The Importance and Practical Aspects of a Living Will

In Pennsylvania you have the right to decide whether to accept, reject, or to discontinue medical care and treatment. If you have not been deemed incompetent to make medical decisions by a doctor or if you have not been determined incapacitated by a court, then you may direct by a living will your medical treatment. A living will is a written document that you may use under certain circumstances to tell others what care you would like to receive or not receive, should you become unable to express your wishes at some time in the future. In Pennsylvania, a living will is known, according to the law, as an advanced directive for healthcare. It essentially describes the kind of life sustaining treatment you want or do not want if you are later unable to express your wishes to your doctor. Any competent person who is at least 18 years old or is a high school graduate or who is married can make a living will. There is no single way to write a living will or declaration; however, your living will is not valid unless you sign it. If you are unable to sign it you must have someone else sign it for you. And two people who are at least 18 years old must sign your living will as witnesses. Neither of those witnesses may be the person who signed your living will on your behalf if you are unable to sign it yourself. You should give a copy of your living will to your family doctor and to an immediate family member, a close friend, and to your lawyer. When you enter a hospital or nursing facility the law requires your doctor or other medical care provider to ask if you have a living will. If you give a copy of your living will to your doctor or other medical care provider, that written document must be made a part of your medical record. Your living will will become effective when your doctor has a copy of it and when your doctor has concluded that you are incompetent and either in a terminal condition or in a state of permanent unconsciousness. For terminal conditions or permanent unconsciousness, a second physician must confirm your doctor’s conclusion. Your living will may be revoked by you at any time and in any manner.

The Necessity Of Obtaining Legal Representation Prior To Signing a Non-Competition Agreement

Welcome to the Nochumson P.C. podcast. In this podcast, Natalie Klyashtorny will explain the necessity of obtaining a legal opinion prior to signing a non-competition agreement/ restrictive covenant as part of an employment agreement/employment contract. When beginning a new job, an employer will often request that a potential new employee sign either an employment agreement or employment contract. Often times, the employment agreement or contract will contain a non-compete agreement and/or restrictive covenant, restricting the employee’s future employment. The reasons why an employer would include a non-compete agreement or restrictive covenant is to protect its intellectual property, trade secrets, confidential information and client lists and to restrict future competition. As these documents are potentially legally binding contracts and could severely impact an employee’s future job opportunities, it is extremely important that prior to signing any such document, the employee obtain legal advice and have any documents reviewed by an attorney. Most non-competition agreements or restrictive covenants contain time and geography restrictions, non-solicitation provisions and confidentiality provisions. The restrictive covenant must be “reasonable” in scope to protect the legitimate business interests of the employer from unfair competition, as well as protect an employee’s ability to earn a living. Pa courts employ a three part enforceability test: ancillary to the employment relationship; limited in time and geographic scope and necessary to protect a legitimate business interest without imposing undue hardship on employee. The standard that Pennsylvania courts apply is that a covenant not to compete might be invalid if it fails to protect an employers’ legitimate business interests; inflicts an unreasonable burden on the employee; or interferes with public policy against such an agreement. Frequently, courts will find that an agreement is overbroad with respect to its scope, i.e., temporal duration and geographic area. If a court finds it to be overly broad, courts will sometimes modify agreements, as opposed to striking them down altogether. For example, if a Court finds that a duration of two years is unreasonable, it may modified to one year. On the reasonableness of duration, courts also look at how long it would take to replace employee. Goodwill of employer and client relationships are considered protectable business interest. Contacts with clients that did not substantiate a relationship do not rise to the level of a protectable business interest, and courts will only enjoin employee from soliciting customers with whom they personally established relationships. Although Pa courts have recognized an employer’s legitimate interest in trade secrets and customer goodwill, those interests do not extend to cases where the former employee had little to no contact with clients or customers. Covenant unenforceable when no goodwill b/w employee and customer. For instance, when an employee is terminated for poor performance, courts will consider that as evidence of lack of goodwill between him/her and the customer and will not enforce restrictive covenant. Trade secrets must actually be confidential to be protected and in determining the confidentiality of client lists, courts look at to what extent they are public. Client identities that are generally known in the industry are not protected as trade secrets. The Court will not enforce an agreement unless actual harm has occurred or is reasonably certain to occur. For instance, if an employee leaves to work for another company which is not in direct competition with the employer, the court will not uphold the non-compete. Non-competes that involves physicians are also scrutinized as to the harm to the public welfare, with access to treatment being an overriding concern. When harm is immediate, an employer may request a preliminary injunction to force the employee to comply with the non-compete pending the final outcome. Furthermore, if a court ultimately finds that the employee has violated the non-compete/restrictive covenant, not only will the employee’s ability to work in his chosen field be adversely affected but he/she might also be liable for money damages. WHAT ARE THE TIME LIMITS FOR FILING A CHARGE OF DISCRIMINATION? By Natalie Klyashtorny If you are considering filing a lawsuit for employment discrimination, prior to being able to do so, you must file what is known as a charge of employment discrimination with the Equal Employment Opportunity Commission, better known as the EEOC. The law requires exhaustion of remedies with the EEOC prior to the filing of a private suit in court. There are strict time limits within which charges must be filed. A charge must be filed with EEOC within 180 days from the date of the discriminatory act. If discrimination is continuous, the date of the discriminatory act is considered the last date of employment. However, this 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law. For charges alleging age discrimination, only state laws extend the filing limit to 300 days. Both Pennsylvania and New Jersey extend the filing limit to 300 days from the date of the discriminatory act. These time limits do not apply to wage discrimination claims under the Equal Pay Act, because under that law persons do not have to first file a charge with EEOC in order to have the right to go to court. However, since many claims under the Equal Pay Act also raise sex discrimination issues, it may be advisable to file charges under both laws within the time limits indicated. WHICH EMPLOYERS AND OTHER ENTITIES ARE COVERED BY FEDERAL DISCRIMINATION LAWS By Natalie Klyashtorny The discrimination laws under Title VII and the Americans with Disabilities Act apply to all private employers, state and local governments, and education institutions that employ 15 or more individuals. These laws also cover private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training. The Age Discrimination in Employment Act applies to all private employers with 20 or more employees, state and local governments (including school districts), employment agencies and labor organizations. The Equal Pay Act covers all employers who are covered by the Federal Wage and Hour Law (the Fair Labor Standards Act). Virtually all employers are subject to the provisions of this law. Title VII, the Age Discrimination in Employment Act, and the Equal Pay Act also apply to the federal government.