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What is Impeachment?

Continuing our “Cornerstone on the Constitution” series, we have received a number of requests to answer, “What is impeachment? How does it work? What are the results of the impeachment process?” Although impeachment is one of the hottest political topics in America right now, it is relatively misunderstood.

Impeachment is authorized in the Constitution for all officers of the government of the executive and judicial branches. While the House and Senate retain the power to expel their own members by a vote of their own house, the members of the executive and judicial branches have to be removed by the specific process of a majority vote in the House and two-thirds majority in the Senate. This is done to protect the independence of the executive and judiciary from the legislative branch.

Background

impeachment

It may be hard to believe, but at the founding of the country, the founding fathers were mostly concerned about the potential for abusive power in the legislative branch. They believed that Congress would attempt to arrogate all power to itself and rule the country without the input of the other two branches.

Indeed, Congress is the most powerful branch in the Constitutional frame of government. Congress can limit the president’s salary, define his authority over foreign affairs to a large degree, fire all of his staff and even auction off the White House if they so choose! Accordingly, it’s not surprising that Congress also retains the power to impeach the president if they believe that the president is abusing his power.

Cause for Impeachment

The Constitution allows impeachment of the president in the case of “high crimes and misdemeanors.” Despite the best efforts of historians and legal scholars, this phrase remains largely undefined. It certainly seems to imply that an actual crime must have been committed, but the debates in the Constitutional Convention about the phrase suggest that it was meant to be a check on an abuse of political power even if it were not necessarily able to be defined as a crime.

The use of the word “high” in response to these crimes strongly supports the argument that these are meant to be more than “minor” crimes that are the subject of an indictment. Simply put, if the president is caught jay-walking, that is probably not going to be legitimate grounds for impeachment. 

However, the situation is somewhat complicated by the fact that the Supreme Court has ruled that federal courts may not interfere with the process of impeachment. Put more simply, they have determined that it is a “political question” that is left to the legislative branch and the legislative branch alone to determine. Accordingly, there is no right of appeal from the removal from impeachment, and it is permanent. 

Impeachment Myths

So, let’s tackle a couple of common myths about impeachment.

  1. First, impeachment is not removal from office. Think of impeachment as formal charges being brought against the president of the United States by the House. A group of “prosecutors” from the House are selected to bring the case against the president, and the Senate is the jury.

    The Chief Justice acts as the judge in any trial would act—ruling on the admissibility of evidence and keeping order in the Senate chamber. This is the only time that a judicial official is constitutionally mandated (or permitted) to preside over any proceeding in any other branch of the government.
  2. No, impeaching a President doesn’t mean he is ineligible to be President again. Conversely, it also doesn’t mean he can run for a third term. And impeachment does not remove the president—it only sets up his trial in the Senate. Our two previously-impeached presidents were not removed from office and served out their term in the White House.

No one can say for sure how this impeachment process will end up, but we hope this overview helps you understand this very important constitutional process!

Independent Contractor vs. Employee – Does it Matter?

If you have signed a contract of employment, you may have noticed a line that stated you are an “independent contractor” or an employee. Perhaps it’s a full paragraph dedicated to the topic, or maybe it’s simply assumed in the title of the agreement. When difficulties arise in an employment relationship, many people wonder, what is the significance of this determination of independent contractor vs. employee?

People are often surprised to learn that the mere designation of an employee as a “1099” employee (named for the IRS form on which independent contractors report their income), and even the filing of taxes in accordance with that designation, does not necessarily mean that the individual is actually an independent contractor rather than an employee.

As a general rule, employees have greater legal rights than independent contractors. They can bring suit under a range of federal and state laws for unpaid wages that entitle them to financial penalties and attorneys’ fees. On the other hand, contractors often have to resort to common law claims, such as breach of contract. In addition, some government departments will help employees recover unpaid wages, while contractors are largely on their own.

Here are several factors that a court will consider in determining whether someone is an independent contractor (a 1099) or an employee. None of these factors is conclusive, on its own but rather they are all considered together by a court, in addition to other factors:

1. Exclusive Employment

independent contractor

One of the most important factors in determining whether someone is an employee or an independent contractor is whether their employment is required to be exclusive with that employer.

For example: If you work at a doctor’s office and your employer requires you to sign an agreement that you will not work at any other medical facility, or in even more extreme cases, that you will not work at any other job without your employer’s permission, then this tends to suggest that you are an “employee.” On the other hand,

2. Right of Supervision

Independent contractors are generally an unsupervised bunch. A true independent contractor is someone who is hired to come into a job site, do a job, and then leave, even if it’s on a regular basis.

For example: The engineer who repairs machines at a shop may come in only as required for individual repairs. No one stands over his shoulder and tells him what to do, how long to be there, what hours to put in, or anything else like that. Rather, he is hired for specific jobs, brought in, and then he leaves.

The right to control someone’s work and to tell them what to do, when to be at the work site, when to leave, what to wear, and many other incidentals of employment, imply a direct employment relationship rather than that of an independent contractor. Once again, none of these factors are binding, but this is another consideration. 

3. How the Worker is Paid

Less important factors, such as payment, should also be considered. Are you paid on a salary, a commission, or are you paid by some other arrangement? Do you invoice the company or do they determine your pay for you? Each of these is an important factor in determining whether you’re an independent contractor or an employee.

4. Work in A Specialized Field

In some cases, statutory law controls whether you are an employee or an independent contractor. For example, due to the abuse of “independent contractor” status by employers, the legislature in Pennsylvania has passed an important statute governing whether construction workers are employees or independent contractors.

Many construction employers prefer to classify all of their employees as independent contractors on the idea that they then can avoid Worker’s Compensation payments. This has been determined to be unlawful in Pennsylvania, and the statute provides for a specific set of factors that must be considered. Thus, if you’re in construction or any other number of specialized and regulated fields, your status as an employee or independent contractor may depend on a more specialized analysis.

Conclusion

It is important to note that nothing in this article should be taken as legal advice. Every situation involving independent contractors and employees is unique and depends on more factors than we can list here. However, the important takeaway from this article is this: just because you’re classified as an independent contractor doesn’t mean that you actually are and vice versa. Properly setting up an employment arrangement from the start is important, and even after things have gone south between an employer and an employee, making these determinations can be important. 

Furthermore, if you find that there are statutory protections for you as an employee that are not being given you, your employer’s response that you’re an independent contractor is not necessarily the final word. Call the attorneys at the Cornerstone Law Firm today, and let’s discuss with you how we can clarify your existing relationship or protect you if your rights are being violated or how we can ensure a strong legal relationship with your workers.

What Do I Do with the Will When A Loved One Passes Away?

When you experience a death in the family, the details of wrapping up the loved one’s legal affairs can seem overwhelming. One of the first questions that many people ask after the death of a loved one is, “What do I do with the Will?”

“What do I do with the Will?”

The short answer to this question is that the original Will (not a copy) is vital to the administration of an estate. Once this original is located, it should be taken to an attorney for review, along with any information you have on your loved one’s finances and liabilities. The purpose of this visit to an estate administration lawyer is to determine whether probate is necessary.

In many cases, in order to administer an estate, the Will must be probated. This means that it needs to be filed with the Register of Wills under the auspices of the Orphan’s Court at the Court of Common Pleas in the County where the decedent was living at the time of death.

What is Probate?

Probate is the process of liquidating estate assets, paying estate debts and taxes, and ultimately ensuring that the beneficiaries and survivors incur no future liability on the money they receive from the estate.

But probate is not always necessary, and avoiding probate can save time and money. A good estate administration attorney can help you determine whether the Will should be probated or not. Accordingly, if someone in your family has passed away recently and you’re attempting to figure out what to do with their Will (or in the absence of a Will, what to do with their assets and liabilities) then contact the Cornerstone Law Firm. Our attorneys can help you to figure out what to do with the Will, whether to probate the estate, and how to maximize the value of the estate to its beneficiaries.

Contact us today for a free consultation on your estate so we can help you handle these details during your time of loss.