Judge Dismisses Lesbian Lawsuit Against Rec Center ROCHESTER, Minn. (AP) ―
A district judge dismissed a discrimination lawsuit filed by two Rochester women Tuesday, saying the Rochester Athletic Club did not discriminate against the women by refusing to sell them a family membership. An attorney for Amy and Sarah Monson said they will appeal the decision to the Minnesota Court of Appeals.
"We respect the judge's decision but strongly disagree with it," said Phil Duran, staff attorney for OutFront Minnesota, the state's largest gay rights group, and one of the attorneys representing the women. Duran said he believes the club violated the Minnesota Human Rights Act by selling membership discounts only to heterosexuals.
The Monsons, identified as lesbian women in a committed relationship raising a child, filed a civil lawsuit against the club in March, claiming they were not allowed to purchase a family membership at the club in 2006 because they are not legally married.
Attorney Gregory Griffiths, representing the club and its owner, John Remick, moved for summary judgment in July. Judge Kevin Lund faxed his decision to attorneys Tuesday. Griffiths, in his argument for summary judgment, said the club's policy requires individuals -- whether male, female, heterosexual, gay, lesbian or bisexual -- to be legally married under Minnesota law to qualify for the family membership. He said the Monsons were given the opportunity to join the club, but didn't qualify for the family membership rate.
The judge said his decision shouldn't be viewed as a victory for the "traditional" family advocates or as a setback for gay and lesbian individuals or organizations advocating change. "It is neither," Lund said. The Rochester Athletic Club has chosen to define a family as a heterosexual legally married couple who files joint tax returns, he said, adding that his ruling is simply legal recognition that the state Human Rights Act does not afford protection within the context of the specific case for same-sex domestic partners. "This morally and legally defensible yet unrealistically narrow definition of family fails to recognize the underlying stability and commitment of the Monsons' relationship," the judge added. "Other, arguably more enlightened organizations, such as the Rochester Area Family Y, have chosen not to reduce the definition of family in such an anachronistic fashion," he said.
However, Lund said the athletic club is within its legal rights to define family as excluding same sex domestic couples. Lund said it is the job of the Legislature, not the courts, to determine whether nonmarital relationships such as the Monsons' deserve the statutory protection.
Wednesday, November 7, 2007
Thursday, October 25, 2007
DHS "No-Match" Rule is No Longer in Effect (For Now)
A sigh of relief flooded across the agricultural and hospitality industries on October 10th as a Federal Judge stopped the Department of Homeland Security from using Social Security records for immigration enforcement. A U.S. District Court Judge for the Northern District of California issued a preliminary injunction prohibiting DHS from implementing the rule entitled "Safe Harbor Procedures for Employers Who Receive a No-Match Letter."
This rule was set to go into effect in September 2007 and would have changed an innocuous administrative tool into an enforcement tool to uncover undocumented workers. Employers receiving letters from the Social Security Administration informing them that the name and social security number provided by the employer did not match Social Security records, would have been required to resolve the discrepancy within 93 days. If the employer could not resolve the discrepancy within that period, they would have been required to terminate the employee. Under the proposed regulation, the employer had two choices: (1) Terminate the employee and risk lawsuits by employees who believe they were unfairly or discriminatorily fired, or (2) Continue the employment and risk severe civil and criminal sanctions from DHS. If the employer ignored a "no-match" letter, they would have been in violation of federal immigration laws.
In his decision, Judge Breyer stated that the "balance of hardships tips sharply in plaintiff's favor because altering the status quo would subject employer's to greater compliance costs and employees to an increased risk of termination, while imposing significantly less burdens on the government." The plaintiffs in this case are a consortium of unions and business groups, including the American Federation of Labor.
With the injunction in place, the law returns to the status quo. "No-Match" letters will still be mailed to employers but they will not include the DHS guidance letter. The letters will continue to be used to inform employers that the social security number submitted on the employee's W-2 form does not match SSA records and the employee is not receiving credit for their earnings. Employees who are informed of the mismatch do not need to take steps to correct the discrepancy if they choose not to and employers should not fire, or make threats to fire, their employees because of the letter. Employees should not walk off the job is they are told of the mismatch.
The sigh of relief may be short lived because the injunction is temporary and the rule could still go into effect at a later date. This injunction is binding, however, until the case goes to trial, which is likely months away. Our office will continue to monitor this case and provide updates as they arise. If you have any questions regarding this rule, or other immigration concerns, please call us. 612-321-9800.
This rule was set to go into effect in September 2007 and would have changed an innocuous administrative tool into an enforcement tool to uncover undocumented workers. Employers receiving letters from the Social Security Administration informing them that the name and social security number provided by the employer did not match Social Security records, would have been required to resolve the discrepancy within 93 days. If the employer could not resolve the discrepancy within that period, they would have been required to terminate the employee. Under the proposed regulation, the employer had two choices: (1) Terminate the employee and risk lawsuits by employees who believe they were unfairly or discriminatorily fired, or (2) Continue the employment and risk severe civil and criminal sanctions from DHS. If the employer ignored a "no-match" letter, they would have been in violation of federal immigration laws.
In his decision, Judge Breyer stated that the "balance of hardships tips sharply in plaintiff's favor because altering the status quo would subject employer's to greater compliance costs and employees to an increased risk of termination, while imposing significantly less burdens on the government." The plaintiffs in this case are a consortium of unions and business groups, including the American Federation of Labor.
With the injunction in place, the law returns to the status quo. "No-Match" letters will still be mailed to employers but they will not include the DHS guidance letter. The letters will continue to be used to inform employers that the social security number submitted on the employee's W-2 form does not match SSA records and the employee is not receiving credit for their earnings. Employees who are informed of the mismatch do not need to take steps to correct the discrepancy if they choose not to and employers should not fire, or make threats to fire, their employees because of the letter. Employees should not walk off the job is they are told of the mismatch.
The sigh of relief may be short lived because the injunction is temporary and the rule could still go into effect at a later date. This injunction is binding, however, until the case goes to trial, which is likely months away. Our office will continue to monitor this case and provide updates as they arise. If you have any questions regarding this rule, or other immigration concerns, please call us. 612-321-9800.
Tuesday, October 23, 2007
"Ain't That America" Editorial, New York Times October 22, 2007
Think of America’s greatest historical shames. Most have involved the singling out of groups of people for abuse. Name a distinguishing feature — skin color, religion, nationality, language — and it’s likely that people here have suffered unjustly for it, either through the freelance hatred of citizens or as a matter of official government policy.
We are heading down this road again. The country needs to have a working immigration policy, one that corresponds to economic realities and is based on good sense and fairness. But it doesn’t. It has federal inertia and a rising immigrant tide, and a national mood of frustration and anxiety that is slipping, as it has so many times before, into hatred and fear. Hostility for illegal immigrants falls disproportionately on an entire population of people, documented or not, who speak Spanish and are working-class or poor. By blinding the country to solutions, it has harmed us all.
The evidence can be seen in any state or town that has passed constitutionally dubious laws to deny undocumented immigrants the basics of living, like housing or the right to gather or to seek work. It’s in hot lines for citizens to turn in neighbors. It’s on talk radio and blogs. It’s on the campaign trail, where candidates are pressed to disown moderate positions. And it can be heard nearly every night on CNN, in the nativist drumming of Lou Dobbs, for whom immigration is an obsessive cause.
In New York, Gov. Eliot Spitzer has proposed allowing illegal immigrants to earn driver’s licenses. It is a good, practical idea, designed to replace anonymous drivers with registered competent ones. In show after show, Mr. Dobbs has trained his biggest guns on Mr. Spitzer, branding him with puerile epithets like “spoiled, rich-kid brat” and depicting his policy as some sort of sanctuary program for the 9/11 hijackers. Someday there may be a calm debate, in Albany and nationally, about immigrant drivers. But with Mr. Dobbs at the megaphone, for now there is only histrionics and outrage.
Let’s concede an indisputable point: people should not be in the country illegally. But forget about the border for a moment — let’s talk about the 12 million who are already here. What should be done about them?
A. Deport them all.
B. Find out who they are. Distinguish between criminals and people who just want to work. Get them on the books. Make them pay what they owe — not just the income, Social Security, sales and property taxes they already pay, but all their taxes, and a fine. Get a smooth legal flow of immigrants going, and then concentrate on catching and deporting bad people.
C. Catch the few you can, and harass and frighten the rest. Treat the entire group as a de facto class of criminals, and disrupt or shout down anyone or any plan seen as abetting their evildoing.
Forget A. Congress tried a version of B, but it was flattened by outrage. And so here we are at C. It’s a policy that can’t work; it’s too small-bore, too petty, too narrow. And all the while it’s not working, it can only lead to the festering of hate. Americans are a practical and generous people, with a tolerant streak a mile wide. But there is a combustible strain of nativism in this country, and it takes only a handful of match tossers to ignite it.
The new demagogues are united in their zeal to uproot the illegal population. They do not discriminate between criminals and the much larger group of ambitious strivers. They champion misguided policies, like a mythically airtight border fence and a reckless campaign of home invasions. And they summon the worst of America’s past by treating a hidden group of vulnerable people as an enemy to be hated and vanquished, not as part of a problem to be managed.
We are heading down this road again. The country needs to have a working immigration policy, one that corresponds to economic realities and is based on good sense and fairness. But it doesn’t. It has federal inertia and a rising immigrant tide, and a national mood of frustration and anxiety that is slipping, as it has so many times before, into hatred and fear. Hostility for illegal immigrants falls disproportionately on an entire population of people, documented or not, who speak Spanish and are working-class or poor. By blinding the country to solutions, it has harmed us all.
The evidence can be seen in any state or town that has passed constitutionally dubious laws to deny undocumented immigrants the basics of living, like housing or the right to gather or to seek work. It’s in hot lines for citizens to turn in neighbors. It’s on talk radio and blogs. It’s on the campaign trail, where candidates are pressed to disown moderate positions. And it can be heard nearly every night on CNN, in the nativist drumming of Lou Dobbs, for whom immigration is an obsessive cause.
In New York, Gov. Eliot Spitzer has proposed allowing illegal immigrants to earn driver’s licenses. It is a good, practical idea, designed to replace anonymous drivers with registered competent ones. In show after show, Mr. Dobbs has trained his biggest guns on Mr. Spitzer, branding him with puerile epithets like “spoiled, rich-kid brat” and depicting his policy as some sort of sanctuary program for the 9/11 hijackers. Someday there may be a calm debate, in Albany and nationally, about immigrant drivers. But with Mr. Dobbs at the megaphone, for now there is only histrionics and outrage.
Let’s concede an indisputable point: people should not be in the country illegally. But forget about the border for a moment — let’s talk about the 12 million who are already here. What should be done about them?
A. Deport them all.
B. Find out who they are. Distinguish between criminals and people who just want to work. Get them on the books. Make them pay what they owe — not just the income, Social Security, sales and property taxes they already pay, but all their taxes, and a fine. Get a smooth legal flow of immigrants going, and then concentrate on catching and deporting bad people.
C. Catch the few you can, and harass and frighten the rest. Treat the entire group as a de facto class of criminals, and disrupt or shout down anyone or any plan seen as abetting their evildoing.
Forget A. Congress tried a version of B, but it was flattened by outrage. And so here we are at C. It’s a policy that can’t work; it’s too small-bore, too petty, too narrow. And all the while it’s not working, it can only lead to the festering of hate. Americans are a practical and generous people, with a tolerant streak a mile wide. But there is a combustible strain of nativism in this country, and it takes only a handful of match tossers to ignite it.
The new demagogues are united in their zeal to uproot the illegal population. They do not discriminate between criminals and the much larger group of ambitious strivers. They champion misguided policies, like a mythically airtight border fence and a reckless campaign of home invasions. And they summon the worst of America’s past by treating a hidden group of vulnerable people as an enemy to be hated and vanquished, not as part of a problem to be managed.
Thursday, October 11, 2007
New "No Match" Rule is "No Good"
On August 10, 2007, the U.S. Department of Homeland Security announced several procedural changes to strengthen enforcement of existing federal immigration laws. The DHA finalized a set of regulations that employers must follow when they receive a so-called “no-match” letter from the Social Security Administration. The new “no-match” rule will go into effect in September 2007.
Prior to this regulation, “no-match” letters were used to inform employers that the social security number submitted on the employee’s W-2 form did not match SSA records. The purpose was to inform the employee that they would not receive credit for their earning which can affect SSA benefits.
The new regulations change an innocuous administrative tool into an enforcement tool to uncover undocumented workers. The regulation requires employers to resolve the discrepancy within 90 days. If the employer is unable to resolve the discrepancy within that time period, they are required to fire the employee.
Thus, the employer has two choices:
· Either terminate the employee and risk lawsuits by employees who believe they were unfairly or discriminatorily fired -or-
· Continue the employment and risk severe civil or criminal sanctions from DHS.
If the employer ignores a “no-match” letter, they will be in violation of federal immigration laws. DHS is planning to increase civil fines against employers for immigration violations and will seek criminal charges against those they believe to be the worst offenders.
Employers often receive “no-match” letters for simple clerical mistakes or when a person fails to register a change of name. There is often a long bureaucratic delay in correcting records.
Employers that fail to do so are faced with tough choices and the employees are left with out jobs. The affect of this regulation will make itself known this fall. DHS states that about 15,000 letters will be mailed each week in the first 2 months. The construction, agriculture, and hospitality industries are facing serious worker shortages.
Many employees have been told that they will be fired upon receiving one of these letters. In addition, many employees will walk off the job as soon as they are told there is a problem with their social security number. This is going to have a dramatic impact on the work force, as well as other parts of American society. Many immigrants may move farther into the shadows of the underground economy rather than returning to their home country. The main effect will be to drive undocumented workers to work off the books for lower wages, under worse conditions and subject to more abuses.
Contact your Senator today to call for workable solutions that keep immigrant families together and provide a path to citizenship for all who have built a life in the United States.
The Child Support Laws Have Changed (For the Better?)
The children of Minnesota may be getting a lot less child support from now on after the Legislature did a major rewrite of the child support laws.
How does this affect you?
· First, if you have an existing child support order, nothing will change in 2007 unless:
· One parent brings a motion to change child support; AND
· The parent paying support has a 20% increase or 20% decrease in GROSS income; OR
· The parents have more children together; OR
· A child of theirs becomes disabled; OR
· Either parent starts receiving public assistance.
If those threshold qualifications are met, then the change in the child support order has to result in an increase that is 20% more and $75 more per month than the present order. If those qualifications are met, then present support can be adjusted in 2007.
The reality is that in 2007, barring major increases or decreases in income, most child support orders will remain the same.
Second, starting January 1, 2008, the rules loosen up and child support can be modified if there has been a “substantial change of circumstances” for either party that result in a modification of child support of at least 20% and $75
Third, if you filed a divorce, separation, or paternity action after January 1, 2007 the new support laws apply. The changes are these:
· Both parties’ gross incomes (used to be net income) are computed and subjected to the child support calculations. The old law took a certain percentage of the non-custodial parent’s net income. With the new law, both parent’s gross income will be used to calculate support.
· Support is apportioned on the number of overnights the children spend with each parent. The law itself calculates time in percentages, but a good rule of thumb is that two weekend overnights and one weekday overnight, will mean that that parent will get a 12% discount on child support. Under the old law, the number of overnights was not taken into account.
· Support is specifically unlinked to what custody is called. “Joint physical custody”, “shared parenting time” “sole physical custody” are irrelevant to the computation of child support. They are relevant in determining where the child’s residence is and which parent/s has primary responsibility for the child’s care.
· The parent receiving the support remains solely obligated for the children's clothes, school supplies and activity costs, food at home, and all the other costs of raising children (school pictures, birthday parties, sports costs, driving). That is often, but not always, less under the new law than under the old law. If you are divorcing under the new law it is smart to also negotiate sharing those costs of raising the children.
Medical insurance and costs will also be treated differently. The Court will look at insurance coverage available to both parents to determine which insurance plan is best for the children. Instead of equally dividing insurance and uninsured health and dental costs, the amount each parent pays will depend on their gross income and their child support calculation. What that means is that parents will pay a percentage of the costs rather than divide it 50-50. Again, it is more likely than not, that the primary parent will get less money.
The Legal Reality of GLBT Relationships
How do you define a “family”? Is it a combination of marriage and genetics? Is it a group of people who love and care for each other? The reality of our society is that “family” is indefinable. However, while we as a society identify “family” in many ways, the pertinent question for the GLBT community is, “What legally constitutes a family?”
It is well known that Minnesota does not recognize marriage for same-sex couples, nor does the state offer civil unions or domestic partnership benefits. However, many GLBT couples don’t know that in the eyes of the law, they are actually considered strangers to each other.
Although gay and lesbian persons form committed relationships, purchase property, and raise children together, when these couples end their relationships, the law simply turns its back. For instance, the law is unimpressed that you gave up a career to be a stay-at-home parent while your partner spent years acquiring thousands of dollars in a 401K for a retirement meant to be shared together. It takes the human attribute of empathy to recognize when two people have formed an intimate relationship and to understand the intent of those persons in purchasing property and raising children together. The law is rationale, not empathetic.
Consequently, attorneys are taking advantage of the law’s rationality and using its logic to procure legal protections for GLBT couples. The most frequently used model is the “Domestic Partnership Agreement” or DPA. These agreements are essentially contracts between the parties, similar to a pre-nuptial agreement. Thus, these agreements can create and clarify property rights and financial responsibilities between the parties at any time during the relationship.
Agreements may have a useful prophylactic effect on the one hand, and in the event of a separation, the parties are able to utilize their agreed-upon mechanism for dispute resolution, or seek enforcement of the agreement as a contract. Thus, the parties can determine what will happen should their partnership dissolve, before the relationship actually ends.
Absent an express agreement between the parties, a court must infer the intent of the parties and attempt to produce an equitable outcome for both parties. However, without an agreement, the logic of the law will likely only provide an equitable outcome for the titleholder of the property, while limiting the financial responsibility of one partner to another as the law rarely recognizes a financial responsibility between strangers absent a contract.
At Ballou Law Partners, we are taking the logic of the law a step further. Minnesota divorce laws are automatically invoked when a married-heterosexual couple dissolves their marriage. We help GLBT couples to contract, through a DPA, for the Minnesota divorce laws to apply to their relationship should it dissolve. Thus, using these contracts, we are attempting to give GLBT couples the same access to the rights reserved in statute for heterosexual couples. We are excited to be at the forefront of an emerging area of law and to be working toward positive change in the GLBT community. You take care of defining your family and we’ll help you protect it.
It is well known that Minnesota does not recognize marriage for same-sex couples, nor does the state offer civil unions or domestic partnership benefits. However, many GLBT couples don’t know that in the eyes of the law, they are actually considered strangers to each other.
Although gay and lesbian persons form committed relationships, purchase property, and raise children together, when these couples end their relationships, the law simply turns its back. For instance, the law is unimpressed that you gave up a career to be a stay-at-home parent while your partner spent years acquiring thousands of dollars in a 401K for a retirement meant to be shared together. It takes the human attribute of empathy to recognize when two people have formed an intimate relationship and to understand the intent of those persons in purchasing property and raising children together. The law is rationale, not empathetic.
Consequently, attorneys are taking advantage of the law’s rationality and using its logic to procure legal protections for GLBT couples. The most frequently used model is the “Domestic Partnership Agreement” or DPA. These agreements are essentially contracts between the parties, similar to a pre-nuptial agreement. Thus, these agreements can create and clarify property rights and financial responsibilities between the parties at any time during the relationship.
Agreements may have a useful prophylactic effect on the one hand, and in the event of a separation, the parties are able to utilize their agreed-upon mechanism for dispute resolution, or seek enforcement of the agreement as a contract. Thus, the parties can determine what will happen should their partnership dissolve, before the relationship actually ends.
Absent an express agreement between the parties, a court must infer the intent of the parties and attempt to produce an equitable outcome for both parties. However, without an agreement, the logic of the law will likely only provide an equitable outcome for the titleholder of the property, while limiting the financial responsibility of one partner to another as the law rarely recognizes a financial responsibility between strangers absent a contract.
At Ballou Law Partners, we are taking the logic of the law a step further. Minnesota divorce laws are automatically invoked when a married-heterosexual couple dissolves their marriage. We help GLBT couples to contract, through a DPA, for the Minnesota divorce laws to apply to their relationship should it dissolve. Thus, using these contracts, we are attempting to give GLBT couples the same access to the rights reserved in statute for heterosexual couples. We are excited to be at the forefront of an emerging area of law and to be working toward positive change in the GLBT community. You take care of defining your family and we’ll help you protect it.
Tuesday, October 9, 2007
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