What Soldiers Need To Know about USERRA Part III

A.   Overview of Part I:

•  Notice To Employers – You have an obligation under the law to provide advance written or verbal notice to your employers for all military duty (exceptions apply).
•   Important Time Considerations – You must adhere to strict time lines when applying for reemployment or reporting back to your civilian job (based on the time you spent on duty).

B.    Overview of Part II:

• What Circumstances May Disqualify You From Asserting USERRA? - 1) Dishonorable and/or bad conduct discharge; 2) “Other than honorable” discharge (each branch of the military has specific rules governing this type of discharge); 3) Dismissal of a commissioned officer via court martial or a Presidential order in time of war (see 10 U.S.C. 1161(a)); and 4) Dropped from the rolls by the President for being absent without authority for more than three (3) months or imprisonment by a civilian court (see 10 U.S.C. 1161(b)).  
• Documentation Upon Return - 1) Your timely application for reemployment; 2) You have not exceeded the five (5) year service limitation; and 3) Your separation from service was other than disqualifying (see 38 U.S.C. 4304). 

C.    Part III:
       Although you're re-employment should be safe and secure if you follow the rules, your employer does have defenses to rehiring you. The defenses your employer may utilize are called affirmative defenses. This means that the employer has the burden of proving them by a preponderance of the evidence (i.e. anything over 50%). Two affirmative defenses your employer may utilize are: 

1. Changed Circumstances: Re-employment may be excused if the employer's circumstances have changed so that re-employment of the service member would be impossible or unreasonable. An example of this scenario would be a reduction-in-force that would have included the service member.
2. Undue Hardship: Employers are excused for making any effort to qualify the returning service member or from accommodating individuals with service-related disabilities only when doing so would be of such difficulty or expense as to cause "undue hardship" on the employer.

       If you have any questions or concerns about your re-employment or lack thereof you will find information and technical assistance provided by the Veteran's Employment and Training Service (VETS) of the Department of Labor (see VETS). VETS investigates complaints and attempts to resolve them. Filing of complaints with VETS is entirely optional. You may therefore freely choose to pursue a claim with private counsel.  

New Anti-Bullying Statute in Massachusetts

The recent news about sentencing in the tragic case of Phoebe Prince throws the problem of bullying in our nation’s schools back in to the spotlight. Prince was 15 years old when she committed suicide in January of 2010 in South Hadley, MA following relentless bullying by her peers. Her death has elevated awareness of bullying and has spurred legislative changes around the country.

Massachusetts passed a new anti-bullying statute in May 2010 in direct response to the incident. St.2010, c.92 titled Bullying in Schools contains several important provisions designed to protect students from bullying and harassment. The law specifically addresses cyber-bullying a new type of bullying in today’s digital world. With Facebook, cell phones and other forms of electronic communication children who were once solely bullied while at school are now subject to a relentless wave of harassment following them when they leave school at the end of the day. The law also requires schools to create a plan to implement programs both to prevent bullying and provide successful intervention in consultation should incidents of bullying come to light.

Bullying is of particular concern to children with disabilities since they are already in a vulnerable state. According to a recent survey by the Massachusetts Advocates for Children, 90% of parents with autistic children reported that their child had been the target of bullying. In response to this concern, the Department of Special Education has issued a Technical Advisory with guidelines and resources concerning bullying and special needs children. The Advisory places particular emphasis on addressing bullying prevention in your child’s IEP and ensuring that your child has a safe person to go to if they are being bullied. The IEP should have a section for educational professionals to comment on whether your child seems withdrawn or is not socializing appropriately because of bullying. This portion of the IEP should also provide tools for the child to use themselves when confronted with bullying.

Read the full Massachsetts Statute here


Read the Technical Advisory from the Department of Special Education here

Divorce Process

This blog will explain the steps in a divorce, and what you will need to provide an attorney.  As you navigate through the process,  the first document you will need to bring is your original marriage certificate.  Sometimes clients want to keep this for their records or just simply to remember a time in their life.  The court however needs the original document.  The divorce will not be able to proceed unless the original is filed with the court. The second set of documents you will need are three years of your tax returns.  These forms can include 1099s 1098s and W-2's.  You also need three most current pay stubs from your employer.  It should be noted there are no gotcha moments in family law.  Everything is about disclosure and the best interest of the child.

When you get to my office (www.bmjr law.com), I will have the necessary forms for you to fillout. These forms include the Complaint for Divorce, Affidavit Disclosing Care and Custody, Statistical Report, and finally the Military Affidavit.  If applicable, you may fill out an Affidavit of Indigency which waives the court costs of $215.  The above-mentioned forms tell the court information about you, such as whether a spouse is in the military or if there are any care and custody proceedings already pending within the court system.

Once the divorce paperwork is filed, you should attend the parent education class, which is a requirement under Massachusetts law, if the parties have a minor child.  It is important that you attend this class.  Otherwise, the divorce will not proceed.  The parent education class seeks to provide guidance for children as their family structures are changing.

Once you've completed the parent education class you should begin working on the financial statement.  The financial statement breaks down your expenses in your life to determine how much child support and/or alimony you should receive.  I heard a judge recently say at a conference that both child support and/or alimony should not exceed 1/3 of the defendants income. Typically the longer the marriage, the more likely you will receive alimony. 

The opposing party has 20 days to respond to the complaint for divorce.  Once the 20 days have past I can file for a pretrial conference where the judge will attempt to settle the case or determine whether the case should go to trial.  Prior to the pretrial conference a four-way meeting must occur.  The four-way meeting is to allow all parties to discuss the issues in the case to determine which issues they agree or disagree on.  It is important to approach the pretrial conference with an open mind and a willingness to compromise.  This may be very difficult in some cases I realize.  At the pretrial conference the judge will determine the status of discovery and set a trial date.  If needed, he may also direct the parties to a probation officer to see if an agreement can be reached if the case is appropriate.  The vast majority of divorce cases settle during the pretrial phase.  Trials usually are over custody issues and can be painful for all sides.  It is important to remember that the best interest of the child is what's most important.  I hope you found this blog to be helpful in outlining the basic process of divorce.

What Soldiers Need To Know about USERRA Part II

A.  Overview of Part I:

 
Notice To Employers – You have an obligation under the law to provide advance written or verbal notice to your employers for all military duty (exceptions apply).

Important Time Considerations – You must adhere to strict time lines when applying for reemployment or reporting back to your civilian job (based on the time you spent on duty).

B.   What Circumstances May Disqualify You from Asserting USERRA?

There are four (4) circumstances that would disqualify you from asserting your rights under USERRA. You should commit these to memory to avoid any unforeseen disqualifying situations. They are as follows:

1)    Dishonorable and/or bad conduct discharge;

2)   “Other than honorable” discharge (each branch of the military has sp ecific rules governing this
type of discharge);

3)    Dismissal of a commissioned officer via court martial or a Presidential order in time of war (see 10 U.S.C. 1161(a)); and

4)    Dropped from the rolls by the President for being absent without authority for more than three (3) months or imprisonment by a civilian court (see 10 U.S.C. 1161(b)). Losing your right to assert USERRA upon returning to civilian life can have a devastating effect on the rest of your life and that of your family. Therefore, as a servicemember, you should be well aware of these possibilities before and during your service.

C.   Documentation Upon Return

Under USERRA, your employer has rights also. You would be misinformed if you believed USERRA protects you and only you. For example, if an employee has been absent for a period of service longer than thirty-one (31) days an employer has the right to request documentation showing:

1)    Your timely application for reemployment;

2)    You have not exceeded the five (5) year service limitation; and

3)    Your separation from service was other than disqualifying (see 38 U.S.C. 4304). Furthermore, if this documentation does not comply with USERRA because it is not readily available or simply does not exist, your employer MUST reemploy you. However, if you have been reemployed and this documentation later becomes available showing you have violated the requirements, your employer may terminate you. If you happen to be terminated, any benefits you may have been granted will also come to an end.

As you can see, you have an impressive amount of responsibility when it comes to asserting your rights under USERRA. It is imperative that you learn and understand this statute and its procedures.

Stay tuned for Part III:

A.   Your Position Upon Reemployment

B.    Disabilities Incurred or Aggravated While In Service

C.   Employer’s Defenses to Reemployment

What Soldiers Need To Know About USERRA

It doesn’t matter whether you are just enlisted, already in action or waiting for another tour of duty yet it is imperative that you understand and utilize the broad federal protection under USERRA. This law is a federal statute that protects civilian job rights and benefits for veterans and members of the Reserves.

There are many factors about this law that are important; too many for one blog. I will therefore make this a 3 part series on what I consider a very important statute.

A. Notice To Employers

#160; The first factor you should understand is the obligation you have under the law to provide advance written or verbal notice to your employers for all military duty. Fortunately, there are exceptions. You will still have protection if giving notice to your employer is 1) impossible, 2) unreasonable, or 3) precluded by military necessity. For example, being deployed to Iraq or any other war zone would satisfy these exceptions. However, if an exception doesn’t apply, you should provide notice as far in advance as is reasonable under your individual circumstances. Additionally, you are allowed to use accrued vacation or annual leave while performing your duty but you are not required to.

B. Important Time Considerations

Under USERRA, there are also strict time lines you must adhere to when applying for reemployment or reporting back to your job. The period you have to apply for reemployment or report back to work after service is based on the time you spent on duty. You should commit these to memory so you can take advantage of your statutory rights.

• Service of less than 31 days: You must return at the beginning of the next regularly scheduled work period on the first full day after release from service. You may also take into consideration safe travel back home and an 8 hour night of sleep.   
• Service of more than 30 days but less than 181 days: You must submit an application for reemployment within 14 days of release from service.
• Service of more than 180 days: Your application for reemployment must be submitted within 90 days of release from service.

I hope this was helpful in getting you interested in finding out more about your rights and protections under USERRA.

Stay tuned for Part II of our 3 part series. You can find out more information about your rights by visiting the Veterans' Employment and Training Service(VETS) website.

Mass Alimony Reform Bill A Light At The End of The Tunnel

The Mass Alimony Reform Bill was introduced on January 18, 2011 by Senator Gale D. Candaras (D – Wilbraham) and Representative John D. Fernandes (D – Milford). Some may disagree with Candaras and Fernandes but their respective arguments are tough to deny... Candaras argues that the "...Alimony Reform legislation will bring clarity and make more equitable a law in need of revision. It is intended to promote marriage, foster self sufficiency and encourage all individuals to plan for their retirement... ." The final Bill did however take concessions from all sides. As Fernandes explains, "..[t]his bill, borne of a collaborative effort of practitioners, jurists and those advocates who have lived the alimony experience provides the change that is needed. I am anxious to see this legislation move forward to passage.”

This legislation proposes sweeping changes to our antiquated system of awarding and modifying alimony. However, not everyone is happy with the new legislation and the changes it may bring to alimony laws in Massachusetts. The current statute, MGL Chapter 208 Section 34, gives Judges broad discretion in awarding alimony. This discretion in and of itself creates an atmosphere with no direction and drives many cases to trial that may have been settled otherwise. Some say the statute’s vagueness also encourages litigation and discourages people from getting married.

On the other hand, the new system (if enacted) would give much needed guidance and direction to judges, attorneys and litigants. Below is a list of the key reforms proposed under the new bill:

• Providing separate alimony categories with clear definitions and set durational limits (e.g. general term alimony, rehabilitative alimony, reimbursement alimony, and transitional alimony).
• Termination of General Alimony at retirement - Alimony terminates upon payor attaining the full retirement age per the old-age retirement benefit under Social Security.
• Addressing cohabitation - The cohabitation of the recipient spouse with another person for a continuous period of at least three months may be cause for suspension, reduction or termination of alimony.
• Modifying factors considered in an Alimony Order & percentage of need.

For more information on the history of alimony and the proposed changes visit: http://alimonyreform2ndwives.blogspot.com/ and http://massalimonyreform.org/. For more information call the Law Offices of  Brian J. McLaughlin ESQ. 857-241-3689.

To Be Material, or Not to Be?

This blog will examine what steps need to be taken to file for and prove a material change in circumstance. Part two of this blog will examine the new legislation concerning alimony and its impacts.

First a person must file a complaint alleging a material change in circumstance. The material change in circumstance must be something new that has not been brought to the court's attention during the divorce proceeding. Either party may file for a change in circumstance after the divorce has been granted. If the divorce was settled by an agreement, the agreement must have a merger clause merging the agreement into the final divorce judgment. The merger clause allows for the modification standard to be used rather than a more difficult countervailing equity standard. Some obvious examples of material change in circumstance are a job loss or ill health. These must be explained in the complaint and supported by evidence.

However, there are two different types of material changes in circumstance that are not as obvious as ill health or job loss. First is the situation that involves children. For example, the child has been living with his/her mom and now live with the father. Here, the change in circumstance also deals with the child and not strictly financial issues. Now, there's an additional step to the analysis. The court must now take into account the best interest of the child when considering a material change in circumstance.

The second situation to be aware of is whether either spouse has a new cohabitant. Under the current law in MA, the court considers this a material change in circumstance. Now, the non-cohabiting spouse is entitled to file for a modification of his/her alimony payment.

Furthermore, under current MA law, if one of the spouses remarries, the court may take into account the new spouses income when modifying a previous alimony judgment. This situation has helped form several groups such as the 2nd Wives Club and Mass. Alimony Reform whom have both participated in presenting the Alimony Reform Bill to the Mass. Legislature just last month.   

You can consult Brian McLaughlin for any of your modification needs at www.bmjrlaw.com