J1 - Know Your Rights

J1

KNOW YOUR RIGHTS

J1

KNOW YOUR RIGHTS

Printed by Colorman Ireland Limited Broombridge Industrial Estate, Broombridge, Dublin 11 www.colorman.ie Layout by Vanessa Corbett 2016 DISCLAIMER: This book is for informational purposes only. The contributors take no responsibility for the information provided.

It is that quality of the Irish, the remarkable combination of hope, confidence and imagination that is needed more than ever today.

The problems of the world cannot possibly be solved by sceptics or cynics whose horizons are limited by the obvious realities. We need men and women who can dream of things that never were, and ask ‘why not?’

John F Kennedy Address to Dáil Éireann, 28 June 1963.

13 Lower Dorset Street, Dublin 1. www.flac.ie

Smithfield Business Centre, The Distiller’s Building, New Church Street, Smithfield, Dublin 7. www.barbri-international.com

Acknowledgments The contributors would like to extend their gratitude to Ms Natalie Gallagher-Gorman of BARBRI International for her invaluable advice and expertise, Ms Vanessa Corbett for her time and assistance, and the Department of Foreign Affairs and Trade, and the Consulates General of Ireland in New York, San Francisco and Boston for their support.

Finally, the law students from Dublin City University, Maynooth University, University College Cork and Trinity College, Dublin, who contributed to the research and writing of this legal resource, were essential in making this project a reality. The willingness of students to help students demonstrates a combination of hope, confidence and imagination that is so necessary today.

Contents Your J1 12 New York State

Employment Law 32 Landlord and Tenant Law 37 Criminal Law 42

California State

Employment Law 50 Landlord and Tenant Law 56 Criminal Law 64

Massachusetts State Employment Law 78 Landlord and Tenant Law 86 Criminal Law 91

Flac Information

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Your J1 J1 Summer Work and Travel The J1 Summer and Work Travel programme is a category of J1 visa that allows 3rd level, full-time students; work in the United States for 4 months during the summer until the 15th of September.

Sponsoring Agency The two main J1 US sponsoring agencies are Council on International Educational Exchange (CIEE) and Interexchange.

On behalf of the US Government, they issue all work authorisation documents for J1 participants.

Participants must inform their US Sponsoring agency on their employment and accommodation status and address. It is necessary to advise the sponsoring agency within 10 days of a change of accommodation. Participants must notify their sponsoring agency of when they arrive and leave the United States.

CIEE and Interexchange can be contacted at the following addresses: Council on International Educational Exchange (CIEE): Telephone: 1-888-268-6245 (Free phone number within the USA) E-mail: contact@ciee.org Fax: 1-207-553-5272 Website: www.ciee.org/wat

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Interexchange: Telephone: 1-212-924-0446 E-mail: info@interexchange.org Fax: 1-212-924-0575 Website: www.interexchange.org SEVIS The Student and Exchange Visitor Information System is a United States Government computerised system that collects and manages data about foreign students and exchange visitors during their stay.

SEVIS provides the US Government regarding J1 participants throughout their stay. All participants are required to provide the following information: • Notification of job offer from the US Employer within 10 days of DS-2019 programme start date • Notification of US home address within 10 days of DS-2019 programme start date • Notification of any change in US Employer and/ or home address within 10 days of change • Providing a valid address, email address and phone number upon starting with the US Employer • Confirmation of working with the same Employer every 30 days; • Confirmation of any cultural activities that have been undertaken during the previous 30 days • Notification of their plan to leave the USA and return home

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DS-2019 The DS-2019 is the official document that allows participants to work legally while on the J1 Summer Work and Travel Programme.

It is issued by the Sponsoring Agency on behalf of the US Government. To be valid, the J1 visa in the participants’ passport, provided by the US Embassy, must accompany the DS-2019.

The DS-2019 will state the exact time period in which each participant can work in the United States. The last date participants can work in the United States is the 15th September.

Participants cannot work after the end date on the DS-2019, however they may remain in the United States as a tourist for a further 30 days.

Proof of Funds US Immigration requires that all J1 participants have a certain amount of money to finance the beginning of their trip. Upon arrival participants must be able to demonstrate proof of this.

With a pre-arranged job in the USA, the participant must have a minimum of $800 available to them on arrival in the United States.

Without a pre-arranged job, participants must have a minimum of $1200 available to them on arrival in the United States.

Proof of Funds can be in the form of: • • • •

Cash Travellers Cheques Credit or Debit Card Statements Bank Statements

As bank accounts can be closed after a statement has been 14

issued, participants may be required to log in to their bank account online so that the Immigration Officer can ascertain the balance and method of deposits.

Cash and Travellers Cheques are the only form of proof guaranteed

by US Immigration.

Social Security Social Security Number The Social Security Number (SSN) is the American equivalent of the Irish PPS number. All participants must obtain a SSN to work legally in the United States.

Application To apply for a SSN, participants must visit their local Social Security Office in the United States, complete the application form and provide the relevant documents. It takes on average between 3-5 weeks to receive a SSN. An employer can legally hire participants who have not yet received their SSN, so long as proof of application can be provided.

A Social Security Number is for life and second-time J1 participants do not need to apply for another.

Lost Documentation Passport Contact your closest Consulate/Embassy for a new passport.

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DS-2019 Contact your Sponsoring Agency immediately. There will be a charge for a replacement form.

Social Security Number In the event that you lose your Social Security Number, you should contact your local Social Security Office with two forms of identification. You should not apply for a new Social Security Number.

Employment Finding Employment All students travelling on the J1 Programme must have an approved seasonal job before they can take part on the programme.

Type of Employment All jobs must be compatible with the rules, regulations and intent of the programme. All jobs must be “seasonal” in nature. For a job to be seasonal or temporary in nature, it must: • Not displace American workers • Allow students to interact frequently with US citizens and immerse themselves in American culture • Have access to affordable housing and convenient transportation A job based in an office environment must be seasonal and not an internship. If there is intent for professional development or some sort of career experience, then it is likely more appropriate that the participant applies for the Intern category of the J1 visa.

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Participants are not allowed take a job that is potentially hazardous or where there is a risk that the reputation of the J1 programme would be brought into disrepute. Certain types of jobs are expressly prohibited. They include: • • • • • •

Construction/general labour jobs Pedi-cab jobs and those requiring operating a motor vehicle Jobs requiring work hours between 2 am and 6 am Jobs in a private home (childcare, cleaning etc.)

Jobs requiring purchasing of inventory for sale Jobs requiring work as an independent contractor

For a full list of prohibited jobs, visit http://j1visa.state.gov/programs/ summer-work-travel/ Changing Employment You may leave your employment. You must contact your Sponsoring Agency for approval and work a minimum notice period of 2 weeks before finishing with your current employer.

You may have more than one job, so long as the programme requirements have been approved by a Sponsoring Agency.

Returning to Ireland Employment Prior to leaving: • Request any wages due • Confirm with employer the date, amount due and the method of payment • Retain employer’s contact details • Provide employer with personal contact details, including home address 17

Sponsoring Agency The Sponsoring Agency must finalise their record with the US Department of State. It is necessary that participants inform the Sponsoring Agency of their early withdrawal from the programme.

Prior to leaving, email the Sponsoring Agency and include: • A brief explanation describing the reasons for leaving • Planned last date of work • A summary of departure flight details • DS-2019 number • Employer’s full name and telephone • E-mail Subject Line: Voluntary Early Withdrawal Request Filing a Tax Return To file a tax return and receive a tax refund, provide your employer with contact details and home address. The following January, you will receive a W-2 form by post from their employer. This form is a summary of the taxes paid while working in the United States.

Once you have received the tax forms the tax return should be lodged by following the necessary steps personally or through the use of a tax assistance agency.

All tax returns must be filed by 15th April each year.

Tax: Everyone who visited the US on a J1 visa is required by law to file a tax return and it’s important to comply with US tax laws. To save students both time and effort the following website will help file a tax return for you. There is a ‘J1 Tax Pack’ on the website, which contains all the necessary documents. They have both an Irish and US headquarters.

Irish: 18

Tel: +353 1 887 1999 Fax: +353 1 670 6963 Free phone (from Ireland): 1800 99 18 05 E-mail: info@taxback.com US: Tel: +1 888 203 8900 Fax: +1 312 873 4202 E-mail: info@taxback.com The following hyperlink will bring you directly to the relevant J1 information: https://www.taxback.com/en/usa/j1-tax-refund/ Accommodation It is the J1 student’s responsibility to care and maintain the accommodation they are living. Students should: • • • • • • • • • • •

Read the lease thoroughly Ask for a receipt Do not pay by cash if possible Check the amount of the security deposit Check the locks on doors and windows and be aware who has a key Clarify if there are any utility bills that will have to be paid in addition to the rent Take an inventory of all utensils and equipment in the accommodation signed by both tenants and landlord Raise any concerns regarding the condition of the apartment or any equipment in writing upon moving in Take time-stamped photos of the apartment upon moving in, in particular of any areas or items damaged Leave the accommodation in a satisfactory condition Be aware that any damage caused may have to be paid out of the security deposit

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Contact details of the Irish Consulate: AUSTIN www.dfa.ie/austin/ +1 512 792 5500 ATLANTA www.dfa.ie/atlanta/ +1 404 554 4980 BOSTON www.dfa.ie/boston/ +1 617 267 9330 CHICAGO www.dfa.ie/chicago/ +1 312 337 2700 NEW YORK www.dfa.ie/newyork/ +1 212 319 2555 SAN FRANCISCO www.dfa.ie/sanfrancisco +1 415 392 4214 WASHINGTON www.dfa.ie/irish-embassy/usa/ +1 202 462 3939

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J1-Visa Exchange Visitor Program: The Exchange Visitor (J) non-immigrant visa category allows individuals to participate in work and study based exchange visitor programs.

J1 Programme Student Categories and Eligibility Requirements: • Summer Work Travel (SWT) Programme * University and College students gain experience by working and travelling in the United States during their summer vacation. * Eligibility Requirements: –– Have sufficiently proficient in English to successfully interact in an English speaking environment; –– Post-secondary school student enrolled in and actively pursuing a degree or other full-time course of study at an accredited classroom based, postsecondary educational institution outside the United States; –– Have successfully completed at least one semester or equivalent of post-secondary academic study; and –– Obtain pre-placement in qualifying employment prior to entry.

• College and University Students * Students have the opportunity to study at American degree-granting post-secondary accredited academic institutions, or participate in a student internship programme that will fulfil the educational objectives of the student’s degree programme in his or her home country.

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* Eligibility Requirements: –– Must be financed directly or indirectly by the US government, government of home country, an international organisation of which the United States is a member by treaty or statute, or supported substantially by funding from any source other than personal or family funds; –– Programme must be carried out according to an agreement between the US government and a foreign government, or according to a written agreement between American and visitor’s educational institution.

–– Must pursue a non-degree programme and must be enrolled full-time in a prescribed course of study. The maximum duration of a non-degree programme is 24 months inclusive of academic training.

• Au Pair * Participants can continue education while living with a host family and providing reliable and responsible childcare. * Candidates must be: –– –– –– ––

Sufficiently proficient in spoken English; A secondary school graduate or equivalent; Between 18 and 26 years old; Capable of fully participating in the programme as evidenced by the satisfactory completion of a physical; –– Interviewed, in English, by an organisational representative who shall prepare a report of the interview and provide it to the host family; –– Successful in passing a background investigation and a personality profile.

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• Camp Counsellor * Enables post-secondary students, youth workers, and teachers to work in camp settings throughout the United States.

Participants Must Be: –– Sufficiently proficient in English; –– A post-secondary student, youth worker, teacher or individual with specialised skills; and –– At least 18 years old.

• Intern Work and Travel * Allows foreign college and university students or recent graduates to travel to the United States to receive experience in business practices in their chosen occupational field.

Participants Must Be: –– Currently enrolled in and pursuing studies at degree or certificate granting post secondary academic institution outside the United States; or –– Have graduated from such an institution no more than 12 months prior to their exchange visitor programme start date.

For Further Information and more J1 Programme Categories, visit www.j1visa.state.gov.

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Expiry: A sponsoring agency may terminate your participation in the program before the time your J-1 student visa was set to expire. For example, if the college that sponsored you requires that you maintain a certain grade point average to attend, but you consistently fail all of your course work, the college may make the decision to discharge you from the program after your first year. Although your J-1 visa was not due to expire for another 12 months, the purpose of the program was effectively ended by the sponsoring agency.

As such, you would be required to leave the United States despite the 12 months still remaining. You must leave the United States at the time the program ends. If you are accepted and successfully complete the program, you are required to leave within 30 days after the programme ends. You do not get this grace period if you are discharged from an exchange visitor programme (as described in the example above). Upon notification of discharge, your student visitor J-1 visa expires and you must leave the U.S. at that time.

Remaining beyond the length of time authorised by your particular J-1 student visa will result in your status being changed to illegal status, thereby potentially limiting your re-entry into the U.S. at a later date.

Read more: http://immigration-law.freeadvice.com/immigration-law/temporary-visas/length-of-stay-on-a-j-1-visa.htm#ixzz3WA903X1j

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When in the United States Police Officers Consent If you agree to talk to a police officer or agree to be searched, the information provided can be used against you or against others.

If you do agree to answer a police officer’s question or submit to search, you can withdraw your consent if you do not want to continue.

Identification In many states, a police officer can stop you in public and require that you provide identification, even if there is no reason to suspect you of criminal activity.

The Miranda Rule Exception If a police officer has not taken you into custody or prevented you from leaving, the officer does not have to read you your Miranda rights. The information you provide can be used against you.

Miranda rights only have to be read in the event of an arrest.

Right to Remain Silent If you believe you may be implicated in a crime, it is advised that you ask to speak with an attorney. Do not act defensive or hostile when speaking with the police. Let the police ask their questions, be polite and courteous.

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Getting Pulled Over Stopping the Vehicle If a police car is following you and has their emergency lights or siren on, pull over to the right safely and quickly. Use your indicator lights to signal any lane changes from left to right, and stop your car. Pull over as far to the right as possible, so the police officer does not have to stand in the way of traffic.

After you Stop Roll down your window all the way. Turn off the engine and place your hands on the steering wheel. If it is dark, turn on your interior light. Police officers are trained to expect the worst, cooperating and acting courteously will allay any fears or suspicions they may have.

Do not search for your license and registration until the officer asks for it. You should have your license and registration readily available while driving.

Vehicle Search A police officer has the right to search your vehicle if they have reasonable suspicion that you have been involved in illegal activity.

An officer may legally search your car if they observe you trying to hide something or throw something out of the window. A police officer may seize any illegal objects in your car that are in ‘plain view’.

Staying in the Vehicle A police officer may insist that you and your passengers get out of the car. You should cooperate. However, you should remain in your car unless directed to do otherwise.

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Drunk Driving Drivers who refuse to consent to a breathalyser or blood test will automatically have their license suspended or revoked. All states have an ‘Implied Consent Law’. Upon receiving a driver’s license, every driver has automatically consented to take chemical tests when asked by an officer.

Obtaining Legal Assistance If you are arrested, contact a local attorney or your local Irish Consul. If you are given a ticket, do not return to Ireland without having paid the fine. This could have implications if you intend to return to the US in the future.

Getting Arrested Arrest A person is arrested when a police officer takes that person into custody. An officer takes someone into custody whenever the person is not free to leave. The arrest begins as soon as you are not free to terminate the questioning.

A police officer can arrest a person if: • The officer sees the person commit a crime • The officer has reason to believe that the person has committed a crime punishable by a state prison, or • A judge or magistrate has issued an arrest warrant, supported by reasonable suspicion.

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Cooperate Do not resist arrest or use force. You could be charged with resisting arrest or battery of an officer.

The Miranda Rule If you are arrested and questioned by the police, you must be informed of certain Constitutional rights. These are known as ‘Miranda Rights’ and are often summarised as follows: “You have the right to remain silent. Anything you say or do can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you.”

Obtaining Legal Assistance In the unlikely event that you are arrested or charged with a crime, you are entitled to the assistance of a lawyer. You should contact your local Irish Consul.

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NEW York

New York State Employment Law Pre Employment Considerations Job advertisements Advertisements should be free from discrimination. It’s advisable to follow USIT or SAYIT guidelines when searching for jobs.

According to the US Department of State Rules and Regulations jobs are offered to J1 participants must be verified by the relevant sponsor in the USA (Inter-Exchange).

The relevant sponsor will not verify jobs on the prohibited lists or jobs which are likely to displace US citizens. Therefore they must be seasonal positions.

Participants are allowed to change jobs. Sponsors may not put obstacles in the way of participants who want to change their jobs.

Job Application The potential employer is prohibited from discriminating against job applicants based on: • Age (Prohibits age bias against any applicant who is at least 18 years of age) • Gender 32

• • • • • • •

Disability Race National origin Religion Sexual Orientation Marital Status Lawful Activities (activities outside of work e.g. political activities)

Interviews When conducting interviews, employers are restricted in what questions they are allowed to ask during the interview and are prohibited from discriminating against interviewees on the above-mentioned grounds.

Employers should avoid questions about disability or illness but are permitted to ask if it will affect performance/ability to do the job.

Employment contracts The most important element of the contract is ensuring that both parties have understood and have mutually agreed upon the terms of employment and that these terms are in keeping with the standards set out by NY State Law (wages, hours, holidays, safety & health regulations etc).

Employment contracts can come in many forms, such as: • Employment at will

This means you may quit, or your employer may fire you,

at any time and for any reason and including for no reason

at all (except on discriminatory grounds, some of which

are outlined above) • Employment based on an implied contract created by an offer letter or language in an Employee handbook 33

• Employment based on an express contract such as a Collective Bargaining Agreement (CBA) • Individual written contract.

New York is ‘at will’ employment state.

Wages The minimum wage for people over the age of 18 increased to $9.00 per hour on the 31/12/2015.

• Certain requirements set under regulations known as “wage orders” may modify the basic rate.

• Wage orders are provisions of the minimum wage law that cover jobs in: * The hospitality and building service industry * Miscellaneous industries and occupations * Farming • They set an hourly rate plus overtime and allowances in four General Industry Wage Orders, based on meals and lodging supplied by an employer.

• Some industries make allowances for tips; thus they set a lower hourly rate. For example, as of December 31, 2015, food service workers may earn $7.50 per hour if they earn $1.50 per hour in tips.

• When the worker must maintain required uniforms, certain allowances also apply.

• As of December 31, 2015, other service workers have a minimum rate of $7.65 or $6.80 per hour, depending on the amount of tips earned per hour.

• There are also allowances for meals and lodging supplied by an employer.

• For further information, visit http://www.labor.ny.gov/ workerprotection/laborstandards/workprot/minwage.shtm

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Minimum wage and overtime laws apply if you are paid: • Hourly, daily or weekly • In cash or by cheque • Off the books Overtime Pay is based on hours worked in a given payroll week.

Thus, time and a half, double-time - or any amount higher than the agreed rate - is not required simply because the work is performed after eight hours per day or on a Saturday or Sunday.

Hours There is no limit on the hours of the work-day, when the employee is required to start or how late the employee will have to work.

Clarify with your potential employer the hours you are prepared to work.

Rest In every seven days of work the employer should allow at least one day of rest (24 hours), this only applies in some industries e.g. hotel/restuaurants.

Meal Periods Employers are required to give employees designated breaks throughout the day. The minimum is 30 minutes for a meal break.

On a one-person shift it may be necessary for the employee to eat on the job. However, the employee must agree to this.

Shifts starting before 11am and continuing later than 7pm should permit for an additional meal period of at least 20 minutes from 35

5-7pm.

Employers are not obliged to provide additional ‘breaks’ however if they permit a break of up to 20 minutes the employee should be paid for this period.

Holidays, Sick Days etc.

Holidays that apply during the course of the J1 visa include: • Last Monday in May (Memorial Day) • July 4 (Independence Day) • First Monday in September (Labour Day) Every employer is required to notify employees in writing or by publicly posting the employer's policy on • sick leave • vacation or holiday pay • personal leave

These fall under ‘time not worked’. Payment for ‘time not worked’ is not required. However, if wage supplements are agreed upon for ‘time not worked’ and the employer fails to provide this they are guilty of a misdemeanour.

Working Conditions It is the duty of the employer to create a safe environment in which to accommodate their employees, while at work.

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Landlord and Tenant Law Rent Regulation There are two types of rent regulation in New York: • Rent control • Rent stabilisation.

An apartment not subject to these regulations is considered ‘unregulated’. A tenant’s rights partly depend on the regulations that apply.

Rental Application Form The rental application consists of various questions in which the landlord seeks to establish the reliability of a potential tenant. The application may require a Credit Report and information relating to the tenant livelihood in order to evaluate the tenant ability to pay rent. However, they cannot discriminate based on: • Age • Race • Gender • Sexual Orientation • Colour • Religion • Disability • Marital Status • Source of Income • Familial Status • Ancestry • National Origin

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It is important that tenants understand the fine print of the rental application (usually located before the signature line) before signing the form.

Holding Deposit When an agreement is made between the tenant and the landlord in the absence of signing a rental agreement the landlord can ask the tenant for a cash deposit in return for holding the rental unit off the market for them. The landlord may retain the holding deposit if the tenant decides they no longer want the rental unit.

It is advised that the following points be agrred upon in writing in relation to a holding deposit: • Deposit amount • Dates the landlord will hold the unit • Conditions for returning the deposit, applying it to rent or to the security deposit Rental Agreements A rental agreement/periodic or month-to-month agreement is a written contract for a short-term tenancy (usually 30-days). With this the landlord has the ability to change the rental terms as long as they provide sufficient notice to the tenant.

Month to Month Tenants Tenants who do not have leases and pay rent on a monthly basis are called ‘month-to-month’ tenants. Either party may terminate a month-to-month tenancy within New York City, by giving 30 days notice. In New York State, outside New York City, the notice period is one month.

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If the landlord seriously violates the rental agreement or fails to fulfil legal responsibilities affecting your health or safety a tenant may be able to move out with less or no notice.

In a ‘month-to-month’ tenancy:

Landlords are not required to explain why the tenancy

is being terminated and refusal to vacate can lead to

eviction proceedings.

Landlords can raise the rent of a month-to-month tenant with the consent of the tenant. If the tenant does not consent the landlord can terminate the tenancy by giving appropriate notice.

Rent Charges When an apartment is not rent regulated, the landlord can charge any rent agreed upon by the parties. If the apartment is rent regulated, all rent increases are set by law.

Rent Security Deposits New York state law does not limit how much a landlord can charge for a security deposit. However, it does limit when it must be returned (within “a reasonable time” after a tenant moves, usually 21-45 days). The security deposit is usually 1 month’s rent.

Landlords do not have to return the rental security deposit if the apartment is damaged or changes that did not exist prior to renting out the apartment.

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Habitability Under the warranty of habitability, tenants have the right to a livable, safe and sanitary apartment, a right that is implied in every written or oral residential lease. Any lease provision that waives this right is void.

Repairs Landlords of multiple dwellings must keep the apartment and the buildings’ public areas in “good repair” and clean; free of vermin, garbage or other offensive material. Landlords are required to maintain electrical, plumbing, sanitary, heating and ventilating systems and appliances they install, in good and safe working order. All repairs must be made within a reasonable time period, which may vary depending upon the severity of the repairs.

Tenants should bring complaints to the attention of their local housing officials.

Eviction The landlord can give a tenant written notice to move, giving them one month and specifying the date on which the tenancy will end.

The landlord may legally provide less notice if rent has not been paid, if other terms of the rental agreement have been violated, or if the tenant has violated basic responsibilities imposed by law.

When a tenant is evicted, the landlord must give the tenant a reasonable amount of time to remove all belongings. The landlord may not retain the tenant’s personal belongings or furniture.

It is a criminal violation for a landlord to illegally evict you by: • Changing the locks • Padlocking the doors • Taking out furniture or property 40

• Removing the door of the apartment or house • Turning off the electricity or water • Doing anything else that keeps the tenant out of the property.

If your landlord carries out any of the above it is advised to call the city or village police. Landlords in New York City who use illegal methods to force a tenant to move are subject to both criminal and civil penalties.

For more information, visit www.ag.ny.gov

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Criminal Law

New York State criminal law categorises offences into four main degrees of severity.

• Traffic infractions: offence is in relation to the vehicular offences, the penalty associated for such an infraction is usually a fine.

• Violations: offence, other than a “traffic infraction”, for which a fine or sentence, no longer than fifteen days, may be imposed.

• Misdemeanours: offence, other than a “traffic infraction’, for which a fine or sentence in excess of fifteen days, but no longer than one year may be imposed.

• Felonies: offence for which a sentence to a term of imprisonment in excess of one year may be imposed, including life sentences.

Deportation of a non-citizen of the United States may also be considered where an individual engaged in any activity that endangered public safety or created a risk to national security, or if convicted of a serious crime.

Arrest A police officer may arrest you without a warrant if: • They have reason to believe that a crime, violation or offence is being committed or attempted in his presence.

• They have reason to believe that you committed a crime although not in his presence.

• They have reason to believe that you were lawfully arrested by a private person.

When making an arrest without a warrant a police officer must tell you the reason for the arrest, unless you are in the act of committing the crime or are being chased.

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• When arresting you, the arresting officer must read you your ‘Miranda Rights’. They must inform you that: * You have a right to remain silent and that anything you say can be used against you in Court. * You have a right to an attorney. If you cannot afford one, one will be appointed for you.

If you are not read your Miranda Rights, a court can throw anything you subsequently say to law enforcement out.

Under questioning the right to remain silent is guaranteed to you by the Federal and New York State Constitutions. To exercise this right, you should tell the police, ‘I would like to remain silent.’

You never have to consent to a search of yourself or your belongings.

If you do consent to a search, it can affect your rights later in court.

If the police say they have a search warrant, ask to see it. If they don’t, say ‘I do not consent to this search.’ This may not stop the search from happening, but it will protect your rights if you have to go to court.

Your right to have a lawyer is a fundamental one at every stage of a criminal proceeding. You have the right to insist that an attorney be assigned to you if you cannot afford one.

Traffic Offences To drive legally within the State of New York you must ensure you have the necessary driver’s licence, vehicle registration and proof of insurance. This also applies to rented vehicles. You must also observe all rules of the road within New York State.

It is a criminal offence to drive while intoxicated, this is known as a DWI. The standard legal limit of is .08% of Blood Alcohol Content (BAC).

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Persons held for drink driving offences When arrested under suspicion of driving under the influence of alcohol, the suspect has the right to be examined by a medical practitioner of her choice.

Drugs

It is a misdemeanour to possess any controlled dangerous substance (CDS),or amounts of CDS that are greater than the amounts specified. Penalties include a fine of up to $1,000, up to one year in jail, or both.

New York has decriminalised possession of small amounts of marijuana (at least as far as first and second violations are involved).

• First and second violations are considered civil citations (similar to a traffic violation), which incur a fine, but no jail time. There is a fine of up to $100 for a first offense, and up to $200 for a second offense.

• Third and subsequent offenses, however, are misdemeanours, and are punishable with a fine of up to $250, up to 15 days in jail, or both.

• Possession of over 25 grams of marijuana may result in a more substantial fine and longer jail sentence.

Alcohol It is illegal for persons under the age of 21 to purchase or to be in possession of alcohol. Minors who violate New York’s minor in possession laws may be fined up to $50.

Trying to purchase alcohol with a fake ID can incur a fine of $100.

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Assault An assault occurs when a person injures someone else without legal justification.

Misdemeanour Assault A person commits misdemeanour assault by improperly causing someone else to suffer a “physical injury”. The injury must have been caused either intentionally or recklessly, or if a person negligently (carelessly) injures someone else by using a deadly weapon or dangerous instrument.

Felony Assault Felony assault requires that the victim suffer a “physical injury” of varying severity. Second-degree assault can be charged in some cases if a victim suffers simply a “physical injury”. The higher-level first-degree assault requires a more sever “serious physical injury”.

• Physical Injury * When a victim suffers at least some physical, not mental, injury of pain. * New York law defines “physical injury” as “impairment of physical condition or substantial pain”.

• Serious Physical Injury * A serious physical injury creates a substantial risk of death, or actually causes death, long-term disfigurement, ill health, or loss or impairment of an organ.

• Acting Intentionally * A person acts intentionally when they want the injury to occur. In New York, as long as the defendant intended to injure someone, a defendant can be charged with assault 45

for injuring any other person, even someone other than the intended victim. • Acting Recklessly * A person acts recklessly when they are aware of and consciously disregard a substantial and unjustifiable risk that his actions will cause an injury. A person is reckless when they are aware that their actions will likely cause the injury but he just doesn’t care. * Being voluntarily drunk or high does not provide a defence to reckless assault. • Acting Negligently * A person is criminally negligent when they fail to realise their actions will almost certainly cause an injury

Penalties A defendant convicted of Misdemeanour Assault can be sentenced to a jail term not to exceed 1 year, or placed on probation for 3 years, and fined up to $1,000.

A defendant convicted of Felony Assault can receive a prison sentence of between 3 and 25 years, depending on the level of felony.

Disturbing the Peace Disturbing the peace, also known as a breach of the peace, disorderly conduct, or by similar terms, occurs whenever someone acts in a way that disrupts the public order or disturbs the peace and tranquillity of the community.

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A person charged with disturbing the peace may face jail time of up to 90 days, fines up to $400, or both. In many instances, if disturbing the peace is a first criminal offence, a person may avoid jail time altogether if convicted.

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California

California State Employment Law Pre Employment Considerations Job advertisements Advertisements should be free from discrimination. It’s advisable to follow USIT or SAYIT guidelines when searching for jobs.

According to the US Department of State Rules and Regulations jobs are offered to J1 participants must be verified by the relevant sponsor in the USA (Inter-Exchange).

The relevant sponsor will not verify jobs on the prohibited lists or jobs which are likely to displace US citizens. Therefore they must be seasonal positions.

Participants are allowed to change jobs. Sponsors may not put obstacles in the way of participants who want to change their jobs.

Interviews Interview topics should only involve questions about the candidate’s ability to do the job, their experience and their qualifications.

Candidates may not be asked about their health or medical history in interviews.

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Written Agreement Requirement California law requires that all employers must draft written contracts for any agreements with employees.

Employment-at-Will California Department of Industrial Relations dictates that either party may end the employment relationship without cause or notice, meaning that employees can quit if they want and an employer can terminate employees at will provided that it is not based on any discriminatory grounds.

However a termination can be unlawful if: • It violates an express or implied contract • It violates an implied duty • It violates public policy Employee Rights Employees have the right to fair wages, for fair work and a good working environment.

The California Labour Code provides that all protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status.

Wage and Hour Law Hours and Days of Work An employee must be paid for every hour he or she works.

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Wages The minimum wage in California is $10.00 per hour.

The minimum wage cannot be waived by any agreement.

The exceptions to the minimum wage outlined by the California Labour Code include: • Student employees • Camp Councillors • Other Councillors of organised camps Those who fall into this category can be paid less than the minimum wage. This amount should be no less than 85% of the minimum wage, this applies to “Learners”.

For more information, visit www.dir.ca.gov/dlse/faq_minimumwage. htm Tips California Law prohibits employers taking any percentage of a gratuity or ‘tips’ left to employees by patrons.

However the California Labour Code allows for involuntary ‘Tip pooling’. Therefore staff can be required to share their tips with other staff members.

Overtime Pay Eight hours of Labour constitutes a day’s work. Employment beyond 8 hours in a work day or 6 days in a work week constitutes overtime.

Employees are entitled to one and a half times the regular rate of pay for all the hours worked in excess of 8 hours on a workday and 52

for the first 8 hours worked on the 7th day.

Employees are entitled to double the regular rate of pay for working more than 12 hours on a workday and working more than 8 hours on the seventh day.

Rest and Meal Periods The Industrial Welfare Commission Wage Orders require that employees are allowed to take rest periods. Employees are entitled to a rest period of ten minutes for every four hours worked.

The rest period is counted as time worked and employees are entitled to be paid for these periods.

A rest period is not required for employees who work for less than 3.5 hours.

Employees must be provided with no less than a 30 minute meal break if they work for a period of at least 5 hours. A second meal break is required if the employee works more than 10 hours.

Sick Days The California Labour Code provides that employees are entitled to “Paid Sick Days�. To qualify for sick leave/paid sick days, the employee must have worked for 90 days and must have worked for the same employer for 30 days.

Make Up Time

California Department of Industrial Provisions allow employees to take time off for personal obligations and make the time up later in the work week.

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Payment It is the employer’s obligation to pay employees on the agreed payday.

Payment options include • Direct deposit to a depository account • Receiving a paper cheque • Payroll card programme Holidays Holidays that apply during the course of the J1 visa include: • Last Monday in May (Memorial Day) • July 4 (Independence Day) • First Monday in September (Labour Day) In addition to the above, under Government Code Section 6700 every Sunday is considered a “holiday,” and under Code of Civil Procedure Section 12a, “holiday” means all day on Saturdays

Hours worked on holidays, Saturdays, and Sundays are treated like hours worked on any other day of the week. California law does not require that an employer provide its employees with paid holidays, that it close its business on any holiday, or that employees be given the day off for any particular holiday.

Working Conditions Fair Employment Practices The Fair Employment and Housing Act protects employees and employment applicants from discrimination, retaliation, and harassment in employment.

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Discrimination that is prohibited includes: • Age • Ancestry • Colour • Religion • Disabilities • Mental status • Medical conditions • Military and veteran status • Genetic information • National origin • Sex • Gender identity • Sexual orientation

Harassment and Sexual Harassment are also prohibited Sexual Harassment includes many types of offensive behaviour, including: • Unwanted sexual advances • Visual conduct such as leering • Verbal conduct such as slurs, propositions or verbal abuse • Physical Conduct such as touching or blocking movement.

Useful Links and Websites For more information regarding California employment law visit: www.dir.ca.gov/iwc/wageorderindustries.htm Also you can email dlse2@dir.ca.gov regarding any problems.

Free Legal Aid in California is known as pro bono assistance.

Information about this type of assistance is available at www.usattorneylegalservices.com/free-legal-aid-california.html.

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Landlord and Tenant Law Repairs and Habitability A landlord is responsible for all repairs in a rental unit, unless the problem was caused by you. They must be issues that would detrimentally affect in some way your ability to live in the unit; they cannot be aesthetic, only practical, relating to the physical quality of the unit, or the services that are required to be provided by the landlord.

It is always best advised that before any documents are signed you undergo a supervised inspection of the rental unit.

This inspection can bring to your attention vital issues with the property, or just highlight small issues, and may save you trouble if disputes arise in the future. The main issues include, but are not limited to: • Cracks in walls, ceilings or floors • Inadequate sewage facilities • Inadequate electrical facilities • Poisonous substances • Damaged furnishings • Missing/damaged locks • Working heating and water appliances • Insect or vermin infestations • Mould The prospective tenant should check the exterior of the residence to ensure that the building itself is well kept and also for any common areas within the structure.

If upon inspection of the rental unit you find any problems, such as the aforementioned ones, or others, then you should make a detailed record of the problems, with a time and date of the discovery.

You should immediately bring these issues to the attention of 56

the landlord. This will help to avoid any later disagreements over responsibility for repairs.

The tenant should also make a record of any issues with the unit they discover even after the agreement is signed and bring it to the landlord’s attention as soon as possible to avoid having deductions made from their security deposits upon completion of the tenancy.

These issues should be brought to the landlord’s attention as soon as possible. Adequate time should be given for him/her to fix the problem before any action should be taken against them (common practice is 30 days).

Options open to people who have complaints with regards to habitability are: Move out: after such reasonable time is given to the landlord to fix the issue, the tenant may vacate the premises. Warning of potential vacation must have been given to the landlord when reporting the issue.

Report to Authorities: a tenant is under no obligation to vacate an uninhabitable premises, and staying does not render it ‘habitable’.

They can report the problem to the authorities to deal with the issue.

Repair and Deduct: a tenant may make such repairs themselves and deduct costs from their rent. However the amount to be deducted cannot be more than one month’s rent, and can be done at most twice in one year. Bills must be provided as proof of such expenses, to be supplied with whatever rent is due.

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Withhold Rent: a tenant can withhold rent to the extent to which they believe it justified based on the gravity of the issue. However all rent should be available in case action is taken and the tenant is ordered to pay the full amount.

Sue for Damages: a tenant can take a case to the Small claims court.

Rental Application Form This form is different from the lease itself as it is only an application to be eligible for the lease. In this form the landlord may ask for information regarding your ability pay the rent and with regard to your reliability as a tenant.

This form may constitute authorisation for the landlord to obtain a Credit Report which is designed to show how you have handled your financial obligations in the past.

Even though the Landlord is within their rights to ask you questions about your livelihood to demonstrate your ability to pay the rent, they are not allowed to discriminate against you on any of the following grounds: • Race • Sex • Sexual Orientation • Colour • Religion • Disability • Marital Status • Source of Income • Familial Status • Ancestry • National Origin 58

Holding Deposits Holding deposits are designed for people who cannot immediately move into the premises but want the landlord to keep the unit vacant until they are ready to pay the first month’s rent and security deposits.

It is common practice (but not legally required) that this deposit be applied to the first month’s rent. This will however require the landlord’s permission.

It is possible to get a refund of these deposits if the reason that you cannot rent the unit is not your fault, i.e. the landlord cannot rent it to you for whatever reason. In the event of the problem arising from your end, then the landlord is not obliged to refund the whole sum of the deposit. He/she can keep a certain amount of the deposit to compensate for any damages suffered by keeping the unit off the market.

This is the same for any deposits paid to the landlord that do not count towards rent. They are refundable in full if the problem is caused by the landlord, and to a certain extent if the problem is your fault. The amount deducted from your refund is dependent on any damages suffered by the landlord by your change in circumstance.

These refunds must be returned to you within 21 days of the termination of tenancy.

Periodic Rental Agreements/Lease There are two kinds of agreements that a prospective tenant can enter into with a landlord; a Periodic Rental Agreement or a Lease.

Periodic Rental Agreement (PRA): This is where a tenant enters into an agreement to pay rent either monthly or weekly. Every time the rent is paid, the agreement is renewed, and is terminated by 59

supplying the landlord with notice (or vice versa) within a previously specified amount of time and by the tenant not paying the rent. The time frame is usually either 7 days or 30 days depending on how often you pay your rent. There is no set limit on the amount of weeks/months the agreement will last. It will last for as long as the rent is being paid, or terminated legally by notice given by either the landlord or the tenant.

The most common is a month-to-month rental agreement.

Lease This is where there is an agreement as to how long the tenancy will last (6 months/12 months). The payment schedule of the rent and all other terms are agreed upon in the contract and both the tenant and landlord are both bound by this agreement. There are advantages and disadvantages to this style of Tenancy. The most substantial advantage would be that, unlike PRAs, the Landlord cannot change the terms of the contract until it is completed and up for renewal. However, the most substantial disadvantage would be that the tenant cannot end the tenancy until the agreed time has elapsed and the lease is finished.

The lease would be subject to an agreed upon notice period to end the tenancy.

It is recommended that students be careful to read the terms of any lease they sign so that they do not commit to terms they do not intend to abide by.

If you must leave the unit prematurely, it is imperative that you seek advice on how you may legally terminate the lease before you move out as breaking the terms of the lease illegally may leave you open to action being brought against you.

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Rent increases are allowed. They are dependent on the type of agreement you have come to with the landlord (PRA or Lease). In the case of a Lease, if it is more than 30 days old, the rent cannot be changed until the lease expires. In the case of a PRA, 30 days must be given for an increase that is 10% or less. If the increase is more than 10%, 60 days must be given.

Rent cannot be increased in retaliation to a tenant exercising their rights.

Any notice for an increase of rent must be in writing.

Contracts A contract for either a PRA or a Lease can be in writing or it can be an oral arrangement. It is always advisable to have any agreements in writing, but this is not always the case. Both are equally enforceable however provided there is some evidence/ record of its existence.

If there are any special agreements, concessions, allowances, or terms in your contract, it is advisable that you obtain all of these in writing, as they will be very difficult to enforce later if this is not the case.

Ending/Breaking a Tenancy Agreement If you have a Periodic Rental Agreement, they are relatively easy to end. You must give notice to the landlord of either 7 days or 30 days (depending on how often you pay your rent).

A lease however is more complicated as you have agreed to stay in the unit for a specific amount of time. To end such a lease you must wait for the lease to expire or apply the specified notice period for termination.

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If you are to break the lease agreement, the landlord can seek damages to cover the remainder of the lease term. This can be through the security deposit you would have paid when you moved in but it is entirely dependent on how much is left outstanding and how much inconvenience is suffered by the landlord. However if the lease agreement is broken due to the conduct of the landlord, there can be no deductions made to your security deposit.

Eviction The same rules for ending/breaking a tenancy apply to landlords in the same way they as they apply to tenants if there has been no wrongdoing. If this is the case you can negotiate with your landlord to stay, although they are not legally required to give you the reason. If you are unsuccessful, you will have until the end of a 30 day (less than one year tenant) or a 60 day (over one year tenant) period to vacate the unit.

However in any of the following (non-exhaustive) circumstances, the landlord is legally entitled to only give you a 3 day written warning: • Failure to pay the rent • Violation of terms of the agreement • Domestic violence/Sexual assault/Stalking another tenant.

• Any illegal activity • Substantially interfered with other tenants • Substantially damaged the premises.

If you do not vacate the unit in the time specified by the landlord in any of the above circumstances (including the 30/60 day notices) you will be liable to have an Unlawful Detainer suit brought against you by the landlord.

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Evictions must conducted in accordance with the law. A landlord cannot: • Lock you out of the unit without a court order.

• Have the police arrest you (unless in the case of illegal activity).

• Enter your premises without your permission for the purposes of making it difficult for you to conduct your life.

• Evict you in retaliation to you exercising your rights.

• Evict you based on any discriminatory grounds Solving Problems Prior to any formal action being taken you should always make an attempt to contact your landlord and discuss the issue.Mediation and Arbitration are also options that may be preferable in cases of tenancy disputes. They are faster, more personal and less formal than judicial proceedings.

More Information For more information see: “California Tenants: A Guide to Residential Tenants’ and Landlords’ Rights and Responsibilities” (2012) or contact any local government agencies or citizens information boards.

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Criminal Law Theft California law distinguishes between petty theft and grand theft, which are the two degrees of theft under state law.

Petty theft is established where the value of stolen goods amounts to less than $950, and grand theft is established on amounts exceeding $950. However, one significant exception to this requirement is that a defendant can be charged with grand theft in amounts exceeding $250 when taken from the victim’s person.

Petty theft is punishable by a fine not exceeding $1,000 and/or a prison sentence not exceeding six months.

In the case of a petty theft of amounts below $50, the crime may be charged as an infraction, resulting in a fine of $250. Grand theft is punishable by a prison term of up to one year for misdemeanour grand theft, or up to 16 years for felony grand theft.

Alcohol Offences It is illegal for persons under the age of 21 to purchase or to be in possession of alcohol.

Possession is prohibited with the following exceptions: in a private location; in the company of a parent or guardian; with a spouse.

It should be noted that the exception for possession in a private location does not include cars. It is also illegal to furnish minors with alcohol.

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Persons must be at least 18 years of age to work in a bar or restaurant serving alcohol, and must be 21 years of age to work as a bartender.

The use of a false ID to obtain alcohol is a criminal offence, and retailers reserve the right to confiscate suspicious, or apparently false IDs. Drug Laws Under California law, drug possession is divided into two categories: • ‘Simple Possession’ • ‘Possession With Intent to Sell’.

Possession of a controlled substance for personal use may be punishable by a prison sentence not exceeding one year, while possession for sale may be punishable by a prison sentence not exceeding five years.

Laws relating to marijuana have changed significantly since the drug was decriminalised. Possession of more than 28.5g (one ounce) could lead to prosecution as a felony with possible imprisonment of 16 months to 3 years. Possession not exceeding 28.5g (one ounce) is an infraction and usually punishable by a fine of $100 and confiscation of the drug.

It is a defence to possession charges if the marijuana is a medical necessity or was obtained through a prescription issued by a doctor.

It is also an offence to plant, grow or cultivate marijuana without a doctor’s recommendation. Those convicted of non-violent drug crime may have the option of receiving treatment in exchange for harsher penalties, while those convicted of possession for sale are still punishable by a prison sentence of between two and five 65

years. Other narcotics such as heroin and methamphetamine remain illegal under federal and state law. It is also an offence to be found in possession of drug paraphernalia.

Sexual Offences Under California sexual battery laws, the unwanted touching of a person’s intimate body parts, such as “sexual organs, anus, groin, or buttocks of any person, and the breast of a female” is prohibited.

Consent is a defence to a charge of sexual battery or rape, unless the victim is a minor (under the age of 18).

Non-consensual sexual intercourse is charged as rape under state law.

Consent gained through the use of physical force, intimidation or threats may also constitute rape. It is important to bare in mind that intoxication by alcohol or narcotics may remove a victim’s ability to consent under Californian law.

Additionally, sexual intercourse which takes place when the victim in asleep or unconscious may constitute rape.

California law punishes defendants with a prison sentence ranging from a fine of one to eight years in most cases.

Where a defendant is found guilty of raping a minor, this sentence may be as high as thirteen years imprisonment.

Assault and Battery Assault is described as an unlawful attempt to cause the violent injury of another person, while battery refers to the actual physical contact made.

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A defendant will not be found guilty of an offence if he/she can prove that the action was taken in self-defence; the defence of another; the defence of property.

• Penalties for assault carry a fine of up to $1,000 and/or a 6 month prison sentence.

• Penalties for battery may include a fine of up to $2,000 and/or a 6 month prison sentence.

• However, this may be increased if the battery is of a Police Officer/Emergency Medical Technician/Firefighter etc.

Penalties may include a fine not to exceed $1,000 and/or a prison sentence not in excess of six months.

However this may increase to a fine of $2,000 and/or a prison sentence not in excess of one year where the assault is made on a police officer.

Indecent Exposure California law prohibits indecent exposure of the private parts of the body.

Where a defendant wilfully exposes his or her genitals for obscene purposes, such as sexual arousal or sexual gratification, he/she can be found guilty of indecent exposure.

It should be noted that a defendant need not be naked in order to be found guilty of indecent exposure.

Furthermore, a crime will only have been committed where the exposure has taken place in public.

A first time offence of indecent exposure will likely result in a misdemeanour conviction punishable by a fine or up to 6 months’ 67

imprisonment, while a second offence is a felony under state law and is punishable by a prison sentence. This is applicable to public urination.

Disturbing the Peace California law provides for three areas causing a disturbance of the peace, punishable under criminal law.

• Trying to start a fight or engaging in a fight in a public place is an offence.

• It may be a disturbance to play loud music in a public place, which disturbs another person’s peace and quiet.

• The use of offensive language to incite violence is prohibited under law.

• The maximum penalties are up to 90 days in jail and/or a fine of up to $400.

Traffic Offences Minor offences include speeding, running red lights or parking violations and are punishable by fines, usually less than $100.

More serious offences include driving under the influence of drugs or alcohol.

For persons aged 21 and over, it is a misdemeanour to drive with a blood alcohol content of 0.08% or more. There is a ‘zerotolerance’attitude towards drivers under the age of 21, for whom the blood alcohol limit is 0.01%.

It should be noted that you can be charged with an offence if the police can prove that your driving was influenced by the consumption of alcohol, even where the blood alcohol level is below 0.08%. Driving under the influence offences are serious and even first time offenders are punishable by a prison sentence of up 68

to six months and/or a fine not exceeding $1,000.

Persons held for drink driving offences When arrested under suspicion of driving under the influence of alcohol, the suspect has the right to be examined by a medical practitioner of her choice.

Arrest A police officer may arrest you without a warrant if: • They have reason to believe that a crime, violation or offence is being committed or attempted in his presence.

• They have reason to believe that you committed a crime although not in his presence.

• They have reason to believe that you were lawfully arrested by a private person.

When making an arrest without a warrant a police officer must tell you the reason for the arrest, unless you are in the act of committing the crime or are being chased.

When arresting you, the arresting officer must read you your ‘Miranda Rights’. They must inform you that: * You have a right to remain silent and that anything you say can be used against you in Court. * You have a right to an attorney. If you cannot afford one, one will be appointed for you.

If you are not read your Miranda Rights, a court can throw anything you subsequently say to law enforcement out.

Under questioning the right to remain silent is guaranteed you by the Federal and Constitution. To exercise this right, you should tell the police, ‘I would like to remain silent.’

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You never have to consent to a search of yourself or your belongings.

If you do consent to a search, it can affect your rights later in court.

If the police say they have a search warrant, ask to see it. If they don’t, say ‘I do not consent to this search.’ This may not stop the search from happening, but it will protect your rights if you have to go to court.

Your right to have a lawyer is a fundamental one at every stage of a criminal proceeding. You have the right to insist that an attorney be assigned to you if you cannot afford one.

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General Resources and Information for California Legal Services: To find free legal aid and services in your area: lawhelpca.org/find-legal-help/directory/area www.calegaladvocates.org/ www.casupportcenters.org/ To find a lawyer:(probably not free) ww.lawyers.findlaw.com/lawyer/state/california Place to ask general questions and queries: www.ask-a-lawyer. freeadvice.com/law-questions/ These links should enable you to find a low cost lawyer or free legal aid in our area, should you be arrested or simply have a legal query.

Irish Consulate: Address: 100 Pine St, San Francisco, CA 94111, United States Phone:+1 415-392-4214 Emergency number (after 5pm Monday-Friday or at weekends) +1-415-823-7150 Website:www.dfa.ie/irish-consulate/sanfrancisco/ Consulate Public Office Opening Hours: Monday to Friday: 09.0012.00 Generally Good to Know: Age Restrictions: Employment: 18 years old.

Age of Consent: 18 years old.

Purchase of Alcohol: 21years old.

Purchase of Cigarettes: 18 years old. (sidenote: minor offence to 71

smoke in a car if there is a minor (under 18) present; usually added if there are other charges.)

Driving: 15.5 years old. Recommended you get California Licence if you want to drive. ww.internationaloffice.berkeley.edu/driving Car Rental: 21years old.

Area phone codes for each city:www.50states.com/areacodes/california.htm#.VSPiR_nF-So Jaywalking: In general: traffic.findlaw.com/traffic-tickets/jaywalking.html Jaywalking means violating pedestrian traffic laws, most often by crossing a street illegally.

Usually a fine will be given as it is a low level offence. May become more serious for repeat offenders.

For more about traffic tickets see: www.traffic.findlaw.com/traffic-tickets/traffic-ticket-basics.html (By following these links you can also ask general questions to a traffic lawyer.)

Mental Health Contacts: Irish Immigration Pastoral Centre www.sfiipc.org 5340 Geary Blvd., Suite 206 San Francisco, CA 94121 Phone: 415-752-6006 Fax: 415-752-6910 E-mail: info@sfiipc.org Community based organization that serves as a home away from home for Irish immigrants in the Bay Area. As a parish without boundaries it offers spiritual, social and practical support to Irish immigrants who are thousands of miles from home and family. • Immigration advice and attorney referral • Employment and housing assistance programs, 72

• • • •

Educational programs Social activities A comprehensive social service and counseling program National advocacy for immigration reform

General Queries: Irish Outreach San Diego www.irishoutreachsd.org 2725 Congress Street 2G San Diego, CA 92110 Phone: 619-291-1630 Fax: 619-291-2678 E-mail help@irishoutreachsd.org Provides assistance to Irish Immigrants in the San Diego area by providing resources, support and information for the new immigrant to the San Diego area. Services include orientation to San Diego and assistance with: • Employment • Housing • Immigration laws and legal representation • Landlord/tenant disputes • U.S. Citizenship processing • Alcohol and drug abuse counseling • Pre-marriage counseling • Irish Passport Application assistance • J-1 Student Services.

• U.S. / Mexican Border Crossing Advisory.

Other Useful Information: If you lose your Passport: Contact your Consulate immediately.

If you lose your DS-2019 form: Contact CIEE (Council of International Education Exchange) San Francisco State University Address: CVC-C, 1600 Holloway Ave, San Francisco, CA 94132, United States 73

Phone:+1 415-338-1293 If you lose Social Security Card: Contract your local Social Security Office to get replacement. Do not apply for a new card.

Generally, the phone numbers of local offices are not published.

Contract general line: toll-free at 1-800-772-1213 By calling 1-800-772-1213, you can use our automated telephone services to get recorded information and conduct some business 24 hours a day.

If you cannot handle your business through our automated services, you can speak to a Social Security representative between 7 a.m. and 7 p.m. Monday through Friday. Generally, you’ll have a shorter wait time if you call during the week after Tuesday. If you are deaf or hard of hearing, call our toll-free TTY number, 1-800325-0778, between 7 a.m. and 7 p.m. Monday through Friday.

See to find your local office: https://secure.ssa.gov/ICON/main.jsp Look between: Monday – Friday: 5a.m – 1a.m, Saturday: 5 a.m – 11:p.m, Sunday: 8a.m-11:30p.m To replace you card online see: www.simplefilings.com/new-card/ home.php?s=MSN (Make sure to talk to your local service first.)

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Massachusetts

Massachusetts State Employment Law Pre Employment Considerations Job advertisements Advertisements should be free from discrimination. It’s advisable to follow USIT or SAYIT guidelines when searching for jobs.

According to the US Department of State Rules and Regulations jobs are offered to J1 participants must be verified by the relevant sponsor in the USA (Inter-Exchange).

The relevant sponsor will not verify jobs on the prohibited lists or jobs which are likely to displace US citizens. Therefore they must be seasonal positions.

Participants are allowed to change jobs. Sponsors may not put obstacles in the way of participants who want to change their jobs.

Job Application Discrimination – employers cannot make employment decisions on the basis of: • Race • Color • National origin and ancestry • Age 78

• • • • • •

Sex (including pregnancy) Sexual Orientation Religion Disability Military Status Genetic Information

Furthermore, consistency in treatment of employees is critical.

Meaning employers’ decisions must all be job-related and consistent.

It is also illegal for an employer to administer a lie detector in application processes.

Interviews It is unlawful for an employer to inquire about certain areas during the application process. Generally, any inquiries that directly or indirectly elicit information about an applicant’s protected status is inappropriate.

Employers also may not ask disability questions during the preemployment process. This includes questions about treatment for medical conditions, hospitalisations, major illnesses, physical conditions or absences from work due to illness.

It is worth noting that employers may ask questions about current use of drugs, provided they are not likely to elicit information about past drug addiction which is covered as a disability.

Medical examination and testing are permissible in limited circumstances once a conditional offer has been made.

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Minimum Wage Currently the minimum wage in Massachusetts is $10.00 an hour.

If the employee is tipped, different minimum wage amounts can apply.

Pursuant to the Fair Labour Standards Act, an individual under the age of 20 years may be paid the youth minimum wage which is $4. 25 an hour. However, an employer can only pay the employee the youth minimum wage for 90 consecutive days from the commencement of the employment.

Massachusetts law generally requires that employees be paid no less often than bi-weekly.

Tipped Employees A different minimum wage is set for tipped employees. This is $3.35 an hour.

However, for employers to pay these employees this different minimum wage they must inform the employee of this law and the employee must receive at least the minimum wage displayed above when actual tips and wages are combines.

In addition, all tips must be retained by the employee or distributed through a valid tip-pool. If the combined wages and actual tips do not at least equal the regular minimum wage, the employer must pay the employee the difference.

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Overtime In general, Minimum Wage Law does not require extra pay for weekend, holiday or night work (see Retail Store Employees section).

The law also does not distinguish between full-time or part-time employment.

Most employees must be paid 1 1/2 times their regular hourly rate if working overtime (in excess of 40 hours in a given week).

However some employees are exempt from this such as seasonal workers so it is worth checking with the employer.

Contracts It is important to understand that offer letters also create employment contracts. Contracts can also be formed in pre-hire statements and promises. Furthermore, statements in employee handbooks and policies can create “implied contracts”.

The Common Law ‘Duty of Loyalty’ Under Massachusetts law, the employee owes their employers a “duty of loyalty”. In essence, the employee’s duty is that they will not misuse or appropriate to herself the employer’s confidential, proprietary or trade secret information that is entrusted to her.

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Holidays, Sick Leave etc Employers with 50 or more employees are required by law to give up to 15 days off work in any 12 month period for personal reasons. However, the employee may have to provide the relevant documentation and the employer is not required to pay wages for days off.

Employees who work for employers having 11 or more employees are entitled to up to 40 hours of paid sick leave per calendar year.

The number of hours which an employee is entitled to exactly is related to the number of hours worked – one hour for every 30 hours worked.

Vacation period is determined by the employer and should be laid out in the working contract.

Meal Periods The law provides for one 30 minute lunch period during each work shift lasting over 6 hours but does not require breaks.

Travel Expenses If an employee who regularly works at a fixed location is required to report to a location other than his or her regular site, the employee must be compensated for all travel time in excess of his or her ordinary travel time between home and work and shall be reimbursed for associated transportation expenses.

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Retail Store Employees Retail stores may not require employees to work on Sundays and may not take adverse actions against employees who decline to work.

Non-managerial employees must be paid time and one half wages on a Sunday regardless of how many hours they worked during the week (not applying to stores who employ seven or less persons).

In addition, employees may not work 7 consecutive days.

Sexual Harrassment in Employment Sexual harassment consists of: • Any verbal or physical acts or conduct • of a sexual nature, • which is unwelcomed by the victim, and

(a) submission to such conduct is necessary to obtain or

keep one’s job,

(b) submission or resistance to such conduct affects one’s

pay, job assignments, promotions or other aspects of one’s

job or

(c) the conduct unreasonably interferes with doing one’s

job, or creates an intimidating, hostile, humiliating or

offensive working environment.

This includes inappropriate touching, sexual epithets, jokes, gossip, requests for sex, displaying sexually suggestive pictures, sexual gestures or comments, leering or whistling.

If you are the victim of sexual harassment an employee may contact the MCAD within 300 days of the alleged discriminatory action.

The Massachusetts Commission Against Discrimination (MCAD) was established in 1946 as the state’s chief civil rights agency 83

charged with the authority to investigate, prosecute, adjudicate and resolve cases of discrimination. Led by three Commissioners, one who serves as chair, the MCAD enforces the state’s antidiscrimination laws in these areas: • Employment • Housing • Credit • Public accommodations • Access to education o The MCAD protects individuals in numerous protected categories including race, color, creed, national origin, age, disability, gender, gender identity, and sexual orientation.

For more information, visit www.mass.gov/mcad/ Working Conditions The federal Occupational Safety and Health Act (OSHA) requires employers to provide a safe working environment for their employees. Employers should maintain a working environment that is free from hazards that they do know or should know about.

This includes wherever employees are sent to work.

Holidays Holidays that apply during the course of the J1 visa include: • Last Monday in May (Memorial Day) • July 4 (Independence Day) • First Monday in September (Labour Day)

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Termination or Change of Terms of Employment In Massachusetts the general rule is that employment is “at will�, meaning that either the employer or the employee can terminate the employment relationship at any time, without notice or cause.

The employer also is able to modify the terms and conditions without notice or cause.

However, this may be subject to some exceptions that would be laid out in any contract. For example, under Massachusetts law, all contracts contain an implied covenant of good faith and fair dealing which is violated when an employer terminates an at-will employee in order to avoid payment to the employee of compensation earned or almost earned.

An employee terminated involuntarily must be paid in full as of the date of termination including any commissions owed. Employees who resign need be paid only at the next regular pay period.

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Landlord and Tenant Laws

In Massachusetts, there are four main types of tenancies.

Tenant with Written Lease: Tenant with written agreement that states the agreed-upon rent and the length of the tenancy (typically 1 year, but may be shorter or longer].

Tenant at Will: Tenant with month-to-month tenancy, may be either written or oral.

Tenant at Sufferance: Tenant who stays in an apartment

after her tenancy has ended without permission from the landlord.

Leases must include • Price of rent • Date on which the tenancy ends • Sum of the security deposit, if paid • All rights of the tenant concerning the security deposit • Names, addresses, and phone numbers of your landlord, any other person responsible for maintaining the property When a new tenant moves in, the most the landlord can charge is: • The first month’s rent • The last month’s rent • A security deposit up to the amount of the first month’s rent • The cost of a new lock A landlord should provide a receipt for any money paid.

A tenant is obligated to pay whatever rent has been agreed upon.

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A landlord cannot charge interest or late fees on late rent payments unless the lease or rental agreement specifically gives the landlord this right. Even with a late payment penalty clause, a landlord cannot collect a late payment penalty until the rent is 30 days late.

Utilities The landlord must pay for the following utilities, unless the written lease states that the tenant must pay: • Water • Fuel for Hot Water • Fuel for Heat • Electricity and Gas Statement of Condition If a landlord requires a security deposit, by law they must prepare a statement describing the conditions of the apartment. Even if no security deposit is required, it is recommended, when one first moves in to prepare a statement describing the condition of an apartment.

Illegal Clauses The following clauses are illegal: • A clause that says the tenant is responsible for making all repairs. The law requires the landlord to make repairs, except when a tenant breaks something.

• A clause that says a landlord can use your security deposit to pay for utilities if you don’t pay for them. A security deposit can only be used to pay for damage caused by the tenant.

• A clause that says you must pay for electricity or gas where the service or bill is in your landlord’s name. A landlord must 87

pay electricity or gas unless there is a meter which separately calculates the tenant’s utility use. • A clause that says that immediately upon termination of your lease you must pay all rent due for the remainder of the term of the lease. While you may have to pay some rent if you or your landlord terminate your lease before it is over, a landlord also has a duty to find a replacement tenant for the remainder of the lease. • If there is an illegal clause, a landlord cannot force you to comply with it. If you feel you will lose an apartment unless you sign a lease with an illegal clause, sign the lease and move in.

Your lease will still be valid except for the illegal parts.

How long is a lease valid?

If lease is self-extending: If you do not give your landlord written notice (or your landlord does not give you notice), your lease will automatically extend itself for however long your original lease period was.

If your lease gives you an option to renew: You must give your landlord notice that you want to stay. If you plan on leaving at the end of the lease, you are not required to give your landlord notice.

Make sure you check the notice requirements, if any, that apply to your tenancy.

Rent increases Your landlord must send you written notice telling you that she wants to increase the rent. If you are a tenant at will, you must receive this notice at least 30 days (or one full rental period) in advance.

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Illegally raised rent If you believe that your landlord has illegally raised your rent and you want to stay in your apartment, the best thing to do is to collect evidence that will prove that the increase is illegal.

For example, if you feel that the landlord has retaliated against you for reporting violations of the state Sanitary Code, make sure you have a certified copy of a housing inspection report signed by the inspector who performed the inspection and copies of any letters that you sent the landlord about the conditions Tax escalator clause A tax escalator clause says that if your landlord’s property taxes go up, she can increase your rent.The language of a tax escalator clause must contain three things: • A statement that you are obligated to pay only that portion of the increased property tax as your apartment bears to the whole property being taxed. So if you live in a 3 unit building, you would be obligated to pay only one third of the increase for the whole building.

• The exact percentage of any tax increase that you are obligated to pay.

• A statement that if your landlord gets a tax refund, or tax abatement, you will receive a proportionate share of that reduction.

To confirm the landlord is not overcharging you visit your local tax assessor’s office and ask whether taxes on the property you rent have gone up and whether your landlord received an abatement.

If your landlord has received a tax abatement, tax assessors will have determined the original tax assesment was too high and so you will need to figure out how much the landlord owes you.

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Evictions In order to legally evict a tenant, a landlord must follow specific procedures. A landlord must: • Properly terminate a tenancy • Get permission from a court to legally take possession of your apartment A tenancy under a lease generally lasts until the end date stated in the lease. If you have a lease and your landlord wants to evict you before your lease has ended, she may evict you only for: • Violating your lease, if the lease states that the landlord may evict for such a violation; • Not paying rent; or • Using the apartment for illegal purposes • Illegal evictions

It is illegal for your landlord to do the following without a court’s permission • Moves your belongings out of your apartment; • Changes your locks (which is called a “lockout”); • Shuts off your utilities (which is called a “utility shut-off”); or • Interferes in any other way with your use of the apartment.

If a landlord locks you out of your apartment or shuts off your utilities, you should immediately go to court to get what is called a temporary restraining order, or “TRO”. This will inform the landlord to cease any illegal behaviour and restore any changes they have made to the apartment.

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Criminal law Arrest A police officer may arrest you without a warrant if: • They have reason to believe that a crime, violation or offence is being committed or attempted in his presence.

• They have reason to believe that you committed a crime although not in his presence.

• They have reason to believe that you were lawfully arrested by a private person.

When making an arrest without a warrant a police officer must tell you the reason for the arrest, unless you are in the act of committing the crime or are being chased.

When arresting you, the arresting officer must read you your ‘Miranda Rights’. They must inform you that: * You have a right to remain silent and that anything you say can be used against you in Court. * You have a right to an attorney. If you cannot afford one, one will be appointed for you.

If you are not read your Miranda Rights, a court can throw anything you subsequently say to law enforcement out.

Under questioning the right to remain silent is guaranteed you by the Federal and Constitution. To exercise this right, you should tell the police, ‘I would like to remain silent.’

You never have to consent to a search of yourself or your belongings.

If you do consent to a search, it can affect your rights later in court.

If the police say they have a search warrant, ask to see it. If they don’t, say ‘I do not consent to this search.’ This may not stop the search from happening, but it will protect your rights if you have to go to court.

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Your right to have a lawyer is a fundamental one at every stage of a criminal proceeding. You have the right to insist that an attorney be assigned to you if you cannot afford one.

Rights of the Suspect Right to know the offence Whoever is arrested, or whoever is taken into custody by an officer, has a right to know from the officer who arrests or claims to detain him the true ground on which the arrest is made.

Right of arresting officer An arresting officer cannot be held liable for performing their duties, unless for use of excessive force.

Persons held for drink driving offences When arrested under suspicion of driving under the influence of alcohol, the suspect has the right to be examined by a medical practitioner of her choice.

Crimes against the Person Assault A person commits assault by: • Attempting to use physical force against another, or • Demonstrating an intention to use immediate force against another

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A person does not need to inflict injury or make physical contact with another to commit an assault Example: • Throwing a punch at someone, even if the punch misses, is the first type of assault. For this type of assault, the victim does not need to be afraid of, or even aware of, the person’s actions.

• Running at someone with fists up is the second type of assault.

The person carrying out the assault must intend to put the victim in fear of bodily harm and the conduct must be reasonably perceived as threatening imminent physical harm.

Assault and Battery A person commits assault and battery by deliberately touching the victim: • In a way that is likely to cause bodily harm, or • Without the victim’s consent Example: Hitting someone is assault and battery. The victim does not need to sustain injury, as long as there is physical contact.

Degrees of Injury • Assaults and batteries that cause injury can be punished more severely.

• Serious Bodily Injury • Creates a substantial risk of death, or causes permanent disfigurement, loss, or impairment of any part of the body.

Example: The victim suffers permanent scarring.

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Substantial Bodily Injury Creates a substantial risk of death or causes permanent disfigurement, or lasting loss or impairment of any part of the body.

Example: The victim suffers a broken leg.

Bodily Injury Any burn, fracture, bruise, internal injury, any injury that results from repeated harm to the victim, or any physical condition that endangers a victim’s health or welfare.

Example: Striking a person in the chest and causing a bruise.

The crime of assault and the crime of assault and battery are punishable by up to 2 1/2 or a fine of up to $1,000.

Sexual Offences Sexual assault is defined as any crime in which the offender subjects the victim to sexual touching that is unwanted and offensive.

The unwanted sex act is one that is forced upon someone, whether it is penetration or simply sexualised touching.

Indecent Assault and Battery on Person over 14 • Touching that is ‘fundamentally offensive to contemporary moral values’ including touching. Maximum penalty is 5 years state prison or 2 1/2 years house of corrections.

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Rape Physically forcing a victim to have sexual intercourse is not the only way rape can happen. If a person cannot give consent for some reasons such as unconsciousness, intoxication or mental impairment, that is classified as rape.

Harassment Whoever wilfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment. This offence can be any means of communication Theft The crime of theft is called ‘larceny in the state of Massachusetts.

It is defined as simply stealing the property of another. The crime of larceny also covers: • Fraudulently obtaining another person’s property • Unlawfully converting another person’s property with the intent to steal or embezzle, and • Hiding another person’s property with the intent to convert and steal it Law enforcement officers may arrest without warrant any person he has probable cause for believing has committed the offence of shoplifting as defined in this section. The statement of a merchant or his employee or agent that a person has violated a provision of this section shall constitute probable cause for arrest by any law enforcement officer authorised to make an arrest in such jurisdiction.

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Driving under the influence of alcohol In the State of Massachusetts it is illegal to drive with a Blood Alcohol Content (BAC) of .08% or above. This limit is lower for drivers under the age of 21 and drivers of commercial vehicles. The .08% limit for adults is the standard measurement of the “impaired” driver across the United States.

In Massachusetts, a DUI is called an OUI, or “Operating Under the Influence”.

Massachusetts has strict laws for drunk driving, and when you drink and drive in Massachusetts, you restrict your freedom, finances and your future.

Open Container Law Even if the driver is not drinking, it is illegal to operate a motor vehicle with an open container of alcohol anywhere in the vehicle.

This can incur a fine of between $100 and $500.

Marijuana Marijuana possession, sale, and manufacture are regulated by both state and federal law. In Massachusetts, marijuana is classified as a class D substance. Unlike some states, Massachusetts does not allow medical marijuana use. It is also a crime to drive under the influence of marijuana in Massachusetts.

Possession: It is a crime to knowingly or intentionally possess marijuana in Massachusetts. Penalties vary according to the amount possessed, with additional penalties for minors in possession of marijuana.

• Up to one ounce. A violation is a civil offense, punishable with a fine of $100 (and forfeiture of the marijuana.

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• More than one ounce. A violation is misdemeanour, punishable with a fine of $500, up to six months in jail, or both.

For petty infractions such as, bicycle infractions, jaywalking, bus fare evasion, littering etc. please see the following website for more information. www.mass.gov/courts/selfhelp/tickets/ Further reading of crimes punishable under the Criminal Code of Massachusetts can be found at the following helpful websites: www.mass.gov/courts/selfhelp/criminal-law/criminal-process.html www.criminaldefenselawyer.com/topics/massachusetts-crimeslaws-penalties

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FLAC, Free Legal Advice Centre, is a human rights organisation which exists to promote equal access to justice for all. Our vision is of a society where everyone can access fair and accountable mechanisms to vindicate their rights.

FLAC student societies There are a number of student FLAC societies operating in universities around Ireland. These are: Trinity FLAC, UCC FLAC, NUIG FLAC, GCD FLAC, DCU FLAC, UCD FLAC and Maynooth University FLAC. Student FLAC societies are run by students with the support of a qualified solicitor or barrister.

The main purpose of student FLAC societies is to operate information clinics where the student population can come and receive once-off legal information from qualified practitioners who supervise law students. For students who want to get involved in using their growing legal skills to help others, it's a great way to become more socially active and aware.

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Trinity College Dublin FLAC Trinity FLAC runs clinics throughout the year at which students can avail of free legal advice from a qualified solicitor. The most prevalent areas of law on which the students seek advice are Employment Law and Landlord & Tenant Law. The society organises frequent events such as legal information seminars, and also gets involved with campaigns run by FLAC’s Head Office. For more information contact flac@csc.tcd.ie.

UCC FLAC UCC FLAC has been in existence for a number of years. The main areas of law on which the society provides information are Landlord/Tenant Law, Public Order Offences, Consumer Law and Employment Law. UCC FLAC regularly hold walk-in clinics and appointment-only clinics. UCC FLAC has recently started to open up the legal clinics to members of the public. As well as operating the advice centres, UCC FLAC is involved in organising and arranging information and training seminars on various legal topics. For more information or an appointment please contact flac@uccsocieties.ie.

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NUI Galway FLAC NUI Galway FLAC Society holds clinics for students with legal queries. You can get in contact at nuigflac@gmail.com.

There is also a Disability Legal Information Clinic, currently the only one of its kind in Ireland. It is a partnership between the University's student-run FLAC and the college's Centre for Disability Law and Policy. It is a free, confidential, accessible, drop-in legal information service on issues related to disability. Clinics are staffed by trained student volunteers supervised by a legal practitioner and a staff member of the Centre for Disability Law and Policy. Clients with particular accessibility requirements (such as a sign language interpreter) should contact nuigdlic@gmail.com.

Maynooth University FLAC Maynooth University's FLAC clinics provide advice for college students and staff as well as members of the public. The main areas of law on which the Maynooth University FLAC team currently offer advice are Landlord & Tenant Law, Employment Law and Family Law. For more information, contact flacmaynooth@gmail.com.

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DCU FLAC As a society, it holds workshops for student members in order to give them the adequate legal information in preparation for holding FLAC clinics. These are then followed by a series of practice clinics to enable members to practice or sharpen the skills developed from the workshops. DCU FLAC regularly runs an advice clinic.

For more information, please contact flacdcu@gmail.com.

Griffith College FLAC The society runs a 2-hour advice clinic every two weeks and they operate on an appointment basis. To book an appointment or to find out more, contact flac@gcd.ie.

UCD Student Legal Service The UCD Student Legal Service is a student-run service providing UCD students with legal information. For more information, contact studentlegalservice@ucd.ie.

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