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New Attorney Reflects on 4 Months of Experiences

Artrese N. Ziglar, an Assistant Public Defender for 16 years, received the Harvey A. Lupton from the Forsyth County Criminal Defense Trial Lawyers Association.

"I want you to know." Elder Homesley reflects on 65-year legal career in open court.

Part II provides general information regarding LCA posting requirements and concerning what happens once the LCA has been submitted to the Department of Labor ("DOL"). For general information regarding LCA Forms, electronic submission through iCERT and information regarding the contents sought in the LCA please see Part 1. LCA Posting Requirements Employers are required to provide notice to the employer’s other employees on the worksite of the employer’s plans to hire an H-1B worker. Although, not discussed here there are requirements regarding the contents of the posting. The posting may be done via two (2) hard-copy postings or an electronic posting of the notice that is posted for a period of at least ten (10) days. The notice must be posted within the thirty (30) day time span predating the date of LCA submission. The notice can be posted no later than the day the LCA is submitted. The notice must be posted at the intended worksite of the H-1B worker or the employer’s principal place of business if they are not the same. There are additional requirements for postings, among other things, when the prospective H-1B worker will be working on a third-party worksite. What happens after the LCA is filed? Public Access File Within one (1) working day of LCA submission the employer should have a Public Access File (“PAF”) available for public inspection, by the DOL and/or any interested and aggrieved parties, at the employer’s principal place of business and/or the intended worksite of the H-1B worker. The Public Access Filed should contain the following: Copy of the submitted LCA signed by the employer (including any cover pages); Determination of the actual wage to be paid; Documentation detailing the method used to determine the actual wage offered; Determination of the prevailing wage; Any documentation demonstrating the arrival at the prevailing wage; Documentation showing compliance with posting of notice requirements; Listing of the benefits offered to the employer’s U.S. workers and the benefits being offered to the H-1B worker; and Documentation that employer provided a copy of the submitted and signed LCA to the H-1B worker. Additional documentation is needed when the employer has made certain changes such as a change in the employer’s corporate structure. DOL Adjudication and Next Steps Once the LCA is submitted through iCERT a certifying officer of the DOL will review the LCA and make a determination as to whether the LCA should be certified or returned to the employer without being certified. A decision as to LCA certification takes approximately seven (7) working days following the date the LCA was submitted. Thereafter, the employer must provide a signed copy of the certified LCA submitted with the H-1B Petition no later than the first day the H-1B worker reports for work under the employer. Upon LCA certification, there is a validity period of three (3) years. So long as, three (3) years were requested in the LCA submitted and certified by the DOL. When the LCA times out or there is a material change as to the information provided in the LCA a new LCA will need to be submitted to the DOL. If the employer is unsure as to whether any changes in employment from the filed LCA are “material” the employer should seek the review of an attorney to assess the particular facts and circumstances involved. For additional information the LCA along with instructions for filling out the LCA are available on the DOL's ETA webpage. **The information provided herein is for informational purposes only. We are not giving legal advice. If you are seeking legal advice you should schedule a consultation with a licensed attorney to review the particular facts of your case.**

Part I provides general information regarding LCA Forms, electronic submission through iCERT and information regarding the contents sought in the LCA. Part II will provide general information regarding LCA posting requirements and information concerning what happens once the LCA has been submitted to the DOL. A first-time employer wanting to sponsor an H-1B worker must submit a Labor Condition Application for Nonimmigrant Workers (“LCA”) before submitting the H-1B Petition. The LCA Form has to be submitted to the Department of Labor (“DOL”) and must be approved by the DOL before the H-1B Petition can be submitted. Why does the LCA have to be approved before submitting the H-1B Petition? The approved LCA must be attached to the H-1B Petition when it is submitted to United States Citizenship and Immigration Services (“USCIS”). For first-time employers, this process can initially appear a bit daunting. However, it does not have to be. In Part I, I have provided basic information regarding the LCA. Including information as to the LCA Form and the information needed to submit the LCA. The LCA Form In the simplest of terms, the LCA refers the form that must be completed and submitted by the employer that is seeking to hire an H-1B worker. The LCA can be submitted via one of two forms (Form ETA 9035 and Form ETA 9035E). Form ETA 9035 refers to the LCA used if the employer fills out the paper form of the LCA and submits the hardcopy to the DOL. Form ETA 9035E refers to the LCA used if the employer fills out and submits the electronic form of the LCA to the DOL. Generally, the LCA must be filled out and submitted electronically by the employer. However, there are limited circumstances, such as lack of access to the electronic option or physical disability, in which the employer may request to do this process via mail-in submission of the hardcopy form. Electronic Submission through iCERT Electronically, the LCA must be filled out and submitted through the iCERT Visa Portal System provided by the DOL’s Employment and Training Administration (“ETA”). If this is the employer’s first time using the iCERT Portal System they will need to make an account. Once an account has been made the employer can start filling out the LCA and submit the LCA to the DOL. The employer can fill out the LCA up to six (6) months before the start date designated by the employer on the LCA. Employers going through this process for the first time will need to have their FEIN Identification Number verified before submitting the LCA through iCERT. If the LCA is submitted prior to FEIN verification the employer risks having the LCA returned without certification. FEIN verification is a fairly simple process with an estimated two (2) day turn around. LCA Contents In general, the LCA requests the number of H-1B workers sought, Occupational Code Classifications of those workers and information regarding the Prevailing and Actual Wages to be paid. Additionally, the LCA requires that the employer make several significant attestations. In a nutshell, the LCA requires that the employer attest to the wages to be paid to the worker, working conditions, that notice will be provided to employees at the worksite and that there is no strike, lockout, or work stoppage at the time the LCA is submitted. Generally, additional requirements and attestations are required by employers that are deemed “H-1B Dependent” employers. Employers deemed “Willful Violators” will also be required to make additional attestations in the LCA. Failure to comply with the attestations in the LCA can result in DOL investigations and/or audits regarding the veracity of the LCA and compliance with the filed LCA. The LCA along with instructions for filling out the LCA are available on DOL’s ETA webpage. **The information provided herein is for informational purposes only. We are not giving legal advice. If you are seeking legal advice you should schedule a consultation with a licensed attorney to review the particular facts of your case.**

I think my loved one needs day-to-day assistance, but is she incompetent? An incompetent adult is one who “lacks sufficient capacity to manage the adult’s own affairs or to make or communicate important decisions concerning the adult’s person, family, or property, whether the lack of capacity is due to mental illness, mental retardation, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury or similar cause or condition.” How do I become someone’s guardian? Step one is filing a petition for adjudication of incompetence and application for appointment of a guardian. A hearing will then be held before the Clerk of Superior Court. If the Clerk finds by clear, cogent and convincing evidence that the respondent is incompetent, then a guardian must be appointed. What is a guardian ad litem? The guardian ad litem is a local attorney who will be appointed to represent the respondent unless the respondent retains private counsel. The guardian ad litem is required to visit the respondent and determine his/her wishes regarding the incompetency action and the proposed guardianship appointment. The guardian ad litem will report the respondent’s wishes to the court and will also make recommendations to the Clerk concerning the respondent’s best interests if those recommendations differ from the respondent’s wishes. Do we need a doctor to testify at the hearing? Not necessarily. The level of medical evidence necessary depends upon the history and whether the case is contested. In some cases, an affidavit from a doctor that includes a recommendation is sufficient. Are there different types of guardians? Yes. The Clerk can appoint a full or limited guardian of the person, guardian of the estate, or general guardian. If the Clerk finds that the respondent is only incompetent to a limited extent and that it is in his/her best interests to retain certain rights and privileges, a limited guardian will be appointed. If the Clerk finds that the respondent wholly lacks the capacity to manage his/her personal affairs, a full guardian will be appointed. A guardian of the person has the authority to custody, care and control of the respondent’s person. A guardian of the estate has the authority to receive, manage and administer the property, estate and/or business affairs of the respondent. A general guardian is granted the authority of both the guardian of the person and the guardian of the estate. We have a guardian in place already, but that person is no longer willing or able to serve. What do we do? A motion to modify guardianship will need to be filed, and the Clerk will appoint a new guardian, if needed. This is an emergency! How long does the entire process take? The timeframe depends upon the county and the Clerk’s schedule. In Iredell County, the hearing date will be a few weeks after the petition is filed. The petitioner can request an interim hearing if there is an imminent or foreseeable risk of harm to the respondent’s physical well-being or estate that requires immediate intervention. The interim hearing date will be scheduled prior to the full adjudication and disposition hearing. There are multiple people interested in becoming the guardian. Who will the Clerk appoint? The Clerk will appoint a guardian that he/she believes will best serve the respondent. In some cases the Clerk will appoint one individual as guardian of the person and a different individual as guardian of the estate. Occasionally, there will be no suitable individual willing to serve as guardian. In those cases, the Clerk will appoint a public agency. Do I have to hire an attorney or can I do this myself? The forms are available at the courthouse and you are certainly able to file and pursue the case without the assistance of an attorney. Keep in mind that pro se individuals are held to the same standard as attorneys when it comes to filing documents, presenting evidence, etc. Attorneys are incredibly helpful, especially if your case becomes contested.

Although you may have heard that North Carolina is an "at-will" employment state, you have a right to work in a job free from discrimination, harassment, and retaliation based on unlawful reasons! If your boss is targeting you with inappropriate workplace activity, here are some tips to help build your case. As a disclaimer, this is being given for general informational purposes, and does not constitute a legal analysis of your situation; in fact, your circumstances may cause some of this information to be inapplicable to you. You should consult with an attorney - such as Clark D. Tew at Homesley & Wingo Law Group - at your earliest convenience before taking any action. 1. Unless you are forced to, do not quit! Until recently, quitting your job in North Carolina was almost always fatal to an employment law claim. Even now, it may have a substantial impact on your case, and may cut off whatever damages are available to you. If you do quit, you have to show that you suffered from "constructive termination". "Constructive termination" - meaning you were forced to quit because of your intolerable working conditions, only gives rise to a claim for discrimination in a small number of situations. Therefore, unless you've talked to your attorney and she or he has assured you that you can quit, or unless you must absolutely quit to preserve your health, religious beliefs, or sanity, don't do it. 2. Keep a journal. Far too often, clients forget important dates, key details, and names of involved coworkers. That can be solved by keeping a detailed journal - but don't keep a journal just of the bad things. Keep a journal of every day, even if you don't write anything other than a brief summary of your day. That way, when your journal goes into evidence, it's clear that you weren't just selectively writing about the bad things that happened to you. On the other hand, your journal will likely need to get into evidence, so keep it strictly professional, unless you're talking about your own personal psychological and medical issues resulting from your treatment at work. 3. Make any complaints in writing. Complaining to your boss or HR on the phone or in person is fine, but it's not going to serve as great evidence in a lawsuit. Writing is always best, but it's probably worth consulting with an attorney before you hit "send" on your complaint. 4. If advised to do so by an attorney, record your meeting with HR or your boss. In North Carolina, you can generally record a conversation provided you're part of it. Now that everyone's cell phone has a pretty sensitive recording microphone on it, people are able to get very clear recordings with their devices in their pockets, purses, or just on the table. You may not have to ask for permission from HR or your boss to record the conversation. Speak with an attorney about this if you have questions, because there are certain instances in which recording audio may not be permitted, and a recent statute passed by the North Carolina General Assembly may prohibit the recording of audio or video in certain employment situations. 5. Print incriminating evidence. When you have a lawsuit for discrimination, the employer usually holds all of the cards. If you have any e-mails, memos, text messages, or other communication that you received or were copied on that you think can prove your case, print out a copy for your use later. Consult with an attorney before doing this, however, as some documents may contain "trade secrets" or other confidential information, and if so, you could have liability for misappropriating that information. Don't forward e-mails directly to your attorney from your work account, as those may not be protected as attorney-client privileged. 6. Speak with an attorney before things go from bad to worse. Often employees will wait until well after they have been terminated to speak with an attorney. This may be too late, as there are things you can do during your employment - like file written HR complaints or filing EEOC charges - that may have improved your case once you are terminated. While it may seem odd, some attorneys like to get involved early in a case so that they can steer you into a more optimal position when it comes time to take legal action against your employer. In particular, look for an attorney who is willing to take your case from the start, and will assist you all the way to trial. 7. Keep on your best behavior. Even if you've complained to HR, filed an EEOC charge, and tipped off the United States Department of Labor, an employer can still terminate you from employment if you violate their work rules, stop showing up to work, or engage in misbehavior. While you still may have claims against your employer, that wold put a kink in your plans, and make your case more difficult to pursue. Don't give your boss any ammunition! 8. Feel free to talk to other employees that you know have been treated similarly. As a private employee, you have a right, under Section 7 of the National Labor Relations Act to engage in "concerted activity", which can include discussing the circumstances of your harassment or discrimination with your coworkers. Doing so can result in finding witnesses for your own case, and can result in learning information about other related instances of misconduct by your employer. If you are caught discussing these issues with your coworkers and are terminated, you may have a claim with the National Labor Relations Board (the North Carolina office is in Winston-Salem) for an unfair labor practice. Employment disputes can be a scary and uncertain time for any employee regardless of how much you're paid or what type of job you have. Reach out to Clark D. Tew with our firm today if you have any concerns about your current or past employment situation.

What issues can be mediated? Child custody, child support, equitable distribution of property, post-separation support and alimony can all be addressed. Who is the mediator? Usually the mediator is an attorney who is actively practicing family law in your area. Who will be there? Both parties, both attorneys, and the mediator. The mediator will typically request that parties come alone (meaning no family members, new significant others or friends attend). How long will it take? The session could last for a few hours, the entire day, or multiple days. An impasse will be declared if, after a few rounds of negotiations, it becomes clear that a settlement is out of reach. Will I have to see the opposing party? The mediator will typically begin the day by bringing everyone into one room and going over the procedure. The parties will then split off into different rooms and remain apart throughout the session. If the case involves a history of domestic violence or some other reason that makes it unsafe or inappropriate for the parties to be in the same room, the mediator should be informed ahead of time. What happens if we reach an agreement? The agreement will be memorialized in a separation agreement or consent order that will be drafted and signed by both parties that day. What happens if we don’t reach an agreement? Any issues that are not settled at mediation can be resolved in court. How can I help make the day a success? Meet with your attorney prior to mediation. Provide all requested documents and review everything with your attorney. Think about possible offers for each of your claims and what alternatives you may be comfortable agreeing to. Enter the day with an open mind and a positive outlook. The goal is to settle your case so that you can move on to the next chapter. Keep in mind that the results in court can often be arbitrary and after great further expense.

Adoption I want my spouse to adopt my child. Does the other parent have to agree? If the other parent’s parental rights have not been terminated, he or she would have to consent to the child being adopted. If the parental rights have been terminated consent from that parent is no longer required. See below for info on the TPR process. Does my child have to consent to be adopted? Only if he or she is at least 12 years old. Do we have to go to court? Only in very rare circumstances. Most adoptions are granted without a hearing. Can an adult be adopted in NC? Yes, so long as the adoptee and the adoptive parents are in agreement. Adult adoptions require a brief hearing before the clerk of court. Termination of Parental Rights  What are the grounds for terminating someone’s parental rights? The grounds are listed here: http://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_7B/GS_7B-1111.html To succeed in a TPR action you must prove at least one ground by clear, cogent and convincing evidence, and then you must prove that termination is in the child’s best interests. What if the other parent doesn’t show up to court? A hearing will still be held in his/her absence. Does my child get to tell the judge what he/she wants? Not directly. The child will be appointed a Guardian ad Litem (“GAL”). The GAL will talk to the parties, meet the child, and write a report to the court expressing his or her opinion of the outcome that would be in the best interests of the child. Our GALs are local family law attorneys who are very experienced in these matters.