New legislation has been introduced to Congress to equalize the sentencing for crack and cocaine drug offenses.  Currently, there is a 100-1 sentencing disparitybetween convictions for offenses involing “crack” or “powder cocaine.”   The legisitation, called the Fair Sentencing Act of 2009, would equalize the sentencing guidelines for these two drug offenses. 

It started with the Anti-Drug Abuse Act of 1986, which at the time was designed to aggressively target the increase in crack cocaine crime.  Under the law, those convicted of crimes involving “crack” cocaine were punished on a 100-to-1 ratio compared to those whose crimes involve cocaine in powder form.  Thus, a person who dealt five grams of crack cocaine (the weight of two pennies) could face 5 years in prison…. but person had to deal 500 grams of powder cocaine for a similar sentence.   Worse, as the years went on, some reports indicated that first-time offenders caught selling five grams of powder cocaine typically only received 6 months in prison, and would often be eligible for probation, while first-time offender selling the same amount of crack faced the mandatory five year prison sentence.  Another disparity was that the majority of dealers convicted for crack cocaine offenses were Black, while most convicted for powder cocaine offenses were White.  

Given the unfairness of the drug policies, several organizations advocated for a change in the “100:1″ crack-cocaine sentencing laws and it was one ofPresident Obama’s campaign pledges to equalize the punishment for the offenses.  Under the new laws, a person would have to be caught with 500 grams of crack cocaine to go to prison – same as for powder cocaine.  

There are many policy reasons behind the push for the new law – primarily to address the racial disparities mentioned, but also to refocus law enforcement efforts on drug king-pins rather than street-level dealers.

Is medical marijuana legal now?  Well, not exactly.  While the legality of marijuana use is still a bit tricky – illegal under federal law, but legal in certain states – the Obama administration has decided NOT to arrest people who use or supply medical marijuana in conformity with their state’s laws.   

Remember the song… “I’m just a bill… on Capital Hill…”? In some ways, recalling our first lesson about “separation of powers” is helpful to this conversation.  In the U.S., what we think of as “the law” is really a collaboration of sorts – the Legislative Branch (Congress / state legislatures) makes the laws, the Judicial Branch (the courts) interprets the laws, and the Executive Branch (the President, police, etc.) enforce the laws.  When it comes to the topic of medical marijuana, each branch of the government has weighed in: 

Legislative:  Under federal law, any marijuana use is illegal.  Under certain state laws, however,  the use of marijuana is “legal” for certain medical purposes (see state medical marijuana laws in:  Alaska, California, Colorado, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington).

Judicial:  The U.S. Supreme Court ruled in Gonzales v. Raich that the federal government could enforce federal laws against marijuana use under the federal Controlled Substances, despite state medical marijuana laws legalizing such uses.

Executive/Law Enforcement:  Depends on the President. During the Bush administration, hundreds of raids on medical marijuana use/supply were conducted and thousands were arrested.  The Obama administration is doing the opposite… 

The penalties for marijuana offenses, like for other substances, depend on the quantity at issues, as shown in the following chart from the U.S. Department of Justice website (see:    http://www.usdoj.gov/dea/agency/penalties.htm): 

  Federal Trafficking Penalties – Marijuana

In 2008, there were about 1.8 million arrests for drug offenses – and about half of them were for marijuana related offenses (approximately 5.5% of the total arrests were for marijuana sales/trafficking; approximately 44.3% of the total arrests were for marijuana possession).  (See:  DOJ/FBI Arrest Tables – 2008 Crime in the United States.)  Of course, not all of those marijuana arrests were arrests related to the use/supply of medical marijuana, though certainly some of them were. 

While law enforcement will continue to investigate, arrest and prosecute people involved in marijuana trafficking, sales to minors, violent and weapons-related marijuana activities, etc., the Obama administration won’t arrest those involved with legitimate medical marijuana activities.   Aside from the policy discussion, this shift in law enforcement could mean that more attorneys will be needed to advise clients about licensing and compliance with medical marijuana laws.  For more information – and links to state laws legalizing medical marijuana (or permitting some uses), click here.

Several million mortgages are currently in default or expected to become past due in the coming months. Some of those homeowners who are past due have lost everything in foreclosure, some are simply walking away before it gets to that point, and others are struggling to stay in their homes. For many homeowners in default to be able to stay in their homes, their mortgages must be modified. While some homeowners have received decent loan modifications, others have been surprised to find out only that they’ve been denied by their lender. As diplomatically articulated by the FDIC Chairman, Sheila Bair, the financial industry wants to avoid foreclosure by offering loan modifications only “when it is financially prudent to do so.” (See a portion of the “Message from FDIC Chairman Sheila Bair” here.) Lenders are interested in modifying distressed mortgages, but only when the modified loan will be a “performing loan”. In other words, they’ll modify your loan if: (1) you can actually afford the modified loan and will pay it; and (2) the modification yields more money for them they’d make selling your home in foreclosure.

The FDIC Loan Modification Program manual explains some of the basic eligibility criteria participating lenders and servicers require in order for a homeowner to qualify for a loan modification.  Generally:

• Modifications may be available for loans that are at least 60 days delinquent or where default is “reasonably foreseeable”; 
• Foreclosure sale is not imminent and the borrower is currently not in bankruptcy, or has not been discharged from Chapter 7 bankruptcy since the loan was originated;
• The loan was not originated as a second home or an investment property;
• The modified monthly payment (of principal, interest, taxes, and insurance (PITI)) is within the allowable 31-38% housing-to-income (HTI) ratio;
• The terms of the modifcation are less costly to the bank/investor than a foreclsoure.

For a thorough explanation of the considerations taken into account by the financial industry when reviewing a possible loan modification, read the FDIC manual by clicking here.

According to the latest press release from the U.S. Department of Justice, suspects have been charged with data breach crimes in the largest alleged credit and debit card data breach ever in the United States.  Apparently, data related to more than 130 Million credit and debit cards was stolen by the criminals when they hacked into the computer systems of major retailers and payment card processors.  Albert Gonzalez, 28, of Miami, Fla., “and his co-conspirators, used a “sophisticated hacking technique called an “SQL injection attack,” to break past a computer system’s firewall to gain access to what would otherwise be secure information. 

Ever used your debit card at 7-11?  Well, then you’re card information might have been stored there.  Apparently, 7-Eleven was one of the retailers targeted by the hackers.  The hackers also targeted Heartland Payment Systems, a New Jersey-based card payment processor.  When an electronic payment card is used, the card numbers are stored electronically… the information is then transmitted to your account so that funds can be withdrawn according to the payment made.  Companies are required by various state and federal laws to implement sophisticated technologies protecting the safety of your card information.  However, a hacker’s job is to find ways around these protections. 

Does this mean your financial information isn’t secure?  Well… the answer is probably more like the answer about how safe it is to drive a car on the road.  There are a lot of rules and protections in place so that you don’t get into an accident on the road, but that doesn’t mean rules don’t get broken sometimes.  Same thing here sort of.  The payment systems are equipped with a variety of technologies to keep your financial information safe on the electronic superhighway, but that doesn’t mean the rules don’t get broken sometimes.

The best thing to do is to review your financial accounts regularly for any errors or disputed activity.  Contact law enforcement if you believe your financial accounts have been hacked or you’ve been a victim of identity theft. 

For more on these topics, check out LawInfo’s Free Legal Resource Center or contact an attorney today. 

Read the Department of Justice press  release by clicking here.

Do you have a complaint about your mortgage lender or broker regarding your interest rate, prepayment penalties, fraud, deception, or other matter regarding your home?  First, try to resolve the problem directly with your bank or broker.  If you are unsuccessful, however, I highly recommend you contact an attorney to discuss your legal options.  There are a variety of federal and state laws protecting consumers’ financial rights.  For instance, lenders and brokers are required to provide certain disclosures to borrowers about rates, fees, and other terms and conditions of lending.  If a lender or broker has violated any of the applicable laws, there will be certain legal remedies available to you.  Find an attorney through LawInfo’s online attorney directory. 

In addition to seeking advice from an attorney about your particular situation, you should know that you can make a complaint about a financial institution to various government agencies.  Below is information about how you can submit a complaint to the appropriate agency.   

Federal Deposit Insurance Corporation

The Federal Deposit Insurance Corporation (FDIC) handles complaints about FDIC insured state banks which are not members of the Federal Reserve System.  You can submit a complaint about your financial institution by completing the FDIC Customer Assistance Online Form.  You can also contact the FDIC by mail or phone:

Federal Deposit Insurance Corporation
Division of Compliance
1730 Pennsylvania Ave
7th Floor
Washington DC 20429
(877) 275-3342

Comptroller of the Currency

The Office of the Comptroller of the Currency (OCC) is a bureau of the U.S. Department of the Treasury.  The OCC handles complaints about National Banks. (Usually banks that have “National” in their name or “N.A.” after their names.) You can submit a complaint by completing the OCC Online Customer Complaint Form.  You can also contact the OCC by mail or phone:

Comptroller of the Currency
Compliance Management
250 E Street SW
Mail Stop 3-9
Washington DC 20219
(800) 613-6743
www.occ.treas.gov

Office of Thrift Supervision

The Office of Thrift Supervision handles complaints about Federal savings and loans, and also Federal savings banks.  You can submit a complaint about your financial institution by completing the OTS Consumer Complaint Form and mail or fax your complaint to:

Office of Thrift Supervision
Consumer Affairs Division
1700 G Street NW
Washington DC 20552
(800) 842-6929 
FAX:  202-906-7342
www.ots.treas.gov

Federal Trade Commission

The Federal Trade Commission handles complaints concerning most non-bank lenders, such as, mortgage and finance companies and state credit unions.  You can submit your complaint through the FTC’s Online Complaint Assistant. (Note:  The FTC Online Complaint Assistant is sort of a one-stop-shop for a variety of complaints collected by the FTC (including complaints about non-financial companies, business practices, identity theft, and episodes of violence in the media), so don’t get confused if you see questions related to these topics when using the Online Complaint Assistant…  just answer yes/no when going through the process so that your complaint can be directed to the right place.)   You can also contact the FTC directly:

Federal Trade Commission
Consumer Response Center
600 Pennsylvania Avenue, N.W.
Washington DC 20580
(877) 382-4357
www.ftc.gov

The Federal Reserve Board

The Federal Reserve Board handles complaints and regulates state-chartered banks and trusts. The agency also administers Truth-in-Lending, Equal Credit Opportunity Act, and Fair Credit Reporting Act.  You can submit your complaint by completing the Federal Reserve Board Online Complaint Form.  You can also download the form and submit it to the Federal Reserve Board by mail or fax:

Federal Reserve Consumer Help
PO Box 1200, Minneapolis, MN 55480
Fax: 877-888-2520

Division of Consumer and
Community Affairs
(202) 452-3693
www.federalreserve.gov

National Credit Union Administration

The National Credit Union Administration handles complaints about National Credit Unions. For Federal Credit Union (a credit union with the word “federal” contained in its name or any credit union in Delaware, South Dakota, Wyoming or Washington, DC), NCUA is the regulator.   You can file a formal complaint by sending the NCUA a letter – no special form is required – to the NCUA regional office for your state.  Find the NCUA regional office for your state by clicking here.

National Credit Union
Administration
1775 Duke Street
Alexandria VA 22314-3428
(703) 518-6300
www.ncua.gov

State charted Credit Union:  A credit union without the word “federal” as part of its name and not located in Delaware, South Dakota, Wyoming or Washington, DC, is probably regulated by a  state supervisory authority where the credit union’s main branch is located.  If your complaint is about a state-chartered credit union, you can find the appropriate contact information to make a complaint by clicking here. 

If you’re not sure if your credit union is state or federal, you can use the Find a Credit Union (link) to search by name and look up the credit union’s charter number.  Federal credit unions have charter numbers under 60000, state-chartered credit unions have charter numbers greater than 60000.

Department of Veterans Affairs

The Department of Veterans Affairs handles complaints about loans guaranteed by Veterans Affairs.  Contact the VA Regional Loan Center by clicking here. 

Department of Veterans Affairs
Consumer Affairs Service
810 Vermont Avenue, NW
Washington DC 20420
(202) 273-5770
www.va.gov Handles complaints about loans guaranteed by Veterans Affairs.

Wow.. I recently had the most amazing vacation!  The first time in years I took a vacation without checking my work-related emails, or phone calls.  No cell phone, no laptop.  It did me such wonders, that I was able to be more present to my environment when I returned to working with my clients.  I noticed how many folks around me had not taken vacation….   So I did a little Google search and found that since many people are struggling with their finances these days, they’re foregoing vacation due to fears of losing out on important work assignments or possibly even losing their jobs altogether.  Besides, many of us fear that in our absence, someone else will try to take our place. 

Not only did this news sadden me for those poor souls who really need a break, but it also worried me for employers trying to figure out how to comply with wage and hour laws regarding unused vacation time.  Must employees be compensated for unused vacation time?  Can vacation time roll-over to the following year?  Can employers cap the total hours of vacation time that may be accrued? 

Since you are my favorite readers… I figured I’d give you some answers to the above questions!  The answer is…. it depends.  I  know, I know… you hear that a lot when it comes to the law.  But in this case, its very true.  To a large extent, state laws vary regarding vacation compensation due to employees.  Generally, there is no legal mandate to even provide for vacation time or vacation pay – rather it is considered to be a matter of agreement between the employer and the employee.  But there is a catch…  Most state laws provide that once an employer has made an “agreement” with employees to provide vacation time/pay (even sometimes if only by virtue of an employment policy or provision in an employee handbook regarding vacation time/pay),  then state law steps in to govern whether/how that vacation time may accrue, whether it can be cashed out, etc.   I can tell you one thing for sure – violations of wage and hour laws can subject an employer to expensive lawsuits from disgruntled employees.  In this area, as in many employment topics, it pays to have good legal counsel help an employer draft and execute good vacation time and vacation pay policies. 

Click here to learn more about the laws on vacation time and vacation pay in your state:   List of All State Labor Offices

These days, more and more people are opting to work from home… and for more varied reasons than ever before!  Parents are choosing to work from home so they can stay home with the kids, laid-off workers are starting up home based businesses, entrepreneurs are working from home through an almost entirely online business, and more and more employees telecommuting to work.  It is such an exciting time! 

Also, in many areas the cost of child care is more expensive than what many workers can earn working part time.  Alas, many mothers stay at home with the kids.  I just heard about the website called homewiththekids.com.  The site markets itself as a place where you can find real companies that hire work-from-home employees. 

However, like with many other great things… there are scams out there.  The Federal Trade Commission even published an article about work-at-home scams to help protect consumers from falling victim to some of the more common schemes such as medical billing, envelope stuffing, home assembly or craft work.   You can access the FTC article by clicking here.

If you’re thinking of starting a home-based business, check out the valuable resources in LawInfo’s Free Business Resource Center, where you can incorporate your business, find helpful tips about starting a business, and learn about Business Law.   Also, Business.gov has some cool tools including a small-business start-up assessment and a small resource library.

On July 24, 3009, the federal minimum wage increased to $7.25 per hour.  This increase is the last of three provided by the Fair Minimum Wage Act of 2007.  Many states also have minimum wage laws, however where the employee is covered by both state and federal law, the employee is entitled to whichever is the higher minimum wage.  As a result, all employees covered by the Fair Labor Standards Act must be paid at least a minimum of $7.25 per hour.  Also, employers must post a revised Federal minimum wage poster in their places of work.   You can download the revised FLSA poster by clicking here. 

Now, there are some exceptions to the minimum wage provisions of the law, though the exceptions tend to be pretty narrowly defined.  Employers should check with legal counsel regarding properly classifying employees and properly compensating them.  Violations of wage and hour laws, even if done accidentally, can result in serious penalties.  For more information about wages and hours, speak to a labor and employment attorney who can advise you about your legal options.

By now, we’ve all become familiar with loan modification scams, deceptive mortgage rescue ads, and other foreclosure scams.  State Attorney General offices have received numerous complaints from unwary consumers who have fallen victim to some of these companies after having forked out substantial money to them, with little or no resolution to their mortgage problems.  Well, the FTC has rallied to help.  (It is its job, anyway, to protect consumers in such a way.)  Cleverly called “Operation Loan Lies,” the FTC is coordinating its efforts with other law enforcement agencies to help protect families and individuals from falling prey to the unscrupulous scammers.  The FTC is also bringing lawsuits against many of these companies for their illegal activity – including charges of deceptive advertising, false claims, misrepresentation, and failing to provide promised services. 

You know the ones I’m referring to – those companies that promise to stop foreclosure, rescue homeowners from high mortgage payments…. all for just a “small” upfront fee.  The truth is – nobody can promise to stop foreclosure and nobody can promise to get you a loan modification. 
However, there are professionals out there, including attorneys, who CAN advise you of what options are available for your particular situation.  Seriously, understanding the landscape is half the battle.  Also, attorneys CAN help you navigate the process with your lender. 

Read the FTC news release about Operation Loan Lies by clicking here. 

To learn more about how the financial crisis affects you, including information about foreclosure, loan modification, and debt relief, visit LawInfo’s Free Legal Resource Center.  For more information, consult an attorney in your area about your financial concerns.  Visit LawInfo’s Attorney Directory to locate an attorney.

Wildfires again in the news…    Reminds me of a recent fire scare at a local business here in San Diego.  The company conducted evacuation procedures in accordance with its policies to protect employees from possible injury from a fire hazard.  With the recent fires in the news, I can’t help but wonder how many employers actually understand their legal obligations when it comes to fire safety. 

Under the law, employers are responsible for providing a safe and healthful workplace for their employees – one that is free from hazards likely to cause death or serious physical harm.  With regard to fire safety, OSHA regulations require employers to comply with hazard-specific safety and health standards as issued and enforced either by the Occupational Safety and Health Administration (OSHA) or by an OSHA-approved State Plan. Employers can be cited for violating these laws and regulations if there is a recognized hazard, and they do not take reasonable steps to prevent or abate the hazard.

The problem, though, is that many employers don’t know how to comply with OSHA regulations… or, worse, don’t even know there are rules they’re required to follow!  That’s where I can hopefully help!  OSHA publishes various manuals to help businesses understand their obligations with regard to workplace safety.  While not the official rules, the guides can help businesses in their compliance efforts.  I’ve provided OSHA’s manual regarding Fire Safety below for your reference.  It provides a general overview of OSHA’s fire safety standards and fire emergency protection guidelines.

This comprehensive overview manual from OSHA explains how fire service operations can be influenced by different building features and offers considerations for design professionals that can help facilitate these operations. The manual includes chapters and narratives on building and site design, sprinkler systems, standpipe systems, fire department connections, fire alarm and communications systems, as well as various firefighting systems.   To access the manual, click here.

Learn more about OSHA regulations in LawInfo’s Free Legal Resource Center.  For more information conact an OSHA attorney or a general employment attorney by visiting LawInfo’s attorney directory.