if that is any consolation). Second, you should report this to the three major credit reporting bureaus. Then, contact the various creditors who have issued credit cards to you, talk to their fraud department to cancel your existing cards and have new ones issued. It is also recommended you change all of your user names and passwords on your electronic devices and accounts. Some advocates believe this should be a regular project you do as well to hopefully prevent identity theft.

 

 

How to Handle Contacts and Interviews From Government and Others?

As a mater of great concern is what to do when confronted with a telephone call from law enforcement,  a licensing Board, Bureau or Agency,  and/or an  investigator who is seeking to obtain the underlying facts,  information, details &/or answers to questions. Even more challenging is when such an individual makes an in-person contact with you. It is the considered opinion of this writer that any of these inquiries may have or produce both intended and unintended consequences.

Accordingly, there are multiple reasons we do not recommend our clients participate in any dialogue and/or series of questions and answers, without the advice of experienced legal counsel.   What may at first glance appear to be friendly and seem to not involve legal issues, may indeed produce legal exposure and liability. Seemingly innocent queries are frequently  investigations, which then turn out to be interrogations rather than interviews by others, whether by the government or an other individual.

What are some of the issues:

1) these encounters and confrontations are frequently conducted under the guise of an interview when there appears to be reasonable cause that a violation of law has taken place that puts you at risk for criminal, administrative &/or civil liability.
2) when law enforcement personnel and/or an agent thereof has not admonished you regarding your “Miranda” rights to remain silent, that what you  say may incriminate you, etc.  Then and as a result, you may not really know and understand the underlying allegations, summary of issues and, in particular not know and fully understand your rights, and innocently make a statement that is incriminating.
3) far too often, the dialogue you believed was of little or no consequence  is tape recorded.
4) the answerer is at a major disadvantage in trying to recall facts and respond when (s)he has not had a thorough opportunity to review the question(s) and all of the facts in a non-threatening environment, and hopefully with their personal attorney.
5) there is a built-in bias on the part of investigators or persons using a different title or description but conducting a search for information, facts and evidence,  that the answerer is not likely to be fully honest and  truthful because they believe the answerer has something to hide &/or they believe (s)he is equally informed of the facts of the case, and directly or indirectly is trying to be deceptive when nothing could be farther from the truth.

In summary, we recommend you confer with an experienced attorney before you engage in and or respond to any verbal or written communications from anyone (except your lawyer), whether from an investigator, enforcement personnel, analyst, government employee or staff  and/or any other law enforcement officer or agent,  as well as a former or current employer &/or their employees relating to what may be the basis of and/or lead to a violation of law, a legal problem, dispute or issue, disciplinary action,  etc.

What Are Adverse Childhood Experiences (ACE)?

For the most part, many of us have not read or heard about ACE’s, the acronym for adverse childhood experiences. Whereas highly negative experiences as a child often create indelible marks in his/her brain impacting child development, they do not have to be irreversible. For more information of significant interest, see the following:  https://acestoohigh.com/2012/10/03/the-adverse-childhood-experiences-study-the-largest-most-important-public-health-study-you-never-heard-of-began-in-an-obesity-clinic/

Negative childhood experiences inevitably can cause anxiety, toxic stress, fear, shame, disappointment, anger,  hopelessness, helplessness, despair and depression. They can arise from one or more specific incidents of neglect; physical, sexual, verbal and/or emotional abuse; and  family dysfunction in general.  When the feelings that arise from such experiences become intolerable, they can move from being an acute and temporary problem to a chronic and continuing episode. For far too many, they not only impact a child’s development but frame their adult life. They are often linked to and the causal factor behind substance abuse; mental illness; criminal behavior; separation and divorce; neuro-psychiatric and neuro-psychological problems, major medical health conditions as well as auto-immune diseases; work absences and employment problems. However,  learning more about this scourge and most importantly obtaining appropriate and if necessary ongoing care and treatment can alter the fabric of life.

Far too many examples are evident in the news every day, yet there are clues that either were ignored &/or rationalized by parents, siblings, relatives, peers, friends and associates. Become more aware of those you love and with whom you associate so that their personal feelings are addressed, if only to be the one who listens and hears the challenges and struggles they may experience. Hopefully, encouragement will suffice; however, recommending one obtain counseling and professional guidance may ultimately be the best remedy and tool for accommodating negative feelings and ultimately reduce  the ACE score.  Also, see https://www.socialjusticesolutions.org/2014/08/07/q-pediatrician-screens-parents-kids-trauma-ace-score-9/

 

Law Enforcement Cannot Search Cell Phones Without Search Warrant

In the case of Riley vs. California, Number 130132, decided by the U.S. Supreme Court on June 25, 2014, a unanimous Court held that the police cannot search or access information on a cell phone even though it is incident to an arrest (in this case it was for a weapons charge), except when it involves the threat of a terrorist attack or specific danger of a case such as child abduction.

What can be described as a landmark decision and may prove to be historic precedent in holding the right to privacy guaranteed by the Fourth Amendment of the Constitution outweighs the need and convenience of police by now requiring they get a search warrant, it will certainly have a huge impact on the procedures and protocols of all law enforcement agencies and departments.

Prior courts were split on ruling in favor or against the police being allowed to search a suspect to prevent any evidence from being destroyed and in order to determine if there were any concealed weapons for their protection and that of others. Those in favor of such invasive searches considered them no different than perhaps looking at the contents of an address book discovered during a pat down and/or a search.

On the other hand, proponents of the right to privacy focused on the unparalleled amount of data stored in and comprising the contents of cell phones, in the most part containing nearly everything a person uses and/or needs in his/her daily life, whether text messages; emails; voice mail; videos; photos; mobile apps; archives of web browsing; GPS and the inherent history of locations where a person has been or wants to go that is contained therein; bank accounts and the contents of deposits and debits; as well as charge account purchases, etc. Nothing comes even close except a tablet, laptop and/or desktop computer, and these often do not contain the extent of data and information as customarily held in smart phones commonly sold as Droids and iPhones to the public and now used by the vast majority of society.

The Veteran’s Administration Paid Out over $100 Million Annually in claims since 2004

When  our military men and women fight for our country, they are willing to sacrifice the most cherished aspect of their being, their life and all that it entails including their family, friends, dreams and desires. What do they get in return if they need health care?  The subject of health care to our veterans has become public news, but it is really not a new problem. The ability of the VA to provide health care to our veterans has been a major challenge for decades. What is worse is the huge dollar amount paid out for approximately 3,000 medical malpractice claims. Hence, the level of care and treatment as evidenced by the VA paying out over $100 million each year in the last decade leaves much to be desired. And, that is only part of the equation. We are not talking about money, but actual individuals who gave 150% to fight for our freedom, but receive inadequate care and attention.

The above referenced lawsuits have occurred all over the country rather than concentrated in one region or at one, two or a small handful of particular VA hospitals. Moreover, these cases include all types of substandard care, including the failure to diagnose a medical condition or illness, prescribing the wrong medicine or drugs and simply bad surgeries.It is not a matter of finding someone to blame, it is the hard truth that lives are at stake;while  the medical care should be provided at an optimum level, it is far too frequently deemed below the standard of care.

Certainly, the resignation of VA Secretary Eric Shinseki, offers little in the way of confidence that anyone else will fix the problems that are endemic to the VA as they mirror those found in most forms of government. This is not meant to be a political attack, and it is not about being conservative or liberal, Democrat, Independent, or Republican. but an undeniable and harsh reality. Our government agencies, departments, policies, procedures and operations, whether city, county, state or Federal, are simply not operated for profit,which is the very engine that drives people and business to succeed. Whether one calls it accountability, a burning desire to succeed,extremely high energy, and/or an optimum level of action and responsibility, the motivation of private enterprise is simply lacking in the business of government.This is not an indictment of government as a whole, but an observation that seems to be missing when the subject comes up.  Regardless of your perception or the truth about government and/or the VA, our soldiers and military deserve much better. Let’s fight for them as they fight for us!

Is The Right to Privacy Compromised via Emails, Text, Cell Phones or Browsing the Internet?

Dating back to 1789, the Bill of Rights was enacted establishing personal freedoms to protect the public from and thereby limit the Federal Government. Not very long after, the states ratified these laws so these freedoms applied equally to action by state governments. The Fourth Amendment to the U.S. Constitution was adopted in response to the abuses of the British government and to prevent unlawful searches and seizures. The earlier decisions of the U.S. Supreme Court interpreted the 4th Amendment to bar actual and physical intrusion by law enforcement into &/or on one’s private property. Later decisions, however, rightfully expanded the limitations on the government to our individual rights to privacy.

But the question of governmental intrusion is no longer the only conundrum we face in society. There is what could be labeled a scourge of interference in our right to privacy through expanded and invisible electronic surveillance (for the purpose of this blog, however, the author is not referencing CCTV or other types of concealed commercial video cameras).

Focusing instead on the internet, our email, cell phones and text messages, have you given any thought to the impact on our right to privacy, a concern that did not exist during the previous four centuries? Today, businesses are extracting information from the content of our messages, whether email, text, cell phone or simply browsing (surfing) the internet. They are recording the words we use and the places we visit to build profiles of who we are and our interests, collecting the data and selling it to other companies.

Should you have a concern that businesses and individuals are able to and actually monitor and secretly eavesdrop into our private lives? For example, one decides to go online to research the availability and prices for binoculars for an outdoor event they intend to obtain tickets for, an otherwise ordinary and uneventful activity. The next time that individual searches the internet for something totally different, even a newsworthy article, there will be advertisement banners for binoculars in the headers of the pages. Similarly, customer data in our emails are scanned by the various email providers and soon thereafter one will view contextual advertisements dealing with words and subjects that otherwise one might believe his/her emails were totally private and protected.

What do you think? Should your personal information be your own? Should you have a right to privacy and expect that what you view online, what you write or receive in an email or text is not accessed by anyone, whether government, business or any private individual? Should heretofore unidentified companies know everything about us, our interests, our family and friends, under the stated goal to sell advertisements that are intended to solicit our business? Is there a risk of fraud &/or unlawful activity well beyond what may seem an ostensible commercial purpose when data mining produces what we heretofore believed were our very private personal profiles? You be the judge.

Health Care – Should Your Doctor Decide?

In years past, a doctor had the authority and power to decide what treatment and/or modality was appropriate. Each health care provider chose the remedy, relief &/or intervention based upon the following: (1) a specific diagnosis; (2) a tentative diagnosis [provisional]; &/or (3) a differential diagnosis [generally, that which relates to multiple conditions or causes that are based upon probabilities].

As medical insurance, Medicare, Medicaid and now Obamacare (officially entitled the Affordable Care Act) have intervened, their coverage for treatment rendered by a physician has been strictly refined and restricted, as well as subject to interpretation more often than not by lay individuals. These current business and regulatory systems in place seek to justify their role by pointing to, among other things, the nature and amount of waste, and their goal to make our health care better. In doing so, they often perceive medical treatments as increasingly suspect. As such, the scope of coverage of the third party payer system has continued to place limits on physicians, hospitals and other health care providers, along with using monetary incentives to achieve their political and business goals.

 Clearly, there are many who support the current scheme and, therefore, contend it is designed to produce an effective health care system, albeit conceding it is far from an ideal one. The opponents assert this system will inevitably lead to the rationing of medical care with a much smaller group of health care providers who choose such a career and, therefore, less available to serve the public, fewer innovations, and eventually far less medical research. In addition, they cite other countries that have socialized medicine and the inherent problems therein, including but not limited to the increasing waiting time before one can obtain an examination or evaluation; the length of time until one can obtain certain procedures and treatment; the inability of the physician to choose the nature and extent of care deemed appropriate; and, the growing trend to depersonalize the health care system as a whole. The debate continues while the ability to produce a better result is limited as each side remains polarized, and at times vilifying the other.

Do Older Drivers Have More Accidents?

According to a recent study of the Insurance Institute for Highway Safety, drivers 70 years or older, who make up about 10% of the population, are less likely to be involved in auto accidents and less likely to be seriously injured or killed. It is anticipated that by 2050, the number of people in this age group will rise to 16 % of the population in the United States (over fifty percent higher than the most recent amount).

Some have opined this is because automobiles are safer than earlier makes and models. While there are increased numbers of baby boomers who are now seniors and, therefore, an increased number of this group driving on the streets and highways, they actually account for much lower rates of accidents and fatalities. Interestingly, the study revealed the greatest decline was in the group of drivers 80 years and older; this group had nearly a 50% larger decline than either middle age drivers or those between the age of 70 and 74.

Also and somewhat unexpected are statistics revealing those of retirement age are driving more than they did in the past, whether commuting to work (even if part time), shopping, vacation or visiting family and friends.  In the age group of 75 years and older, their annual average miles driven increased 50%. Some commentaries believe this portion of the population take better care of themselves, live a much more healthy life and are leading more productive lifestyles than the same age group 15 years ago.

Clearly, senior drivers are more comfortable driving than their predecessors, and they take extra precautions such as driving less during the rush hours during the day, in inclement weather &/or at night. Nonetheless, eye examinations are a must, and there are classes available that test reaction times (perhaps helpful for many drivers). The next time we see an older driver we should be reminded of and think about emulating their wisdom and good habits, and not focus on any negativity that might otherwise come to mind.

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