What the HECK!? A story of co-worker harassment gone wild

Sometimes, conflicts spin out of control, and can get disruptive and even dangerous. Image from http://quotesgram.com/img/avoid-conflict-quotes-funny/3303875/

What happens when you work with a person that goes off the rails? Do you have to put up with it? Listen to this recent story posted on a law bulletin board we monitor:

I have learned that several people in my office are extremely concerned about the erratic behavior of a colleague and no one is sure how to handle the situation. This colleague has a unique personality and in the 2-3 years he has been employed everyone has been sensitive to this and generally people do not discuss it; however, on a few occasions we have speculated that he may be on the autism spectrum. This seems important now because we are not sure whether his escalating behavior is benign or if it may be extreme even for him. A couple of months ago, a new person who has a supervisory role over him was hired, and they immediately had poor chemistry. She claims only to interact with him on a business level, disregarding his behavior, and he plainly is disrespectful to her and speaks to her in a condescending tone. On one occasion approximately six weeks ago, she told him he needs to behave in a professional manner and that she wouldn't allow him to speak disrespectfully any longer. He went to his desk and sent her an email telling her to be more professional and respectful and then told a colleague to handle a meeting he was supposed to staff because he was enraged and had to go home. Shortly thereafter he did not go to an annual out of town meeting that all staff are required to attend; the reasons behind this were handled confidentially and staff only have vague rumors as an explanation. Since returning there has been no discussion of it. Upon returning, the supervisor discussed above and another colleague received emailed "reprimands" from this man that told both to behave more professionally and respectfully. The other colleague had not been involved in the personal dispute prior and she has kept her distance from this man since she received the reprimand. (Both women are organizationally senior to the young man who "reprimanded" them.) Prior to the 2016 presidential election, the young man taped photos of one of the presidential candidates and Adolf Hitler to his office window facing out toward employees, which disturbed several people who previously had chosen to ignore his disruptive behavior. Following the election, he replaced the photos with five posters that illustrate the four horsemen of the apocalypse and satan in the center. He has reduced his socialization with staff overall but has escalated his aggression toward the two women discussed above during this period. The vice president in charge of his department evidently did ask him to take down the apocalyptic images after two weeks. She has privately disclosed to the CEO that she feels this employee could be a potential threat to her safety and to others', but she said she is concerned about retribution if she disciplines him because she is worried his mental health and his sexuality may be used as the basis for a discrimination claim should she dismiss him. I am seeking professional advice about the appropriate measures. Despite the bad blood between the two individuals involved, everyone's concern is this young man's erratic behavior, which feels vaguely threatening and which has at least four women feeling fearful and "walking on eggshells" to avoid triggering potential violence.

This is more a narrative than an actual question. You need to tell your employer to contact an employment attorney immediately. Hanover Law both defends and prosecutes civil cases related to EEO and reasonable accommodation issues. Have your manager contact us now. I should note that the person who is acting erratically can sue both the employer and the manager herself. Delicate situations like this require ironclad processes and response. The law does NOT require that you tolerate abusive or disruptive behavior. However, it DOES require that you ensure all procedural safeguards have been met before taking action. The EEO defines harassment as follows:

Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.

Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.

Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Harassment can occur in a variety of circumstances, including, but not limited to, the following:

• The harasser can be the victim's supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.
• The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct.
• Unlawful harassment may occur without economic injury to, or discharge of, the victim.

See: EEO Harassment Guidelines

I would also refrain from any public comment of your employment issue (such as the outline you provided). If anything, that could be found later and used against you (to show your "true" feelings about the person). The important step here is to get counsel and discuss this privately. Your employer and the manager (supervisor) in question should do this without delay.

I should also note that by NOT taking action, the employer may be creating a hostile working environment for the remaining employees -- especially the other employees that he is accusing of being rude, and otherwise making them feel very uncomfortable. You cannot ignore this type of conduct.

Give us a ring at 703-402-2723 or 1-800-579-9864. You can also email us at admin@hanoverlawpc.com.

BDSM and public lewdness in front of children. WHAT!?

Every once in awhile, we get a wing-dinger of a question. This rates right of up there! However, it does bring into question what constitutes free speech, and what constitutes lewd conduct. The question:

Let's say that you are into the BDSM scene. This fetish involves you engaging in spit play, where as a submissive you hold you head back, open your mouth and let your dominant spit a liberal amount of saliva down your throat as part of a spit fetish, and you do it outdoors in full view of women and children who don't want to see it are you guilty of indecent exposure. Or how about you perform such an act at a party at your house with women and children present are you guilty of indecent exposure?

Of course, spitting in someone's mouth may not be your cup of tea, but is it illegal? Two considerations here -- (1) what conduct falls afoul of public displays of sexuality, and (2) does doing this in front of children cause a problem?

As to the first point, probably not. While sexuality in public constitutes indecent exposure and probably disorderly conduct, spitting, while fully clothed, into another person's mouth is probably not going to cause a problem (assuming assent, of course). In DC, the code section for this is DC Code 22-1312 entitled "Lewd, Indecent, and Obscene Acts". It reads:

It is unlawful for a person, in public, to make an obscene or indecent exposure of his or her genitalia or anus, to engage in masturbation, or to engage in a sexual act as defined in § 22-3001(8). It is unlawful for a person to make an obscene or indecent sexual proposal to a minor. A person who violates any provision of this section shall be guilty of a misdemeanor and, upon conviction, shall be fined not more than $500, imprisoned for not more than 90 days, or both.

So what is a sexual act? Good question! The code section is clear on this, too. A sexual act must involve the touching or stimulation, even through clothing, of the sexual organs. Specifically:

DC Code 22-3001
(8) “Sexual act” means:

(A) The penetration, however slight, of the anus or vulva of another by a penis;
(B) Contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or
(C) The penetration, however slight, of the anus or vulva by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
(D) The emission of semen is not required for the purposes of subparagraphs (A)-(C) of this paragraph.

(9) “Sexual contact” means the touching with any clothed or unclothed body part or any object, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

Although disorderly conduct laws (DC Code 22-1321) could be cited to show you were causing a disturbance in the public thoroughfare, it is doubtful this would actually be brought to trial. Likely, public spitting in each others mouths, no matter how distasteful to others this may be, will not be illegal.

However, we have a problem concerning the children. Here, the code is a little different. Any act designed to arouse a sexual gratification in a child is prohibited. Notice the subtle shift in emphasis. This is to prevent children from being exposed to pornographic videos, or being made to watch sexual acts -- even if that are not touched. The code for this can be found at DC Code 22-3010. In part, the code reads:

(a) Whoever, being at least 4 years older than a child or being in a significant relationship with a minor, (1) takes that child or minor to any place for the purpose of committing any offense set forth in §§ 22-3002 to 22-3006 and §§ 22-3008 to 22-3009.02, or (2) seduces, entices, allures, convinces, or persuades or attempts to seduce, entice, allure, convince, or persuade a child or minor to engage in a sexual act or contact shall be imprisoned for not more than 5 years or may be fined not more than the amount set forth in § 22-3571.01, or both.

Your actions of spitting into your partners mouth is arguably sexual in nature (you described it as part of your BDSM relationship). Doing so in public could well have the consequence (intended or otherwise) of causing sexual arousal or enticement to a minor who, like you, may find such domination and abject subjugation erotic. This is a problem under 22-3010.

Remove the child component, and probably the worse you could get is disorderly conduct, and even then, that would likely be dropped. Do it in front of children, and you could find yourself facing up to five years for attempt enticing a minor or child under 22-3010. Note that whether you perform in front of children in your house or in the middle of Independence Avenue, makes no difference. This crime is not location centric.

Do you have a question regarding criminal law? Give us a ring! First consult is free -- and as you can see, no topic is verboten! 703-402-2723 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com

I want to get money from my abuser -- can I make him pay if I get a protective order against him?

We don't usually get questions about prosecuting domestic abuse issues -- most people hire us to defend them against accusations! However, I did receive a question recently from a potential client who wanted to know more about what could be awarded at a DC (or Federal) protective order hearing. So I thought I would share the information and answer her question!

My friend was physically and verbally assaulted by her boyfriend. She had the cops remove him from her apartment (he was not on the lease in the first place). She is interested in filing a protective order, but wants to know whether it can go beyond just preventing him from further contact with her.

First, get better taste in men. Those that punch you are probably not good boyfriend material. Just sayin'. That aside, let's talk about how protective orders work.

D.C. Code §16-1004 - 16-1005 govern CPO - Civil Protective Orders (which is the more formal term for "protective order").

When you file in DC for a protective order, you ask what relief you are seeking and provide evidence of harm by the abuser. You must show how the abuser has committed some act of violence against you (or criminal act: including threats, assault, harassment, etc.). You must show EACH element of the alleged harm. When you go to Court, the judge will complete (or you will settle with the opposing side) an order regarding your motion for a protective order. A section on that "order" includes payment of home expenses, attorney fees, etc. Note, however, generally, a person cannot be forced to pay rent unless they are on the lease and have been paying already.

This is the third page of a petition for a civil protection order. Note the section where you can ask for money, rent, attorney fees, and damages. Download the full CPO petition

When going to Court, it is important to provide evidence of the abuse, and why it would be fair to have the "abuser" pay anything. There is a difference between an order to "stay away" and making the individual pay on going rent payments. That will require a compelling reason. Generally, the Court won't cover your attorney fees unless the abuse was particularly bad.

The ticket to success in protective custody hearings (held on the first floor of the Courthouse on 500 Indiana Avenue) is settlement. Most folks don't want a protective order on their record. To avoid that, they will consent to a settlement that could well include rent payments. However, make sure you chat with an attorney before agreeing to anything. Settlement heaven -- but it can be very dangerous if the individual you are dealing with is genuinely dangerous. Work through your attorney, and let us handle the negotiations. At the Courthouse, if you can't afford an attorney, there is an attorney negotiator that will meet with the parties, individually, for free.

Do you have a question regarding protective orders? Call us! We can help you. Note that handling child abuse allegations are much different, and the advice above does not apply. Call us immediately if there are any allegations of child abuse.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Getting an Arrest Warrant dismissed - how to quash

The errors in my warrant of arrest are that they put the wrong address and phone number for me, so I was never contacted or interrogated in regards to the charge. I was actually filing charges against my ex, when someone at the police station told me about the charge 8 months after the alleged incident. SMH. I'm filing a motion to dismiss. What should I cite to really make a strong argument for a motion to dismiss? There's so many flaws on the prosecution's side. Plus the police officer put the wrong date for the alleged incident on the police report. There is a different date for the alleged incident on the police report and the warrant of arrest.

Generally, you won't be successful on quashing an arrest warrant, no matter how defective. However, once your arrest is processed, you can then challenge the charges, etc. at your initial detention hearing. In VA, you will be seen by the magistrate when you are initially "booked." A bond will be set (unless your crime is particularly notorious), and once paid, you will be released with a return court date. That return date is called an arraignment, and it is at that point you can challenge the arrest.

The discrepancy between the police report, and the arrest warrant is fertile ground for examining the detective or police officer during a preliminary hearing. However, if this is a domestic violence charge (assault on a family member, for example), then you won't have a preliminary hearing, as most DV charges are misdemeanors. Although in VA, you can get a jury trial in just about every criminal instance, a preliminary hearing is limited to felony charges only.

A motion for judgment of acquittal (that's the federal term), or motion to strike charges, usually does not succeed when there is any evidence of an underlying crime -- and it sounds like there was a police report that did list the accurate times, dates, people. In those instances, the court will want to hear from the aggrieved party for the specific reason of not wanting to dismiss a valid case based on a clerical error, or police typo. The question is: was their an underlying offense? Put a different way, if the Court was to dismiss the information (that's the piece of paper that lists the misdemeanor charges) because it had the wrong dates, etc., the prosecutor could just refile, based on the police reports, with the correct dates. It would waste the Court's time, your time, and the police officer's time.

Is there an instance when an arrest warrant can be quashed, or set aside? Absolutely. When the arrest warrant has the wrong person named, or the wrong crime charged. Those are the two most common causes for setting aside a charge. The fact there is an incorrect date, or that you were not interviewed would not, per se, invalidate a warrant. They are certainly not required to speak with you or seek your permission before obtaining a warrant. And a date can be a typo.

When the arrest warrant fails to cite a specific element of the crime (i.e. show probable cause that the crime was committed through an arrest affidavit), that can be used at the preliminary hearing to show failure to demonstrate an element of the crime, which in turn negates the charge. However, that is usually easily overcome by the officer on the stand.

To properly move forward, you need an attorney. You simply lack the training to recognize the best tactic, as this is your first time through the system. No one get's this right the first time! It sounds like you need to turn yourself in, get processed and release on bail or your own recognizance, and then kick this charge when you're in front of the judge. Give us a ring! We can help with this.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com

How to release an immigrant from detention if the underlying case is dropped

A bit of a mouthful for this blog title -- but it is a surprisingly common topic. What steps do you follow if the case is terminated in Immigration Court, but the client is still detained. This usually happens when there is a joint motion to close (terminate) proceedings, but the Court has not yet ruled on the case. When the next status hearing (called a Master Calendar hearing in Immigration Court parlance) is several months away, or the Court has not yet set a status date, the idea of staying detained when the government has moved to close the case is...galling.

From a fellow practitioner in New Jersey:

I have a case of first impression and I hope you can give me some guidance. OCC [Ed: Office of Chief Counsel -- another name for opposing counsel in an immigration case] just terminated proceedings against my client because his conviction is no longer considered a crime of violence. His next hearing date is December 13, 2016 at Elizabeth, NJ.

My question is: can I get him out sooner since OCC is terminating or must my client wait an additional month in detention (seems counter-intuitive but this is the Government) for the hearing I which the judge will release him?

That isn’t handled by the Court – early release would be through ICE (Immigration and Custom Enforcement - or ICE - is responsible for detaining aliens; although the Court can set bond in certain cases, ICE always has jurisdiction pursuant to ). I would petition his DO (deportation officer). Generally, they want the bed space. Do the following:

• Write a formal letter to the DO stating the reason for releasing your client early
• Include a copy of the Government's motion to terminate
• Include a copy of your G28 (if you have not already)
• Include a copy of the policy memorandum governing release (see here: policy)

And then nag the hell out of the DO guy (or gal). If the DHS counsel is willing to sign on to your letter, get that signature, too. The main kick, though, is through the DO.

Do you have a question regarding immigration procedure, court, or policy? If so, call us! You can reach us at 1-800-579-9864 or email at admin@hanoverlawpc.com. You can also visit our website, www.hanoverlawpc.com for additional information on immigration laws, policies, and procedures, as well as issue related to criminal, family, and business (civil) law.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Driving under the influence of drugs - immigration consequences

Source: http://www.nwaonline.com/news/2012/jun/24/driving-drugged/

What happens if you are convicted of a DUI (driving under the influence) based on drugs. An interesting discussion. If you have digested a drug, are you in possession of that drug for immigration purposes?

Steve presented the following scenario on Friday:
A client of ours, pled to that DUI (Xanax) in Arlington. He’s been LPR for 12 years, and the only things on his record are a Reckless Driving and the DUI, both from 2016. He wants to know about naturalization. My thought on this is that his only potential question has to do with Good Moral Character, and he should probably get some help explaining that he is a person of good moral character when he submits his N-400.

Here are Steve's discussion points:

a. First of all, don’t travel outside of the US right now. He can totally get picked up on the way back in.
b. Get everything associated with the DUI (ASAP, Restricted OL, etc.) taken care of and get clear of “court supervision,” which will be done in about 12 months.
c. Once he is fully clear of the DUI matter, get his ass into our office so we can help him get to work on his N-400. I wonder if you think he should even wait a little bit longer to apply to naturalize than I am suggesting.
d. Do you know if a LPR with convictions could wind up in Removal Proceedings by getting the attention of USCIS with the submission of a N-400?

My answer:
So the bottom line is this: a drug conviction is a permanent bar to naturalization, and a cause célèbre for deportation – even for an LPR. The code that deals with this is INA § 237(a)(2)(B)(i) (deportability). Admissibility is covered under State Manual on approving entry visas (see also: INA 212 drug convictions dealing with admissability).

Xanax is a schedule IV controlled substance as defined by 21 U.S.C. 802. Apparently, it is has low probability for abuse. Also, an argument can be made that a DUI is not a drug offense per se, and if there is no inquiry into what type of DUI it was, it may be possible to submit a disposition paper without mentioning xanax at all (the N400 adjudicator does not generally inquire into the substance of the offense if a disposition is provided). To constitute a drug offense, the statute is clear - you must be convicted of possession or distribution. There is nothing saying that ingestion constitutes possession under Federal Law.

As for good moral conduct, Ragoonanan v. USCIS, a 2007 US district court case out of Minnesota, held that one DUI conviction that results in a year of probation does not bar a good moral character finding. I’m not sure if the 4th Circuit has followed suit, but probably. You should expect a denial, followed by an appeal. It is important to show rehabilitation and regular ameliorating actions.

Do you have a question about DUI's, drug possession, or naturalization? Ask us! You may reach us at 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com

Petty drug exception - admissions vs. deportability. NOT THE SAME.

Here's the scenario:

Steve was working with a client in VA state court. He asked for advice on the immigiration consequence. He said: There was a client of mine who was charged with Possession with Intent to Distribute (Marijuana) in Fairfax. We got the charge amended to straight Possession and plead guilty. He did a couple of weekends in exchange for the amended charge. He recently traveled out of the country (against our advice) and upon his return, was given a date to meet CBP out at Dulles. Bad news. I’ve already told him that he is almost certainly going to get a NTA, and possibly detained. I have a possible solution for him: The cop really liked the client, and was a huge help in getting the charge amended. There was also not very much pot at the time of the arrest. If I can get a statement from the cop that would get this within the de minimis range, we might even be able to head this off at the CBP level. Even if that didn’t work, we would have that for his defense in the eventual Removal Proceedings.

My thought is to go with him out to Dulles in November. Because he already paid us to defend him in the criminal case, and because he is very likely going to have to pay us to represent him in Removal Proceedings, I was thinking XX for the CBP meeting only. (Removal Proceedings is a whole new ball of wax.) I can try to get some help from the cop to see if we can kill this and keep our guy in the country and out of Farmville.

This is a great case to discuss the difference between INA 237 (deporability when in the US) and INA 212 (inadmissibility) concerning the petty exception.

Because the client is a returning alien, his entrance into the United States is controlled by INA 212 (restrictions on admissibility) as opposed to INA 237 (deportability once in the US). The petty exception is quite different. In 237, the exception covers marijuana at 30 grams or less. In 212, no drugs are permitted – the petty exception covers only CIMT’s whose max sentence is 1 year or less, and whose actual sentence (served or given) is 6 months or less. Because possession is not a CIMT, the petty exception under INA 212(a)(2)(A) won’t work. Because our fella is an LPR, there is a different type of waiver available for drug convictions. It actually applies to any drug conviction, not just 30 grams or less of marijuana.

The exception is found under INA 212(h). There are requirements for this, though, and I’m not sure he’ll meet them. In this case, he would have to have been an LPR for at least 15 years, or he would need to have an immediate family member who would suffer an extreme hardship. For petty drug offenses, these waivers are granted fairly routinely. However, he will have to sit in immigration court, and he will have to go to a trial. Extreme hardship will require the case to be prepared and litigated, and as you know, DHS will argue against it as a matter of course.

A frank discussion with the client will explain all this to him, and prepare him for the process. You won’t be able to head this off at the CBP level. They lack the statutory authority to approve (well, that’s technically not correct – acting on behalf of the Attorney General, a CBP officer could waive him in. Not likely, though). He need us to spearhead a 212(h) on his behalf.

Do you have a question about admissibility or CBP? We can help! Contact us at 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com