LegalZoom Blog

Legal news and small business tips.

Something was in my McDonald’s coffee. What do I do?

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Joe EscalanteI bought a McDonald’s coffee for my boyfriend yesterday. There was a sharp piece of plastic inside it and he choked on it while I was driving. I’m meeting with McDonald’s on Monday and they want the cup and plastic. I’m nervous about giving it to them but it makes sense that they would have to analyze it. What do I do? Give it to them?

Christine Patterson

Barely Legal Radio w/ Joe Escalante

First choice is to get a plaintiff’s lawyer to take this case. You’re already in over your head. Second choice is to create a lot of video of the evidence in case they “lose” some of it in in this process. And ask to record your meetings if you go in without an attorney. But I don’t see any reason for not having an attorney. If you can’t find an attorney to take this case, there is no case.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Joe Escalante

October 30th, 2015 at 3:00 pm

Posted in Free Joe

Tagged with , , , , , , ,

The seller of my house neglected to fix the central air as promised. Can I sue?

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Joe EscalanteHi Joe, I just bought a house. The house was sold with central air as a feature. During the inspection, the inspector indicated in writing that the units were not working. The lawyer for the seller indicated that the units would be fixed prior to closing. Unfortunately during the summer I realized that the units were not fixed. I contacted the seller who refused to take care of the issue. I would like to sue him if this possible?

Brigitte Thorpe

Barely Legal Radio w/ Joe Escalante

Get an estimate to fix it. Then send him an invoice with a few weeks to respond. If he doesn’t respond, a good option would be to file in small claims court. That will get the issue in front of a judge for about $100 and you will get an answer, and maybe a judgment.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Joe Escalante

October 30th, 2015 at 2:52 pm

Is it illegal to use a taser or stun gun in self-defense?

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Joe EscalanteIf I buy a taser or stun gun, it’s not illegal in California. If I use it on an attacker or in self-defense will I go to jail or be fined?

Elizabeth Yvette Haro

Barely Legal Radio w/ Joe Escalante

If you are in possession of an illegal weapon at any time, defending yourself or not, it will be per the discretion of the police officer to cite you or not, and per the discretion of the district attorney whether to prosecute you.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Joe Escalante

September 30th, 2015 at 5:47 pm

Can an employer cut salary and benefits with the promise of reinstating when the economy gets “better”?

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Joe EscalanteI have a question about employment practices. Can an employer lower your salary, cut benefits, promise he will reinstate when the economy gets “better”? And if he does not honor his word, what can be done?

Jose Miguel Alvarez

Barely Legal Radio w/ Joe Escalante

Unless you are working under a collective bargaining agreement, or have a contract that specifically spells out what you are trying to enforce, you probably have to live with your boss’ willy-nilly salary policies.

Without a contract, your employer has the right to raise your pay, reduce your pay, and most importantly fire you as long as he follows minimal guidelines imposed by federal and state regulators. For example, he can’t lower your pay below minimum wage. But you knew that. What you’re asking is whether you can enforce his promise.

That is a fascinating question. The answer is that in most cases a promise is unenforceable. If you could prove that you did something that hurt you, like turn down another higher paying job, because of his promise to raise your pay pending a future event, and that event occurred and he didn’t raise your salary, you might have an enforceable promise.

But it takes evidence that will hold up in court. Emails would work. But it can’t be an email that just shows a promise was made. It has to show something called “detrimental reliance.” E.g., “I relied on your promise when I turned down this awesome higher paying job. You knew that. You let me do it. Then you didn’t fulfill your promise.” You need evidence that something like this occurred or you just have to deal with it.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Joe Escalante

September 30th, 2015 at 5:23 pm

Can I get reimbursed for unused vacation time?

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Joe EscalanteIf you leave a job and have vacation time remaining, and the company decides a week after you leave that they will not be reimbursing vacation time at 100% effective that date, do they have to reimburse those who left prior to the new policy at 100%?

Donna Grubbs Altenbaugh

Barely Legal Radio w/ Joe Escalante

The law on this varies by state Donna. E.g., in California your employer would have to pay for unused vacation pay, but in states like Pennsylvania, which I think is where you work, it depends mainly on whether your employer has a stated policy on unused vacation time and whether that policy was communicated to you. If you are in Pennsylvania, you have a right to rely on the policy in place when you were hired.

If your employer wants to change that policy mid-stream, then it is likely a court would rule that would be okay, but it would only apply to vacation pay earned AFTER the policy was changed.

In other words, the employer doesn’t have to pay for unused vacation pay in Pennsylvania, but if a policy existed when you started working that promised paid unused vacation pay upon termination, it is like a contract that cannot be changed willy-nilly without your permission and a new round of negotiating. Good luck.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Joe Escalante

August 28th, 2015 at 3:28 pm

Is Your Small Business Ready for the Upcoming Credit Card Processing Changes?

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This fall, new credit card processing system rules are coming into effect that could have a large impact on small business owners who accept point-of-sale credit card payments from their customers.

According to a recent Gallup poll, only 49% of small business owners who accept such payments are aware of the upcoming changes in credit card fraud liability laws that major credit card companies are implementing on October 1, 2015. The same poll shows that only 29% of those who don’t currently have chip-enabled credit card processing systems plan on upgrading their payment processing technology in order to comply with the new rules.

If you’re a small business owner who accepts POS credit card payments right now, using a traditional credit card terminal, then these new rules could have a major effect on your business. While upgrading to the new EMV system isn’t mandatory, and the costs of upgrading equipment may be high, small business owners need to be aware that the costs of non-compliance could potentially be much higher.

How high? Under the new rules, businesses which are not using EMV-compliant payment processing systems may find themselves liable for any fraud or security breaches which may occur as a result.

What Is An EMV Card?

EMV, which stands for Europay, MasterCard and Visa, is a global credit card payment standard that is currently being used by over 80 countries around the world, including Canada and countries in Europe, South America and Asia. The EMV chip card utilizes chip technology which, when used with an EMV terminal, makes it far more difficult for criminals to steal information leading to credit card fraud.

The traditional magnetic strip found on non-chip credit cards contains the user’s financial information necessary to complete financial transactions, all in a static data format. In the past few years you’ve probably heard of a number of security breaches that have taken place among large, well-known retailers; these security breaches enabled hackers to download the information contained in the magnetic strips of consumers’ credit cards and duplicate them in counterfeit cards which were then used in fraudulent transactions.

Unlike a magnetic strip card, however, EMV cards don’t contain static data. Instead, every time you use an EMV chip card to make a purchase at an EMV-compliant card reader, a unique transaction code is generated which can only be used once. In the event of a security breach, the data obtained from chip-enabled transactions therefore can’t be used to create duplicate credit cards to be used for fraudulent purposes.

Cost to Upgrade to EMV Credit Card Processing System

There is definitely a cost involved in upgrading credit card processing systems. However, the actual amount of the upgrade will vary considerably depending on a number of factors. For example, a business with a simple, single POS terminal will probably incur lower upgrade costs than a business using an integrated or more complicated system. In some cases, a certification may be required to prove the EMV system is correctly installed.

Additionally, there are also a number of different options among EMV-compliant systems themselves. You could, for example, choose to upgrade to devices that will accommodate chip-and-signature cards only—that is, cards that will still require the customer to provide a signature—or you may decide on a payment system that will enable customers with chip-and-PIN cards to enter a PIN to authorize the transaction.

If you’re considering an upgrade, speak with your credit card processing services provider to see what options will work best for you. Credit card processing companies are well aware of the upcoming shift in credit card fraud liability rules and should be able to help you to properly assess your particular upgrade requirements. When it comes to EMV migration, it’s important to do your research thoroughly and investigate all the options available to your business.

In assessing the cost of upgrading your payment processing equipment, you may also want to consider factors other than direct costs, such as the likelihood of fraud. For example, if you run a business that’s in the high fraud risk category—such as businesses that sell goods with a high resale value, like jewelry or other luxury goods—you are likely more vulnerable to fraud. Indonesian to Spanish Switching to an EMV-enabled system may ultimately lower your costs in the long run.

And if you were already thinking about upgrading to accommodate mobile payments? It might make sense to upgrade to accommodate both at the same time.

Employee Training

Another cost which needs to be taken into account is the cost of training your employees to use the new EMV systems, as there are some differences between using a traditional magnetic stripe card reader and the new EMV-enabled chip readers.

Unlike transactions using cards with a magnetic stripe, employees will need to enter the amount of the purchase first, before the card is inserted into the payment terminal. Additionally, the card must remain inside the terminal for the entire length of the transaction; if a consumer removes his or her card before the transaction has finished, the transaction won’t be completed and the payment process will have to start all over again.

And because consumers will initially not be used to keeping their cards inserted into the payment terminal for the length of the transaction, employees will also need to watch out for consumers who forget to remove their cards once the transaction has been completed.

While upgrading your credit card payment processing to meet EMV standards isn’t mandatory, it’s probably an investment your business will have to undertake sooner or later, and one that could ultimately be quite beneficial for your business’s bottom line.

Written by Belle Wong

August 26th, 2015 at 12:57 pm

Posted in Small Business

California Bar Exam One Day Shorter, No Less Difficult

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The CA State Bar Board of Trustees recently voted to cut the California State Bar Exam—considered the toughest bar exam in the country—from three days to two. The change reduces The Bar Exam’s two days of essays and performance tests to one. Day One will consist of five one-hour essays and a 90-minute performance exam, reduced from three hours. The second day is reserved for the Multistate Bar Exam, a standardized, 200-question multiple-choice exam developed by the National Conference of Bar Examiners. The essays and the multiple-choice component would each receive half the weight in the final score. The changes takes effect July 2017, which means that 2016 graduates will still have to suffer through three days of California Bar Exam. After that, law grads will benefit from one less travel day, one less day off work, and one less day of rigorous testing. Bar Exam Cost Savings The Committee of Bar Examiners for the State of California indicated in its meeting notes that rising costs in administering the CA Bar Exam played a major role in the change. Increases in facility rental, proctor pay, testing accommodations granted, and staff salaries, among other expenses, continue to rise. The Committee memorandum said that reducing the Bar Exam from three days to two would save an estimated $894,000 each time. The costs associated with changing the test, which includes modifying contracts with facilities, editing the performance tests, and grading software updates would cost an estimated $150,000. Additional benefits include testing efficiency and reduced grading time. California Bar Exam Still America’s Toughest Although the Bar Exam California would take one day less, there is no presumption that the test will get any easier. The current three-day exam takes a whopping 18 hours to complete, whereas bar exams in most other states take 15 hours or less. The California Bar Exam also involves both federal and state law. Not all states do.Louis Vuitton Outlet Stores The California Bar Association emphasizes that, regardless, the test is not intended to determine a person’s competency to practice law. “The examination is not designed to predict success as a lawyer or even that a lawyer is ready for the practice of law,” the memo from the Committee of Bar Examiners for the State of California’s March 11, 2015, meeting states. “In fact, one of the best predictors of bar examination scores is the grades an applicant received during law school. So, in one sense, the examination is confirmation that the necessary skills and knowledge were learned during the three or four years of law study, through whatever means, which are needed to show minimum competence as a lawyer. The bar examination is an examination to test minimum competence in the law.” Practical Work Ahead In addition to the Bar Exam changes, the State Bar of CA is pushing a proposal that would require candidates to admission to practice law to complete 15 credit hours of practical training, which could include clinics, externships, clerkships, and work in a legal office. The proposal comes not long after the American Bar Association adopted a new rule that every law graduate complete at least six credit hours of hands-on coursework. California law students: you may only have two days of the bar exam, but you may also have a lot more practical work in store.

Written by Heather Johnson

August 11th, 2015 at 3:08 pm

Posted in Legal News

Can We Challenge Our Bank for Overcharging on Overdraft Fees?

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Joe EscalanteJoe, we believe our bank is overcharging us on overdraft fees. When I look at our statement, if we have an overdraft, it looks like the check is sent through 3 times, charging us $36.00 each time and finally they pay the check and charge us $36.00 for the overdraft paid fee. Also, if a number amount of checks hit the bank the same day and there is to be an overdraft, they will pay the largest check and then maybe 5 or 6 will be overdrawn. We bank with US Bank and I have been online and they have already been in a class settlement suit. Is there a way we can challenge them for all the fees they are charging us. Thanks.

Janie Matlock Burkett

Barely Legal Radio w/ Joe Escalante

There are laws, and there are agreed upon policies. You may have agreed to policies that are unfair and you disagree with but they be part of your contract with the bank. I haven’t read the terms and conditions you signed when establishing your account but the normal thing to do here is to review those with the bank manager and see if he or she has a good explanation for what’s been happening.

If you are dissatisfied with the answer, the easiest thing to do is to take the bank to small claims court and see if the judge agrees with you or the bank. This will cost you roughly $100 plus a day in court. If you win, the bank should cover your court costs and refund you the over draft fees. But you may lose.

If it was a great deal of money, you would hire a consumer affairs attorney and make some real trouble for them. In this case, that would be over kill. Good luck.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 am PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

What Can I Do if My Sister Does Not Disclose Our Deceased Mother’s Estate With Me?

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Joe EscalanteMy mom just passed and my sister won’t tell me anything about her estate. What can I do?

Brenda Alexander

Barely Legal Radio w/ Joe Escalante

The estate must go through probate. This is a public process. You can view any documents filed in the probate department at the county courthouse where your mother died if your sister or someone else is administering the estate. If there is a trust, and you believe you are a beneficiary, you can petition the court to demand they show it to you. If there is no trust, and just a will, or no will, it is easier for you to find out everything because the process is very public. If your sister does nothing, you can begin the probate process yourself and ask the court to appoint you as the administrator, even if there is no will. I would suggest getting a consultation with a probate attorney in your area if things stay complicated.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.

Written by Joe Escalante

May 27th, 2015 at 12:52 pm

Will My Music Be Protected with a Copyright?

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Joe EscalanteWill my music be protected with a copyright? I want to share my talent for music on the internet, but the problem is that nowadays it’s easy for strangers to steal unprotected artwork from others. So my question is, will my music be protected? If so, how much will it cost and for how long will it remain protected?

Jorge Mata

Barely Legal Radio w/ Joe Escalante

Hello Jorge – to obtain the maximum protection for your work you will want to register a copyright. Copyright is created the moment you create a work but registration gives you access to the full range of remedies to deal with infringement. Copyright protection lasts for the author’s lifetime plus 70 years. More information can be found here: https://www.legalzoom.com/knowledge/copyright/topic/copyright-protection-scope.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.