Idaho Law Blog

The Federal Family and Medical Leave Act (FMLA)

Published on: November 30, 2016 | by Racine Olson

Employers are often covered by federal employment laws that provide certain protections for employees. One of the laws that exist that is applicable to many employers is the Family and Medical Leave Act (FMLA). The FMLA is designed to provide certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that their group health benefits be maintained during the leave. Essentially this means that an employee who is covered by the FMLA can take up to 12 weeks of leave, that is unpaid, with an assurance that their job will be open and remaining for them when they return.

The FMLA is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons. It also seeks to accommodate the legitimate interests of employers and promote equal employment opportunity for men and women.

The Flexibility of Estate Planning

Published on: November 30, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

I’ve been an estate planning attorney now for nearly two decades. One of the first things I discovered about estate planning when I first began practicing was how flexible estate planning can be. Flexibility in estate planning is really important because a person’s circumstances are changing all the time. Below are three of the basic areas that illustrate how flexible estate planning can be.

OWNERSHIP AND USE OF PROPERTY

Landlord-Tenant Law and Restoration Agreements

Published on: November 30, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

Whenever a “Reasonable Modification” has been made to a property rented to a tenant, the issue of restoring the property comes up. In most instances, the landlord has a right to “restore” or to have the tenant restore the premises to the condition they were in before the modification occurred.

So the question arises, it is legal for a landlord to require a tenant to sign a “Restoration Agreement” when a modification is made. The answer to this questions is controlled by language in the Fair Housing Act itself. According to the applicable section of the Fair Housing Act:

9th Circuit Court of Appeals Decision

Published on: November 29, 2016 | by Racine Olson

memo-decision-11-29-16

9th CCA received today.　 We successfully defended ISP officer Janet Murakami in a civil rights action under 42 USC, sec. 1983, through State of Idaho Risk Management Program.　 The opinion holds she was entitled to qualified immunity for a Code 3 call for emergency backup form other officers, who responded, and allegedly used excessive force to effectuate Rice’s arrest.　 The ruling in favor of Murakami reverses Chief US District Judge Winmill’s ruling denying summary judgment to her for the Code 3 call, which we appealed, and which was reversed.　 Previously, Judge Winmill had granted partial summary judgment dismissing additional claims for traffic stop and arrest, holding there was probable cause to do so.　 If the procedural status on appeal is confusing to the reader, recall that an interlocutory appeal of a denial of summary judgment is allowed in such section 1983 actions before trial and final judgment, which is opposite the general rule.　 Risk Management, ISP, and Officer Murakami, and the AG’s office are/will be very pleased with this favorable circuit opinion in favor of their officer.

Probate is Not that Bad

Published on: November 28, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

Recently there seems to be a trend by my estate planning clients to avoid probate at all costs. It is true that a number of my recent clients have recently moved to Idaho from other states whose laws are vastly different than Idaho’s when it comes to probate. However, there are also a large number of individuals who have lived in Idaho their entire lives who for some reason feel it necessary to avoid probate

I found that when I actually talk to these clients I learn that their desire to avoid probate stems from information they have received from family or friends. I’m sure that these family and friends are well meaning, but I often find that the information they provide to my client is not accurate. It is my belief that there really are only three legitimate reasons to try and avoid probate.

Landlord-Tenant Law and Reasonable Modifications

Published on: November 28, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

Not all tenants, or potential tenants, are healthy. Many have physical disabilities or handicaps that limit their mobility or ability to function normally. Discriminating against a tenant or potential tenant because of a disability is prohibited by both state and federal law. However, I’ve had many landlord clients who are concerned about what they are required to do when a tenant or potential tenant makes a request for a reasonable modification.

A reasonable modification is a structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises. Reasonable modifications can include structural changes to interiors and exteriors of dwellings and to common and public use areas. People with disabilities can ask for reasonable modification.

That’s My Story, And I’m Sticking To It

Published on: November 28, 2016 | by Racine Olson

By Fred Lewis

In Chadwick, VA. Multi-state Electric, LLC. 159 Idaho 451 (2015) the Idaho Supreme Court held that the Claimant had failed to prove that the May 26^th, 2012 caused damage to the physical structure of the body and the Claimant had failed to give the employer timely notice of the alleged accident. The Supreme Court pointed out the record was filled with inconsistent evidence from the Claimant in his medical records, recorded statement and deposition in regard to both of his alleged accidents.

But the Idaho Supreme Court held that notice requires notice of and injury and notice that the injury was caused by an accident arising out of and in the course of employment. Notice to the employer that the employee is experiencing pain or that the employee has received treatment for that pain, is insufficient to meet the notice requirement, since injury is defined as “a personal injury caused by an accident arising out of and in the course of any employment covered by the Workers’ Compensation law”. “Injury” and “accident” are not synonymous, notice must be of both, and injury and the cause of the injury.

Seat Belt Usage Awareness Campaign

Published on: November 26, 2016 | by Racine Olson

November 17, 2016 through November 27, 2016 is the National Highway Traffic Safety Administration (NHTSA)’s nationwide campaign urging motorists to buckle up and ensure that children are correctly restrained in child safety seats. Wearing a seat belt reduces the risk of a fatal injury by 45%.

Seat belt use reduces fatalities by 74% in rollover crashes involving passenger cars and by 80% in rollover crashes involving light trucks. (This effectiveness info from Fatality Reduction by Safety Belts for Front Seat Occupants of Cars and Light Trucks, NHTSA, DOT HS 809 199)

Over Thanksgiving week, millions of motorists will hit the road to spend time with family and friends. It is one of the busiest travel times of the year. More vehicles on the roadways also pose a higher probability for more crashes to occur. An unrestrained passenger is killed every 5.5 days.

Landlord-Tenant Law and Reasonable Accommodations

Published on: November 26, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

Landlords often have potential tenants or current tenants who are or become disabled physically or otherwise. When this occurs, the Fair Housing Act requires a landlord to make a reasonable accommodation for the tenant in most circumstances. My landlord clients often ask me what a Reasonable Accommodation is.

Turning again to the federal Fair Housing Act and its interpretation by both HUD and the Federal Department of Justice, the following was set forth on May 17, 2004, as an official statement concerning what constitutes a Reasonable Accommodation:

Pre-Paid Funeral as Part of Your Estate Plan

Published on: November 26, 2016 | by Racine Olson

By Lane V. Erickson, Attorney

There are just about as many different types of estate plans as there are people. What this really means is that there is a great deal of flexibility in the type and content of the estate plan that you choose. Estate planning is really designed to protect you and your loved ones regardless of your unique or unusual circumstances.

The basic components of an estate plan include a last will and testament, a durable power of attorney, and a living will and durable power of attorney for health care. Estate planning can also include various kinds of trusts that may be necessary for either yourself or for a loved one.