SC State Guard CLE 2021 DAY 1 Material

Thursday, April 29 & Friday, April 30, 2021

presented by The South Carolina Bar Continuing Legal Education Division

http://www.scbar.org/CLE

This program qualifies for 15.33 MCLE credit hours, including up to 2.0 LEPR credit hour. SC Supreme Commission on CLE Course #: 214319

1 Table of Contents

Day 1 Agenda ...... 3

Speaker Biographies ...... 4

Introduction of South Carolina Military Law ...... 8 COL Robert (Sam), Phillips, Esq.

Drone Law ...... 13 MAJ J. Brooks Davis, Esq.

Bankruptcy Law ...... 14 1LT Joshua McGlone, Esq.

S.C. Bar’s Pro Bono Program ...... 24 Betsy Goodale, Esq.

Introduction to the U.S. Commission on Civil Rights ...... 25 Commissioner Stephen Gilchrist

Statutory Employee Doctrine under the Workers’ Compensation Act and Employer requirement of COVID vaccine ...... 41 1LT Josh Spencer, Esq. and Demetrius Pyburn

Update—Workers Compensation ...... 70 T. Scott Beck, Esq., Workers’ Compensation Commission Chairman

Probate Law ...... 71 MAJ Andrew Holliday, Esq.

Law of Armed Conflict ...... 80 COL Larry Wedekind, Esq.

Cyber Security During COVID-19 ...... 99 CPT Sybil Rosado, Esq.

2 SC State Guard Military Law CLE 2021 Program Agenda

Day One -- April 29, 2021

7:00 a.m. Breakfast (provided)

8:00 a.m. Introduction to South Carolina Military Law Overview of South Carolina’s Organized Militia. COL Robert (Sam), Phillips, Esq., Staff Judge Advocate, SC State Guard.

9:00 a.m. Drone Law Overview of current drone law including a discussion of FCC Restrictions and FAA Emergency Waiver Law. MAJ J. Brooks Davis, Esq., SC State Guard.

9:45 a.m. Break

10:00 a.m. Bankruptcy Law Update on recent developments in federal bankruptcy law to include new provisions that favor military veterans. 1LT Joshua McGlone, Esq., SC State Guard.

10:45 a.m. S.C. Bar’s Pro Bono Program Overview of Bar’s Pro Bono program including the insurance and cost reimbursement services it makes available to all members of the SC Bar. Betsy Goodale, Esq., Pro Bono Program Director, SC Bar.

11:15 a.m. Introduction to the U.S. Commission on Civil Rights Commissioner Stephen Gilchrist, Chairman and CEO of the South Carolina African American Chamber of Commerce and member of South Carolina State Guard.

12:00 p.m. Lunch (provided)

1:00 p.m. Statutory Employee Doctrine under the Workers Compensation Act and Employer requirement of COVID vaccine. Review of South Carolina’s Workers Compensation Act regarding workers engaged in activity as general contractor’s/trade or occupation. 1LT Josh Spencer, Esq., SC State Guard and Demetrius Pyburn U.S. Army Reserve

1:30 pm Update - Workers Compensation Overview of issues associated with the COVID-19 Pandemic T. Scott Beck, Esq. Chairman, South Carolina Workers Compensation Commission.

2:15 p.m. Break

2:30 p.m. Probate Law Update & Overview of legal issues associated with simple wills, trusts and estates in South Carolina. MAJ Andrew Holliday, Esq., SC State Guard.

3:15 p.m. Law of Armed Conflict Introduction to Law of War (a.k.a. law of armed conflict) that is applicable to the United States Military. COL Larry Wedekind, Esq., SC National Guard.

4:00 p.m. Cyber Security During Covid19 CPT Sybil Rosado, Esq., SC State Guard

5:00 p.m. Adjourn

3 DAY 1 - - SPEAKER BIOGRAPHIES

COL Robert (Sam), Phillips, Esq. Staff Judge Advocate, SC State Guard Staff Judge Advocate, SC State Guard, is a trial and appellate attorney who focuses on representing persons and small businesses who have been injured by the tortious conduct of others. Mr. Phillips graduated from the University of South Carolina’s School of Law and joined the South Carolina State Bar in 1999 after which he accepted a clerkship with the South Carolina Court of Appeals. Mr. Phillips has been representing individuals and small businesses in private practice since 2001. He is also an adjunct professor with the University of South Carolina’s Paralegal Certification Program where he has taught its torts and personal injury class since 2010. Prior to attending law school, Mr. Phillips served as an Armored Cavalry Officer in the United States Army. In July of 2014, he volunteered to serve with the South Carolina State Guard as the Deputy Commander of its Judge Advocate General (JAG) detachment. In January of 2019, Mr. Phillips was asked to serve as the Staff Judge Advocate (SJA) to the State Guard’s Commander and command the Guard’s JAG Detachment. An avid outdoorsman, Mr. Phillips holds a state certification (SARTEC II) to participate in search & rescue (SAR) missions with the State Guard.

MAJ J. Brooks Davis, Esq. SC State Guard 1989 graduate of University of South Carolina, B.S. Finance; 2010 graduate of Charleston School of Law, J.D.; Investment banker for Merrill Lynch; Commercial pilot holding Aircraft Transport Pilot (ATP) certificate; Owned several aviation related companies including aircraft dealerships, service centers and aircraft management; Personally witnessed the 2001 attack on the WTC during a flight, decided to leave the private sector and get into law enforcement; Attended the FBI New Agent Training Program in Quantico, VA; Served the City of Charleston as a police officer and chief pilot; Started his own practice in 2012 focusing in aviation law and criminal defense; Joined the SC State Guard 2017, presently serves as liaison officer to Search and Rescue, Deputy JAG Commander, southern region; Ultimate goal in the State Guard is to be the first commissioned admiral in the history of the organization. Married, one child, lives in Mt. Pleasant, SC

1LT Joshua McGlone, Esq. SC State Guard Joshua McGlone is a Bankruptcy Attorney primarily representing consumers and small businesses throughout the Palmetto State. Joshua is a graduate of Marshall University, The Appalachian School of Law, and is member of the J. Bratton Davis American Inn of Court. a He is also a veteran of the Army Reserve where he served as a Combat Engineer. Currently he is a Member of the South Carolina State Guard's J.A.G. detachment. Joshua lives in Columbia with his wife and two children.

Betsy Goodale, Esq. Pro Bono Program Director, SC Bar Betsy is a 1985 graduate of Clemson University where she earned a Bachelor of Science degree in nursing. Three years later she decided to attend law school with an eye towards combining her nursing and law degrees and practicing in health law area. However, upon graduation in 1991, she accepted a two-year position in the Staff Attorneys Office at the South Carolina Supreme Court for the next 17 years, only using her nursing degree to diagnose various ailments presented by employees at the Court! Betsy became Chief Staff Attorney in 2003 and remained in that position until August 2018 when she made the decision to retire from state government and accept the position of Director of the Pro Bono Program at the South Carolina Bar.

4 CPT Stephen Gilchrist, Chairman and CEO, South Carolina African American Chamber of Commerce Columbia, SC On May 7, 2020, President Trump appointed Stephen Gilchrist as a Commissioner of the U.S. Commission on Civil Rights. He was sworn in on May 13, 2020, and will serve until the expiration of his term on November 29, 2025. Mr. Gilchrist is the Chairman and CEO of the South Carolina African American Chamber of Commerce where he leads a membership of over 15,000 businesses in the Carolinas focusing on the significant needs of both large and small Minority and African American owned businesses. He is an authority and leading voice on national public policy initiatives which includes; educational reform, alternative energy sources, and financial and economic security for low-wealth communities. In addition to his many community involvement efforts, Mr. Gilchrist is a Minister of Music, Chairman of the Planning and Zoning Commission in South Carolina and a member of the Mastercard Master Your Card Corporate Advisory Board, which seeks to address concerns of un-banked and under banked communities in the United States. He is a former member of the Corporate Coalition, which consists of some of America’s top fortune 500 companies and a member of the Wal-Mart Foundation’s national effort to address hunger and food insecurities in the United States. Mr. Gilchrist is also a founding member of the International Partner Alliance (IPA) which seeks to engage international partners in advocacy work around the world. He's a sought after national orator whose been featured in Black Enterprise Magazine and Carolina Daily as one of the country's most influential black business leaders and has been a regular contributing guest on CNN, FOX news and MSNBC among others. Mr. Gilchrist attended South Carolina State University, and The Kennedy School of Government at Harvard University and is a graduate of the South Carolina Executive Institute.

1LT Joshua Spencer, Esq. SC State Guard Licensed in Georgia, North Carolina and South Carolina, Josh Spencer’s practice focuses primarily on utility, construction and business/commercial litigation. An experienced litigator and trial attorney, Josh handles cases for a diverse group of Haynsworth Sinkler Boyd clients in both federal and state courts as well as in arbitration and administrative hearings.

His utility practice focuses upon the representation of regulated utilities and their contractors in commercial contract, condemnation, construction defect, construction payment, encroachment, nuclear, property damage, rate and tort liability cases, including defense of claims for personal injury and wrongful death.

His construction practice involves all phases of the construction process, including the drafting and review of custom and industry form construction contracts, in-project advice and counsel and representation of owners, contractors, design professionals and subcontractors in contract, payment and construction defect disputes.

Josh litigates a range of business and commercial cases, including contract, commercial lease, unfair trade practices, minority shareholder oppression, trade secret, negligent misrepresentation, tortious interference and corporate governance disputes. He has extensive experience managing complex litigation involving dozens of witnesses, numerous experts and intense electronic discovery requiring management of hundreds of thousands of documents.

5 SPC Demetrius Plyburn, Esq. U.S. Army Demetrius Pyburn is an employment and aviation attorney at Haynsworth Sinkler Boyd, P.A. in Greenville, SC. He provides advice and counsel to employers on everyday compliance issues involving the ADA, FMLA, FLSA, NLRB, Title VII, state law employment statutes and other employment-related regulations. He also has experience in litigating claims involving wage payment, discrimination and retaliation. Demetrius regularly speaks and blogs about workplace issues on www.scemployersblog.com.

In addition, Demetrius provides advice and counsel on aviation and drone law. He is an approved panel counsel litigator for the Aircraft Owners and Pilots Association. In this role, he assists with Part 107 Waivers or Certificates of Waiver/Authorization (COA), advises on Federal Aviation Regulations and FAA Guidance Compliance, establishes drone operation manuals and checklists for pilots, reviews aircraft purchase and sale agreements and drafted aircraft rental and leasing agreements. He is able to assist aviators in the defense of FAA enforcement actions, among other state and local actions. He is a frequent speaker and author on issues facing aviators and drone operators.

Prior to joining the firm, Demetrius served in the 160th Special Operations Aviation Regiment in the U.S. Army. He served in the U.S. Army Reserves as a Human Resources Specialist in the 812th Transportation Headquarters, while in law school at the University of South Carolina School of Law. He currently serves in the U.S. Army Reserves as an Automated Logistical Specialist in the 324th Expeditionary Signal Battalion.

T. Scott Beck, Esq. Chairman, South Carolina Workers Compensation Commission Commissioner Beck was appointed to the South Carolina Workers’ Compensation Commission on June 30, 2008 by Governor Mark Sanford. In 2010, he was elected by the Commission as Interim Chairman and subsequently nominated by Governor Haley for reappointment in 2012, 2014, and 2016 as Chairman. He graduated with a BS Degree from Penn State University in 1981 and from the University of South Carolina School of Law in 1999. Prior to joining the Commission, he served in various positions in law enforcement from 1979-1996 and most recently as an Assistant Attorney General from 2000-2008 prosecuting healthcare fraud cases. Commissioner Beck served as a City Councilman in North Augusta, South Carolina from 1993-1996, and was elected to the South Carolina House of Representatives, serving from 1996-2000. Commissioner Beck currently serves on the Board of Directors of the National Association of Workers’ Compensation Judiciary and the Southern Association of Workers’ Compensation Administrators.

MAJ Andrew Holliday, Esq. SC State Guard SC State Guard has served as a Judge Advocate for over three years. He is an Associate Attorney at Derrick, Ritter, Williams & Morris P.A. in Seneca, South Carolina.

COL Lawrence Wedekind, Esq. Lawrence Wedekind graduated from The Citadel in 1985 and was commissioned in the United States Marine Corps. After initial training in Quantico, he was assigned to the 4th Marine Regiment and served a year in Okinawa and South Korea. Upon return to CONUS he was assigned to Camp Lejeune and applied for an interservice transfer to the US Navy. Assigned to BUD/S training in San Diego he was injured in training and re-designated as a Surface Warfare Officer. His first assignment was as Ordnance Officer on USS Ticonderoga (CG- 47), where he deployed to the Mediterranean and the Persian Gulf during Operation Desert storm.

6 Upon return to Norfolk VA, he then was assigned to serve as Communications Officer to Naval Special Warfare Group Two in Little Creek VA. He left active duty in 1994 to attend Law School at the University of South Carolina. In 1997 upon graduation from law school, he was employed as an SC Assistant Attorney General. In 1999 he took a job as an Assistant Solicitor in the 5th Circuit and in 2002 He went to work as a Senior Assistant Solicitor in the 11th Circuit. In August of 2007 Larry returned to military service with the South Carolina Army National Guard and in 2009 deployed to Afghanistan with the 48th Infantry Brigade as a military prosecutor attached to the 82nd Airborne Division. He graduated from the Army Command and Staff Course and again returned to Afghanistan in 2013 for a second deployment with Combined Joint Interagency Task Force 435, where he conducted hearings to maintain custody of Al Qaeda and Taliban prisoners up at the Bagram Detention Facility and acted as a mentor to Afghan Government Judges and Prosecutors in the Rule of Law Field Force at the Justice Center in Parwan. Subsequent to his deployments he graduated from the 57th Military Judges Course, and was promoted to Lieutenant Colonel. In April of 2014 he returned to the SC Attorney General’s Office and resigned in 2016 to unsuccessfully run for Solicitor of the 11th Circuit. In April 2017 he returned to active duty to serve for a year as Command Judge Advocate of Area Support Group Qatar and in 2019 entered private practice. He currently is serving on active duty in response to the COVID-19 emergency as legal counsel to the SC National Guard and was promoted to Colonel in December of 2020. He has attended the DOMOPS Course in Charlottesville, and has served on State Active Duty in response to four Hurricanes. During his deployments he was awarded the Bronze Star Medal, and two Meritorious Service Medals.

CPT Sybil Rosado, Esq., SC State Guard Dr. Sybil Rosado, Esq., is a Cultural Diversity Training Expert, Cybersecurity Professional, Public Speaker, Anthropologist and Lawyer. She educates, equips, and empowers audiences to understand the complexities of difference and master all that they were designed and engineered to be as unique individuals in the complex matrix of our new digitized global culture. Dr. Rosado is a practicing attorney and tenured full Professor of Social Science, Justice Administration, and Cybersecurity at Benedict College. Sybil is a native of Tampa, Florida where she graduated from Chamberlain High school. She earned a B.S. in Political Science with a concentration in Human Resource Management and Labor Relations from Florida A & M University, a Juris Doctorate from Vanderbilt University Law School, and a M.A. and Ph.D. in Cultural Anthropology with concentrations in Sociology and Women’s Studies from the University of Florida, and an M.S. in Cybersecurity from Norfolk State University.

Her interdisciplinary research interests include Legal Anthropology and digital culture, diversity training, cybersecurity education, Afro-Futurism, digital fraud, and social engineering. She positions herself as an expert on Cybersecurity law, and digital culture who explores all of the social and legal implications embedded in the new global digital landscape.

7 Introduction to South Carolina Military Law

8 4/26/2021

Welcome!

Colonel Robert B. (Sam) Phillips, Esq. Staff Judge Advocate, South Carolina State Guard

SOUTH CAROLINA STATE GUARD JUDGE ADVOCATE GENERAL (JAG) 2021 CLE TRAINING

South Carolina’s Militia

First established in 1670 at “Charles Town” on Albemarle Point.

The State’s militia includes all able-bodied persons over the age of 17 who are: (1) US Citizens residing within South Carolina, (2) US Citizens under legal obligation to serve in the militia, or (3) Persons who intend to become US citizens and are under legal obligation to serve.

Classes of the SC Militia: (1) Organized Militia in federal service (National Guard). (2) Organized Militia not in federal service (State Guard). (3) Unorganized Militia.

S.C. Code §§ 25-1-10(19); 25-1-60.

Colonel Robert B. (Sam) Phillips, Esq. Staff Judge Advocate for the SC State Guard

9 1 4/26/2021

SOUTH CAROLINA STATE GUARD JUDGE ADVOCATE GENERAL (JAG) 2021 CLE TRAINING

South Carolina State Guard

Legal History: (1) Prior to the revolution, individual towns and colony’s organized local militias. (2) After the revolution, each state required militia service of all its able-body men. (3) State militias were an integral part of America’s armed forces until 1910. (4) Militia Act of 1903 established modern national/state guard system which allowed state militias in the form of a “national guard” to be “federalized.” (5) Militia Act allowed states to create their own militias that could not be federalized.

Current Legal Authority: (1) Authorized by state (S.C. Code § 25-3-10) & federal (32 USC § 109(e)) law. (2) Under the authority of the Governor. S.C. Code § 25-1-50. (3) “Organized and maintained” by SC’s Adjutant General. S.C. Code §25-3-90. (4) Part of South Carolina’s Military Department. S.C. Code § 25-1-10(5). (5) May not be “federalized.” 32 USC § 109(d).

Colonel Robert B. (Sam) Phillips, Esq. Staff Judge Advocate for the SC State Guard

SOUTH CAROLINA STATE GUARD JUDGE ADVOCATE GENERAL (JAG) 2021 CLE TRAINING

SCSG Mission

“Whenever any part of the National Guard of this State is ordered into Federal service so as to cause the State to be, in the opinion of the Governor, without proper defense, the Governor may call the South Carolina State Guard into state duty.” S.C. Code § 25-3-20.

“The Governor may, in case of insurrection, invasion, tumult, riot, breach of the peace or imminent danger thereof or to enforce the laws of this State order into service any part of the South Carolina State Guard that he may deem necessary.” S.C. Code § 25- 3-130.

- Expansive view of “without proper defense” by the National Guard pursuant to Section 25-3-20. - Section 25-3-130 is vestige of warfighting mission.

Colonel Robert B. (Sam) Phillips, Esq. Staff Judge Advocate for the SC State Guard

10 2 4/26/2021

SOUTH CAROLINA STATE GUARD JUDGE ADVOCATE GENERAL (JAG) 2021 CLE TRAINING

SCSG Regulation

“The Governor may prescribe rules and regulations consistent with the provisions of this chapter governing the enlistment, organization, administration, equipment, maintenance, training and discipline of such force. But such rules and regulations in so far as he deems practicable and desirable shall conform to the existing law governing and pertaining to the National Guard and the rules and regulations promulgated thereunder.” S.C. Code § 25-3-80.

- Regulations promulgated by Governor and TAG. S.C. Code § 25-1-50. - SCSG Reg 670-1 (appearance, grooming and uniforms), SCSG Reg 710- 10 (property accountability), and SCSG Reg 672-1 (awards and decorations). - Chief National Guard Bureau Instruction (CNGBI) 5500.01. (replaced National Guard Regulation (NGR) 10-4)

Colonel Robert B. (Sam) Phillips, Esq. Staff Judge Advocate for the SC State Guard

SOUTH CAROLINA STATE GUARD JUDGE ADVOCATE GENERAL (JAG) 2021 CLE TRAINING

SCSG Organization

Colonel Robert B. (Sam) Phillips, Esq. Staff Judge Advocate for the SC State Guard

11 3 4/26/2021

SOUTH CAROLINA STATE GUARD JUDGE ADVOCATE GENERAL (JAG) 2021 CLE TRAINING

Executive Orders

- Issued by “The Governor of the State of South Carolina.” - The Governor is vested with the “supreme executive authority” of the State. S.C. CONST Art. IV, § 1. - The power of the Governor to issue executive orders is an inherent element of executive authority that is implied, rather than expressed power of the office. - The effect and duration of executive orders depend primarily upon the order's substantive language. [Often] executive orders [issued during] a state of emergency … the first executive order will declare a state of emergency for a definite or indefinite time, and when the emergency has ended, a subsequent executive order may be issued to rescind the original. 12 S.C. Jur. Governor § 46.

Colonel Robert B. (Sam) Phillips, Esq. Staff Judge Advocate for the SC State Guard

SOUTH CAROLINA STATE GUARD JUDGE ADVOCATE GENERAL (JAG) 2021 CLE TRAINING

Recent Deployments

- 2014-06 &11 > State of Emergency due to Severe Winter Weather - 2015-18 > Enhanced Security of SC National Guard Recruitment Centers - 2015-21 > State of Emergency due to Hurricane Joaquin - 2016-31 > State of Emergency due to Hurricane Matthew - 2017-20 > State of Emergency due to Hurricane Irma - 2018-10 > Ordering State Guard to Assist Correctional Facilities - 2018-26 > State of Emergency due to Hurricane Florence - 2018-48 > State of Emergency due to Hurricane Michael - 2019-26 > State of Emergency due to Hurricane Dorian - 2020-08 > State of Emergency due to COVID-19 - 2020-09 to 23 > Additional COVID-19 Orders - 2020-24 > State of Emergency due to Severe Weather Event on April 13

Colonel Robert B. (Sam) Phillips, Esq. Staff Judge Advocate for the SC State Guard

12 4 Drone Law

13 Bankruptcy Law

14 4/26/2021

BANKRUPTCY & SERVICE PERSONNEL

BANKRUPTCY & SERVICE PERSONELL

Presenter Contact Information

1LT. Joshua R. McGlone, Esq. Matthews and Associates, LLC 2010 Gadsden St. | Columbia, SC 29201 803-799-1700 [email protected]

15 1 4/26/2021

TASK, CONDITION, & STANDARD

• TASK: To give participants a brief overview of bankruptcy and its effects on service members, veterans, and their families

• CONDITION: Classroom setting or web-based viewership

• STANDARD: No assessment will be given. Upon completion, participants will have an introductory knowledge of the applicable bankruptcy regulations affecting service members, veterans, and their families.

Contents

1. Types of Bankruptcy • Chapter 7 • Chapter 13 • Chapter 12 • Chapter 11/ Subsection V 2. H.A.V.E.N. Act (11 U.S.C. § 101(10A)(B)(ii)(IV)) 3. Types of Debt 4. Common No-Go Issues 5. Military Security Clearances and Re-enlistment 6. 2021 & COVID

16 2 4/26/2021

Bankruptcy Basics

11 U.S. Code Title 11—BANKRUPTCY

Parties Involved: 1) Debtor: the individual, couple, or business that filed bankruptcy 2) Creditors: the parties that hold a claim against the Debtor 3) Trustee: appointed individual who represents the Debtor’s estate and the interests of the Creditors.. U.S. Trustee/D.O.J. 4) Bankruptcy Judge: the ultimate arbitrator on matters before the court • Bankruptcy Judges are Article 1 judges and are adjunct to the Federal District Court. Judges have a duty to uphold the Bankruptcy Code. Note: Bankruptcy Judges enjoy wide ranging powers and have granted actual and punitive damages in cases.

Types of Bankruptcy

17 3 4/26/2021

Chapter 7 – Liquidation

• Available to individuals who earn an income that is under the state’s Median Income per the Means Test and have no excess income on Schedules I & J • Allows the Debtor to essentially walk away (or discharge) their debt and start over fresh • Significant risk for individuals with substantial assets • Note: will not help with restructuring secured debts or repaying priority debt, but will remove student loans from default.

Chapter 13 – Restructure

• Restructure of secured debts • Monthly plan payments for 3-5 years based on excess income • Repayment to unsecured creditors based on excess income and Means Test • Must require permission of the Court to purchase or sell a house or car or to incur any debt (caveat: likely not a Federal Student Loan) • Will repay priority debt in the plan • Attorney fees can be paid in the plan.

18 4 4/26/2021

Chapters 12, 11, & 11 Subsection V

• Chapter 12 – Fishermen and Family Farmers

• Chapter 11 – restructure for businesses and individuals with significant debt loads

• Chapter 11 Subsection V – Small Business Restructure

Benefits of Bankruptcy

• Places an Automatic Stay on Debtor’s estate by STOPPING ALL: • Foreclosures • Repossessions. Return repossessed cars if filed within 10 days of Creditor securing collateral • Garnishments • Court actions • Bankruptcy also sets: • A standard interest rate (Chapter 13) • A base balance on debts and a repayment period in Chapter 13 Plan • Can file a mortgage modification via a Chapter 13 Plan via Court’s Portal • Some taxes can be paid at a lower rate than what is owed • NOTE: Filing will not stop Creditor’s right to set-off against bank accounts!

19 5 4/26/2021

Income Included on the Means Test

• Retirement Pension • B.A.H. & Dependent Pay • D.S. Pay or other reoccurring special assignment pay • T.D.Y. (if reoccurring) • G.I. Bill income (12-month average) • Post 9/11 G.I. Bill Income (12- month average) • Drill Pay (12-month average) • Spouses survivor benefit ??

Honoring American Veterans in Extreme Need (H.A.V.E.N.) Act • 11 U.S.C. § 101(10A)(B)(ii)(IV) • Disability and death benefits paid by the V.A. • Compensation for catastrophic injuries or illnesses • Any combat‐related special compensation • Disability severance pay paid by the D.O.D. • Any payment by the D.O.D. to a survivor • Disability‐related military retirement pay paid by the D.O.D. to a retired service member

20 6 4/26/2021

Types of Debt

SECURED UNSECURED • Mortgages, H.E.L.O.C. • Credit Cards (maybe) • Car payments • Note Loans (maybe) • Title loans • Lines of Credit (maybe) • Secured(finance co.) loans • Medical Bills (S.C. Tax Lien?) • P.M.S.I. • Repossession Deficiency • U.C.C. 1 • Mortgage Deficiency (maybe) • Judgments • Attorney Debts (maybe family court lawyer)

Big No-Goes For Veterans and Service Members • V.A. Loans: if a deficiency occurs as a result of the foreclosure sale, it must be repaid to requalify • Military Star Card: occasionally secured against some electronic purchases • Navy Federal: lines of credit and credit cards are secured against Debtor’s accounts. Subject to set-off. Often cross-collateralized with auto loans. • H.E.L.O.C.: just because the bank is not asking for payments doesn’t mean the note will not mature • Chapter 13 may affect a Debtor’s ability to enter into a new lease • D.S.O recipients WILL be notified!!!

21 7 4/26/2021

Security Clearances

• Will likely not affect current secret security clearances • Best practice is to check with the subject matter expert handling Debtor clearance for top secret or special clearances • Best practice is to file after you have reenlisted. Some debts, even though discharged, must still be disclosed on Debtor’s application or renewal paperwork. • Some civilian jobs that require a clearance to work with sensitive items may be affected

2021 MORTGAGES & CARES ACT

• Currently, banks are offering favorable reaffirmations on secured debt. • Moratorium on foreclosures on government-backed mortgages until June 1, 2021. • New car loans have been easier to acquire post filing. • Banks are in a position to modify and refinance “qualified” mortgage notes. • Due to the lack of foreclosures and a shortage in new inventory, residential equity is becoming a problem. • BUT……

22 8 4/26/2021

CIVIL COURT HAS REOPENED

• Unsecured Creditors are taking advantage of real estate equity. • Thus, soldiers may have issues at closing if liens have been attached. • Many times, spouses do not notice that they are listed on CP and Magistrate Court summons. • Second Mortgages are not avoidable in Bankruptcy if there is equity in the house. • Liens are avoidable if there is no equity over the primary mortgage and the homestead exemption.

QUESTIONS

23 9 S.C. Bar’s Pro Bono Program

24 Introduction to the U.S. Commission on Civil Rights

25 Here's your outline to get started

Key facts about your topic

The U.S. Commission on Civil Rights is a bipartisan, Founded: 1957 independent commission of the United States federal Chairman: Martin R Castro "Marty" government, created in 1957, that is charged with the responsibility for investigating, reporting on, and making recommendations concerning civil rights issues in the United States.

See more: Open the Notes en.wikipedia.org - Text under CC-BY-SA license below for more information.

26 Related topics to research

• Ronald Reagan Use Smart Lookup to learn more • Dwight D. Eisenhower • Theodore Hesburgh 1 Highlight one of the related topics • Peter Kirsanow 2 Right-click on the topic • Mary Frances Berry 3 Choose "Smart Lookup" • Arthur Fletcher • William B. Allen • Patricia Timmons-Goodson • John A. Hannah • Arthur Sherwood Flemming

27 DISCLAIMER: THE OFFICIAL VIEWS OF THE UNITED STATES COMMISSION ON CIVIL RIGHTS ARE PRIMARILY FOUND IN ITS REPORTS AND PUBLICATIONS, WHICH MAY BE UNITED STATES VIEWED ON THE COMMISSION’S WEBSITE OR OTHER PUBLIC COLLECTIONS. THE COMMISSION’S WEBSITE ALSO LISTS STATEMENTS, LETTERS, PRESS RELEASES, COMMISSION ON AND OTHER CORRESPONDENCE, WHICH ARE OFFICIAL VIEWS OF THE COMMISSION. ANY OTHER STATEMENTS, LETTERS, PRESS RELEASES, OR CORRESPONDENCE NOT CIVIL RIGHTS LISTED ON THIS WEBSITE SHOULD NOT BE CONSIDERED AS AN OFFICIAL VIEWPOINT OF THE COMMISSION.

28  Commissioners  History CONTENTS  Commission structure  Commission topics/issues

29  Presidential Appointees  Norma V. Cantú Professor of Education & Professor of Law, The University of Texas at Austin, School of Law Austin, TX POLITICAL AFFILIATION: DEMOCRAT  Debo P. Adegbile Partner Wilmer Cutler Pickering Hale and Dorr, LLP New York, New York POLITICAL AFFILIATION: DEMOCRAT  Stephen Gilchrist Chairman and CEO, South Carolina African American Chamber of Commerce Columbia, SC POLITICAL AFFILIATION: REPUBLICAN  J. Christian Adams President and General Counsel Public Interest Legal Foundation Alexandria, Virginia POLITICAL AFFILIATION: REPUBLICAN  Congressional Appointees  Gail Heriot COMMISSIONERS Professor of Law, University of San Diego San Diego, CA POLITICAL AFFILIATION: INDEPENDENT  David Kladney Lawyer Reno, NV POLITICAL AFFILIATION: DEMOCRAT  Peter N. Kirsanow Partner, Benesch, Friedlander, Coplan & Arnoff Cleveland, Ohio POLITICAL AFFILIATION: REPUBLICAN  Michael Yaki Michael Yaki Consulting San Francisco, CA POLITICAL AFFILIATION: DEMOCRAT

30 TS1

 The Civil Rights Act of 1957 created the U.S. Commission on Civil Rights. Since then, Congress has reauthorized or extended the legislation creating the Commission several times; the last reauthorization was in 1994 by the Civil Rights Commission Amendments Act of 1994.  Established as an independent, bipartisan, fact- finding federal agency, our mission is to inform the development of national civil rights policy and enhance enforcement of federal civil rights laws. HISTORY We pursue this mission by studying alleged deprivations of voting rights and alleged discrimination based on race, color, religion, sex, age, disability, or national origin, or in the administration of justice. We play a vital role in advancing civil rights through objective and comprehensive investigation, research, and analysis on issues of fundamental concern to the federal government and the public.

31 Slide 6

TS1 Thomas Simuel, 4/24/2021

32 KEY EVENTS THAT LEAD TO CREATION OF THE COMMISSION

 The election of Dwight D. Eisenhower, Jan. 1953  Brown vs. Board of Education, May 7, 1954  The murder of Emmett Till, Aug. 28, 1955  Central High School, Little Rock Ark, 1957  The Cold War during the 1950’s

33 34  The United States Commission on Civil Rights is composed of eight Commissioners: four appointed by the President and four by Congress. Not more than four members shall at any one time be of the same political party.  The President also designates the Chairperson and Vice Chairperson from among the COMMISSION Commission's members with the concurrence of STRUCTURE a majority of the Commission's members.  The Commissioners serve 6-year terms. No Senate confirmation is required. The President may remove a member of the Commission only for neglect of duty or malfeasance in office.

35  The Commission has several offices and units within its headquarters, as well as two regional offices. Of the national offices, two are primarily responsible for civil rights-related research and study—the Office of Civil Rights Evaluation and the Office of General Counsel. COMMISSION  The Commission has 51 Advisory Committees, one for each state and the District of Columbia, composed of volunteers OPERATIONS from each state. Advisory Committees report their findings and recommendations to the Commission on issues of concern in their respective jurisdictions.

36 COMMISSION REPORTS

 In the Name of Hate: Responding to Hate Crimes at the Federal, State, and Local Levels: An examination of the best practices forlocal law enforcement on collecting and reporting data, and the role of the Education and Justice Departments in prosecution and prevention of hate crimes and bias-motivated incidents. (November 2019)  Beyond Suspensions: The School to Prison Pipeline and the Intersection of Students of Color and Children with Disabilities: An examination of school discipline policies and their impact on students of color with disabilities. (July 2019)  Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities: An examination of the additional punishments beyond incarceration for the formerly incarcerated and the disproportionate impact on people of color and their communities. (June 2019)  Broken Promises: Continuing Federal Funding Shortfall for Native Americans: An examination of federal funding obligations for education, health, public safety, housing, rural development, and economic opportunity in the Native American community. (December 2018)  Police Use of Force: An Examination of Modern Policing Practices: An examination of new strategies and tactics that should be employed to avoid lethal police interactions and if there should be reforms to the legal process in handling of such cases. (November 2018)  An Assessment of Minority Voting Rights Access in the United States: An assessment of federal enforcement of the Voting Rights Act of 1965, particularly since the Supreme Court’s decision in Shelby County v. Holder. (September 2018)

37  Maternal Health Disparities: The Commission’s investigation will analyze current data regarding pregnancy-related and pregnancy- associated deaths. The Commission will also examine current efforts regarding the prevention of disparities in maternal health outcomes by the Department of Health and Human Services and the National Institute of Minority Health and Health Disparities. (early 2020) Actual date: 11/13/2020  The Federal Role in Calling for Bail Reform: The Commission will evaluate how the use of money bail impacts the fair administration of justice and whether jurisdictions operate in a manner that PUBLIC denies equal protection of the law to individuals on the basis of race or another protected class. The Commission will also examine BRIEFINGS the role of the private bail industry and how the involvement of the private sector exacerbates or mitigates these impacts. (spring 2020) Actual date: 2/26/2021  The Federal Emergency Management Agency’s (FEMA) Natural Disaster Response: The Commission’s investigation will evaluate the Federal Emergency Management Agency (FEMA)’s compliance with its mission to ensure all people receive help before, during, and after disasters. A particular focus will be the civil rights implications of FEMA’s response to significant hurricane systems, including Hurricanes Harvey and María. (late 2020)Spring

38 CONCLUSION: QUESTION AND ANSWERS

39 CONTACT INFORMATION AND RESOURCES

 The U.S. Commission on Civil Rights is the only independent, bipartisan agency charged with advising the President and Congress on civil rights and reporting annually on federal civil rights enforcement. For more information about the Commission, please visit www.usccr.gov and follow us on twitter and Facebook  Questions? Contact us at [email protected]

40 Statutory Employee Doctrine under the Workers Compensation Act and Employer requirement of COVID vaccine

41 4/22/2021

STATUTORY EMPLOYER – KEY ISSUES ADDRESSING A TYPE OF WORKER'S COMPENSATION IMMUNITY

1LT Josh Spencer, SCSG and SPC Demetrius Pyburn, USAR SC State Guard JAG CLE| April 29, 2021

AGENDA

• Introduction • Scenarios • "Statutory Employer" Defined • Exclusivity Doctrine • Exceptions • Conclusion

42 1 4/22/2021

INTRODUCTION

• A fundamental principle of worker's compensation laws is that an employer who provides compensation to an injured employee is entitled to immunity from civil actions by that employee or his/her representatives (i.e., an employee’s exclusive remedy is worker's compensation benefits).

• In some jurisdictions, this immunity is extended to upstream parties, such as a project owner or general contractor, under certain circumstances.

43 2 4/22/2021

SCENARIOS

SCENARIO #1

• Imagine that ABC General Contractor hires XYZ Subcontractor to perform plumbing services for a project. One day, XYZ Subcontractor’s employee is injured while lifting materials.

44 3 4/22/2021

SCENARIO #2

• ABC Owner contracts with XYZ General Contractor to build a house. XYZ General Contractor contracts with a framer, an electrician, and a plumber to complete the framing, the wiring, and the plumbing. The electrician’s helper is injured when the framer’s employee drops a hammer on his head.

STATUTORY EMPLOYER DEFINED

45 4 4/22/2021

STATUTORY EMPLOYER

• The phrase "statutory employer" is not used within the Worker's Compensation Act. • However, court decisions refer to a liable upstream employer as a statutory employer. • "Statutory employer" is defined in: – S.C. Code § 42‐1‐400 (owners); – S.C. Code § 42‐1‐410 (contractors); and – S.C. Code § 42‐1‐420 (sub‐subcontractors)

STATUTORY EMPLOYER (OWNER S.C. CODE ANN. § 42‐1‐400)

• When any person, in this section and Sections 42‐1‐420 and 42‐1‐ 430 referred to as “owner,” undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with any other person (in this section and Sections 42‐1‐420 to 42‐1‐450 referred to as “subcontractor”) for the execution or performance by or under such subcontractor of the whole or any part of the work undertaken by such owner, the owner shall be liable to pay to any workman employed in the work any compensation under this title which he would have been liable to pay if the workman had been immediately employed by him.

• “The terms owner and contractor can be used interchangeably.” Fortner v. Thomas M. Evans Constr. & Dev., L.L.C., 402 S.C. 421, 431, 741 S.E.2d 538, 544 (Ct.App.2013).

46 5 4/22/2021

STATUTORY EMPLOYER OWNER (CONT.)

• The court must make two determinations in assessing whether the owner's workers' compensation liability will attach to the upstream employer. – First, that employer must be subject to the Act. – Second, the injured employee’s work must have constituted part of the upstream employer’s “trade, business, or occupation.”

“TRADE, BUSINESS, OR OCCUPATION”

• Initially, the “trade, business, or occupation” analysis focuses on the work the owner has employed the subcontractor to complete. • Whatever the parties contract to call their relationship is not controlling in a statutory employment analysis. – “No contract or agreement, written or implied, and no rule, regulation or other device shall in any manner operate to relieve any employer, in whole or in part, of any obligation created by this Title except as otherwise expressly provided in this Title.” S.C. Code Ann. § 42–1–610

47 6 4/22/2021

NATURE OF THE WORK

• Depending on the nature of the work performed by the subcontractor, an employee of a subcontractor may be considered a statutory employee of the owner or upstream employer. • There are three tests to determine whether a statutory employment relationship exists.

THREE TESTS FROM VOSS V. RAMCO, INC., 325 S.C. 560, 568, 482 S.E.2D 582, 586 (CT.APP.1997)

• To determine whether the work performed by a subcontractor is a part of the owner's business, the Court must consider whether: – (1) the activity of the subcontractor is an important part of the owner's trade or business; – (2) the activity performed by the subcontractor is a necessary, essential, and integral part of the owner's business; or – (3) the identical activity performed by the subcontractor has been performed by employees of the owner.

• If any of these tests is satisfied, the injured worker is considered the statutory employee of the owner.

48 7 4/22/2021

REVISITING SCENARIO #1

• Imagine that ABC General Contractor hires XYZ Subcontractor to perform plumbing services for a project. One day, XYZ Subcontractor’s employee is injured while lifting materials. • Employee of XYZ Subcontractor finds out that his employer does not have Worker's Compensation Insurance and cannot compensate the employee.

RATIONAL FOR OWNERS TREATED AS STATUTORY EMPLOYERS

• Owners are treated as statutory employers in these situations because an owner should not be able to avoid workers' compensation liability by subcontracting out the most dangerous work of their business.

49 8 4/22/2021

STATUTORY EMPLOYER (CONTRACTOR S.C. CODE ANN. § 42‐1‐410)

• When any person, in this section and Sections 42‐1‐420 to 42‐1‐ 450 referred to as “contractor,” contracts to perform or execute any work for another person which is not a part of the trade, business or occupation of such other person and contracts with any other person (in this section and Sections 42‐1‐420 to 42‐1‐450 referred to as “subcontractor”) for the execution or performance by or under the subcontractor of the whole or any of the work undertaken by such contractor, the contractor shall be liable to pay to any workman employed in the work any compensation under this title which he would have been liable to pay if that workman had been immediately employed by him.

STATUTORY EMPLOYER (SUB‐SUBCONTRACTORS S.C. CODE ANN. § 42‐1‐420) ) • When a subcontractor in turn contracts with still another person, in this section and Sections 42‐1‐430 to 42‐1‐450 also referred to as a “subcontractor,” for the performance or execution by or under such last subcontractor of the whole or any part of the work undertaken by the first subcontractor, the liability of the owner or contractor shall be the same as the liability imposed by Sections 42‐1‐400 and 42‐1‐410.

50 9 4/22/2021

EXCLUSIVITY DOCTRINE

EXCLUSIVE REMEDY

General Rule • S.C. Code Ann. § 42‐1‐540 provides that the exclusive remedy of an employee against his employer is workers’ compensation.

51 10 4/22/2021

“UPSTREAM” CONTRACTORS, SUBCONTRACTORS, AND OWNERS ARE IMMUNE

• If an injured employee whose immediate employer has no workers’ compensation insurance pursues the next “upstream” subcontractor and collects benefits, all other upstream subcontractors, contractors, and owners are immune under the exclusivity doctrine. Brittingham v. Williams Sign Erectors, Inc., 299 S.C. 259, 384 S.E.2d 319 (Ct. App. 1989).

REVISITING SCENARIO #2

• ABC Owner contracts with XYZ General Contractor to build a house. XYZ General Contractor contracts with a framer, an electrician, and a plumber to complete the framing, the wiring and the plumbing. The electrician’s helper is injured when the framer’s employee drops a hammer on his head. • The electrician had adequate Workers' Compensation Coverage to cover the helper's claim.

52 11 4/22/2021

QUALIFYING FOR IMMUNITY

• A statutory employer qualifies for the immunity provided by the Act's exclusive remedy provision by either: – (1) directly purchasing workers’ compensation insurance; OR – (2) satisfying the requirements of South Carolina Code § 42‐1‐415 – i.e. obtaining a signed ACORD Certificate of Insurance issued by the workers’ compensation carrier for the direct employer.

• Glover v. United States, 337 S.C. 307, 311, 523 S.E.2d 763, 765 (1999)

QUALIFYING FOR IMMUNITY (CONTINUED)

• A statutory employer is no longer directly liable for workers' compensation payments whenever documentation is presented to the commission that a contractor or subcontractor represented himself to the statutory employer as having workers' compensation insurance. S.C. Code Ann. § 42–1–415(A).

• Nothing in this section shall be construed to abrogate the immunity to tort liability of any subcontractor or statutory employer. S.C. Code Ann. § 42–1–415(D).

53 12 4/22/2021

EXCEPTIONS

SUBCONTRACTORS

• Subcontractors of the employer or the employees of such subcontractors are not immune under the exclusivity doctrine (S.C. Code Ann. § 42‐1‐540). • The Act incorporates the basic tenet that an employer who does not have exposure to pay benefits should not enjoy the Act’s immunity, See Parker v. Williams & Madganik, Inc., 275 S.C. 65, 267 S.E.2d 524 (1980)

54 13 4/22/2021

REVISITING SCENARIO #2

• ABC Owner contracts with XYZ General Contractor to build a house. XYZ General Contractor contracts with a framer, an electrician, and a plumber to complete the framing, the wiring and the plumbing. The electrician’s helper is injured when the framer’s employee drops a hammer on his head.

INTENTIONAL TORTS

• An intentional tort is not an “accident” within the Act and an employee’s suit at common law against an employer is not barred by the exclusivity doctrine. McSwain v. Shei, 304 S.C. 25, 402 S.E.2d 890 (1991). • Employees can choose to pursue either Workers' Compensation claims or an action in common law.

55 14 4/22/2021

BOULWARE V. MILLS, 294 S.C. 24, 362 S.E.2D 184 (CT. APP. 1987)

• In Boulware, claimant was assaulted by an employee and received workers’ compensation benefits. • He then sued the employer and assailant as “co‐ employee.” • The Court affirmed defendant’s motion to dismiss recognizing the principle that claimant had an option to claim workers’ compensation or sue his employer under common law.

1LT Josh Spencer, SCSG [email protected] P 864.240.3270

SPC Demetrius Pyburn, USAR [email protected] P 864.240.3290

hsblawfirm.com

This document is for informational purposes only and should not be construed as legal advice. Any result the law firm and/or its attorneys may have achieved on behalf of clients in other matters does not necessarily indicate similar results can be obtained for other clients. © 2021 Haynsworth Sinkler Boyd, P.A. 30

56 15 4/22/2021

WHAT EMPLOYERS NEED TO KNOW ABOUT COVID‐19 VACCINES

1LT Josh Spencer, SCSG, and SPC Demetrius Pyburn, USAR SC State Guard JAG CLE| April 29, 2021

AGENDA

• Introduction • Determine Which Employees Should be Vaccinated • Employer Liability for Employee Adverse Reaction • Agency Guidance Regarding Vaccination • Recommendations for Employer Vaccine Policies

57 1 4/22/2021

INTRODUCTION

• This presentation and comments made are based on current guidance and circumstances. • However, the topic is very fluid and changes rapidly due to a variety of factors. • Employers are exploring their options for either encouraging or mandating workers to get the COVID‐ 19 vaccination.

58 2 4/22/2021

WHY EMPLOYERS MAY MANDATE VACCINATIONS

• Protecting Workplace and Community Health • Ensuring Vaccines turn into Vaccinations • Reducing Cost of Absences, Lost Productivity and Long‐Run Medical Care • Getting and/or Staying Open • Potential Protection Against Enforcement Actions

WHY EMPLOYERS MAY CHOOSE TO ENCOURAGE/MAKE VACCINE OPTIONAL

• Employee Morale and Retention • Administrative Ease • Less Liability Risk for Discrimination Claims • May Not Be Necessary in Certain Industries

59 3 4/22/2021

DETERMINE WHICH EMPLOYEES SHOULD BE VACCINATED

FACTORS TO DETERMINE WHICH EMPLOYEES SHOULD BE VACCINATED

• Nature of the employer's business; • Nature of the particular employee's job duties; • How closely together employees work; • How much exposure employees have to customers or other members of the public; and • Whether employees have exposure to consumables in a manufacturing, restaurant, or retail setting.

60 4 4/22/2021

FACT‐SPECIFIC ANALYSIS

• Obviously, the healthcare industry and related industries have a significantly heightened basis for mandating or strongly encouraging vaccinations. • All employees who may have contact with visitors/customers should at least be encouraged to receive the vaccine.

EMPLOYER LIABILITY FOR EMPLOYEE'S SEVERE ALLERGIC REACTION

61 5 4/22/2021

CAN AN EMPLOYER BE HELD LIABLE IF A WORKER HAS AN ADVERSE REACTION TO THE VACCINE?

• Based on the initial information provided, the chances of serious adverse reactions appear low. • However, in the event of an unlikely adverse reaction, employers have a number of potential legal defenses to such a claim.

SEVERE ALLERGIC REACTION TO VACCINE

• Is a possibility, but rare according to the U.S. Centers for Disease Control and Prevention (CDC). • Statistics from the CDC: – 21 cases of anaphylaxis were detected after about 1.9 million initial doses of Pfizer's vaccine were administered. – 70% of reactions occurred within 15 minutes of receiving the vaccine.

62 6 4/22/2021

WORKER'S COMPENSATION COVERAGE

• Employers themselves would not administer the vaccine. • Employers are much more likely to partner with healthcare providers or authorized entities to administer the vaccine. • Employer‐mandated vaccines are considered a part of work. • An adverse reaction would likely be covered under worker's compensation.

WORKER'S COMPENSATION COVERAGE (CONTINUED)

• Historically, the only recourse for other employer‐ required vaccinations has been through Workers' compensation. • There's no reason to believe this vaccine would be treated differently. • NOTE: If employers merely encourage employees to obtain the vaccine, coverage under workers' compensation may not be available.

63 7 4/22/2021

OTHER LIABILITY PROTECTIONS

• Employees would need to demonstrate negligence on the part of the employer. • It is difficult to see such negligence when the Food and Drug Administration (FDA)‐approved vaccine is administered by a third‐party provider. • The Public Readiness and Emergency Preparedness Act may provide employers immunity from claims related to side effects of a vaccine or other injury at the employer's vaccination site if the employer is considered a "program planner" that supervises or administers an onsite vaccination program.

AGENCY GUIDANCE REGARDING VACCINATION

64 8 4/22/2021

OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION (OSHA)

• OSHA's General Duty clause requires employers to maintain a workplace free of recognized hazards. • OSHA's current guidance suggests this general duty can be satisfied by measures like PPE and distancing. • To date, there has been no specific standard on vaccinations. • In the future, the agency may take the position that a robust vaccination program is required and that workplaces without such a program are not safe.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)

• The EEOC issued guidance regarding COVID vaccinations on December 16, 2020. • Employers can require workers to get COVID vaccines under certain circumstances. • Employers can mandate the vaccine only under the direct threat assessment. – If a safety‐based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r).

65 9 4/22/2021

DIRECT THREAT

• Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: – the duration of the risk; – the nature and severity of the potential harm; – the likelihood that the potential harm will occur; and – the imminence of the potential harm. • The key is whether the risk cannot be eliminated or reduced by a reasonable workplace accommodation.

ADA – THE AMERICANS WITH DISABILITIES ACT AND TITLE VII OF THE CIVIL RIGHTS ACT

• Both prohibit discrimination • Both may require reasonable accommodation

ADA • Administrating the vaccine is not a medical examination for the purposes of the Act. • Asking or requiring an employee to show proof of receipt of vaccination is not a disability‐related inquiry.

66 10 4/22/2021

EMPLOYER RESPONSIBILITIES REGARDING EXEMPTIONS

Medical Exemption Religious Exemption • An employee may be entitled • An employee may be exempt to an exemption from vaccine from COVID vaccination due to an ADA‐covered requirement based on disability or other medical sincerely‐held religious circumstance. beliefs, practices or observances.

Either exemption requires a demonstration of consideration of possible reasonable accommodations.

NATIONAL LABOR RELATIONS ACT (NLRA)

• National Labor Relations Act – Section 7 of the NLRA protects certain concerted activity: regarding workplace protections, which may extend to protest or other labor action regarding a vaccine policy.

67 11 4/22/2021

RECOMMENDATIONS FOR EMPLOYER VACCINE POLICIES

1. Assess the Right to Require Vaccines 2. Make a Plan to Process Exemption Requests 3. Build Employee Buy‐In 4. Minimize or Eliminate Vaccination Cost 5. Continuation of PPE and Distancing Requirements 6. Be Aware of Any Labor Laws

68 12 4/22/2021

1LT Josh Spencer, SCSG [email protected] P 864.240.3270

SPC Demetrius Pyburn, USAR [email protected] P 864.240.3290

hsblawfirm.com

69 13 Update—Workers Compensation

70 Probate Law

71 4/22/2021

Estate Planning and Probate

CPT. Andrew Holliday Judge Advocate, SCSG

Testator- The creator of a Will.

Will - A legal document in which a Testator states their desires as to who is in charge of their estate and to whom the property in their estate is distributed.

Personal Representative (Executor)- The person in charge of the estate. They carry out the Testator’s desires and distribute the estate’s assets.

Beneficiary- The recipient of a bequest from a will or a distribution from a trust, retirement plan, or life insurance policy.

Probate- The process of transferring the estate’s assets based on the Testator’s intent as expressed in the Will.

72 1 4/22/2021

Trust- A legal entity created by a written agreement by a Settlor (the creator of the Trust) to hold and invest property for the benefit of the Settlor and/or other beneficiaries.

Revocable Living Trust- A trust you create during your life which will be managed by a trustee. It is called “revocable” because you can amend or terminate the trust at any time during your life.

Testamentary Trust- A trust created by a will that takes effect upon the death of the person who made the will.

Trustee- An individual or organization carrying out the wishes of the Settlor, paying income to the beneficiaries, and preserving the principal for ultimate distribution.

Power of Attorney- Allows another person to make decisions on your behalf.

Durable Power of Attorney- A power of attorney that remains in effect if the person who made the document becomes incapacitated. Otherwise, if not specifically made durable, the power of attorney automatically expires if the person who made the document becomes incapacitated.

Health Care Power of Attorney/Living Will- Also called a health care directive, this is a legal document that states a person’s wishes about medical care in the event that person unable to speak for him or herself.

73 2 4/22/2021

Estate Planning Basics Four Main Questions

1. What do you own?

What are your client's assets and their value. Are Estate Taxes a factor? Probably not...

2. Who is in charge?

Clients should select a trusted person to serve as the Personal Representative. Usually this is a child, family member, or friend.

Estate Planning Basics Four Main Questions

3. What are your priorities?

Estate planning extends your influence to your loved ones, your community, and the causes you care about even after you’re gone. Clients should consider their priorities and goals.

Ask questions like these:

Do you want your children to receive exactly an equal share of my estate? What charities or causes do you want to support in the future? Do you want to use your estate plan for charitable priorities? What values do you want to pass on to the next generation?

74 3 4/22/2021

Estate Planning Basics Four Main Questions

4. Who gets what?

Identify their beneficiaries (spouse, children, step‐children, other family members, friends, charities)

Make a list of the individuals and organizations that they want to provide for in your estate plan.

Memo for personal property.

What is Probate?

The process during which assets are transferred to Beneficiaries.

Multiple types of Probate:

Small Estate: <$25K, No real estate

Informal: Most common, Any value

Formal: Only when questions arise as to the validity of wills and other contested matters.

75 4 4/22/2021

What are Probate Assets?

Probate Assets: Anything property that does not automatically transfer upon death. (e.g. checking accounts, cars, real estate)

Non‐Probate Assets: Property which passes based on a legal mechanism or beneficiary designation. (e.g. life insurance, 457(b), 403(b), 401(k), or IRA)

Exceptions: Estate can be named the beneficiary for Life Insurance and Retirement plans. Conversely, bank accounts can be POD/TOD, cars can be titled "or", real estate can be JTROS/life estate.

Opening Probate

Wills aren't "filed" in South Carolina until a person passes away.

Probate should be opened within 30 days.

The Probate Court requires the ORIGINAL Will, an original Death Certificate, and an application to open the probate.

Inventory of Probate Assets to be filed within 90 days of Personal Representative being appointed.

76 5 4/22/2021

Creditors Claims against the Estate

Creditors can file claims against the Estate (Frequently, medical and funeral bills, credit card bills, and mortgages) within 12 months from death or 8 months after publication of creditors notice.

Unless another person personally guarantees a debt, only the Estate is liable.

Claims can be settled, contested, or denied.

If claims are denied and the Creditor doesn't file an action to allow the claim, then the debt can be discharged if it is unsecured.

Closing the Estate

After the Creditor's Claim period has ended the Estate can distribute assets.

The Personal Representative will need to document all funds received and disbursed.

The Estate will distribute all probate assets by transferring titles or money to the Beneficiaries.

Several forms are required by the Probate Court to close the Estate unless waived (Application for Settlement and Proposal for Distribution.)

77 6 4/22/2021

Why have a Trust?

Trusts are useful tools to avoid probate, maintain control "from the grave", and structure an estate that is subject to estate taxes.

Avoiding Probate ‐ (Costs, Delays, and Privacy)

Maintaining Control ‐ Trusts allow you to set distribution ages or conditions on distributions. Helpful if a client desires to leave assets to minors.

Estate Taxes ‐ South Carolina doesn't have an Estate Tax. The Federal Estate Tax only applies to Estates over $11.58 Million ($23.16 Million for couples) for 2020 and it is indexed for inflation.

FAQs

Does the State get my property without a Will? ‐Escheatment is frequently misunderstood.

Can my spouse handle my property without a Power of Attorney? ‐Clients think spouses automatically have POA authority.

78 7 4/22/2021

FAQs

How do I name someone to make sure my kids are taken care of? ‐Testamentary Guardians

How often do I need to update my Will or Beneficiary Designations?

Questions?

79 8 Law of Armed Conflict

80 4/22/2021

COL Larry Wedekind

81 1 4/22/2021

82 2 4/22/2021

83 3 4/22/2021

84 4 4/22/2021

85 5 4/22/2021

86 6 4/22/2021

87 7 4/22/2021

88 8 4/22/2021

89 9 4/22/2021

90 10 4/22/2021

91 11 4/22/2021

92 12 4/22/2021

93 13 4/22/2021

94 14 4/22/2021

95 15 4/22/2021

96 16 4/22/2021

97 17 4/22/2021

98 18 Cyber Security During COVID19

99 Mitigation for Law Firms During the Covid‐19 By Dr. Sybil Rosado, Esq. Pandemic 100 How Safe are You?

Lawyer Cybersecurity Posture Quiz • Take the Quiz

101 The Inevitable

Cyberthreats are at an all time high

Data in computers

Mobile Devices

Information Systems used by Attorneys

102 Why is this important? $$$$$

• Up to 0.80 percent of the world’s GDP is now being lost to cybercrime, according to McAfee.

• Over the next 5 years, companies in the private sector “risk losing an estimated US$5.2 trillion in value creation opportunities from the digital economy— almost the size of the economies of France, Italy and Spain combined—to cybersecurity attacks. Accenture

• Global Cybercrime Damages Predicted To Reach $6 Trillion Annually By 2021 (up from 3 trillion in 2015)

103 Law Firms and…

• Law firms once seemed immune to data breaches. This is no longer the case. • The Nature of the job involves holding proprietary information about clients. • Lawyers are Vendors to large companies.

104 Knowledge is Power

What are the Threats? • Phishing: tactics include deceptive emails, websites, and text messages to steal information. • Spear Phishing: email is used to carry out targeted attacks against individuals or businesses. (Whaling) • Baiting: an online and physical social engineering attack that promises the victim a reward. • Malware: victims are tricked into believing that malware is installed on their computer and that if they pay, the malware will be removed. • Pretexting: uses false identity to trick victims into giving up information. • Quid Pro Quo: relies on an exchange of information or service to convince the victim to act.

105 Knowledge is Power

• Tailgating: relies on human trust to give the criminal physical access to a secure building or area. • Vishing: urgent voice mails convince victims they need to act quickly to protect themselves from arrest or other risk. • Water‐Holing: an advanced social engineering attack that infects both a website and its visitors with malware. • Ransomware • Office 365 Data Breach

106 What is PSyops or Information Warfare

• "Information Warfare is `action taken to achieve information superiority in support of national military strategy by affecting an adversary's information and information systems, while leveraging and protecting our own information and information systems" (1996). • At its core, information warfare is about gathering, providing, and denying information in order to improve one’s own decision‐making while damaging the enemy’s.

107 How Information Warfare affects us?

• This causes national security concerns • People can be manipulated by internet content meaning "fake news' • Leaking "information" to change public opinion of something or a person • Can be used against other countries and states • Narratives can be controlled for example, China

108 Psyops (Psychological Operations)

109 Deepfake

110 PSA OBAMA 2

111 Is this an AirBnB?

112 Is this a Client?

113 The Power of the LIKE

114 Likes Tell Hackers What you Like Too!

115 We all want real Connections!

116 Covid‐19’s impact on cybersecurity

• Since were in a pandemic hackers have found a new way to attack users through informative Covid‐19 advertisements. Malware, spyware and Trojans have been embedded in coronavirus maps and websites. Spam emails are also tricking users into clicking on links which download malware to their computers or mobile devices.

117 Who does this? • Threat source: who wants to do harm to us in our online lives Cyber Threats

https://youtu.be/EAQxElHsySw Hacktivists: activists who do Cybercriminals: want to not like something you are or something you do. profit from our sensitive data for financial gain. Nation‐states: Countries do it for political advantage or for espionage.

118 So, How Do We Do Cybersecurity at the Law Firm? If you wanted a process to teach people how to protect a house:

➢How would you recommend they go about it?

➢How do you develop a security mindset?

119 Duty to Safeguard

• Ethical Issues Model Rules – 1.1 Competence – 1.4 Communication – 1.6 Confidentiality of Information – 1.15 Safeguarding Property – 5.1‐3 Supervision

120 Reasonable Precautions

• What is a reasonable response to the threat? • Defining Reasonable precautions • Special Security Measures • Special Circumstances – COVID‐19

121 Lawyer Duties

Common Law

Ethical Ethical Contractual Common Law

Contractual

Regulatory

122 Cybersecurity Compliance

Confidentiality Is this data safe?

Confidence Integrity Integrity Is this the data? Cybersecurity Availability Can I get to the data?

Cybersecurity Availability Balance between the confidentiality, integrity and availability of data under the protection of your information security program.

123 Cybersecurity Programs

Identify Detect Recover

Protect Respond

124 Risk Mitigation

Response Plan/Policy Administrative Education

Locks on Files Physical Firm Security

Multi Factor Authentication Technical Encryption

Risk mitigation versus just risk transfer Cybersecurity Insurance Policy and Procedure

125 What about Cyber Insurance?

Cybersecurity Insurance Cybersecurity Policy and Procedures • No Cyber‐posture • Industry Standards evaluation • Education • Coverage attached to policy and procedures • Liability

126 Everyday Defense

Tips Tricks • Password Vaults • Employ a Cyber alter ego • VPN • Password Conventions • Education • Webcam Cover • Multifactor Authentication

127 Since Security is a 9‐5 job 24‐7 we will close with this video!

Take the Post‐Test!

128 Questions and Answers ???????????????

129 Bibliography

American Bar Association, Law Practice Division, including the Legal Technology Resource Center Sharon D. Nelson, David G. Ries, and John W. Simek, Encryption Made Simple for Lawyers (ABA 2015) Sharon D. Nelson, David G. Ries, and John W. Simek, Locked Down: Practical Information Security for Lawyers, Second Edition (ABA 2016) Jill D. Rhodes and Robert S. Litt, The ABA Cybersecurity Handbook: A Resource for Attorneys, Law Firms, and Business Professionals, Second Edition (ABA 2017) David G. Ries, Cybersecurity for Attorneys: Addressing the Legal and Ethical Duties published on November 14, 2019 at https://www.lawpracticetoday.org/article/cybersecurity‐attorneys‐legal‐ethical/ https://usa.kaspersky.com/resource‐center/threats/what‐is‐cybercrime https://intl.siyavula.com/read/it/grade‐12‐it/social‐implications‐part‐2/07‐social‐implications‐part‐2?id=sec7‐3 https://searchsecurity.techtarget.com/definition/cybercrime https://ayehu.com/cyber‐criminals‐targeting/ •

130