DISCLOSURE OF CONVICTIONS TO EMPLOYERS

Effective January, 1, 2018, employers in California with five or more employees cannot make employment decisions regarding convictions unless first performing an individualized assessment. The Assessment entails consideration of: [1] the underlying facts of the crime as they relate to the nature and seriousness of the conviction; [2] the period of time that has elapsed since the crime was committed and whether the terms and condition of the sentence have been completed, along with [3] the duties and functions of the employment position [nature of the job] in question. Under the existing law through and including December 31, 2017, only governmental entities (City, County and State) were barred from making such personnel decisions.

Additionally, a private employer cannot ask questions, whether during a face to face interview and/or on the Application for Employment form, regarding a criminal history of a prospective employee until after a preliminary decision has been made that the applicant is qualified for the open position. Essentially, an employer cannot consider a person’s criminal history until after a preliminary or conditional job offer has been made to the prospective employee. As such, the employer is prohibited from having a background check performed until after making a conditional employment offer.

Assembly Bill 1008 (AB 1008) was signed into law on October 14, 2017 and, as a result, a new section has been added to the Fair Employment and Housing Act, commonly referred to as FEHA, to wit: Government Code Section 12952.

Shortly before signing into law the above mandate, on October 12, 2017, the Governor took a quite similar position as above when he made it a misdemeanor for violating AB 138, which prevents an employer from asking questions of a prospective employee regarding their previous salary, nor could employers consider the salary history as a factor in making decisions regarding an applicant for employment. The new law does not prohibit an applicant from voluntarily providing salary history information and it can be used by the prospective employer in making its own decisions in connection with the salary to be offered. Labor Section 432.3

None of the above should be interpreted as a prohibition against any Governmental agency (Board, Bureau and/or Department) from inquiring as to a conviction, commonly referred to as a background check, as part of the process of obtaining a professional or occupational license; similarly, this inquiry is an integral part of the renewal process regarding any such license. It should be remembered, there are approximately 50 agencies, including the California Department of Consumer Affairs. All of these state agencies have the power to investigate, deny, suspend or revoke a license, in the interest of the health and safety of the public, and thereby rely upon the underlying facts of the crime, as they relate to the duties and functions of a licensed professional or occupational license. Business and Professions Code Section 475-499.

For additional information, see Administrative Law Attorney.

Should a Lawyer Predict the Outcome or Result in a Case?

It is not uncommon for a prospective client and, for that matter, even an existing client, to inquire as to the likely result(s) in the handling of their case.

It is simply unwise to predict an outcome or even worse to speculate on what can be expected. I do not predict the expected or anticipated result without first doing the required work-up. Moreover and even after performing the necessary case evaluation, factual and legal analysis, and requisite strategy, I still need to prepare and execute a complete plan of action.

It seems reasonable to state there being over 215 five-star client reviews and endorsements from lawyers all over California and the United States; having earned  the “Client’s Choice Award” for ten (10) years in a row since 2007; having served as a Deputy Attorney General for the California Department of Justice between 2000 through 2008 as a prosecution lawyer at the Attorney General’s Office; and, since that time, concentrated my law practice on the defense side of cases with tested protocols we utilize that have produced a winning record.

As a lawyer, there are two guiding and profound principles that are etched in my brain;  they are an integral part of my thought process, and have been my approach for four decades: “what I don’t know, I don’t know.” There is a second I learned from the first day at Loyola Law School: “when you think you will win, you will likely lose.” In short, I practice law without bravado, and I am better for it because I try harder and work longer to find every possible way to develop a defense. Often, and even more important, is my highly effective practice to establish and develop a compelling and comprehensive “offensive strategy” [for those who know the world of  sports, it has been said that more points are obtained by the offense plays that are made].

We find it priceless to first obtain all of the evidence, which is commonly referred to as the “discovery” from the Deputy District Attorney or Assistant U.S.  Attorney in a criminal case; the Deputy Attorney General handling a professional or occupational license matter; and, the Department or Bureau Legal Counsel handling the prosecution case. The next step is to thoroughly review and fully analyze the prosecution evidence [this process cannot be done in an office interview with a client or on the telephone]. Some lawyers may  do this quickly, however, there is too great a risk that one might overlook a legally significant fact, if not much more. The next step is to request and initially obtain a lengthy written rebuttal from our client, which at times is 10, 20, or even far more pages in length; we do not rely upon an abbreviated version that would only be possible during a teleconference or even an office meeting. There are multiple other steps as part of my law firm’s protocol before I and/or my colleagues are able to fully understand a case and then to establish an appropriate plan of action. We simply do not provide legal advice with less; we do not predict a result nor do we gamble on the outcome.

In addition, it has been my practice to utilize forensic experts [the trial science] because only through an expert evaluation can a lawyer  know what is truly the standard practice that is relevant to a specific set of facts. Even though I spent over seven (7) years serving as a Deputy Attorney General and nearly four decades as a Professional License Defense Lawyer, I do not speculate on how to obtain a winning result. My clients deserve more!  In summary, I tell prospective clients: “I cannot predict a result, and no experienced lawyer can do so without a thorough examination of all of the facts and applicable legal principles.” Most importantly, “the more time and work performed, the greater opportunity for a better result.”

For your complimentary attorney teleconference, call Spital and Associates at 619.583.0350. It is even more helpful for you to visit the Contact Us page of this website and send an email with the details of your situation, information and questions you have, along with the desired action you wish a lawyer to take on your behalf; notably, it will be answered by Sam Spital, Managing Lawyer who will contact you in order to discuss the options, alternatives and steps in order to obtain your personal lawyer to level the playing field, and protect your rights and advance your interests.

Hiring An Attorney Who Is Tough, Smart & Knows the Law

Samuel Eugene SpitalDo you or someone you know have a professional or occupational license and facing an investigation or charges by the State of California? Are you seeking a professional or occupational license? Have you considered your future endeavors and how the potential outcome of the present situation can adversely impact the choices you may later have and/or want to make?

Whether it appears to be only a call or letter from the government, you want to be certain as to your rights and possible liabilities, and you want a lawyer who is tough, smart and knows the law. Clearly, anyone who has had such an encounter knows what might seem an innocent and non-adversarial communication from the government or an investigator can be just the opposite. It is not about “telling the truth because you have nothing to hide.” Rather, what you say can be misinterpreted and might constitute an admission against your interest (in law – it can be construed as a confession).

Hence, whether you are applying for a license or have one, the risks as well as rewards can be substantial. If you have received an Accusation by the Board or Agency that issued your license or you are planning to apply for a state license or have received a denial letter, it is indisputably a defining moment in your career and, therefore, should be treated as a critical event that justifies obtaining truly experienced counsel.

The intent and scope of legal services should be to provide you with a full and proper evaluation of your case, as well as to afford you legal advice as to your rights, as well as your legal, and financial (and perhaps emotional) exposure, including the alternatives that are available. In addition, to protect you from an otherwise powerful state government and on your personal behalf to level the playing field, you also want an attorney who will fully assess and rightfully advance your legal rights.

A prominent attorney is able to maintain such a position by him/her having integrity, as well as being fully experienced and highly skilled in presenting thorough legal arguments that are not only comprehensive, but most importantly are both in writing and legally sound. This  takes more than an idle analysis, but rather proper research; detailed planning of the strategy in a case; it involves an exhaustive review of all of the facts; a wise and accurate evaluation of the records; correctly interviewing lay and knowledgeably conferring with expert witnesses who are highly regarded in the profession; eventually, the proper foundation and scrutiny must be accomplished to truly level the playing field for the skilled and experienced lawyer to be in a position to confer with the prosecution side, persuasively argue and present as well as to negotiate and achieve a winning solution.

If a winning result is what you want, you should not expressly or implicitly place a constraint on the number of hours and time that your lawyer deems appropriate to strengthen your defense and develop a compelling offense. Clearly, you can’t afford to not do this if you are truly motivated and honestly desire to obtain a favorable outcome.

In the end, when you consult with and retain a lawyer who is tough, smart and knows the law, you are less likely to look back and wish you had done so. And, there are readily available tools to help you evaluate the criteria, such as percentage of their practice devoted to Administrative Law, years in practice, prior specialized experience, their proven success, and most importantly what other clients and leading attorneys have consistently said in the past and continue to say in the present about the lawyer you select. And, if you ultimately choose price as an overriding factor (paying the lower of retainer fees to a lawyer), it is more likely he or she will spend less time on your case. For a free consultation, call now 619.583.0350 or send an email to Sam Spital, Managing Lawyer, with a few ranges of time for him to call back. You have nothing to lose, there is no hassle, you will come away with more insights and, therefore, believe there was and is “everything to gain.”

2016 New California Laws

There are about 800 new California laws that went into effect on January 1, 2016. Here are a few noted by the following topics:

Driving Under the Influence – drivers convicted of a DUI (whether alcohol or drugs) in four California counties [Alameda, Los Angeles, Sacramento & Turlare], under an existing program that will remain in effect until July 1, 2017 will be required to install an ignition-interlock device (IID) on their cars. The IID registers alcohol on the driver’s breath, and is designed to prevent the vehicle from starting based on a pre-determined level of blood alcohol.

Earbuds – earphones, headsets or earbuds in both ears cannot be used while driving a vehicle or bicycle

Electronic Surveillance – the police, sheriff and law enforcement must first obtain a search warrant before accessing your e-mail, text, social media, data and other electronic information, unless it is determined to be an emergency situation.

Gun ban – those who have a CCW permit (individual who may legally carry a concealed weapon) will not be allowed to bring their guns on school and/or college campuses without advance permission from the school or campus authority.

Gun-violence restraining order – individuals who fear a family member could hurt their self or others can apply to the court for a gun-violence restraining order to limit the person’s access to firearms for up to one year

Medical marijuana rules – a statewide agency will now license and regulate all aspects of the cultivation, manufacture, transportation, storage, distribution and sale of medical marijuana.

Motor-voter registration – adults who apply for or renew a California driver’s license will automatically be registered to vote, although one can opt out if you do not want to be registered.

School Children – must be vaccinated to go to public school

Toy guns – are outlawed (can’t be displayed) in public unless brightly colored such as red, pink or yellow

Work Pay – equal pay is required for men & women. It is not less burdensome for a female employee to challenge her employer if there appears to be a disparity in the pay women receive in contrast to men performing similar work. Employers are also barred from prohibiting workers from talking about their &/or their co-workers’ pay in order to determine wage fairness. The minimum wage in California is now $10/hr. However, fewer minimum wage earners now work a full 40 hour work week as a result of the expanded wage, health, and benefit laws involved in operating a business.

This is a summary only and not intended to constitute legal advice. For the official webpage and guide of the Bills the California Legislature enacted in 2015, click: Bills Enacted in 2015

Medical Board of California Fall, 2015 Newsletter

The Medical Board of California (MBC) has just published its latest edition of its quarterly Newsletter, and for convenience we are including the link:  Newsletter Fall 2015

There are various sections of particular interest as follows:

A.   Answers to a series of questions that have recently been asked by physicians relating to subjects such as the renewal of your medical license; the requirements for utilizing and/or operating a practice in a name or entity other than one’s own (with the exception of adding Inc. after your true legal name) and the process of applying for a fictitious name permit; guidelines for prescribing pain medications; and the reporting of arrests even though a conviction has not yet occurred.

B.   An update on CURES 2.0 (Controlled Substance Utilization Review and Evaluation System) regarding the registering requirements in order for a physician to order, prescribe,  furnish, dispense, or administer Schedule II, Schedule III, or Schedule IV controlled substances.

C.   A section on the compliance requirements of Business and Professions Code 805.1  that mandates the reporting by health care facilities and clinics in a case involving the  restriction (for a cumulative total of 30 days or more for any 12-month period) of a physician’s staff privileges, membership or employment; an allegation that a physician has (1)  engaged in sexual misconduct of a patient during an examination or treatment; (2)  prescribed,  administered or used a drug or alcohol to or on him/herself that is either harmful or dangerous to the physician or the public, or impairs the physician’s ability to safely practice medicine;  (3) prescribed, furnished or administered controlled substances to a patient without a medical reason; (4) departed  from the standard of care in the practice of medicine that evinces gross negligence or incompetence and results in serious bodily injury to or the death of a patient.

D.   A detailed explanation and list of tasks that both are and are not permitted relating to the scope of practice of medical assistants.

E.   The subject of medical records, and patient rights.

F.   A list and summary of disciplinary actions taken by the MBC for the period of May through July 31, 2015.  And,

G.  The 2016 schedule of meetings as well as important telephone numbers and contact information for the MBC.

It is hoped the above will be of assistance, however, if you have any questions regarding the California Medical Practice Act, the rules and regulations, as well as the subject of investigations and/or disciplinary actions by the Medical Board of California , whether you reside or practice in or outside of the State of California, feel free to call Sam Spital, Managing Attorney at Spital and Associates, 619.583.0350

Renewal of Professional and Occupational Licenses

The California Department of Consumer Affairs (DCA) has been utilizing the BreEze online licensing and enforcement system for quite some time. They are planning to transition more of the state Boards and Bureaus to this system.

In the past, my law firm has always encouraged all those who have a state license to submit their renewals as early as 8 to 12 weeks in advance of the expiration date as there can be delays in the processing by the respective California Board or Bureau.

The DCA has recently acknowledged they will have to shut down the system for a brief period of time due to their planned transition noted above and, therefore is currently recommending everyone take this into consideration in filing an initial application for a professional or occupational license, a renewal of an existing license, as well as changes to one’s address of record and/or a change of one’s legal name.

No one should risk not having proof of licensure when they perform their work as that could result in practicing without a license, which can be charged as  a misdemeanor crime.

 

 

 

Governor Brown Extends The Enforcement Power of Board of Registered Nursing

On October 1st, the Governor extended the power of the Board of Registered Nursing (BRN) to regulate the practice of Nursing to January 1, 2018 when it will be repealed if a new law is not enacted. The previous sunset law permitted the BRN to impose disciplinary action, and to grant or deny applicants a license, only up until January1, 2016.

Regardless of your politics, it seems futile to ask why our legislature might deem the regulation of nurses &/or professional and occupational licensing to be of no public concern and from time to time enact legislation to repeal any such authority. This comes at a time when there are so many social, financial, community and political needs of our state that instead should take precedence over passing sunset laws related to health care professionals.  If there is a question regarding the abuse of discretion by a state Board, there are other means  by which the legislature can deal with any such problem or issue. Had there been sufficient agreement with the above position, the legislature would have selected another date far in the future, such as 2030 or even later.

The following is a link to Senate Bill 466:  http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB466

 

What To Do If You Get A Call or Letter From The Government?

If you receive a telephone call or a letter from the Government, it is extremely important that you obtain experienced legal counsel at once. It may be possible to “nip it in the bud” during the pre-file and/or investigative stage. This is why it’s so important to seek legal advice in the early stages of a case. Do not be naïve to think you can handle it yourself and/or any lawyer can do so on your behalf.

Some lawyers handle a huge caseload, have their junior associates and paralegals perform the work, and may be best described as an assembly line or cookie cutter law firm. You deserve an attorney who will prepare a proper strategy that is accompanied by comprehensive written legal and factual arguments that address the issues.

It is noteworthy that there are several possible outcomes of an investigation, including the following:

1. Closed, the complaint is found to be “unsubstantiated;”
2. Closed, the complaint is found to be “inconclusive;”
3. Closed, the complaint is found to have merit but insufficient evidence to prosecute given the burden of proof and likelihood of prevailing;
4. Closed, an investigative fine is imposed;
5. Referred to the local District Attorney, referred to the State of California Attorney General for the filing of an Accusation, civil complaint and/or an Interim Suspension Order, referred to the U.S. Attorney, local City Attorney, or other Legal Division for prosecution;
6. Referred for issuance of a citation; and/or
7. Referred to another law enforcement agency for prosecution.

How important are the following? Your career! Your personal and professional image and reputation! Your credibility! Your ability to maintain your current and/or have the opportunity to obtain future employment!

If an investigation is opened against you, is the number one priority the cost of your defense? However, does it make sense that the reason a lawyer may charge less is to do less? Is it likely a cut-rate attorney charges a lesser amount because (s)he handles a large volume of cases and, therefore, your expectation of personal service and winning results may be unfulfilled? Is it sufficient for you if the attorney does the obvious and no better than an “ok” job? Do you prefer quality, passion and a dedicated lawyer who is extremely motivated to win, works harder and seeks to go beyond the minimum, with a strategy for a compelling defense and offense? Do you want a lawyer with consistent winning results or are you willing to gamble on the outcome?

When you receive a call, visit or letter from an investigator, consider each of these factors when selecting a lawyer with a proven record and one who will truly fight for you. Remember, the investigator has the government on his/her side with superb lawyers to prosecute their cases and you deserve to have a formidable and premier attorney on your side, and to level the playing field.

State Board License Diversion Program

A Diversion Program is intended to provide an alternative for a professional who is licensed in the State of California when there is evidence of a substance abuse and/or impairment due to a mental illness who would otherwise be charged with wrongdoing . One should not be embarrassed by what may appear to be a shortcoming as there are over forty (40) different  life stressors, multiple daily work pressures, and everyone should understand some challenges are simply genetic.

Obtaining a painstaking medical history and physical examination can afford the best way to evaluate your situation. Since this may also involve critical legal issues, however, seeking the advice of experienced legal counsel should be a paramount consideration as well.   A truly understanding and compassionate lawyer can discuss your eligibility, the  legal alternatives, as well as  the advantages and disadvantages of the course of action you may consider.

At the law firm of SPITAL & ASSOCIATES, you can obtain a confidential attorney consultation  at no charge, and we can help you identify the symptoms that may exist, if any,  and to assist you in changing the outcome.   There can be unintended consequences you need to fully understand when you have a professional or occupational license and, therefore, this may be a defining moment in your career. As our public service, we are here to help you so that you do not gamble on your career

Choosing the best course of action can make a huge difference now and in the future.

 

 

If You Have a Professional License, When Should You Obtain Legal Advice?

If you  receive a Citation or Notice of Violation for a crime and/or are arrested, you need to obtain legal advice immediately. Moreover, your concerns are far greater than your driver’s license. When you have a professional or occupational license, your career is at stake. Not only would it be reasonable to worry about losing your driving privilege, whether a few months or a year, you should not gamble on the outcome when your entire career is at stake. For those who do not have a professional or occupational license, it is wise to think ahead inasmuch as sometime in the future one may desire such a vocation or occupation. There are about 45 or more state licenses, and for the most part there are no statutes of limitations to prevent the government from using an arrest and/or a conviction to deny such a license. Think beyond today and as far as 5, 10 or even 15-20 years from now when you may have different aspirations  or even a second career.

It is easy to find an attorney who handles a variety of legal matters, and there are many who boast they know licensing law. Preferably, one should pay more attention to the lawyer’s credentials than where he may be located in the State of California and/or whether you can obtain legal advice or representation for a smaller sum of money. It is irrefutable that an attorney who argues the obvious and charges less money is going to do less work.  This is vastly different than a lawyer who places more importance on leveling the playing field; is passionate about obtaining a winning result; is a leader in the profession; has a consistent and proven record;  goes to painstaking lengths and is meticulous about establishing an effective defense and offense;  and is one to whom other lawyers seek advice and endorse as a distinguished attorney handling administrative law cases. Also, read the client reviews and compare the nature and  number  as this too may help in deciding how to proceed.

In the case of some matters, the state licensing Board or Agency may investigate a case before an arrest, such as when one is terminated or resigns from their employment and/or there is a complaint about one’s fitness to practice their chosen profession. In other cases, one may be prescribed certain drugs and narcotics that causes him/her to be suspected of having a physical or mental illness. This can even result in a forced physical or mental examination, as well as an Interim Suspension Order preventing one from working. There are countless types of cases that are investigated by the State Boards, Departments and Bureaus.

Lastly, if one is arrested for a certain type of offense, the Board may offer a Diversion Program and/or simply seek to have a meeting or interview you. Regardless how innocent you may feel or  meritorious the claim might be, contact an attorney who focuses his practice on the area involved or subject matter;  do so without delay or you risk a public Accusation filed against your license, and potentially the exposure of a criminal or civil case filed against you.