Roberts Settles Employment Law Case Against City of Hattiesburg

Posted on February 7, 2012 by admin

Roberts and Blackledge recently settled a case against the City of Hattiesburg on behalf of a Richard Tapp, an employee of the Hattiesburg Police Department. Our client brought the suit against his former employer because he was not granted the due process to which he was entitled by the police department’s own policies and procedures. In the suit, Tapp sought damages for back pay and front pay, as well as attorney fees and other emotional damages.

Richard Tapp, a former chaplain and fleet manager with the Hattiesburg Police Department, was fired for insubordination after he refused to make a statement about a sexual harassment charge without a lawyer present. Tapp had already been cleared of the same sexual harassment allegation months earlier in an internal investigation.

Sexual harassment is a valid social issue, but it was not the material issue of law that was the subject of this case. The Hattiesburg Police Department has a detailed protocol for providing due process to employees, and they did not follow it. Tapp, like all other terminated officers at the Police Department, have a right to due process before being terminated.

While the settlement reached with the Police Department did not admit any fault on the part of the defendant, Tapp certainly felt vindicated by the result.

The lesson to be learned by all employers is this: when you have a handbook, or in this case governmental policies and procedures, following the written policies is essential. Failing to follow policies may cause liability on the part of the employer.

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How to Handle Alleged Employee Misconduct

Posted on January 17, 2012 by admin

OVERVIEW
•You should have a working knowledge of the process of handling allegations of employee misconduct so you won’t have to learn while dealing with a stressful situation.
•Learn how to investigate allegations of employee misconduct thoroughly and legally. It can save stress, time, and money.
•Become apprised of some recent trends and current concerns regarding employee misconduct.

KEEP IN MIND
•Having a plan in place for dealing with employee misconduct will minimize stress if a need for that plan should arise.
•Clear planning and maintenance of company policies will always help guide employers if misconduct is alleged, and in some cases, can even prevent misconduct.
•Prevention is always the best policy!

COMMON MISCONDUCT ALLEGATIONS
•Breach of Employer Confidentiality
•Theft or Fraud
•Sexual Harassment
•Violation of Internet Policies
•Fraternization
•Drug Abuse

REASONS TO INVESTIGATE
•Most lawsuits against employers are filed only AFTER reporting a problem internally and the problem is left unaddressed.
•According to the National Whistleblowers Center, 89.7% of employee misconduct that led to a lawsuit was reported internally first and ignored.
•If a lawsuit does arise, you will be more prepared to handle it if you have investigated first.
•Internal investigation of claims proves that you take your code of conduct seriously.
•Encouraging employees to report misconduct can help you detect problems early.
•Investigating a claim can save you the expense and negative publicity of a lawsuit.
•Can help you develop better employee training and policies through detection of patterns in misconduct claims.

II. HOW TO CONDUCT AN EMPLOYEE MISCONDUCT INVESTIGATION:
A STEP-BY-STEP GUIDE

Take Action Right Away
•Do not ignore the claim or let it drag on. If you respond promptly, it sends the message that you take the allegation seriously and that you are concerned.
•Take immediate steps to protect the accuser if there is any violence or harassment reported. You can do this even before conducting an investigation.

Select the Right Person to Investigate
•The person you select must be impartial and objective.
•They should not have a history with the employee being investigated.
•An HR representative is often the best choice, or an attorney if necessary.

Develop a Strategy for Your Investigation
•Decide who you need to interview and in what order.
•Learn what physical evidence (documents, records, tapes, etc.) you need to collect.
•Determine if any additional personnel are needed. For example, an independent auditor or forensic accountant should be engaged for fraud investigations.
•Set a timeline so it’s done promptly.

Secure the Investigation
•Make sure there is a locked or password-protected file for everything obtained in the investigation.
•The investigator should be the only person with access.
•Nothing should be updated in personnel files until after the investigation is finished.

Conduct the Interviews
•Conduct interviews in private and with appropriate representatives if requested.
•First interview the accuser, next the accused, and after that, any person with relevant information in order of importance.
•Tell the employee why they are being interviewed, but do not be overly specific.
•Ask the employees to be discreet. Do not promise confidentiality, but maintain it as much as possible.
•When interviewing the accused, tell them each of the allegations and give a chance to refute them.
•Find out how employees got their information. Carefully check all hearsay to rule out that it is a rumor.

Make Sure Information is Documented Properly
•Take detailed notes about when the interviews are conducted, who is present, and what is said.
•Make sure that enough specific information is obtained to refute or substantiate claims.

•Write a detailed memo after each interview and ask the employee to review it, make changes if necessary, and sign it.
•Keep everything about the interview process organized and easy to access in case it is needed later.

AFTER THE INVESTIGATION
•Follow up with the complaining and the accused employee after the investigation is complete, regardless of whether a claim is substantiated or refuted.
•If the claim of misconduct is substantiated, decide what the consequences will be. If you decide to give an employee another chance, make it clear that future misconduct will not be tolerated and enforce your policies strictly.
•Keep the investigation files separate from personnel files. Only documents about the result of the investigation (disciplinary documents, etc.) should be placed in the employee’s personnel file. This practice helps prevent defamation claims.
•If the misconduct could have resulted from unclear company policy, revise the rules pertaining to the infraction and provide all employees with an update.

III. CURRENT CONCERNS FOR EMPLOYERS HANDLING MISCONDUCT INVESTIGATIONS

EMPLOYEE POLYGRAPH PROTECTION ACT (EPPA)
•The EPPA states that an employer may not require an employee in the private sector to submit to a polygraph test, and that the employee may not be subject to any disciplinary action for refusing to take the polygraph test.
•There are several exceptions to the EPPA, the most important being that an employer may require a polygraph test if they are reasonably suspected of involvement in misconduct that resulted in a substantial economic loss or injury to the employer.
•In cases where the economic loss or injury exception is being utilized, the employer still MUST provide a statement with the following:
1. Identification of the specific loss or injury.
2. Description of employee’s access to the property that is the subject of the investigation.
3. Detailed description of the basis of the suspicion that the employee is involved.
4. Signature of a person authorized to legally bind the employer.

SOCIAL MEDIA SITES AND EMPLOYEE MISCONDUCT
•Use of social networking sites like Facebook, Twitter, Tumblr, etc. in determining and sanctioning employee misconduct is a fast-growing concern for employers.
•Case law is being decided and refined constantly, as new social networking sites and technologies arise. Here are some important decisions and trends as of the end of 2011.
•As a general rule, the courts are upholding individual companies’ policies regarding employee privacy and use of social networking sites.
•This is why it is so important to craft a clear set of policies for your company, and to examine and refine them regularly to keep up with current technological advances.
•In some cases, use of social media to post confidential or unflattering information about an employer or company can be grounds for an investigation and disciplinary action.
•If an employer has clearly defined policies about what is and is not personal and private in social media, then it is easier to prove that there is no “reasonable expectation of privacy” and posts on social media may be used against an employee in a misconduct investigation.
•In several recent cases, courts have ruled that there is NO reasonable expectation of privacy in electronic communication, if it occurs on company equipment, like a cell phone or computer issued for work.
•Even if an account is personal and password protected, if the communication is conducted on work equipment, it can be accessed for an investigation.

PUBLIC RECORDS AND EMPLOYEE CONDUCT
•Using social media to determine employee misconduct is a potential minefield for employers since the case law is in its infancy, and precedent frequently does not exist.
•However, accessing public records is a time-honored and unambiguously legal way to check up on your employees.
•The exception is running a credit check, for which you must have the employee’s consent.
•You can access and view public records pertaining to your employees through online search services like Accurint and KnowX.
•For a small fee or a subscription, these companies can generate detailed reports about an employee based on public record. For example: if they have any judgments pending against them, if they have declared bankruptcy, if they have an arrest record, and other useful information.
•Learning that an employee is having financial trouble can lend credibility to an allegation of theft or fraud.
•Learning that an employee has an arrest record for an offense similar to that which they’ve been accused can help substantiate allegations of all kinds.

USE OF RECORDING EQUIPMENT
Audio Recording Laws
•Under Federal and Mississippi law—the Electronic Communications Privacy Act (ECPA)—you can audio record a conversation as long as one of the parties participating in the conversation consents. The recording party can also be the party to consent.
•Hidden audio recording equipment is illegal.

Video Recording Laws
•Visible video recording equipment is legal as long as the camera is in a non-private place. They can record audio as well, as long as one party consents under the ECPA.
•Hidden cameras are legal as long as they are in non-private areas and they do NOT record sound.
•In Mississippi, employee break rooms and lunch rooms are considered private areas.

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Roberts negotiates settlement for victim of law enforcement abuse

Posted on November 11, 2011 by admin

Roberts and Blackledge recently negotiated a settlement for a Seminary man who filed suit against Covington County and a Covington County sheriff’s deputy in March, alleging abuse and false imprisonment.

Toby Davis, a resident of Seminary, stated in his lawsuit that last January, a Covington County sheriff’s deputy followed his vehicle for six miles to his residence in a patrol car without flashing any lights or attempting to stop him. The deputy then accused Davis of illegal possession or sale of a controlled substance. Davis fled to the back of his house in fear after the incident escalated physically, and was beaten and shocked repeatedly with a stun gun by the deputy.

After the depositions in the case were taken, the defendants offered Toby Davis a settlement. Judge Keith Starrett entered an order dismissing the case on October 18. Robin L. Roberts, Davis’s attorney, says that although the defendants did not admit liability for the incident, the settlement offer was satisfactory to his client.

Robin Roberts has represented quite a few clients whose civil rights have been violated, taking their cases to federal court.  Your civil rights are some of your most important rights as an American citizen, and if you have been treated unfairly by a law enforcement officer, the attorneys at Roberts and Blackledge can help you.

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Estate Planning Information

Posted on September 6, 2011 by admin

Every person owning forestlands should work with a professional to develop an estate plan, tailored to the individual needs of their family.  To develop this plan, you should obtain and follow the professional advice of a trusted attorney, accountant, forester and others.  Then you should work with your attorney to execute a will that addresses disposition of your assets, and also execute appropriate documentation concerning decisions that others will be able to make on your behalf.

Having a will is the most basic and most important part of planning for the future of your heirs.  A will directs the disposition of assets at the time of your death and it puts you in control of how your assets will be distributed.  If you die without a will, your property may be passed to your heirs according to state law, regardless of your wishes.  You should engage a knowledgeable attorney who has experience drafting complex wills to handle your estate plan.  The will you create with the help of your attorney should clearly identify your heirs, divide your assets, name an executor, address tax planning, create any trusts that are appropriate, and address any concerns regarding the unique and specific circumstances of your estate.

Trusts are legal entities that hold assets, established by a settlor for specific beneficiaries.  A trustee or a manager appointed by the trustee manages the trust.  The trustee you name has fiduciary duties, including good faith and fair dealing, trust, and confidence, to the trust and the beneficiaries.  Some trusts, established by a will, are called testamentary trusts.  Other types of trusts that may be applicable to an estate include asset protection, business, real estate, credit shelter, irrevocable life insurance, and others.  You should speak with your attorney at length about whether a trust best serves your wishes in your estate plan.  Working with the attorney, you can create trusts that will accomplish the disposition of your assets in the way that you envision for your estate.

Many landowners today have also begun to structure the ownership of their forest to take advantage of limitations of liability, and to obtain insurance to help cover risks of litigation.  Families can use the family limited partnership to facilitate their goals with their family forestland.  In family limited partnerships, one general partner manages the land and the remaining owners who do not participate in management are limited partners.  The general partner is liable for the acts and debts of the family limited partnership, but the limited partners only have risk to the extent of the value of their interest.  You can work with your attorney to form a family limited partnership—formation is completed by filing a certificate of limited partnership with the Secretary of State and having the partners execute a partnership agreement.  It is a good vehicle for gifting interests in property while retaining management, and is being utilized more and more frequently in estate plans for families who own forestland.

Finally, if a successful transfer of family land is to occur, you must first create an appreciation for the land in your heirs.  You should develop shared values, educate family members who are not familiar with forestry, and make the learning process enjoyable.  It is easier for someone to care about a forest their family owns when they are active in its management.  Consider involving the family early on in major decisions about the management of your forest.  In this way you can work collaboratively to create a legacy for future generations before a transfer of responsibility occurs.  You might even consider transferring the majority of control of a family forest slowly to a trusted family member while you are still alive.

When you are discussing change of control in a company or within a family, you should honestly evaluate who has the skills, interest, and time to take on this responsibility to make decisions for the future.  You should also take the time to carefully choose your trustees and executors.  Entrusting these responsibilities to the right people is a vital part of creating a good estate plan, and should be considered with great care.

Every forest owner should plan for the future by developing a comprehensive estate plan.  By working closely with an experienced attorney, carefully reviewing options for your will, trusts and company structure, and including your family in the estate planning process, you are more likely to achieve your objectives for your family forest.

Many of these points were discussed in the recent article “Growing the next generation” by Gee Ogletree and Holmes Adams in the latest issue of Tree Talk.  The article raised several excellent points about the importance of estate planning for the owners of forestland.  I’d like to provide you with information about the estate planning services available here at Roberts and Blackledge.  I have enclosed a brochure outlining the services that our firm can provide for planning the future of your family forest.

The attorneys at Roberts and Blackledge have 38 years of experience in working with Mississippi landowners to develop personalized, complex and comprehensive estate plans.  Whether you own ten acres or several hundred, we can help you develop a plan that will serve your needs and secure your legacy in the way you choose.  Call us today at 601-466-5464 or email us at Robin@RABlaw.net to set up a free consultation.

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What To Do If You Have a Car Accident

Posted on August 30, 2011 by admin

Each year, thousands of people are involved in traffic accidents during the Labor Day Weekend. If you are one of these unfortunate people this year, will you know what to do? Auto accidents always take a toll on everyone involved, both physically and financially. The chances are high that at some point you will be involved in a minor accident. Knowing what to do in the event of an accident can prevent further injuries, reduce costs and speed up the process.

If you are involved in a traffic collision, try to remain calm and follow these steps:

1. Make Sure You’re Okay. Take care of your medical needs and render first aid to the extent you are able to do so.

2. Be safe. If there are no serious injuries, you should move the cars to the side of the road and out of the way of oncoming traffic. Leaving cars in the middle of the road or an intersection can result in more accidents and injuries. If a car cannot be moved, everyone should remain inside with their seatbelts fastened until help arrives. Make sure to turn on your hazard lights.

3. Photograph the Accident and Take Notes. Use a disposible camera (keep one in the glove box) or your phone camera to document the damage to all the vehicles at the scene.  Take a written description of each car, including year, make, model and color.  Also write down the exact location of the collision and your account of how it happened. Never tell the other driver or the police that the accident was your fault, even if you think it was.

4. Exchange the Following Information With the Other Driver.

  • Name, address, and phone number.  If the driver’s is not the insured, determine their relationship to the insured and take down their name and address as well.
  • Insurance company and policy number.
  • Driver’s license number.
  • License plate number.
  • If there were witnesses to the accident, try to get their contact information too.  They may be able to help you if the other drivers dispute your version of what happened.

5. File An Accident Report. Always call the police after an accident.  Filing a police report will help insurance companies speed up the claims process after an accident.  If the police do not respond to your accident (in some states, they will only respond if there are injuries), accident reports are usually available at police stations and on the Department of Motor Vehicles website.

6. Notify Your Insurance Company. Drivers sometimes decide to handle the damages without involving their insurance companies, but this isn’t always a good idea.  The other driver may agree to pay for the damage to your car on the day of the accident, but later they may decide later that the repairs will be too expensive. You have no way of knowing whether another driver will change his mind and report the accident to his insurance company. The other driver could even claim injuries that weren’t apparent at the scene of the accident. If this is the case, you will probably wind up involved in a lawsuit. 

If you do become involved in a lawsuit dealing with a car accident, it is vital that you hire an attorney who will represent your interests, whether the accident was your fault or not.  The attorneys at Roberts and Blackledge are experienced in handling auto accident cases, having settled literally hundreds in their 25 years of experience.  They will work to get the matter resolved as quickly as possible, and will help to minimize the stress of your accident, both physical and financial.

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Divorce Mediation

Posted on May 5, 2011 by admin

Getting a divorce is never easy. The process of dividing assets is stressful and emotionally draining as well as costly and time consuming. Simply put, divorce court is not a pleasant place. Fortunately, if your marriage is ending, an alternative to divorce court exists: divorce mediation.

Mediation has several advantages over conventional divorce court. You will save time and money if you decide to go through the mediation process. You and your spouse can sidestep going to divorce court, which will shorten the process so you can get closure sooner. Also, you spare yourself a public battle over, what is oftentimes matters, that are very personal nature. It also cuts down the caseload for the overtaxed Family Court system, making the process more effective.

A mediator is a third party, who has no vested interest in the outcome of the proceedings, so the process is fair to everyone involved. They stand to gain nothing, and so they can remain completely objective. The objectivity allows them to see solutions to problems that the divorcing spouses and their attorneys would not normally consider.

Nothing a mediator suggests is binding unless both spouses agree to the terms. If a solution that is acceptable to both parties cannot be reached, then the spouses do not have to abide by what the mediator decides. In divorce court, whatever the judge says, goes. You are more likely to come to an acceptable agreement if you are able to participate in the negotiation every step of the way.

Divorce mediations are a confidential process. There is no court reporter in the room taking down everything you say. Any notes that the mediator takes are thrown away immediately after the process is complete. You will never have to worry about your “dirty laundry” being aired in public, and you will not have to face the embarrassment of talking about the worst aspects of your marriage in a courtroom.

If you choose mediation, ending your marriage can be simpler, more civil, and more civilized. While conventional divorce court often focuses on the conflict between spouses, mediation focuses on finding the resolution to the conflict. Coming to an agreement in the presence of an objective third party can make the process of divorce smoother, and will help everyone reach an acceptable agreement so you can end your marriage with dignity.

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Accident Reconstruction

Posted on April 25, 2011 by admin

If you’ve been injured in a serious car accident, accident reconstruction can be one of the most important aspects of a proper investigation. Accident reconstruction is the scientific process of analyzing car accidents. A good accident reconstructionist can provide evidence about how the car crash happened and may be especially important if no witnesses were present.

Accident reconstructionists vist the site of accidents, taking measurements, and closely examining the road and vehicles to determine areas of impact through gouge marks and other physical evidence. They carefully measure skid marks and crush on the vehicles to determine the cause of impact. Calculations concerning the conservation of linear momentum often play a key role in determining speed, direction of travel, braking and other extremely valuable information. A good accident reconstructionist (sometimes called an accident deconstructionist) also utilizes modern technology such as on-board computers (PCM), for crash data reporting (CDR). In some cases, especially involving police and law enforcement vehicles a dash-camera and digital photography can be used to determine who is at fault. Even if science and technology isn’t as common as it is on TV shows like CSI and Law and Order, it is nevertheless being used more than ever to provide legal evidence in ordinary courts around the country, like the ones that have jurisdiction over your case.

If your personal injury case goes to trial, accident reconstructionists can present their findings to juries as expert witnesses. With modern technology, instead of relying on the jury’s imagination to explain how an accident occurred, accident reconstructionists can physically show them in the form of forensic animation, a computer-generated accident video based upon their findings. Of course, with this new technology, it is possible for unethical accident reconstructionists to skew their findings to support the party who is at fault. Injured people can lose a case if their presentation isn’t as professional or slick as the other side, because it is easier to believe what you can see. For this very reason, if you’ve been injured in an accident, it is necessary to find an attorney with a knowledgeable network of accident reconstructionists, who can use science to help you present the facts of your case with polish. And, just as importantly, to refute biased accident reconstruction that has been engaged in by unscrupulous “experts.”

When you select a lawyer for a personal injury case, it is essential that you select someone with experience. But an almost equally important factor is selecting a lawyer with a network of professionals in other fields to call upon to help their clients. Having a good expert witness is often the factor that makes a difference in a lawsuit. At Roberts and Blackledge, we always put together a team of people so your case is always in the hands of a professional, no matter what specific field your case might involve. We make sure that full advantage is taken of new science and technology, so that it will serve you in your legal matter.

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Civil Rights and Constitutional Protection–Police Misconduct

Posted on April 22, 2011 by admin

The primary civil rights enforcement statute, 42 USC 1983, gives access to the courts to sue governmental parties, such as law enforcement, to defend a citizen whose Constitutional Rights have been violated. A person can bring an action for police misconduct or brutality in federal court to demand damages for rights violated in the process of arrest, imprisonment, personal injury or denial of medical care by the state. It is within your rights to file a lawsuit whether the municipal authorities, the county sheriff or even state and federal agencies exercise improper conduct.

This powerful statute says the following:

Every person who, under color of any statute, ordinance,regulation, custom, or usage, of any State or Territory or theDistrict of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…

Whether the case arises out of false identification, arrest without probable cause or use of excessive force (like using a firearm or tazer, or beating with a club or a flashlight when it is not warranted), if the person acting on behalf of the state or the government crosses the line and becomes a violator of the law, instead of an enforcer and protector under the law, then a citizen can seek remedy. The rights of Due Process guaranteed by the Fifth and Fourteenth Amendments protects individuals from abuse by the government. In other words, the law states that no one is above the law.

The Bill of Rights is perhaps the most important limitation on governmental power in the history of humanity. These limitations are part of what makes our country great—our government allows the people to oppose the government, so our system is truly “of the people, by the people, for the people.” We can exercise the rights guaranteed to us as citizens of the United States in the courts through judicial authority and civil rights legislation. It is true that some direct lawsuits have direct immunity from being prosecuted under the government, but a qualified lawyer can help guide you through the process of a civil rights claim.

Robin L. Roberts, managing partner at Roberts and Blackledge has handled dozens of civil rights lawsuits and claims in federal court. Our firm is small, but we believe in standing up for what is right, even if it opposes conventional authority.

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Everyone Should Have A Will

Posted on April 18, 2011 by admin

Death is a taboo topic. No one likes to think about the idea of dying, especially if they are young and completely healthy. We think about older or sick people making wills in preparation for death, so we assume that making an estate plan doesn’t apply to us. But as many of us have learned the hard way, we should always be prepared for anything life could throw at us, death included.

Recently, my brother-in-law’s family lost a loved one way before his time. Ben was 29 and had two small daughters. I don’t know whether he had a will or not, but it made me think about preparing an estate plan. Tragedy can strike at any time and it’s my job as a lawyer to help my clients and friends plan for the worst case scenario, even as we hope for the best.

If you have property or money that you want to direct to another person after your death, you should make a will. If you die without a will, the state you live in will decide who gets your property or money based on the law, rather than your wishes. For example, if you were unmarried with no children and died suddenly without a will, your parents would get your property—even if you were estranged from them.

Any time you have a life-changing event, you should review your will, and if necessary, make changes that reflect your present situation. If you get divorced, remarry, have children, or even buy a vacation home, you should have your will updated. Wills shouldn’t be kept secret—it will be much easier for your wishes to be carried out if the instructions are accessible and clear. Make sure your family knows where to find the latest copy of your will and keep it in a fireproof lock box.

As a young person, I don’t particularly like to think about death. On the other hand, if something bad happened, I would certainly want to minimize the expense and headache for my family. Taking the time to think about what you would want and planning for it might even make your mind easier. Please give us a call today to set up your estate plan!

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Debt Collection in Healthcare: Part III

Posted on March 11, 2011 by admin

Debt Collection in Healthcare: How to Collect Debts Efficiently and Legally

PART III: The Fair Debt Collections Practices Act (FDCPA)

What is the FDCPA?
The FDCPA was established to protect consumers from unfair treatment at the hands of debt collectors. Failure to comply with any part of the act’s strict guidelines and requirements can result in sizeable fines, penalties and judgments. Therefore it is critical that you become familiar with the FDCPA’s regulations to avoid legal action being taken against you and your organization. Not only do you need to understand and abide by collections law, but you need to know the strategies and techniques that will help you easily and effectively contact and deal with debtors.

Who is a debt collector under the FDCPA?
· The term “debt collector” means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of debts, or who regularly collects or attempts to to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. The term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts.
· Although the statute does not expressly distinguish between a “debt collector” and a creditor collecting its own debts, the statute does specifically exclude from the definition of “debt collector” a person collecting or attempting to collect a “debt which was originated by such person.”

Am I subject to the FDCPA?
· Simple question, complicated answer.
· The general answer is NO. If you are collecting a debt that your facility originated, you are considered a creditor and NOT subject to the FDCPA.
· However, you must be using your facility’s name in all collection attempts. If a facility itself attempts to collect the debts as a parent company, then the facility may become a “debt collector” and subject to the strict requirements of the FDCPA.

What is prohibited by the FDCPA?

The act prohibits certain types of “abusive and deceptive: conduct when attempting to collect debts, including the following:
· Hours for contact: contacting consumers by telephone outside the hours of 8:00 a.m. to 9:00 p.m. local time
· Failure to cease communication upon request: communicating with consumers in any way (other than litigation) after receiving written notice that said consumer wishes no further communication or refuses to pay the alleged debt, with certain exceptions, including advising that collection efforts are being terminated or that
· Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously: with intent to annoy, abuse, or harass any person at the called number.
· Communicating with consumers at their place of employment after having been advised that this is unacceptable or prohibited by the employer.
· Contacting a consumer know to be represented by an attorney.
· Seeking unjustified amounts, wich would include demanding any amounts not permitted under an applicable contract or as provided under applicable law.
· Threatening arrest or legal action that is either not permitted or not actually contemplated..
· Abusive or profane language used in the course of communication related to debt.
· Communication with third parties: revealing or discussing the nature or debts with third parties (other than the consumer’s spouse or attorney)
o Collection agencies are allowed to contact neighbors of co-workers but only to obtain location information;
o Contact by embarrassing media, such as communicating with a consumer regarding a debt by post card, or suing any envelope when communicating with a consumer any use of the mails or by telegram, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business.
· Reporting false information on a consumer’s credit report or threatening to do so in the process of collection
· Communicating with consumer after request for validation has been made: communicating with the consumer or the pursuing collection efforts by the debt collector after receipt of a consumer’s written request for verification of a debt made within the 30 day validation period

FDCPA requires debt collectors to:
· Identify themselves and notify the consumer in every communication that the communication is from a debt collector, and in the initial communication that ny information obtained will be used to effect collection of the debt.
· Give the name and address of the original creditor (company to which the debt was originally payable) upon the consumer’s written request made within 30 days of the receipt of the §1692g notice
· Notify the consumer of their right to dispute the debt, in part or in full, with the debt collector.
o The 30-day §1692g notice is required to be sent by debt collectors within five days of the initial communication with the consumer, if a consumer needs a written dispute or request for verification within 30 days of receiving the §1692g notice, then the debt collector must either mail the consumer the requested verification information or cease collection efforts altogether.
o Such asserted disputes must also be reported by the creditor to any credit bureau that reports the debt. Consumers may still dispute a debt verbally or after the thirty-day period has elapsed, but doing so waives the right to compel the debt collector to produce verification of the debt. Verification should include at a minimum the amount owed and the name and address of the original creditor.

In a nutshell…
· All mail or collection attempts must be made in the name of each individual care center, or you may be subject to the stringent requirements of the FDCPA
· Always identify yourself as a representative from the care facility to which the debt is owed.
· If your facility originated the debt you are a creditor collecting your own debt and not subject to the FDCPA.

It is more beneficial to be categorized as a creditor:
· Less liability
· More techniques available for effective collection
· Did we mention LESS LIABILITY? Oh, okay. Well, LESS LIABILITY

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