Employment decisions are decisions related to the employment of employees or applicants for employment. They can include decisions about hiring, promoting, reassigning, evaluating, disciplining, terminating, or setting of salary of an employee, as well as decisions about training, working hours, terms and conditions of service, and separation of employees. Employment decisions can have legal implications and should be based on objective criteria and performance appraisals.

Posts

74 Stay Interview Questions

The stay interview differs from an exit interview because, in a stay interview, you ask current employees why they continue to work for your organization. It allows you, the employer to address issues and/or concerns while the employee is still with your organization. At the exit interview, it’s because he or she is leaving to the organization to pursue something else.

  1. What do you like about your job?
  2. Can you tell me about a good day of work you had recently?
  3. Do you feel you’re being used to your full potential in this job?
  4. If you won $25 million in the lottery tomorrow, what would you do?
  5. Is there something new in particular you want to learn this year?
  6. Do you feel you are appropriately recognized for your contributions?
  7. Do you have the right resources to perform successfully?
  8. Do you feel like you’re in the know when it comes to company information or departmental changes?
  9. Can you describe a recent frustrating experience or day on the job?
  10. Do you feel as though you are treated with trust and respect in your position?
  11. On a scale of 1 – 10, how satisfied are you with your job? What would it take to make you the next higher number?
  12. What are the favorite parts of your job?
  13. What is it about your job that brings you energy?
  14. Which projects this year have you been most proud of? Why?
  15. What elements of your job do you find draining (or less interesting)?
  16. If you could change one part of your current role, what would it be?
  17. I’ve noticed that you tend to get stuck or frustrated when ____ happens. Have you noticed the same thing? What’s causing the frustration?
  18. If you could do anything for a living, what would it be? How can we bring a few of those “dream job” elements into your current role?
  19. What do you envision as the next step for you career-wise?
  20. How can we reconfigure your current role to help you grow your skills?
  21. How can I help you on your professional development path? What should I start/stop/continue doing?
  22. What feedback do you have for me in the way that I interact with you?
  23. Can you think of anything we could do to simplify things around here?
  24. The last time you went home and said, “I had a great day, I love my job,” what had happened that day?
  25. The last time you went home and said, “That’s it, I can’t take it anymore,” what had happened that day?
  26. If you switched careers, what would you miss the most?
  27. What do you like most about your team?
  28. What demotivates you most about working on your team?
  29. What is really different at this company that makes you proud to be an employee?
  30. What demotivates you most about working for the company?
  31. What did you love in your last position or company that you’re not doing now?
  32. If you could afford to retire tomorrow, what would you miss most about your job?
  33. Can you think of any kind of advanced training or course you would like to take that would make you more productive?
  34. Are you challenged in your day-to-day work?
  35. What is most energizing about your work?
  36. How could we more fully utilize your talents and capabilities?
  37. What, if anything, is holding you back from being more effective?
  38. What can we do to make your job more satisfying?
  39. What can we do to support your career goals?
  40. What keeps you here?
  41. What might cause you to consider leaving the organization?
  42. What would be the one thing that, if it changed in your current role, would make you consider moving on?
  43. If you had a magic wand, what would be the one thing you would change about this department or company?
  44. What was the best job you ever had and why?
  45. In what areas would you most like to learn and grow?
  46. What are your career goals? (short-term and long-term)
  47. Out of what we have discussed today, what are the top 2 to 3 priorities of focus for you?
  48. What knowledge and support will you need to help achieve your development goals?
  49. What can I do as your manager to help you meet these development goals?
  50. What would you say is your biggest complaint or criticism of me?
  51. What are some things you are working on that you are not being recognized for?
  52. In what ways do you not feel open to communicate with me and what do I do to cause this?
  53. Tell me specifically what factors cause you to enjoy your current job and work situation.
  54. If you have ever been asked by a close friend or have been contacted by an external recruiter, can you tell me what reasons you gave them for wanting to stay at our firm?
  55. Do you feel that you are currently doing “the best work of your life?”
  56. Can you list for me the factors that could contribute to you doing the best work of your life?
  57. Do you feel that your work makes a difference in the company and that externally it has a noticeable impact on customers and the world?
  58. Do you also feel that your coworkers think that you make a difference?
  59. Do you feel “fully utilized” in your current role?
  60. Do your colleagues and teammates listen to you and do they value your ideas, inputs, and decisions? How can that area be improved?
  61. If you “managed yourself,” what would you do differently (in relation to managing “you”), that I, as your current manager, don’t currently do?
  62. Can you make a list of the elements or motivation factors in your current role that you like best and that you would like “more of? What factors would you miss most if you transferred you to a completely different job?
  63. What things do you really miss from your last job?
  64. Can you also make a list of the less-desirable elements or frustrations in your current role that you would like to do “less of?”
  65. Are there any frustration factors that keep you up at night, that enter your mind while driving to work, or that cause you to dread having to come to work at all?
  66. If you were given the opportunity to redesign your current role, can you make a list of the key factors that you would include in your “dream job?”
  67. Can you help me understand your career progression expectations and let us know where you would like to be in the organization two years from now?
  68. Can you highlight any recent recognition and acknowledgment that you have received that increased your commitment and loyalty? Are there actions that we can take to further recognize you?
  69. Can you highlight for me your positive experiences in the area of learning, development, and growth?
  70. And are there ways where we could increase that growth?
  71. Do you want to move into a leadership role? If so, what are your expectations, timetable and concerns?
  72. Think back to a time in the last 12 months when you have been at least slightly frustrated or anxious about your current role. Can you list for me the frustration factor or factors that most contributed to that anxiety?
  73. If you’ve had conversations with other employees who have considered leaving or who have actually left our firm, did any of the reasons that they provided for leaving cause you to at least partially nod in agreement?
  74. What are the prime factors that caused you to leave your last two jobs? Are there factors from your previous jobs that you hope you will never have to experience again at our firm?

There is No Replacing the In-Person Interview

Ever consider comparing grandma’s cooking to fast food? Of course not! Yet the fast food industry is going strong because its offerings are…well, fast. Tasty? Maybe, but definitely convenient and fast(er). So the question came up here recently about comparing remote vs. in-person interviews. The overall conclusion is like how we feel about grandma’s cooking: There is a place for both but the remote interviews don’t hold a candle to those conducted in-person. However, there are appealing aspects to different remote interview methods which include various levels of speed and convenience much like drive-throughs and cooking subscriptions that can save you time.

Back when the only option to interview job candidates remotely was by telephone, the pros and cons were more distinct. The up-front advantages of a phone interview are the cost/time saving potential and convenience. That and perhaps relieving a candidate (or you) from the embarrassment of a bad hair day. It’s perceived as more of a pre-screening tool to sort out the more desirable candidates to invite later for in-person interviews. Who hasn’t gone a block to the nearest drive-through wearing bunny slippers because it was so convenient, fast and cheap? Enter the on demand robo-interview and video chat.

The robo-interview:

Less commonly utilized, robo-interview formats usually consist of recording answers to a list or pre-recorded set of questions. Most of us aren’t comfortable with public speaking, and we’re certainly not YouTube stars accustomed to recording videos for the world to see so it’s important to keep that in mind when trying to attract top talent if you consider this as an employment screening tool. But hold on:

  • Do you have to sift through dozens (hundreds?) of resumes/applications?
  • Is your company/industry so popular that you can’t keep up with the volume of open positions to fill?
  • Do you like ordering pizza to be delivered/ready at a specified time using apps instead of calling?

If you say yes to at least two of these, there could be benefits to using this method. If used as a pre-screening tool like phone interviews, it’s a relatively simple process for you as a hiring manager to compose the questions, post the job online and provide a link to those truly interested applicants willing to take the time to answer the questions. You can then review the responses, share the footage with other hiring managers and follow up with inviting top applicants for an in-person interview… all on your own time.

Consider the following aspects of robo-interviews as they pertain to your particular company:

Of the applicants who do submit their recorded answers, introverts might be perfectly happy to avoid interacting with other humans, but do you imagine most of them to be perfectly comfortable with only having a couple of tries answering a question within a minute? Will the responses convey their personalities enough to determine if they will mesh well with the job and other people? Or do you want to turn up the heat like Gordon Ramsay and see how well someone responds to stress?

This interview method removes personal interaction which could be good if you need to ask the same questions in exactly the same way for a more level playing field. If you’re running an engineering firm and keep the questions to technical ones, this might be a good way to go to gauge knowledge, creativity and observe problem-solving thought processes before considering the applicant for the in-person interview. It’s like handing off the same secret ingredient in an Iron Chef episode to see what everyone does with it.

The video chat:

If you would rather initially connect with a candidate on a more personal level, you might do well with the video chat method. The concept of live video chatting back in the 60’s was a fanciful take on the future in shows like The Jetsons and Star Trek. Now that this technology is here and growing dramatically in popularity, it’s a step away from the actual traditional in-person interview while still offering some degree of personal interaction. They tend to run shorter than in-person interviews but still gives everyone a chance to get to know each other better. Think of it as similar to those increasingly popular food subscriptions that are delivered to your door. Everything has been pre-measured and prepped so all you need to do is cook it. There is still some room to tailor it according to how things progress.

The huge added benefit here is the addition of visual input for both sides. You’ll catch that smile supplementing an enthusiastic voice, the confident posture when answering a technical question, perhaps even a rude eyeroll or glassy-eyed deer in headlights expression. You can expect a candidate to look appropriate yet still more likely to be relaxed from their kitchen table or living room. That is, until their cat jumps onto their lap or the gardener shows up with a leaf blower. Even that is an observable moment as you see how a candidate reacts and deals with an unexpected stressor.

In comparison to an in-person interview, however, it’s still interacting using two-dimensional flat surfaces so it will also tend to flatten the “humanness” of the participants. A study by the McMaster University Degroote School of Business conducted in 2013 found that candidates and interviewers seemed less likeable and less competent with the use of video interviews. Yes, nothing compares to grandma’s cooking and an in-person interview!

How to maximize your use of video chats:

  • Make sure connections and equipment is in top working order.
    Too many interruptions will feel like trying to cook while a two-year-old is running around in the kitchen.
  • Position the webcam as close to eye level as possible right above the screen and at a distance that captures your facial expressions. Remember, both parties tend to look at a screen and not directly into the webcams so it is important to minimize the lack of direct eye contact.
  • Be sure to emphasize your facial expressions a little more because you don’t have the full use of body language. Candidates who are more comfortable with their interviewers tend to give better answers and develop a favorable impression of potential employers which causes them to be more likely to accept a job offer.
  • Have someone take notes so you don’t have to keep looking away from the webcam.
  • You can also record the actual interview so you can go back and review the candidate’s responses and share the interview with others. Recorded interviews can help in deciding which candidates gave better answers, but you also run the danger of nit-picking. Remember that saying about too many cooks in the kitchen?
  • You can show candidates a pre-recorded video of current employees in action off and on the job to give them a feel of your company’s “menu” and all of the “specials” that would make your company stand out as a first choice.

Hopefully you’ll be confident about inviting candidates over by the time you’ve picked out the finalists… and that grandma would approve!

How to Write A Job Description

I know you probably have more pressing issues on your mind like what you’re having for dinner tonight or how you’re going to manage to give your cat a bath this weekend, but this is important stuff for sure! Before we go over how to write position descriptions, we need to clarify the difference between a job description and a position description. Though they’re often used interchangeably, they’re not the same.

A job description is the nature of the work done. It includes the tasks and responsibilities expected of an employee in a specific position. Example: director responsibilities may include managing staff, producing quarterly reports, interacting with clients.

A position description is derived from a job with a more detailed, concrete set of specific tasks particular to the job. Examples: director of -HR, -marketing, -finance, etc. Depending on the kind of director in a department, there are tasks and skills specific to that department. A director of HR is responsible for managing employee issues and will be administering tasks such as labor relations/compliance, training, running payroll, benefits and recruiting while a director of finance will be in charge of maximizing returns on financial assets by establishing a company’s financial policies, procedures, reporting systems and oversee general accounting.

You may now be thinking, Yeah, well, I can see how position descriptions could benefit a company with more employees. Everyone here understands what they need to do. You’re right. With a smaller company you might have been able to get away with not writing a specific set of duties and skills required for that position because everyone basically wears many hats and jumps in wherever they’re needed.

But look down the road to when you need to fill a recent vacancy or when your company’s success means you need to hire more people. You don’t want to be caught scrambling to write something that you thought about for only two (okay three) hours. If it’s a vacancy, the tendency here is to write a description that you modeled around the prior employee, not necessarily what you need from that position.

Check out these things to keep in mind when you’re assembling the description:

Set compensation

This helps you gauge the market pricing of this position based on tasks and qualifications required and helps level the field against (sub)conscious biases like gender, race, and age.

Recruit for the right candidates

A clear position description and job description summarizing the position gives the purpose of the position and how the employee will fit in with the rest of the company. Ensuring that potential applicants understand the major responsibilities and selection criteria will help attract the right talent… unless of course you look forward to getting responses from applicants whose idea of job hunting is sending out resumes indiscriminately so it resembles the throwing-spaghetti-at-the-wall-and-see-what-sticks method.

Develop the position as the company grows/changes

The description helps in reevaluating the position as the company’s needs change. Reviewing the description during annual performance appraisal time allows to stay true to the position’s duties while at the same time takes into account possible necessary changes when other positions are created or changed. It also allows for managers to create professional development plans with employee input to encourage career growth and higher job satisfaction.

Performance appraisals

Specific tasks and goals accomplished with measurable outcomes as outlined in the prior appraisal help “keep it real,” as in real concrete. Employees will understand their tasks and tend to be focused and more productive than employees who have a vague description of what their jobs entail. It’s like playing by the same rules in Monopoly, and I think most of us know what it feels like playing with someone who has a different set of rules.

Maintain HR compliance per federal and state laws

This is a biggie. Creating accurate descriptions are essential! Without them, you can run into trouble with laws like the ADA (Americans with Disabilities Act) and FSLA (Fair Labor Standards Act) just to name a couple. Should there be any issues that arise because your position description isn’t specific and thorough enough, you will wish you spent more than two (okay three) hours cranking it out.

So how to write one? If it’s a new position, write it up based on your company’s required tasks, similar positions you research from outside sources and input from other managers you work           with–definitely an HR manager if you have one. Make sure you have other eyeballs to proofread it, too. Again, make sure at least a pair of those eyeballs belong to someone in HR. When writing a job/position description, you definitely want to give a professional impression, not some trumped-up last-minute description that’s riddled with errors.

Whatever you do, if you already have an employee in that position, it’s important to ask for the employee’s input to get info directly from that person and to get him/her onboard with hands-on involvement in crafting it. Don’t ambush the employee with a description out of the blue. You can approach it in a few ways:

  • Talk to the employee and write one up based on the info received
  • Ask him/her to write it and build on that
  • Draft one yourself and ask the employee to review and tweak it as necessary

Below are the items you should include to make a great description.

Position title

Make sure it accurately reflects the role and responsibilities that fit the normal industry titles to be comparable. Avoid vague titles. “Mad Scientist” is catchy but confusing. Yes, I actually came across one of those. Make sure it reflects the responsibility level. The title “Director of First Impressions” instead of “Receptionist” is an extreme example of puffery and can be confusing.

Position summary

This describes the purpose of the position and how the employee fits in with the rest of the company. A receptionist position might be summarized by “As the first contact point for visitors and calls coming in, the receptionist provides routing to the proper parties and departments while ensuring their needs are addressed promptly.”

Description

Write up the specific tasks required with action-oriented verbs in present tense and specific details while at the same time keeping the descriptions simple. In other words, don’t write vague descriptions like “Provide good customer service.” What? Being cheerful and helpful is what I’d assume. What else? Learn to recognize clients’ voices? Not chew gum?

Everyone has their own idea of what good customer service is like, right? Writing it along the lines of “answer questions from customers calling in and forward to appropriate departments as necessary” more accurately defines a task.

Use bullet points with short statements to make it easier to read and digest. It also helps when it comes to annual performance evaluations because you’ve already got the tasks broken down into bite-sized chunks and can be discussed in that format.

Required qualifications

List them with the minimum required qualifications for a new hire such as education, knowledge/expertise and experience with particular aspects of a position. Remember again, you’re not writing this based on an employee already in the position.

Ultimately, the goal here is to provide clarity for both employees and managers and keep everyone accountable based on specific descriptions. It might seem like a black hole that sucks your time up but think of it as an investment. Taking the time to develop good position descriptions increases productivity and accountability, employee retention and satisfaction plus it saves a lot more time and stress in the future so you have more time to grow your business, cook a decent meal or even bathe your cat… good luck with that, by the way.

25 Good Interview Questions….and 8 to Avoid

When preparing to interview job candidates, it’s important for supervisors to plan out their lines of questioning. Decide which skills are most important for the particular position, then focus your questions on assessing those skills. Here are some sample questions to work from:

Employment History

  1. If you had to evaluate your performance in your present job on a scale of 1 to 10, how would you grade yourself and why?
  2. What skills have you acquired in your present job that make you the right candidate for this job?
  3. Describe a recent event in your job that really challenged your capabilities.
  4. Why do you want to leave your present job?
  5. What have you heard about our company that leads you to believe you would like to work here?

Communications

  1. Are you more comfortable working on a team or on your own?
  2. What types of people do you find difficult to work with?
  3. How often do you like to meet with your supervisor?
  4. If you had an idea for a new project, how would you communicate it to your co-workers and supervisors and get it approved?
  5. Describe what you consider to be the perfect boss.

Organization

  1. How do you go about planning your schedule for the day?
  2. How do you relieve stress at work?
  3. What tasks in your present job do you consider to be a waste of time?
  4. Do you consider yourself efficient? Why?
  5. If you were given a long-term project, how would you approach the work?

Motivation

  1. Tell me about a situation where you really blew it. How did you handle it? What did you learn?
  2. What motivates you to do your best?
  3. Think of a major accomplishment you had in your present job. What aspect did you find most satisfying?
  4. If you could buy any skill that you don’t possess, what would it be?
  5. What tactics should a supervisor use to get the best out of you?

Managerial

  1. What qualities do you possess that would make you a good manager?
  2. Tell me about the best manager you ever had and what you learned from that person.
  3. Tell me about your worst manager and what you learned from that person.
  4. How do you create an environment that fosters teamwork?
  5. How would you handle a conflict between your employees?

7 questions to NEVER ask…

  1. Are you married? Divorced?
  2. How old are you?
  3. Do you have (or plan to have) children?
  4. Do you own or rent your home?
  5. What church do you attend?
  6. Do you belong to any social or political groups?
  7. Do you suffer from a disability?

Independent contractors and the FCRA

Must employers provide the protections required by the Fair Credit Reporting Act (FCRA) to prospective independent contractors? 

Not according to a new decision from an Iowa court (see Smith v. Mutual of Omaha Insurance Company, No. 4:17-cv-00443 (S.D. Iowa Oct. 4, 2018)) which grappled with the question in the context of a lawsuit filed by an individual against an insurance company where he applied to contract as a salesperson but was rejected because of a falsely reported felony in his background check. The plaintiff accused the insurance company of violating the FCRA by failing to provide him with the statutorily required prior notice that the background check resulted in his not being hired.    

The insurance company asked the court to dismiss the lawsuit, claiming that the FCRA only requires such notice when an applicant seeks to be hired as an employee, and not as an independent contractor. Since the plaintiff applied for an independent contractor position, he was not entitled to the protections of the statute, the insurance company argued. 

The plaintiff countered that he was applying to be an employee of the insurance company and that it was too early to dismiss the case, as further discovery was needed. In the alternative, he argued that the FCRA should still govern his relationship even as an independent contractor.

In ruling on the FCRA issue, Judge John Jarvey began with the language of the law. The FCRA is a broad statute, Judge Jarvey said, and some of its most stringent protections apply when a background check is being obtained “for employment purposes.” 

The definitions section of the FCRA, at 15 U.S.C. § 1681a(h), states that “[t]he term ‘employment purposes’ when used in connection with a consumer report means a report used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee.” This text “makes clear that the pre-adverse action notice requirement only applies when a consumer report is used for employment purposes,” Judge Jarvey wrote. “The meaning of ‘employment purposes’ is specifically defined in the statute, and it is defined as being ‘used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee.’”  District courts in Ohio and Wisconsin have reached the same conclusion, Judge Jarvey noted, citing the decisions for support. 

Notably, the Federal Trade Commission (FTC) in its 2011 staff report entitled “40 Years of Experience with the Fair Credit Reporting Act” provided a seemingly contrasting interpretation. The FTC stated that “the term ‘employment purposes’ is interpreted liberally to effectuate the broad remedial purpose of the FCRA and may apply to situations where an entity uses individuals who are not technically employees to perform duties. Thus, it includes a trucking company that obtains consumer reports on individual drivers who own and operate their own equipment; a title insurance company that obtains consumer reports on individuals with whom it frequently enters into contracts to sell its insurance, examine title, and close real property transactions; or a nonprofit organization staffed in whole or in part by volunteers.” 

The FTC’s view can be reconciled with that of Judge Jarvey’s by taking the approach that the applicability of FCRA’s requirements depends on the facts and circumstances of the particular relationship, rather than the formal designation of someone as an independent contractor. 

Given the still remaining disputed issue of whether or not the plaintiff would have been an employee or an independent contractor for the insurance company, the court ordered limited discovery on the issue and declined to dismiss the suit. 

Are you hiring? Do you have a Recruiting Checklist?

Job descriptions. Make sure you have a job description for each position in your company. Job descriptions should reflect careful thought as to the roles the individual will fill, the required skill sets, and other attributes that are important to completing their tasks.

  1. Compile a “success profile.” In addition to creating job descriptions, it’s important to develop a “success profile” of the ideal employee for each position.
  2. Draft the ads, describing the position and the key qualifications required. Be sure to post ads in the places most likely to be noticed by your target candidates.
  3. Develop a series of phone-screening questions. Compile a list of suitable questions you can ask over the phone to help you quickly identify qualified candidates and eliminate everyone else. This will save you time compared to bringing every candidate into the office.
  4. Review the resumes you receive and rank your best candidates. Once you start receiving resumes…you will have to go through them and eliminate those that are a poor fit.
  5. Use the phone to screen candidates. Once you’ve narrowed your stack of resumes to a handful of potential applicants, call the candidates and use your phone-screening questions to further narrow the field. Using a consistent set of questions in both this step and your face-to-face interviews will help ensure you’re evaluating candidates equally.
  6. Rank your candidates and schedule those that are the best fit for an in-person interview. Based on the responses to your phone interviews, select the candidates you feel are best qualified for the next step in the process.
  7. Assess your potential candidates for their skills and attributes using a proven assessment tool. A resume and phone interview can only tell you so much about a job applicant, so you’ll need a dependable assessment tool to help you analyze the core behavioral traits and cognitive reasoning speed of your applicants. For example, a good test will provide insights as to whether the individual is conscientious or lackadaisical, introverted or extroverted, agreeable or uncompromising, open to new ideas or close-minded, and emotionally stable or anxious and insecure. The success profile you created for each position will help you determine which behavioral traits are important for that position. For example, you would expect a successful salesperson to be extroverted. On the other hand, someone filling a clerical position might be more introverted.These assessment tests can be administered in person or online. Online testing and submission of results can help you determine whether the applicant should be invited for a personal interview.
  8. Schedule and conduct candidate interviews. Once you’ve selected candidates based on the previous steps, schedule and conduct the interviews. Use a consistent set of 10 or 12 questions to maintain a structured interview and offer a sound basis for comparing applicants.
  9. Select the candidate. Make your selection by matching the best applicant to the profiled job description.
  10. Make your offer to the candidate. The information you collected during the interview process will provide you with important insights as to starting compensation levels and training needs.
  11. Order a report for employment screening purposes on the candidate to uncover any potential red flags. 

Glossary of Legal Terms

a | b | c | d | e | f | g | h | i | j | l | m | n | o | p | r | s | t | u | v | w

A


Acquittal
A jury verdict that a criminal defendant is not guilty, or the finding of a judge that the evidence is insufficient to support a conviction.

Active judge
A judge in the full-time service of the court. Compare to senior judge.

Administrative Office of the United States Courts (AO)
The federal agency responsible for collecting court statistics, administering the federal courts’ budget, and performing many other administrative and programmatic functions, under the direction and supervision of the Judicial Conference of the United States.

Admissible
A term used to describe evidence that may be considered by a jury or judge in civil and criminal cases.

Adversary proceeding
A lawsuit arising in or related to a bankruptcy case that begins by filing a complaint with the court, that is, a “trial” that takes place within the context of a bankruptcy case.

Affidavit
A written or printed statement made under oath.

Affirmed
In the practice of the court of appeals, it means that the court of appeals has concluded that the lower court decision is correct and will stand as rendered by the lower court.

Alternate juror
A juror selected in the same manner as a regular juror who hears all the evidence but does not help decide the case unless called on to replace a regular juror.

Alternative dispute resolution (ADR)
A procedure for settling a dispute outside the courtroom. Most forms of ADR are not binding, and involve referral of the case to a neutral party such as an arbitrator or mediator.

Amicus curiae
Latin for “friend of the court.” It is advice formally offered to the court in a brief filed by an entity interested in, but not a party to, the case.

Answer
The formal written statement by a defendant in a civil case that responds to a complaint, articulating the grounds for defense.

Appeal
A request made after a trial by a party that has lost on one or more issues that a higher court review the decision to determine if it was correct. To make such a request is “to appeal” or “to take an appeal.” One who appeals is called the “appellant;” the other party is the “appellee.”

Appellant
The party who appeals a district court’s decision, usually seeking reversal of that decision.

Appellate
About appeals; an appellate court has the power to review the judgment of a lower court (trial court) or tribunal. For example, the U.S. circuit courts of appeals review the decisions of the U.S. district courts.

Appellee
The party who opposes an appellant’s appeal, and who seeks to persuade the appeals court to affirm the district court’s decision.

Arraignment
A proceeding in which a criminal defendant is brought into court, told of the charges in an indictment or information, and asked to plead guilty or not guilty.

Article III judge
A federal judge who is appointed for life, during “good behavior,” under Article III of the Constitution. Article III judges are nominated by the President and confirmed by the Senate.

Assets
Property of all kinds, including real and personal, tangible and intangible.

Assume
An agreement to continue performing duties under a contract or lease.

Automatic stay
An injunction that automatically stops lawsuits, foreclosures, garnishments, and most collection activities against the debtor the moment a bankruptcy petition is filed.

Return to top

B


Bail
The release, prior to trial, of a person accused of a crime, under specified conditions designed to assure that person’s appearance in court when required. Also can refer to the amount of bond money posted as a financial condition of pretrial release.

Bankruptcy
A legal procedure for dealing with debt problems of individuals and businesses; specifically, a case filed under one of the chapters of title 11 of the United States Code (the Bankruptcy Code).

Bankruptcy administrator
An officer of the Judiciary serving in the judicial districts of Alabama and North Carolina who, like the United States trustee, is responsible for supervising the administration of bankruptcy cases, estates, and trustees; monitoring plans and disclosure statements; monitoring creditors’ committees; monitoring fee applications; and performing other statutory duties.

Bankruptcy code
The informal name for title 11 of the United States Code (11 U.S.C. §§ 101-1330), the federal bankruptcy law.

Bankruptcy court
The bankruptcy judges in regular active service in each district; a unit of the district court.

Bankruptcy estate
All interests of the debtor in property at the time of the bankruptcy filing. The estate technically becomes the temporary legal owner of all of the debtor’s property.

Bankruptcy judge
A judicial officer of the United States district court who is the court official with decision-making power over federal bankruptcy cases.

Bankruptcy petition
A formal request for the protection of the federal bankruptcy laws. (There is an official form for bankruptcy petitions.)

Bankruptcy trustee
A private individual or corporation appointed in all Chapter 7 and Chapter 13 cases to represent the interests of the bankruptcy estate and the debtor’s creditors.

Bench trial
A trial without a jury, in which the judge serves as the fact-finder.

Brief
A written statement submitted in a trial or appellate proceeding that explains one side’s legal and factual arguments.

Burden of proof
The duty to prove disputed facts. In civil cases, a plaintiff generally has the burden of proving his or her case. In criminal cases, the government has the burden of proving the defendant’s guilt. (See standard of proof.)

Business bankruptcy
A bankruptcy case in which the debtor is a business or an individual involved in business and the debts are for business purposes.

Return to top

C


Capital offense
A crime punishable by death.

Case file
A complete collection of every document filed in court in a case.

Case law
The law as established in previous court decisions. A synonym for legal precedent. Akin to common law, which springs from tradition and judicial decisions.

Caseload
The number of cases handled by a judge or a court.

Cause of action
A legal claim.

Chambers
The offices of a judge and his or her staff.

Chapter 11
A reorganization bankruptcy, usually involving a corporation or partnership. A Chapter 11 debtor usually proposes a plan of reorganization to keep its business alive and pay creditors over time. Individuals or people in business can also seek relief in Chapter 11.

Chapter 12
The chapter of the Bankruptcy Code providing for adjustment of debts of a “family farmer” or “family fisherman,” as the terms are defined in the Bankruptcy Code.

Chapter 13
The chapter of the Bankruptcy Code providing for the adjustment of debts of an individual with regular income, often referred to as a “wage-earner” plan. Chapter 13 allows a debtor to keep property and use his or her disposable income to pay debts over time, usually three to five years.

Chapter 13 trustee
A person appointed to administer a Chapter 13 case. A Chapter 13 trustee’s responsibilities are similar to those of a Chapter 7 trustee; however, a Chapter 13 trustee has the additional responsibilities of overseeing the debtor’s plan, receiving payments from debtors, and disbursing plan payments to creditors.

Chapter 15
The chapter of the Bankruptcy Code dealing with cases of cross-border insolvency.

Chapter 7
The chapter of the Bankruptcy Code providing for “liquidation,” that is, the sale of a debtor’s nonexempt property and the distribution of the proceeds to creditors. In order to be eligible for Chapter 7, the debtor must satisfy a “means test.” The court will evaluate the debtor’s income and expenses to determine if the debtor may proceed under Chapter 7.

Chapter 7 trustee
A person appointed in a Chapter 7 case to represent the interests of the bankruptcy estate and the creditors. The trustee’s responsibilities include reviewing the debtor’s petition and schedules, liquidating the property of the estate, and making distributions to creditors. The trustee may also bring actions against creditors or the debtor to recover property of the bankruptcy estate.

Chapter 9
The chapter of the Bankruptcy Code providing for reorganization of municipalities (which includes cities and towns, as well as villages, counties, taxing districts, municipal utilities, and school districts).

Chief judge
The judge who has primary responsibility for the administration of a court; chief judges are determined by seniority

Claim
A creditor’s assertion of a right to payment from a debtor or the debtor’s property.

Class action
A lawsuit in which one or more members of a large group, or class, of individuals or other entities sue on behalf of the entire class. The district court must find that the claims of the class members contain questions of law or fact in common before the lawsuit can proceed as a class action.

Clerk of court
The court officer who oversees administrative functions, especially managing the flow of cases through the court. The clerk’s office is often called a court’s central nervous system.

Collateral
Property that is promised as security for the satisfaction of a debt.

Common law
The legal system that originated in England and is now in use in the United States, which relies on the articulation of legal principles in a historical succession of judicial decisions. Common law principles can be changed by legislation.

Community service
A special condition the court imposes that requires an individual to work – without pay – for a civic or nonprofit organization.

Complaint
A written statement that begins a civil lawsuit, in which the plaintiff details the claims against the defendant.

Concurrent sentence
Prison terms for two or more offenses to be served at the same time, rather than one after the other. Example: Two five-year sentences and one three-year sentence, if served concurrently, result in a maximum of five years behind bars.

Confirmation
Approval of a plan of reorganization by a bankruptcy judge.

Consecutive sentence
Prison terms for two or more offenses to be served one after the other. Example: Two five-year sentences and one three-year sentence, if served consecutively, result in a maximum of 13 years behind bars.

Consumer bankruptcy
A bankruptcy case filed to reduce or eliminate debts that are primarily consumer debts.

Consumer debts
Debts incurred for personal, as opposed to business, needs.

Contingent claim
A claim that may be owed by the debtor under certain circumstances, e.g., where the debtor is a cosigner on another person’s loan and that person fails to pay.

Contract
An agreement between two or more people that creates an obligation to do or not to do a particular thing.

Conviction
A judgment of guilt against a criminal defendant.

Counsel
Legal advice; a term also used to refer to the lawyers in a case.

Count
An allegation in an indictment or information, charging a defendant with a crime. An indictment or information may contain allegations that the defendant committed more than one crime. Each allegation is referred to as a count.

Court
Government entity authorized to resolve legal disputes. Judges sometimes use “court” to refer to themselves in the third person, as in “the court has read the briefs.”

Court reporter
A person who makes a word-for-word record of what is said in court, generally by using a stenographic machine, shorthand or audio recording, and then produces a transcript of the proceedings upon request.

Credit counseling
Generally refers to two events in individual bankruptcy cases: (1) the “individual or group briefing” from a nonprofit budget and credit counseling agency that individual debtors must attend prior to filing under any chapter of the Bankruptcy Code; and (2) the “instructional course in personal financial management” in chapters 7 and 13 that an individual debtor must complete before a discharge is entered. There are exceptions to both requirements for certain categories of debtors, exigent circumstances, or if the U.S. trustee or bankruptcy administrator have determined that there are insufficient approved credit counseling agencies available to provide the necessary counseling.

Creditor
A person to whom or business to which the debtor owes money or that claims to be owed money by the debtor.

Return to top

D


Damages
Money that a defendant pays a plaintiff in a civil case if the plaintiff has won. Damages may be compensatory (for loss or injury) or punitive (to punish and deter future misconduct).

De facto
Latin, meaning “in fact” or “actually.” Something that exists in fact but not as a matter of law.

De jure
Latin, meaning “in law.” Something that exists by operation of law.

De novo
Latin, meaning “anew.” A trial de novo is a completely new trial. Appellate review de novo implies no deference to the trial judge’s ruling.

Debtor
A person who has filed a petition for relief under the Bankruptcy Code.

Debtor’s plan
A debtor’s detailed description of how the debtor proposes to pay creditors’ claims over a fixed period of time.

Declaratory judgment
A judge’s statement about someone’s rights. For example, a plaintiff may seek a declaratory judgment that a particular statute, as written, violates some constitutional right.

Default judgment
A judgment awarding a plaintiff the relief sought in the complaint because the defendant has failed to appear in court or otherwise respond to the complaint.

Defendant
An individual (or business) against whom a lawsuit is filed.

Defendant
In a civil case, the person or organization against whom the plaintiff brings suit; in a criminal case, the person accused of the crime.

Deposition
An oral statement made before an officer authorized by law to administer oaths. Such statements are often taken to examine potential witnesses, to obtain discovery, or to be used later in trial. See discovery.

Discharge
A release of a debtor from personal liability for certain dischargeable debts. Notable exceptions to dischargeability are taxes and student loans. A discharge releases a debtor from personal liability for certain debts known as dischargeable debts and prevents the creditors owed those debts from taking any action against the debtor or the debtor’s property to collect the debts. The discharge also prohibits creditors from communicating with the debtor regarding the debt, including through telephone calls, letters, and personal contact.

Dischargeable debt
A debt for which the Bankruptcy Code allows the debtor’s personal liability to be eliminated.

Disclosure statement
A written document prepared by the chapter 11 debtor or other plan proponent that is designed to provide “adequate information” to creditors to enable them to evaluate the chapter 11 plan of reorganization.

Discovery
Procedures used to obtain disclosure of evidence before trial.

Dismissal with prejudice
Court action that prevents an identical lawsuit from being filed later.

Dismissal without prejudice
Court action that allows the later filing.

Disposable income
Income not reasonably necessary for the maintenance or support of the debtor or dependents. If the debtor operates a business, disposable income is defined as those amounts over and above what is necessary for the payment of ordinary operating expenses.

Docket
A log containing the complete history of each case in the form of brief chronological entries summarizing the court proceedings.

Due process
In criminal law, the constitutional guarantee that a defendant will receive a fair and impartial trial. In civil law, the legal rights of someone who confronts an adverse action threatening liberty or property.

Return to top

E


En banc
French, meaning “on the bench.” All judges of an appellate court sitting together to hear a case, as opposed to the routine disposition by panels of three judges. In the Ninth Circuit, an en banc panel consists of 11 randomly selected judges.

Equitable
Pertaining to civil suits in “equity” rather than in “law.” In English legal history, the courts of “law” could order the payment of damages and could afford no other remedy (see damages). A separate court of “equity” could order someone to do something or to cease to do something (e.g., injunction). In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in “law” cases but not in “equity” cases.

Equity
The value of a debtor’s interest in property that remains after liens and other creditors’ interests are considered. (Example: If a house valued at $60,000 is subject to a $30,000 mortgage, there is $30,000 of equity.)

Evidence
Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case in favor of one side or the other.

Ex parte
A proceeding brought before a court by one party only, without notice to or challenge by the other side.

Exclusionary rule
Doctrine that says evidence obtained in violation of a criminal defendant’s constitutional or statutory rights is not admissible at trial.

Exculpatory evidence
Evidence indicating that a defendant did not commit the crime.

Executory contracts
Contracts or leases under which both parties to the agreement have duties remaining to be performed. If a contract or lease is executory, a debtor may assume it (keep the contract) or reject it (terminate the contract).

Exempt assets
Property that a debtor is allowed to retain, free from the claims of creditors who do not have liens on the property.

Exemptions, exempt property
Certain property owned by an individual debtor that the Bankruptcy Code or applicable state law permits the debtor to keep from unsecured creditors. For example, in some states the debtor may be able to exempt all or a portion of the equity in the debtor’s primary residence (homestead exemption), or some or all “tools of the trade” used by the debtor to make a living (i.e., auto tools for an auto mechanic or dental tools for a dentist). The availability and amount of property the debtor may exempt depends on the state the debtor lives in.

Return to top

F


Face sheet filing
A bankruptcy case filed either without schedules or with incomplete schedules listing few creditors and debts. (Face sheet filings are often made for the purpose of delaying an eviction or foreclosure

Family farmer
An individual, individual and spouse, corporation, or partnership engaged in a farming operation that meets certain debt limits and other statutory criteria for filing a petition under Chapter 12.

Federal public defender
An attorney employed by the federal courts on a full-time basis to provide legal defense to defendants who are unable to afford counsel. The judiciary administers the federal defender program pursuant to the Criminal Justice Act.

Federal public defender organization
As provided for in the Criminal Justice Act, an organization established within a federal judicial circuit to represent criminal defendants who cannot afford an adequate defense. Each organization is supervised by a federal public defender appointed by the court of appeals for the circuit.

Federal question jurisdiction
Jurisdiction given to federal courts in cases involving the interpretation and application of the U.S. Constitution, acts of Congress, and treaties.

Felony
A serious crime, usually punishable by at least one year in prison.

File
To place a paper in the official custody of the clerk of court to enter into the files or records of a case.

Fraudulent transfer
A transfer of a debtor’s property made with intent to defraud or for which the debtor receives less than the transferred property’s value.

Fresh start
The characterization of a debtor’s status after bankruptcy, i.e., free of most debts. (Giving debtors a fresh start is one purpose of the Bankruptcy Code.)

Return to top

G


Grand jury
A body of 16-23 citizens who listen to evidence of criminal allegations, which is presented by the prosecutors, and determine whether there is probable cause to believe an individual committed an offense. See also indictment and U.S. attorney.

Return to top

H


Habeas corpus
Latin, meaning “you have the body.” A writ of habeas corpus generally is a judicial order forcing law enforcement authorities to produce a prisoner they are holding, and to justify the prisoner’s continued confinement. Federal judges receive petitions for a writ of habeas corpus from state prison inmates who say their state prosecutions violated federally protected rights in some way.

Hearsay
Evidence presented by a witness who did not see or hear the incident in question but heard about it from someone else. With some exceptions, hearsay generally is not admissible as evidence at trial

Home confinement
A special condition the court imposes that requires an individual to remain at home except for certain approved activities such as work and medical appointments. Home confinement may include the use of electronic monitoring equipment – a transmitter attached to the wrist or the ankle – to help ensure that the person stays at home as required.

Return to top

I


Impeachment
1. The process of calling a witness’s testimony into doubt. For example, if the attorney can show that the witness may have fabricated portions of his testimony, the witness is said to be “impeached;” 2. The constitutional process whereby the House of Representatives may “impeach” (accuse of misconduct) high officers of the federal government, who are then tried by the Senate.

In camera
Latin, meaning in a judge’s chambers. Often means outside the presence of a jury and the public. In private.

In forma pauperis
“In the manner of a pauper.” Permission given by the court to a person to file a case without payment of the required court fees because the person cannot pay them.

Inculpatory evidence
Evidence indicating that a defendant did commit the crime.

Indictment
The formal charge issued by a grand jury stating that there is enough evidence that the defendant committed the crime to justify having a trial; it is used primarily for felonies. See also information.

Information
A formal accusation by a government attorney that the defendant committed a misdemeanor. See also indictment.

Injunction
A court order preventing one or more named parties from taking some action. A preliminary injunction often is issued to allow fact-finding, so a judge can determine whether a permanent injunction is justified.

Insider (of corporate debtor)
A director, officer, or person in control of the debtor; a partnership in which the debtor is a general partner; a general partner of the debtor; or a relative of a general partner, director, officer, or person in control of the debtor.

Insider (of individual debtor)
Any relative of the debtor or of a general partner of the debtor; partnership inwhich the debtor is a general partner; general partner of the debtor; or corporation of which the debtor is a director, officer, or person in control.

Interrogatories
A form of discovery consisting of written questions to be answered in writing and under oath.

Issue
1. The disputed point between parties in a lawsuit; 2. To send out officially, as in a court issuing an order.

Return to top

J


Joint administration
A court-approved mechanism under which two or more cases can be administered together. (Assuming no conflicts of interest, these separate businesses or individuals can pool their resources, hire the same professionals, etc.)

Joint petition
One bankruptcy petition filed by a husband and wife together.

Judge
An official of the Judicial branch with authority to decide lawsuits brought before courts. Used generically, the term judge may also refer to all judicial officers, including Supreme Court justices.

Judgeship
The position of judge. By statute, Congress authorizes the number of judgeships for each district and appellate court.

Judgment
The official decision of a court finally resolving the dispute between the parties to the lawsuit.

Judicial Conference of the United States
The policy-making entity for the federal court system. A 27-judge body whose presiding officer is the Chief Justice of the United States.

Jurisdiction
The legal authority of a court to hear and decide a certain type of case. It also is used as a synonym for venue, meaning the geographic area over which the court has territorial jurisdiction to decide cases.

Jurisprudence
The study of law and the structure of the legal system

Jury
The group of persons selected to hear the evidence in a trial and render a verdict on matters of fact. See also grand jury.

Jury instructions
A judge’s directions to the jury before it begins deliberations regarding the factual questions it must answer and the legal rules that it must apply.

Return to top

L


Lawsuit
A legal action started by a plaintiff against a defendant based on a complaint that the defendant failed to perform a legal duty which resulted in harm to the plaintiff.

Lien
A charge on specific property that is designed to secure payment of a debt or performance of an obligation. A debtor may still be responsible for a lien after a discharge.

Liquidated claim
A creditor’s claim for a fixed amount of money.

Liquidation
The sale of a debtor’s property with the proceeds to be used for the benefit of creditors.

Litigation
A case, controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits are called litigants.

Return to top

M


Magistrate judge
A judicial officer of a district court who conducts initial proceedings in criminal cases, decides criminal misdemeanor cases, conducts many pretrial civil and criminal matters on behalf of district judges, and decides civil cases with the consent of the parties.

Means test
Section 707(b)(2) of the Bankruptcy Code applies a “means test” to determine whether an individual debtor’s chapter 7 filing is presumed to be an abuse of the Bankruptcy Code requiring dismissal or conversion of the case (generally to chapter 13). Abuse is presumed if the debtor’s aggregate current monthly income (see definition above) over 5 years, net of certain statutorily allowed expenses is more than (i) $10,000, or (ii) 25% of the debtor’s nonpriority unsecured debt, as long as that amount is at least $6,000. The debtor may rebut a presumption of abuse only by a showing of special circumstances that justify additional expenses or adjustments of current monthly income.

Mental health treatment
Special condition the court imposes to require an individual to undergo evaluation and treatment for a mental disorder. Treatment may include psychiatric, psychological, and sex offense-specific evaluations, inpatient or outpatient counseling, and medication.

Misdemeanor
An offense punishable by one year of imprisonment or less. See also felony.

Mistrial
An invalid trial, caused by fundamental error. When a mistrial is declared, the trial must start again with the selection of a new jury.

Moot
Not subject to a court ruling because the controversy has not actually arisen, or has ended

Motion
A request by a litigant to a judge for a decision on an issue relating to the case.

Motion in Limine
A pretrial motion requesting the court to prohibit the other side from presenting, or even referring to, evidence on matters said to be so highly prejudicial that no steps taken by the judge can prevent the jury from being unduly influenced.

Motion to lift the automatic stay
A request by a creditor to allow the creditor to take action against the debtor or the debtor’s property that would otherwise be prohibited by the automatic stay.

Return to top

N


No-asset case
A Chapter 7 case in which there are no assets available to satisfy any portion of the creditors’ unsecured claims.

Nolo contendere
No contest. A plea of nolo contendere has the same effect as a plea of guilty, as far as the criminal sentence is concerned, but may not be considered as an admission of guilt for any other purpose.

Nondischargeable debt
A debt that cannot be eliminated in bankruptcy. Examples include a home mortgage, debts for alimony or child support, certain taxes, debts for most government funded or guaranteed educational loans or benefit overpayments, debts arising from death or personal injury caused by driving while intoxicated or under the influence of drugs, and debts for restitution or a criminal fine included in a sentence on the debtor’s conviction of a crime. Some debts, such as debts for money or property obtained by false pretenses and debts for fraud or defalcation while acting in a fiduciary capacity may be declared nondischargeable only if a creditor timely files and prevails in a nondischargeability action.

Nonexempt assets
Property of a debtor that can be liquidated to satisfy claims of creditors.

Return to top

O


Objection to dischargeability
A trustee’s or creditor’s objection to the debtor being released from personal liability for certain dischargeable debts. Common reasons include allegations that the debt to be discharged was incurred by false pretenses or that debt arose because of the debtor’s fraud while acting as a fiduciary.

Objection to exemptions
A trustee’s or creditor’s objection to the debtor’s attempt to claim certain property as exempt from liquidation by the trustee to creditors.

Opinion
A judge’s written explanation of the decision of the court. Because a case may be heard by three or more judges in the court of appeals, the opinion in appellate decisions can take several forms. If all the judges completely agree on the result, one judge will write the opinion for all. If all the judges do not agree, the formal decision will be based upon the view of the majority, and one member of the majority will write the opinion. The judges who did not agree with the majority may write separately in dissenting or concurring opinions to present their views. A dissenting opinion disagrees with the majority opinion because of the reasoning and/or the principles of law the majority used to decide the case. A concurring opinion agrees with the decision of the majority opinion, but offers further comment or clarification or even an entirely different reason for reaching the same result. Only the majority opinion can serve as binding precedent in future cases. See also precedent.

Oral argument
An opportunity for lawyers to summarize their position before the court and also to answer the judges’ questions.

Return to top

P


Panel
1. In appellate cases, a group of judges (usually three) assigned to decide the case; 2. In the jury selection process, the group of potential jurors; 3. The list of attorneys who are both available and qualified to serve as court-appointed counsel for criminal defendants who cannot afford their own counsel.

Parole
The release of a prison inmate – granted by the U.S. Parole Commission – after the inmate has completed part of his or her sentence in a federal prison. When the parolee is released to the community, he or she is placed under the supervision of a U.S. probation officer.

The Sentencing Reform Act of 1984 abolished parole in favor of a determinate sentencing system in which the sentence is set by sentencing guidelines. Now, without the option of parole, the term of imprisonment the court imposes is the actual time the person spends in prison.


Party in interest
A party who has standing to be heard by the court in a matter to be decided in the bankruptcy case. The debtor, U.S. trustee or bankruptcy administrator, case trustee, and creditors are parties in interest for most matters.

Per curiam
Latin, meaning “for the court.” In appellate courts, often refers to an unsigned opinion.

Peremptory challenge
A district court may grant each side in a civil or criminal trial the right to exclude a certain number of prospective jurors without cause or giving a reason.

Petit jury (or trial jury)
A group of citizens who hear the evidence presented by both sides at trial and determine the facts in dispute. Federal criminal juries consist of 12 persons. Federal civil juries consist of at least six persons.

Petition
The document that initiates the filing of a bankruptcy proceeding, setting forth basic information regarding the debtor, including name, address, chapter under which the case is filed, and estimated amount of assets and liabilities.

Petition preparer
A business not authorized to practice law that prepares bankruptcy petitions.

Petty offense
A federal misdemeanor punishable by six months or less in prison.

Plaintiff
A person or business that files a formal complaint with the court.

Plan
A debtor’s detailed description of how the debtor proposes to pay creditors’ claims over a fixed period of time.

Plea
In a criminal case, the defendant’s statement pleading “guilty” or “not guilty” in answer to the charges. See also nolo contendere.

Pleadings
Written statements filed with the court that describe a party’s legal or factual assertions about the case.

Postpetition transfer
A transfer of the debtor’s property made after the commencement of the case.

Prebankruptcy planning
The arrangement (or rearrangement) of a debtor’s property to allow the debtor to take maximum advantage of exemptions. (Prebankruptcy planning typically includes converting nonexempt assets into exempt assets.)

Precedent
A court decision in an earlier case with facts and legal issues similar to a dispute currently before a court. Judges will generally “follow precedent” – meaning that they use the principles established in earlier cases to decide new cases that have similar facts and raise similar legal issues. A judge will disregard precedent if a party can show that the earlier case was wrongly decided, or that it differed in some significant way from the current case.

Preferential debt payment
A debt payment made to a creditor in the 90-day period before a debtor files bankruptcy (or within one year if the creditor was an insider) that gives the creditor more than the creditor would receive in the debtor’s chapter 7 case.

Presentence report
A report prepared by a court’s probation officer, after a person has been convicted of an offense, summarizing for the court the background information needed to determine the appropriate sentence.

Pretrial conference
A meeting of the judge and lawyers to plan the trial, to discuss which matters should be presented to the jury, to review proposed evidence and witnesses, and to set a trial schedule. Typically, the judge and the parties also discuss the possibility of settlement of the case.

Pretrial services
A function of the federal courts that takes place at the very start of the criminal justice process – after a person has been arrested and charged with a federal crime and before he or she goes to trial. Pretrial services officers focus on investigating the backgrounds of these persons to help the court determine whether to release or detain them while they await trial. The decision is based on whether these individuals are likely to flee or pose a threat to the community. If the court orders release, a pretrial services officer supervises the person in the community until he or she returns to court.

Priority
The Bankruptcy Code’s statutory ranking of unsecured claims that determines the order in which unsecured claims will be paid if there is not enough money to pay all unsecured claims in full.

Priority claim
An unsecured claim that is entitled to be paid ahead of other unsecured claims that are not entitled to priority status. Priority refers to the order in which these unsecured claims are to be paid.

Pro per
A slang expression sometimes used to refer to a pro se litigant. It is a corruption of the Latin phrase “in propria persona.”

Pro se
Representing oneself. Serving as one’s own lawyer.

Pro tem
Temporary.

Probation
Sentencing option in the federal courts. With probation, instead of sending an individual to prison, the court releases the person to the community and orders him or her to complete a period of supervision monitored by a U.S. probation officer and to abide by certain conditions.

Probation officer
Officers of the probation office of a court. Probation officer duties include conducting presentence investigations, preparing presentence reports on convicted defendants, and supervising released defendants.

Procedure
The rules for conducting a lawsuit; there are rules of civil procedure, criminal procedure, evidence, bankruptcy, and appellate procedure.

Proof of claim
A written statement describing the reason a debtor owes a creditor money, which typically sets forth the amount of money owed. (There is an official form for this purpose.)

Property of the estate
All legal or equitable interests of the debtor in property as of the commencement of the case.

Prosecute
To charge someone with a crime. A prosecutor tries a criminal case on behalf of the government

Return to top

R


Reaffirmation agreement
An agreement by a debtor to continue paying a dischargeable debt after the bankruptcy, usually for the purpose of keeping collateral or mortgaged property that would otherwise be subject to repossession.

Record
A written account of the proceedings in a case, including all pleadings, evidence, and exhibits submitted in the course of the case.

Redemption
A procedure in a Chapter 7 case whereby a debtor removes a secured creditor’s lien on collateral by paying the creditor the value of the property. The debtor may then retain the property.

Remand
Send back.

Reverse
The act of a court setting aside the decision of a lower court. A reversal is often accompanied by a remand to the lower court for further proceedings.

Return to top

S


Sanction
A penalty or other type of enforcement used to bring about compliance with the law or with rules and regulations.

Schedules
Lists submitted by the debtor along with the petition (or shortly thereafter) showing the debtor’s assets, liabilities, and other financial information. (There are official forms a debtor must use.)

Secured creditor
A secured creditor is an individual or business that holds a claim against the debtor that is secured by a lien on property of the estate. The property subject to the lien is the secured creditor’s collateral.

Secured debt
Debt backed by a mortgage, pledge of collateral, or other lien; debt for which the creditor has the right to pursue specific pledged property upon default. Examples include home mortgages, auto loans and tax liens.

Senior judge
A federal judge who, after attaining the requisite age and length of judicial experience, takes senior status, thus creating a vacancy among a court’s active judges. A senior judge retains the judicial office and may cut back his or her workload by as much as 75 percent, but many opt to keep a larger caseload.

Sentence
The punishment ordered by a court for a defendant convicted of a crime.

Sentencing guidelines
A set of rules and principles established by the United States Sentencing Commission that trial judges use to determine the sentence for a convicted defendant.

Sequester
To separate. Sometimes juries are sequestered from outside influences during their deliberations.

Service of process
The delivery of writs or summonses to the appropriate party.

Settlement
Parties to a lawsuit resolve their dispute without having a trial. Settlements often involve the payment of compensation by one party in at least partial satisfaction of the other party’s claims, but usually do not include the admission of fault.

Small business case
A special type of chapter 11 case in which there is no creditors’ committee (or the creditors’ committee is deemed inactive by the court) and in which the debtor is subject to more oversight by the U.S. trustee than other chapter 11 debtors. The Bankruptcy Code contains certain provisions designed to reduce the time a small business debtor is in bankruptcy.

Standard of proof
Degree of proof required. In criminal cases, prosecutors must prove a defendant’s guilt “beyond a reasonable doubt.” The majority of civil lawsuits require proof “by a preponderance of the evidence” (50 percent plus), but in some the standard is higher and requires “clear and convincing” proof.

Statement of financial affairs
A series of questions the debtor must answer in writing concerning sources of income, transfers of property, lawsuits by creditors, etc. (There is an official form a debtor must use.)

Statement of intention
A declaration made by a chapter 7 debtor concerning plans for dealing with consumer debts that are secured by property of the estate.

Statute
A law passed by a legislature.

Statute of limitations
The time within which a lawsuit must be filed or a criminal prosecution begun. The deadline can vary, depending on the type of civil case or the crime charged.

Sua sponte
Latin, meaning “of its own will.” Often refers to a court taking an action in a case without being asked to do so by either side.

Subordination
The act or process by which a person’s rights or claims are ranked below those of others.

Subpoena
A command, issued under a court’s authority, to a witness to appear and give testimony.

Subpoena duces tecum
A command to a witness to appear and produce documents.

Return to top

T


Temporary restraining order
Akin to a preliminary injunction, it is a judge’s short-term order forbidding certain actions until a full hearing can be conducted. Often referred to as a TRO.

Testimony
Evidence presented orally by witnesses during trials or before grand juries.

Toll
See statute of limitations.

Tort
A civil, not criminal, wrong. A negligent or intentional injury against a person or property, with the exception of breach of contract.

Transcript
A written, word-for-word record of what was said, either in a proceeding such as a trial, or during some other formal conversation, such as a hearing or oral deposition

Transfer
Any mode or means by which a debtor disposes of or parts with his/her property.

Trustee
The representative of the bankruptcy estate who exercises statutory powers, principally for the benefit of the unsecured creditors, under the general supervision of the court and the direct supervision of the U.S. trustee or bankruptcy administrator. The trustee is a private individual or corporation appointed in all chapter 7, chapter 12, and chapter 13 cases and some chapter 11 cases. The trustee’s responsibilities include reviewing the debtor’s petition and schedules and bringing actions against creditors or the debtor to recover property of the bankruptcy estate. In chapter 7, the trustee liquidates property of the estate, and makes distributions to creditors. Trustees in chapter 12 and 13 have similar duties to a chapter 7 trustee and the additional responsibilities of overseeing the debtor’s plan, receiving payments from debtors, and disbursing plan payments to creditors.

Typing service
A business not authorized to practice law that prepares bankruptcy petitions.

Return to top

U


U.S. attorney
A lawyer appointed by the President in each judicial district to prosecute and defend cases for the federal government. The U.S. Attorney employs a staff of Assistant U.S. Attorneys who appear as the government’s attorneys in individual cases.

U.S. trustee
An officer of the U.S. Department of Justice responsible for supervising the administration of bankruptcy cases, estates, and trustees; monitoring plans and disclosure statements; monitoring creditors’ committees; monitoring fee applications; and performing other statutory duties.

Undersecured claim
A debt secured by property that is worth less than the amount of the debt.

Undue hardship
The most widely used test for evaluating undue hardship in the dischargeability of a student loan includes three conditions: (1) the debtor cannot maintain – based on current income and expenses – a minimal standard of living if forced to repay the loans; (2) there are indications that the state of affairs is likely to persist for a significant portion of the repayment period; and (3) the debtor made good faith efforts to repay the loans.

Unlawful detainer action
A lawsuit brought by a landlord against a tenant to evict the tenant from rental property – usually for nonpayment of rent.

Unliquidated claim
A claim for which a specific value has not been determined.

Unscheduled debt
A debt that should have been listed by the debtor in the schedules filed with the court but was not. (Depending on the circumstances, an unscheduled debt may or may not be discharged.)

Unsecured claim
A claim or debt for which a creditor holds no special assurance of payment, such as a mortgage or lien; a debt for which credit was extended based solely upon the creditor’s assessment of the debtor’s future ability to pay.

Uphold
The appellate court agrees with the lower court decision and allows it to stand. See affirmed.

Return to top

V


Venue
The geographic area in which a court has jurisdiction. A change of venue is a change or transfer of a case from one judicial district to another.

Verdict
The decision of a trial jury or a judge that determines the guilt or innocence of a criminal defendant, or that determines the final outcome of a civil case.

Voir dire
Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge.

Voluntary transfer
A transfer of a debtor’s property with the debtor’s consent.

Return to top

W


Wage garnishment
A nonbankruptcy legal proceeding whereby a plaintiff or creditor seeks to subject to his or her claim the future wages of a debtor. In other words, the creditor seeks to have part of the debtor’s future wages paid to the creditor for a debt owed to the creditor.

Warrant
Court authorization, most often for law enforcement officers, to conduct a search or make an arrest.

Witness
A person called upon by either side in a lawsuit to give testimony before the court or jury.

Writ
A written court order directing a person to take, or refrain from taking, a certain act.

Writ of certiorari
An order issued by the U.S. Supreme Court directing the lower court to transmit records for a case which it will hear on appeal.

Return to top

OFAC: Know it and love it

With businesses increasingly including sanctions compliance language based on regulations from the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) in contracts and agreements, employers should take a minute to familiarize themselves with the issue and the potential for costly liability.

OFAC administers and enforces sanctions against countries or individuals (like terrorists or narcotics traffickers) with actions ranging from trade restrictions to the blocking of assets. For U.S. companies, the agency’s enforcement applies to banks, insurers, and others in the financial industry that may be engaged in covered dealings. OFAC takes action against U.S. entities that engage in transactions prohibited by Congress such as trade with an embargoed country or a transaction with a specially designated national (SDN).

Violation of the regulations, which apply to all U.S. citizens, can result in substantial fines and penalties. Criminal penalties can reach up to $20 million and imprisonment up to 30 years; civil fees can range from up to $65,000 to $1,075,000 per violation, depending on the activity at issue.

In an effort to avoid running afoul of such terrifying numbers, companies will include OFAC sanctions compliance language within corporate acquisition agreements, insurance policies, and credit agreements. Businesses are increasingly adding such language in light of stepped up enforcement efforts by OFAC that have resulted in sizable settlement agreements with U.S. entities.

For example, some contracts may include language requiring a party to state that it is not the target of any OFAC sanctions status, that no OFAC investigations are in process, or that it does not engage in transactions with countries like Iran or North Korea. Other deals may feature a provision affirming that a company is not owned by an individual on the list of SDNs, that the company is not based or located in an embargoed country, or assuring that the monies used to make an investment or purchase were not provided by a sanctioned country or individual.

However, it is important to note that the use of compliance language does not insulate a company from OFAC liability. While such a provision may create a contract-based remedy to recover monetary damages based on a fine or settlement with the agency, the clause cannot eliminate liability. Like any other governmental regulator, OFAC is not bound by private contract and can take action even with such terms in place.

To learn more about OFAC, click here. Link: http://www.treasury.gov/resource-center/faqs/Sanctions/Pages/answer.aspx

The challenges of employment applications for multi-state employers

One of the hottest trends in employment in recent years has been the passage of “ban-the-box” and salary inquiry prohibitions in states and cities across the country.

Limitations on salary inquiry have popped up in recent years as part of the legislative fight against wage discrimination and the gender pay gap. Proponents of such prohibitions argue that salary history questions feed into the discrepancy between what male and female employees are paid by continuously repeating history.

Currently, California, Delaware, Massachusetts, Oregon and Puerto Rico have banned inquiries about prior salary, as have cities including New Orleans, New York and Philadelphia, with dozens of other states and local governments considering such measures.

The colloquial term “ban-the-box” refers to a box that applicants check to indicate they have a criminal record on standardized application forms. About 20 states and more than 150 local entities have already enacted legislation addressing inquiries into criminal history. The trend even went federal in 2015 with the Fair Chance Act introduced in Congress. Although the measure did not pass, it demonstrated the popularity of the movement.

The proposed federal legislation also shined a light on the situation facing multistate employers, with different laws in different states and in some situations, different laws in different cities or municipalities within the same state. One law may contain an outright ban on inquiries into salary or criminal history while another may place restrictions on the timing of the questions. Some laws define covered employers to include businesses with five or more employees; another may not apply its limitations to employers with less than 50 workers.

As an example, although the state already limited employers’ ability to ask job applicants about any juvenile court matters, the California legislature broadened its ban-the-box protections for employees with a new law in 2017. Employers in the state are restricted from making hiring decisions based on an applicant’s convictions records and forbidden from considering conviction history until a conditional offer of employment has been extended.

If an employer elects not to hire an applicant because of a prior conviction, the employer is required to conduct an individualized assessment to determine whether the history has a “direct and adverse relationship” with the job duties that justifies denial of the position. Written notice must be provided to an applicant that his/her conviction history has disqualified the applicant from employment, along with five days to respond and dispute the decision. A second notice must be provided with the final decision not to hire.

In contrast, Vermont’s ban-the-box measure takes a different approach, allowing employers to question applicants about their criminal records during the job interview, albeit providing an applicant with the opportunity to explain their record. And under New York City’s law, an employer commits a per se violation of the statute by using recruiting materials of any kind (including advertisements, solicitations or applications) that express, directly or indirectly, any limitation or specification regarding criminal history.

While the overarching principle remains consistent, the details of the laws vary from jurisdiction to jurisdiction. For multi-state employers, coping with such a patchwork of legal requirements poses a serious challenge.

As the number of state and local jurisdictions with laws addressing salary inquiries or criminal history continues to expand, multi-state employers should brace themselves for a giant compliance puzzle – and consider getting help from an expert.

Update on Employment Background Screening Legislation

This post was originally posted on Scherzer.com

“BAN-THE-BOX”

List of jurisdictions is growing

“Ban-the-box” measures, which generally prohibit employers from inquiring about a candidate’s criminal history (including performing background checks) until later in the hiring process, and impose significant compliance requirements, will soon be the norm rather than an exception. The list of localities that have enacted such legislation is growing fast and now includes Austin, Baltimore, Buffalo, Chicago, Columbia – MO, Los Angeles (enforcement started July 1, 2017), Montgomery County – MD, New York City, Philadelphia, Portland, Prince George’s County – MD, Rochester, San Francisco, and Seattle, and ten states (Connecticut, District of Columbia, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont (effective July 1, 2017)).

Although not labeled as “ban-the-box,” California’s Department of Fair Employment and Housing regulations (the “Regs”) that went into effect July 1, 2017, impose certain similar requirements when employers consider criminal history information in employment decisions. As reported in our previous blog, the Regs are substantially based on the enforcement guidance issued by the Equal Employment Opportunity Commission in April 2012, and prohibit employers from using a candidate’s criminal history in personnel decisions if such information will have an adverse impact on individuals that are in a legally protected class.

Amended rules for New York City’s “ban-the-box” took effect August 5, 2017

Nearly two years after the enactment of New York City’s Fair Chance Act (FCA), and without much fanfare, the City’s Commission on Human Rights published its amended rules that  establish certain definitions and procedures, and clarify the comprehensive requirements of the FCA when using criminal history in employment decisions, and considering applicants for licenses, registrations, and permits.

CREDIT CHECK RESTRICTIONS

Eleven states (California – AB 22; Colorado – The Employment Opportunity Act; Connecticut  – SB 361; District of Columbia – Fair Credit in Employment Amendment Act, Hawaii – HB 31 SD1; Illinois  – HB 4658; Maryland- HB 87;  Nevada – SB 127; Oregon – SB 1045; Vermont – Act No. 154 (S. 95); Washington – RCW 19.182 and  RCW 19.182.020) and at least two localities  (New York City – Stop Credit Discrimination in Employment Act, and Philadelphia – Bill No. 160072), have enacted laws that generally prohibit private employers from checking a candidate’s credit history, except in circumstances where a credit screen is justified by the position’s responsibilities or is required by law.

WAGE HISTORY INQUIRIES

Pay equity initiatives, which among their provisions include a ban on inquiries about a candidate’s wages, are gaining momentum nationwide. The following jurisdictions have enacted such laws and many more are considering similar measures: Delaware – HS1 (effective December 14, 2017); Massachusetts – Pay Equity Act (effective July 1, 2018); New York City – Intro 1253 (effective October 31, 2017); Oregon HB 2005 (effective December 1, 2019); Philadelphia – Fair Practices Ordinance: Protections Against Unlawful Discrimination (set to go into effect May 23, 2017 but now facing a legal challenge); Puerto Rico – Equal Pay Act (effective March 8, 2017); and San Francisco – Parity in Pay Ordinance (effective July 1, 2018).

Pending before California’s Senate is AB 168 that would prohibit employers from seeking an applicant’s salary history and impose significant penalties for violations. Notably, California already has a pay equity law, AB 1676, and although the law does not ban salary history inquiries, it does prohibit employers from using a candidate’s prior wages as the sole basis to justify a pay disparity.

WORK AUTHORIZATION VERIFICATIONS

Revised Form I-9

The USCIS released a revised version of Form I-9, Employment Eligibility Verification on July 17, 2017. Employers can use this revised version or continue using Form I-9 with a revision date of “11/14/16 N” through September 17, 2017. Beginning September 18, 2017, however, employers must use the new form (with the revision date of “07/17/17 N”).

Reminder to California employers

California’s  AB 1065 that went into effect January 1, 2017, makes it unlawful for employers to:

  1. request additional or different documents than those required under federal law to verify that an individual is not an unauthorized immigrant;
  2. refuse to accept documents provided by the applicant that reasonably appear to be genuine;
  3. refuse to honor documents or work authorization based on specific status or term that accompanies the authorization to work; and
  4. attempt to re-investigate or re-verify a candidate’s authorization to work using an unfair immigration-related practice.