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Pennsylvania employees have the right to review files held by their employers that contain information about themselves pursuant to Pennsylvania’s Personnel Files Act. The Act has generally been applied to current employees. The ability of a terminated employee to review their personnel file remained unclear until the Commonwealth Court recently provided some additional guidance. In Thomas Jefferson University Hospital v. Department of Labor and Industry, (No. 2275 C.D. 2014 (January 6, 2016) the court permitted a terminated employee to review her personnel file when the request was made one week after her discharge. The court cited the express intent of the Act to permit an employee to review his or her personnel file to determine the reason for discharge and held that “a recently discharged employee” must be afforded rights under the Act. The court’s opinion appears to rest on the portion of the Act allowing a terminated employee to investigate the reasons for discharge. Left unanswered is a clearer definition of “recently discharged”. In its opinion, the court mentioned a prior case in which a request to inspect two and half years after discharge was denied. The court did not comment negatively on that case. So long as the request to inspect is not too far removed from the termination date, it appears that this court’s opinion signals an intent to allow requests that further this express intent of the Act. Further clarity on this topic will be left to future cases.

From 2009 to 2014, there was a 23% increase in WHD investigations of employers. In fiscal year 2014, more than 43% of WHD investigations were agency-initiated, up from 35% just 5 years ago. Think you don’t have a problem in your business? The WHD found wage violations in 78% of agency-initiated investigations in fiscal year 2014, up from 65% in fiscal year 2009. It’s smart business to consult with one of the qualified employment law attorneys at Fiffik Law Group, P.C. and see if your wage payment practices comply with the law. We guarantee it’ll be less expensive than having the WHD provide that service for you!

Check out this article by Michael E. Fiffik, Esquire to find out if your business could be affected by the proposed rule change.

If you have at least one employee, you’re responsible for payroll taxes. These include withholding federal (and, where appropriate, state) income taxes and FICA tax from employees’ wages as well as paying the employer share of FICA tax and federal and state unemployment taxes. The responsibility is great and the penalties for missteps make it essential that you do things right.  In fact, business owners can be personally liable for the unpaid wages and penalties resulting from even unintentional payroll mistakes. 1. Misclassifying workers Audits by federal and state wage labor regulators have been on the rise in recent years. Perhaps the hottest audit issue today is misclassifying workers. There’s incentive to treat workers as independent contractors rather than employees because payroll taxes and employee benefit costs are high; a company’s only tax responsibility for an independent is issuing a Form 1099-MISC if payments in the year are $600 or more. You don’t have the right to label a worker as an independent contractor; classification depends on whether you have sufficient control over the worker. This essentially means having the right to say when, where, and how the work gets done. Having an independent contractor agreement is helpful in showing that you and the worker do not intend any employer-employee relationships, but the ultimate decision is up to government regulators. Too many employers place unreasonable reliance on independent contractor agreements. There’s no need to guess about proper classification. There are plenty of resources available from the U.S. Department of Labor and the IRS. 2. Not using an accountable plan for employee reimbursements If you normally pay for travel, entertainment, tools or other business costs for employees, you’re wasting employment tax dollars if you don’t use an accountable plan. With this arrangement, you deduct the expenses but avoid all payroll taxes on reimbursements; employees do not have any income from reimbursements. To be an accountable plan, the employer must formalize the arrangement and set reasonable times for action (the following times are reasonable to the IRS but you can adopt shorter time limits for action): The reimbursable expense must be business related. Advances cannot be made before 30 days of the expense. Employees must account for the expenses within 60 days of the expense. Employees must return excess reimbursements to the employer within 120 days of the expense. 3. Failing to keep payroll records You are required to maintain payroll records and have them available for IRS and Department of Labor inspection. These include time sheets, expense accounts, copies of W-2s and other payroll records. Usually, you should keep information for at least four years. In the event of a tax or wage audit, these records are in valuable asset that you can use to defend yourself. 4. Choosing to pay creditors before the IRS When a business gets into a cash crush, it may be tempting to pay the landlord, vendor, or utility company before the IRS and Pennsylvania Department of Revenue; bad idea! As a business owner, you are a “responsible person” who remains 100% personally liable for “trust fund” taxes (amounts withheld from employees’ wages). This is so even if your business is incorporated or is a limited liability company.  Best strategy: set aside cash to cover payroll taxes so you won’t use these funds for any other purpose. 5. Failing to monitor payroll company activities Many small businesses use outside payroll companies to handle the job of figuring withholding amounts as well as transferring funds to the U.S. Treasury and Department of Revenue to cover payroll taxes. However, some of these companies may not do their job, by error or intentionally. As an employer, even if you use an outside payroll company you remain responsible for payroll taxes. Best protection: Monitor your tax account to see that funds are being deposited on time and in the correct amount. If deposits are made electronically using EFTPS.gov, you can easily see activities in your account. Stay on top of your employer responsibilities to avoid any penalties or entanglements with the government regulators and employees. The attorneys on our business team, Michael E. Fiffik, Esquire, and Matthew A. Bole, Esquire can answer your employment questions. Contact us here.

Suppose your parent can no longer safely live alone at home and now needs nursing-home care. You are stressed and anxious. The nursing home puts a twenty-page contract in front of you. You’re tempted to flip straight to the last page and sign, just to get it over with. Do not do this. You could be agreeing to pay, out of your own pocket, many thousands of dollars for your parent’s care. The better way to approach the situation is to get your parent admitted and then, before you sign the contract, bring it to us for our review and guidance. Once your parent has moved in, he or she cannot be evicted just because you want to negotiate the contract. But if the facility will not accept your parent without having a signed contract, then sit down and take a few deep breaths. Read the contract carefully. Make a list of questions and ask a facility representative to explain. Ideally, that person would sit with you as you go through the document. If they are unwilling to do that, how willing or helpful will they likely be when you have a concern about your parent’s care? Don’t sign until you understand. Here is what to watch out for. Do Not Agree to be the “Responsible Party” Do not sign the contract if it requires you to obligate yourself to pay with your own money. Pay particular attention to any language referring to you as the “responsible party” or “resident representative” or “agent.” Key an eye out for buzzwords such as “co-signor,” “guarantor,” “personally guarantee,” “personally liable,” “private-pay guarantor,” “surety,” or “individual capacity.” Words like these obligate you, personally, to pay if your parent is unable to pay or runs out of money. If the contract has this language, it does not mean that it’s a bad facility or they are attempting to do something illegal or unscrupulous. It is legal for the facility to require you, if you hold financial power of attorney or are guardian, to pay nursing-home bills from your parent’s money and assets. It is legal to require you to spend your parent’s money on his or her care and not for any other purpose (such as making a gift to yourself or other family members). It is not legal to condition your parent’s admission on your agreeing to pay his or her bills with your own money. The nursing home can ask you to agree – and if they ask, refuse – but you cannot be forced to agree to pay with your own money. Sometimes the contract is confusing or contains ambiguous language. Do not rely upon the facility admissions person to explain the legalities of the contract to you. They may not understand it either and they have no obligation to look out for your best interest. This is why we recommend that you first bring the agreement to us. We can ensure, on your behalf, that you are not taking on unwanted obligations. What’s Included in the Daily Basic Rate The agreement should clearly spell out what services are included in the facility’s basic daily rate. It should also include a list of charges for any services not included in that rate. You know your parent’s needs. Talk through what your parent can and cannot do for themselves with the admissions person and ask whether there would be any additional charges for services that your parent is likely to need. It's also important to know that additional services are available. Some facilities will limit the type and scope of additional services available to patients in personal care or assisted living. The reason for this is that they prefer to nudge needy residents into skilled nursing at a much, much higher cost. You’ll want a fulsome list of additional services so that you can keep your parent in assisted living or personal care for as long as possible because it's far less expensive than skilled nursing. Your Parent Must be able to Apply for Long-Term Care Medical Assistance (Medicaid) The nursing-home contract must not require your parent to waive – give up – the right to seek government assistance like Medicare or Medicaid, nor can it ask your parent or you to sign any statement that he or she is ineligible for those benefits. If your parent has no money to pay for care, a Medicaid application will be required. The contract may seek your permission to have the facility apply for Medicaid for your parent. You have the right to decline that option and, instead, seek legal counsel to help you apply. We have seen some facilities mishandle Medicaid applications, which wound up being denied when they should not have been. In any case, though, whoever files for Medicaid, you must cooperate by immediately providing all records necessary for that application. Do Not Agree to Limit or Waive Your Parent’s Rights Nursing homes are increasing targets for lawsuits and litigation. As a result, they are trying to protect themselves from liability by including limitation or waiver language in contracts. Some examples include: A limitation on the home's liability in the event the resident is injured. A limitation on the home's liability for the resident's personal property. A provision requiring the applicant to consent to medical procedures. Provisions allowing the facility to force your parent to leave the facility for any reason. You should not agree to any such provisions except that your parent can be forced to leave the home only if it is necessary for the parent's welfare, the parent's health has improved such that nursing home care is no longer required, the health or safety of other individuals is endangered, your parent unreasonably fails to pay, or the facility ceases to operate. A requirement that you consent to have disputes resolved via out-of-court arbitration. If you agree, you will be giving up your right to a jury trial if a dispute arises. Protect yourself. Cross out, and Sign the Right Way Cross out provisions in the contract that you decline, and put your initials by the strike-outs. You’re allowed to do this. Do not be dissuaded by the admissions person. They probably do not have the authority to reject your edits. If they hassle you, ask to speak to their supervisor. Be sure to sign the contract only as your parent’s agent. Your signature should read: “[Parent’s name], by [your name], his or her agent.” To be fair to nursing homes, they are entitled to be paid and they often have difficulty collecting on legitimate debts. Facilities are forbidden from suing to take a resident’s Social Security or pension income. They must comply with strict federal consumer-protection restrictions. Despite these payment hurdles, they must still protect frail and vulnerable people from all manner of harm. They also suffer public hostility, thanks to the misconduct of some bad actors. We always urge cooperation with nursing-home personnel if feasible, because their job is a difficult one. On the other hand, you and your family have the right to be protected from the excesses of bad actors – or from the imperfections, for example, of the facility mentioned above that misuses the “personally liable” language. Thus, no matter how reputable the facility is, it is good judgment to consult an attorney before you sign an admission contract. If that’s not possible, then take care and time to study the contract, get facility staff to explain it to you, and strike out the objectionable provisions as advised above. A few moments of care, even despite the stressful circumstances you are surely in at the time, can save you a lot of difficulties later. If you have questions about planning for long-term care for yourself or a loved one we can help. Contact one of our experienced elder law attorneys for help. Click here to find Medicaid assistance.

Choosing a Guardian For Your Children It’s hard to imagine someone else raising your precious baby, but if something were to happen to you and your partner, you’d want to be sure your little one was in the very best hands. That’s why parents should pick a legal guardian — the person who’d raise their child if both parents die before the child turns 18. Don’t feel you’re up to the task? Failing to pick a guardian means the courts will choose one for you — and it may not be the person you think is best. Don’t automatically go for a married couple. Many parents tend to gravitate toward a married couple when they pick a guardian for their child. After all, a married pair seems more stable than a swinging single. But think carefully: divorce happens to the best of couples, so you may want to pick one person instead. Or decide ahead of time which person would raise your child in case the couple splits up. Also think about the couple’s children: Will your child fit into the family, or get lost in the shuffle? Consider values. Do you want your child to be raised in a certain religion? Then faith may be important when it comes time to pick a guardian. You might also want to consider your potential guardian’s morals, educational views, and parenting style. Take age and health into account. You may have your heart set on selecting your parents (grandparents can make excellent guardians), but they may be too old to run around after your toddler (or won’t be able to handle the demands of a teen). One option to consider: maybe an older child can be an excellent guardian for a younger sibling. Figure in finance and family factors. Does your potential guardian own a home, have a good job, or work in a field that requires lots of travel? These are all important factors to consider. How close does your guardian live to you? Will you be uprooting your children from the community and friends? How well do your possible guardians get along with your parents, in-laws, or other relatives? You may think your child could live with your sister on the other side of the country, but if she’s a free spirit when it comes to her career, you may want to consider someone a little steadier. Split the task. Some parents ask their child’s guardian to also handle the finances and their child’s inheritance. After all, it’s tempting to have the same person take care of both jobs. But if your guardian doesn’t have a good head for money, you’ll need to find a second person for this task. Maybe one of the grandparents can be the trustee to managing the money, while your favorite cousin can raise your child.  Whomever you choose as a tandem, they should be able to communicate and get along for the best interest of your children. We make it easy to protect your family and get your wills done. We guide you and your family using our flat fee billing methods so there is never a surprise with one of our invoices. We prepare thousands of wills, trusts, powers of attorney and healthcare directives annually for people all across Pennsylvania just like you.  You can get the process started here or call (412) 391-1014 and we’ll connect you with one of our estate planning attorneys.

Thanks to medical advances, people are living longer. That’s good the good news! However, the longer you live, the likelier it is that you’ll require LTC. In fact, according to longtermcare.gov, 7 out of 10 people will require long-term care in their lifetimes. Here are some interesting statistics: 8.3 million—Number of people in the U.S. who received some form of LTC in 2016 52% — 52 percent of people — 47 percent of men and 58 percent of women— who reach age 65 will need long-term care in their lifetime 2 years — Average length of time, over a lifetime, that a person will require LTC As you can see from these numbers, a significant percentage of the population will require long-term care. No one likes to discuss these kinds of issues, but it’s in your best interest to factor extended care into your post-retirement plans. A starting point is to understand the categories of eldercare. There are multiple categories of residential care communities and several home-based care services, and each is referred to by many different names. Many factors are taken into account when determining if you're eligible for assisted living, or if it's the right place for you. The types of residential care communities you'll encounter include: Independent Living / Senior Livings are apartment buildings or patio homes within a complex that offers dining, transportation, security, and recreational activities, but no health care services. There is sometimes a minimum age requirement. Assisted Living provides an apartment-like setting that allows individuals to age in place and receive the assistance they need to maintain maximum independence and personal choice. These residences provide assisted living services such as: meals, laundry, housekeeping, transportation services, and basic cognitive support services. Additionally assisted living residences must provide or arrange for other types of health care services such as hospice services, occupational therapy, skilled nursing services, physical therapy, behavioral health services, home health services, escort services, and specialized cognitive support services. Personal Care Homes are residences that provide housing and meals for individuals – typically older people or people with physical, behavioral health, or cognitive disabilities – who are unable to care for themselves but do not need 24/7 nursing home or medical care. Available services are based on the individual needs of the resident but can include assistance with daily living activities including bathing, dressing or going to the bathroom. Skilled Nursing Homes provide 24-hour continuous health care services as well as room and board. The health care services include basic and skilled nursing care, rehabilitation, and a full range of other programs, treatments, and therapies such as occupational therapy and physical therapy. Skilled nursing facilities also manage complex medical needs that require equipment, such as ventilators and IV lines.. Continuing Care Retirement Communities are residences that provide a continuum of care from independent living to assisted living to memory care to skilled nursing. These communities are designed to enable seniors with progressively declining health to remain in a single residential location or give healthy seniors the peace of mind that all their future needs are covered. Home Care agencies provide non-skilled services to individuals in their homes or other independent living environments. Home care may include assistance with self-administered medications; personal care assistance such as bathing, feeding, and hygiene; assistance with housekeeping, shopping, meal planning and preparation and transportation and respite care including support to the family. Home Health Care agencies provide health care services to ill, disabled, or vulnerable individuals in their homes or places of residence, enabling them to live as independently as possible. Home health care services include nursing care; home health aide care and physical therapy, occupational therapy, and speech therapy services. Hospice is a coordinated program of palliative and supportive care for those with a limited life expectancy. It can be provided in a nursing home, assisted living residence, personal care home, individual’s home, or at a hospice facility. Click here to find assistance in your county. While we understand planning for this type of care can be a difficult conversation to have with loved ones, we stress the importance of laying the roadwork for these situations before it's too late and the situation is already upon you. To begin your plan with one of our eldercare attorneys, reach out here.

Yes, You Need a Will Join our Managing Partner, Mike Fiffik, and Associate Attorney, Jennifer Bamonte for this informative video and learn what a Will does, find out what happens without a Will in five very common life situations and the process of getting your Will done from request to completion.

Seniors face complex legal concerns that are often different from what they faced when they were younger. Actions that might seem simple and logical, like putting a child’s name on a bank account or deed, may have unintended legal effects. As a senior or someone who’s helping make decisions for a senior, it’s important that you work with an attorney who has experience in Elder Law. Your LegalShield membership makes that easy. What is Elder Law? Elder Law encompasses many different fields of law. Some of these fields include: Preservation/transfer of assets seeking to avoid spousal impoverishment when a spouse enters a nursing home Medicaid Planning/Applications Social security and disability claims and appeals Disability planning, including use of durable powers of attorney, living trusts, “living wills,” for financial management and health care decisions Conservatorships and guardianships Estate planning, including trusts, wills, and other planning documents Probate Administration and management of trusts and estates Long-term care placements in nursing home and life care communities Nursing home issues including questions of patients’ rights and nursing home quality Elder abuse and fraud recovery cases Retirement, including public and private retirement benefits, survivor benefits, and pension benefits Questions? Contact us at (412)-391-1014 for a free consultation. Find an elder law attorney that is the perfect fit for you through Fiffik Law Group, P.C.

Drivers must purchase and maintain car insurance in order to legally drive in Pennsylvania. Under Pennsylvania law, this is called maintaining “financial responsibility” on your vehicles. A lapse in insurance coverage may result in the suspension of your vehicle registration privilege for three months, unless the lapse of insurance was for a period of less than 31 days and the owner or registrant proves to the Department of Transportation (PennDOT) that the vehicle was not operated during this short lapse in coverage. If you are stopped for a moving violation and it is determined that you are operating your vehicle without insurance, you could face the following penalties and expenses: A minimum of $300 fine for driving uninsured A three-month suspension of your driver’s license.  If you think someone can use your car to drive you to where you need to go, that’s not the case. A three-month suspension of your vehicle registration.  In addition, your vehicle may not be driven by anyone while the registration is suspended.  So your car will be of no use to anyone else in your household. That means that no one can use your car to drive you to work or on any errands. Your car’s license plate, registration sticker and driver’s license must be surrendered to PennDOT in order to serve the suspension Restoration fees to restore your vehicle registration Restoration fees to restore your driver’s license You must provide proof of insurance to restore your vehicle registration and driving privileges Vehicle impoundment If you’ve been cited for operating a vehicle without required insurance, you should contest the citation and seek legal help. Our attorneys are experienced in handling many traffic and moving violations. We can help you avoid the serious financial consequences of diving without insurance.

What is "Stand Your Ground" in Pennsylvania Pennsylvania is one of 38 states that have a “stand your ground” law providing that you have no duty to retreat from anywhere you have a legal right to be in a qualifying threatening situation. This relates to the commonly known “Castle Doctrine,” which establishes your right to protect yourself within your own home without first having to try and escape. The law was expanded in 2011 to give you this same right outside of your home. What Does Stand Your Ground Law Allow Provided that you are not engaged in criminal activity and you are not in possession of an illegal firearm, the Stand Your Ground law authorizes the use of deadly force to protect yourself from threats of force or bodily injury without being required to first try to escape. In Pennsylvania, any person “has no duty to retreat and has the right to stand his ground and use force, including deadly force if . . . (he) believes it is immediately necessary to do so to protect himself against death, serious bodily injury, kidnapping, or sexual intercourse by force or threat.” See 18 Pa.C.S. § 505(b)(2.3) for the entire statute. The law further provides that in order to be allowed to “stand your ground” instead of retreating, the attacker against whom you are going to use deadly force must have a firearm or other lethal weapon that is visible at the time when you use deadly force. You Are Not Required to Give a Warning First In Pennsylvania, you are not legally required to perform the following acts before using deadly force in a “Stand Your Ground ” situation: Issue a verbal warning Shoot one or more warning shots Warn the attacker that you have a firearm on you Shoot to injure the attacker to deter violence Give the attacker an opportunity to retreat Call 911 before or after using deadly force What Isn’t Permitted Pennsylvania’s Stand Your Ground Law is not absolute. Unless the threatening party is an intruder in your home or vehicle, a simple threat of violence or feeling of danger is not enough to justify force. There must be a reasonable expectation of immediate serious danger. The Stand Your Ground law does not apply to situations where you are trying to protect anyone other than you from the threat of serious bodily injury. It cannot be used as a defense in a situation where you’re protecting your spouse, children, or other loved ones. Also, protecting yourself must be “immediately necessary.” For example, if the attacker tries to flee, the use of force is no longer justified. You also cannot chase someone down after they’ve threatened you and claim protection. Finally, if you are involved in a crime at the time, the stand your ground law does not apply. Other situations where the use of force is not justified include: Resisting arrest by a police officer; Resisting force used by the occupier of property or by another person who is defending their property; When you provoke the actions being taken against you; And when you are unlawfully entering another’s property. You Still Should Retain an Attorney If you do act to defend yourself, the police will investigate the shooting or other actions you have taken to ensure that your behavior was justified. You may wish to be represented by a Pennsylvania Stand Your Ground criminal defense lawyer during this investigation. In some cases, people who acted in their own defense, or in defense of others, will actually end up facing criminal charges. If you are charged, you need a lawyer to defend yourself so you can try to avoid conviction. If you have any questions regarding the Stand Your Ground law or if you would like to set up a Free Consultation, please call one of Fiffik Law Group’s experienced criminal defense attorneys.

The Pennsylvania Superior Court has decided that the odor of marijuana alone does not give police sufficient probably cause to engage in a warrantless search a vehicle.  The decision in Commonwealth v. Barr overturns a 2019 decision by the Lehigh County Court of Common Pleas ruling that a warrantless police search prompted by the smell of marijuana was illegal once the passenger showed his medical marijuana card. On November 7, 2018, Barr, who was prescribed medical marijuana for an undisclosed condition, was a passenger in his mother’s car, which was being driven by his wife. The police pulled the car over after observing a traffic violation. The police testified that on approaching the vehicle they could smell the odor of marijuana coming from the car and asked the occupants of the vehicle to get out of the car. The police advised Mr. Barr that they could search the vehicle because the smell of marijuana permitted them to engage in a warrantless search of the car pursuant to what was commonly known as the “plain smell doctrine.” At that time, Mr. Barr presented his medical marijuana identification card that allowed him to possess and ingest medical marijuana. Despite this, the police searched the car and found less than a gram of marijuana in an unmarked bag inside an unmarked pill bottle, as well as a small amount of marijuana residue in the cabin area. Barr was charged with possession of a small amount of marijuana. The Commonwealth appealed the local court’s ruling that the warrantless police search prompted by the smell of marijuana was illegal once Barr showed his medical marijuana card. The Superior Court agreed with the lower court at least in part. The Superior Court recalled that the plain smell doctrine upon which the police relied to search the car was predicated upon “marijuana’s distinctive odor and illegal status . . . previously, every instance in which marijuana was detected by smell indicated the commission of a crime.”  The passage of the Medical Marijuana Act changed the predicate of the doctrine.  A substantial number of Pennsylvania citizens may now possess and consume marijuana legally pursuant to the MMA.  The court observed that “soon, hundreds of thousands of Pennsylvanians will become potential lawful sources of that same odor. Thus, the strength of the inference of illegality stemming from the odor of marijuana has necessarily been diminished by the MMA in Pennsylvania.” Based upon the circumstances that have changed since the plain smell doctrine was first recognized, the court held that “[w]hile the odor of marijuana may contribute to a finding of probable cause, as possession of marijuana remains illegal generally, the odor alone does not imply individualized suspicion of criminal activity, and Appellee’s presentation of an MMA card was at least one factor that tends to undermine the inference of criminality.” Can the police search your car if they smell marijuana? For now, the answer is “maybe”. The prosecution has appealed this ruling, arguing that the search was legal under recent Pennsylvania Supreme Court precedent. What is clear is that marijuana odor as justification for a warrantless search is an evolving issue in the courts. The Barr decision will place an increased burden on police to observe and note other factors, in addition to the odor of marijuana, at the time of the traffic stop that might serve as sufficient justification for a search. Other factors to consider in future cases include whether the smell is so overpowering that an officer may conclude that the driver has a quantity of marijuana that exceeds what is allowed. Also, driving under the influence of marijuana is illegal in Pennsylvania, so police are still free to search the car of a driver who shows signs of impairment. To learn more about Pennsylvania criminal law or what to do if you are charged with a crime, call or contact Fiffik Law Group, P.C. at 412.391.1014 to schedule a consultation with an experienced attorney who can provide initial guidance and advice.