U.S. ESTATE PLANNING FOR EXPATRIATES

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Code §2801 imposes U.S. transfer taxes on transfers by former U.S. persons who have expatriated if the transfer is to a U.S. person. This tax is imposed on the U.S. recipient. A recent article by Joseph Toce, Jr. and Joseph Kluemper points out several planning considerations for such expatriates if they have U.S. persons who will be recipients of gifts or testamentary transfers. These include:

a. Making Lifetime Gifts of Property to U.S. Persons that are Subject to U.S. Gift Tax Instead of Testamentary Transfers. Under normal U.S. gift tax rules, gift taxes are tax-exclusive if the donor survives the gift by three years. That is, the taxes themselves are not considered by the gift – there is no tax on the tax. However, §2801 taxes are tax inclusive – thus, they are taxed at higher effective rates. So, similar to the same considerations that apply to U.S. donors, a lifetime gift bears less taxes than a testamentary gift. Since this does not work if the gift is taxed under §2801, the gift must be of property that is otherwise subject to U.S. gift taxes aside from the expatriate status of the donor. This is because §2801 will not apply to a gift of a nonresident that is otherwise subject to U.S. gift taxes. Thus, the donor should use property that is U.S. situs property for gift tax purposes, such as U.S. real property, to make the gift.

b. Make Use of Double Annual Exclusion Gifts. It is likely that if a donor makes an annual exclusion gift of U.S. situs property and of non-U.S. situs, each gift can benefit from a $14,000 annual exclusion. One exclusion is the regular exclusion that applies to U.S. situs assets under the regular gift tax rules, and the second is the annual exclusion that is granted to the donee under §2801.

c. Consider Making Generation Skipping Transfers of Non-U.S. Situs Assets. Transfers of non-U.S. situs assets will still be subject to tax under §2801. However, there is no GST tax under §2801 so when appropriate, a generation skip can be included in the transfer to avoid future transfer taxes.

d. Carefully Allocate U.S. Situs Property and Non-U.S. Situs Property Between U.S. and non-U.S. Recipients. The goal here is to transfer the U.S. situs property to the U.S. people, since it will be taxed under the normal nonresident transfer rules or §2801 – either way. This leaves non-U.S. situs property to go to nonresidents, free of U.S. transfer taxes – if U.S. situs property is instead transferred to them, then U.S. transfer taxes would apply.

Estate Planning for Expatriates Under Chapter 15, by  Joseph Toce, Jr. and Joseph Kluemper, published in the January 2013 issue of Estate Planning Journal

An Employment Lawyer's Debate Questions for President Obama

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This is the first in a series that I am doing along with a group of employment attorneys around the country. Management and employee side attorneys will be providing their own debate questions for the Presidential and Vice Presidential candidates this week. The first candidate is President Barack Obama.

Here are some questions I’d ask the President at the debates if I had a chance:

The very first piece of legislation you signed into law was the Lilly Ledbetter Fair Pay Restoration Act, empowering women to recover wages lost to discrimination by extending the time period in which employees can file claims. You’ve also advocated for passage of the Paycheck Fairness Act, which would have required employers to demonstrate that any salary differences between men and women doing the same work are not gender-related. Plus, you convened a National Equal Pay Task Force to ensure that existing equal pay laws are fully enforced. Why do you feel so strongly about the need for pay equity in America and what do you think about the Republican party’s strong opposition to your efforts toward pay equity?

Then I’d probably ask:

Your opponent wrote an editorial saying we should let the automobile industry go bankrupt rather than bail them out during the worst part of the recession. Do you think the bailout was worth it, and are you glad you saved over a million jobs and supported an industry that has added hundreds of thousands of new jobs when most industries are cutting workers?

I’d follow up with:

You’ve said that you believe people who work full time should not live in poverty. Before the Democrats took back Congress, the minimum wage had not changed in 10 years. Although Congress did raise the minimum wage during your administration, the minimum wage’s real purchasing power is still below what it was in 1968, and full time minimum wage workers are mostly below the poverty line. You’ve said you want to further raise the minimum wage, index it to inflation and increase the Earned Income Tax Credit. Why do you think it’s important to make sure that full-time workers can earn a living wage that allows them to raise their families and pay for basic needs such as food, transportation, and housing?

Then I’d ask:

You repealed Don’t Ask Don’t Tell, which limited gay and lesbian Americans’ right to serve in the military and be honest about their sexual orientation. You’ve also instructed the Justice Department to stop enforcing the Defense of Marriage Act, and you are in favor of the Respect for Marriage Act, which would uphold the principle that the federal government should not deny gay and lesbian couples the same rights and legal protections as other couples. Why do you think it’s important to treat gays and lesbians with respect and to end discrimination against them, and what more will you do to ensure equality for all Americans?

I’d end with:

Most Americans probably think they’re entitled to some sick time off of work, yet three out of four low-wage workers have no paid sick leave. You’ve said you support efforts to guarantee workers seven days of paid sick leave per year. Why do you think it’s unfair that a single mom playing by the rules can get fired or lose wages because her child or she gets sick, and what do you plan to do to ensure paid sick leave for all American workers?

There are, of course, lots more questions I could ask. I think the choice between the candidates as far as workplace issues is crystal clear.


Here's another perspective, from Robin Shea, a management-side employment lawyer.

Can Employers Discriminate Against You Because You're Unemployed? Absolutely

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There's been lots of fuss about a recent article in AOL Jobs, Employer Explains Why He Won't Hire the Unemployed. Outrageous, people cry. That can't be legal!

Yet discrimination against the unemployed is indeed legal. Many companies consider unemployment to be a factor that automatically disqualifies applicants.

But it can't really be happening, can it? Yes. Unemployment discrimination is rampant. Whether unemployed for a few weeks or months or even years, employers think less of the unemployed. Some companies are even posting ads saying that the unemployed need not apply.

While a handful of states (New Jersey, Oregon, DC) have passed laws against unemployment discrimination, it's legal almost everywhere in the United States. Other states have tried to pass laws and failed or been vetoed.

But there ought to be a law!

Yes, there should. And President Obama has proposed the American Jobs Act, which has many provisions that will help put Americans back to work. Included in that law is a prohibition against discriminating against the unemployed.

What do you do in the meantime?

Unemployment is having a disparate impact on older workers and minorities. If you're facing discrimination due to being unemployed and you're over 40, a minority, disabled, pregnant, or in some other category that is disproportionately unemployed, you might want to file a charge of discrimination with EEOC and explain that the company's policy has a disparate impact on people in your category (age, race, national origin, etc.).

Don't forget to tell your member of Congress to support the American Jobs Act if you think this type of discrimination should be illegal. And, of course, don't forget to vote in November. The choice is clear on which candidates support workers, and which support the 1% "job creators." I'll stick with supporting workers any day.

No Flu Shot? That's a Firing

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Did you hear the latest story about 150 people fired for not getting a flu shot? That's right. An employer fired 150 healthcare workers the day before Thanksgiving (doesn't this story keep getting better?) because they mandated each and every employee get a flu shot and these 150 folks didn't do it.

I can't think of anything much more intrusive than requiring an employee to insert something unwillingly into their bloodstream, but there is a growing trend in the healthcare industry to do just that.

Sue the bastards, you say? Hmm. I'm not so sure they would win. In general, requiring vaccines of health care workers is legal, and in some states it is required. Some legal ways employees might get out of having the vaccine:

Collective bargaining agreements: vaccinations are definitely considered a “term or condition of employment” that must be bargained for if the workplace is unionized. Employers can commit an unfair labor practice if they impose them unilaterally in a unionized workplace.

Religious accommodations: protections against religious discrimination include any sincerely held religious or spiritual belief. EEOC recently issued an informal discussion letter on this topic. They offer this advice on whether a practice or belief is “religious” such that it is covered by discrimination laws: “Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Disability accommodations: EEOC says that mandatory vaccinations must still accommodate disabilities. They’ve issued a fact sheet on pandemic preparation. Their fact sheet includes this information:

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Pregnancy: If vaccinations are contra-indicated due to pregnancy, then the employer must accommodate the pregnancy the same as they would any other medical condition. In the informal discussion letter I mention above, EEOC says this about pregnancy: “In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination.”

Lots of people think this kind of intrusion is outrageous. I'm not sure where those folks were when their states passed laws mandating vaccines.

So what do you think? Should a private employer be allowed to require employees to have vaccinations? If so, what's next? Can they do a cavity search for drugs and office supplies? Require you to have a vasectomy? Where does it end? When does Congress step in? My guess is that employer intrusions will only get worse for employees, and that Congress will do nothing about it for years to come.

My Employment Law Predictions For 2012 (Mostly) Come True

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I must be psychic. You may remember my predictions for 2012, done at the end of 2011. I went back over them to see how I did. I was (mostly) right. Here's what I predicted and what actually happened. Next week, I'll make my predictions for 2013.

Prediction 1: Lots of USERRA litigation.

Sure enough, employers didn't want Johnny to march home and get their old jobs back. Returning service members alleged that employers made up charges against them when they got home or simply fired them outright due to their service. An employer raised the ire of the Department of Justice when they reduced military members' pension benefits. In another, DOJ sued when an employer unjustly terminated a service member a year after they returned to work. In a case of first impression, a court found that a release in a severance agreement did not prevent a service member from suing under USERRA. Employers paid out this year when they were caught firing employees for their service.

Prediction 2: Attempts to weaken sexual harassment protections

What I didn't predict was that it would be the military leading the way in failing female workers. Military service members were sexually assaulted and sexually harassed in droves, yet the Department of Defense did little to help female service members. We saw a case where an employer was allowed to fire a female employee because he found her "irresistible" and fired her so he wouldn't sexually harass her. Apparently his wife found inappropriate texts he'd sent her and demanded the employee be fired. And this wasn't sexual harassment? Other cases found not to be sexual harassment: butt slapping by supervisor and making homosexual slurs and using antibacterial wipes around a straight male employee. Courts also made it more difficult to bring class actions for widespread sexual harassment. Sexual harassment victims were ordered to turn over cell phones and social media passwords to support employers' "she asked for it" defensess. In all, a terrible year for sexual harassment victims.

Prediction 3: Courts will weaken anti-retaliation laws

In one court ruling, a Sarbanes-Oxley whistleblower had his claim dismissed when he failed to "approximate the basic elements of a claim of securities fraud." No law degree? No whistleblower claim. Another court found that whistleblowing overseas against a U.S company doesn't count. A U.S. citizen who blew the whistle on illegal activity of a government contractor and who was tortured by U.S. military for his trouble had no remedy according to a federal court.

On the other hand, the President and Congress have enhanced whistleblower protections. The President issued a directive protecting intelligence agency whistleblowers for the first time. Congress passed the Whistleblower Protection Enhancement Act to try to plug some court-created loopholes and expand whistleblower protections.


Prediction 4: No state will pass an anti-bullying law

None did

Prediction 5: The Civil Rights Tax Relief Act will languish again

It did.

Prediction 6: More states will pass laws protecting the unemployed against discrimination

At least 17 states considered legislation to protect the unemployed against discrimination due to the fact that they are jobless. Only two states and Washington DC managed to pass and get laws signed. California passed a law that was vetoed. New Jersey passed a law in 2011. Oregon followed at the beginning of 2012, and no state has passed any such law since. President Obama has proposed the American Jobs Act, which includes a prohibition against discriminating against the unemployed. It didn't pass, at least not in 2012.


Prediction 7: Wage theft laws will start to spread

It's moving glacially, but wage theft laws are starting to happen. Miami-Dade County was the first county in the nation to pass such a law. This year, Broward County, just north of there, passed its own ordinance, to go into effect in 2013. Palm Beach County punted and failed to pass one. A recent study showed that 44 of 50 states have utterly inadequate protections in place to protect employees who are victims of stolen wages. Yet efforts in Houston, Texas; Alachua County, Florida; Shelby County, Tennessee; and the State of New Jersey have so far not passed.

Prediction 8: Employers will gain more rights to enforce noncompetes against employees; antitrust laws will be used to attack noncompetes

Sure enough, employers have continued to use noncompetes to bully employees into staying in terrible jobs, and into bankruptcy if they dare leave. Fortunately, antitrust laws offer a ray of hope. The Department of Justice is pursuing employers who agree not to hire each others' employees for violating antitrust laws. They cite studies showing these agreements suppress wages. Can other noncompete agreements be far behind?


Prediction 9: Confidentiality and trade secret agreements will be used to prevent employees from working for competitors

Employers are using trade secrets laws, confidentiality agreements, and intellectual property agreements to make grabs at everything employees think of or do while they're working for the company, from Twitter accounts to books to doll designs. Plus, courts are continuing to use the "inevitable disclosure" doctrine to find noncompete obligations even where no noncompete agreement exists.

Prediction 10: Employees will wake up and start fighting for their rights

This year gave me a glimmer of hope that American workers would, as Samuel L. Jackson so eloquently put it, "wake the f*#! up." [Note: please don't click that link at work!] We saw nonunion workers at places like Wal-Mart striking. Later, fast food employees followed suit and rose up against abusive employer practices. We also saw a national election where voters said no to putting a so-called "job-creator" in office, despite bullying tactics by his CEO friends who threatened their employees if they reelected the President.

Next week: my predictions for 2013.

An Employment Lawyer's Debate Questions for President Obama

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This is the first in a series that I am doing along with a group of employment attorneys around the country. Management and employee side attorneys will be providing their own debate questions for the Presidential and Vice Presidential candidates this week. The first candidate is President Barack Obama.

Here are some questions I’d ask the President at the debates if I had a chance:

The very first piece of legislation you signed into law was the Lilly Ledbetter Fair Pay Restoration Act, empowering women to recover wages lost to discrimination by extending the time period in which employees can file claims. You’ve also advocated for passage of the Paycheck Fairness Act, which would have required employers to demonstrate that any salary differences between men and women doing the same work are not gender-related. Plus, you convened a National Equal Pay Task Force to ensure that existing equal pay laws are fully enforced. Why do you feel so strongly about the need for pay equity in America and what do you think about the Republican party’s strong opposition to your efforts toward pay equity?

Then I’d probably ask:

Your opponent wrote an editorial saying we should let the automobile industry go bankrupt rather than bail them out during the worst part of the recession. Do you think the bailout was worth it, and are you glad you saved over a million jobs and supported an industry that has added hundreds of thousands of new jobs when most industries are cutting workers?

I’d follow up with:

You’ve said that you believe people who work full time should not live in poverty. Before the Democrats took back Congress, the minimum wage had not changed in 10 years. Although Congress did raise the minimum wage during your administration, the minimum wage’s real purchasing power is still below what it was in 1968, and full time minimum wage workers are mostly below the poverty line. You’ve said you want to further raise the minimum wage, index it to inflation and increase the Earned Income Tax Credit. Why do you think it’s important to make sure that full-time workers can earn a living wage that allows them to raise their families and pay for basic needs such as food, transportation, and housing?

Then I’d ask:

You repealed Don’t Ask Don’t Tell, which limited gay and lesbian Americans’ right to serve in the military and be honest about their sexual orientation. You’ve also instructed the Justice Department to stop enforcing the Defense of Marriage Act, and you are in favor of the Respect for Marriage Act, which would uphold the principle that the federal government should not deny gay and lesbian couples the same rights and legal protections as other couples. Why do you think it’s important to treat gays and lesbians with respect and to end discrimination against them, and what more will you do to ensure equality for all Americans?

I’d end with:

Most Americans probably think they’re entitled to some sick time off of work, yet three out of four low-wage workers have no paid sick leave. You’ve said you support efforts to guarantee workers seven days of paid sick leave per year. Why do you think it’s unfair that a single mom playing by the rules can get fired or lose wages because her child or she gets sick, and what do you plan to do to ensure paid sick leave for all American workers?

There are, of course, lots more questions I could ask. I think the choice between the candidates as far as workplace issues is crystal clear.


Here's another perspective, from Robin Shea, a management-side employment lawyer.

Can Employers Discriminate Against You Because You're Unemployed? Absolutely

To contact us Click HERE
There's been lots of fuss about a recent article in AOL Jobs, Employer Explains Why He Won't Hire the Unemployed. Outrageous, people cry. That can't be legal!

Yet discrimination against the unemployed is indeed legal. Many companies consider unemployment to be a factor that automatically disqualifies applicants.

But it can't really be happening, can it? Yes. Unemployment discrimination is rampant. Whether unemployed for a few weeks or months or even years, employers think less of the unemployed. Some companies are even posting ads saying that the unemployed need not apply.

While a handful of states (New Jersey, Oregon, DC) have passed laws against unemployment discrimination, it's legal almost everywhere in the United States. Other states have tried to pass laws and failed or been vetoed.

But there ought to be a law!

Yes, there should. And President Obama has proposed the American Jobs Act, which has many provisions that will help put Americans back to work. Included in that law is a prohibition against discriminating against the unemployed.

What do you do in the meantime?

Unemployment is having a disparate impact on older workers and minorities. If you're facing discrimination due to being unemployed and you're over 40, a minority, disabled, pregnant, or in some other category that is disproportionately unemployed, you might want to file a charge of discrimination with EEOC and explain that the company's policy has a disparate impact on people in your category (age, race, national origin, etc.).

Don't forget to tell your member of Congress to support the American Jobs Act if you think this type of discrimination should be illegal. And, of course, don't forget to vote in November. The choice is clear on which candidates support workers, and which support the 1% "job creators." I'll stick with supporting workers any day.

No Flu Shot? That's a Firing

To contact us Click HERE
Did you hear the latest story about 150 people fired for not getting a flu shot? That's right. An employer fired 150 healthcare workers the day before Thanksgiving (doesn't this story keep getting better?) because they mandated each and every employee get a flu shot and these 150 folks didn't do it.

I can't think of anything much more intrusive than requiring an employee to insert something unwillingly into their bloodstream, but there is a growing trend in the healthcare industry to do just that.

Sue the bastards, you say? Hmm. I'm not so sure they would win. In general, requiring vaccines of health care workers is legal, and in some states it is required. Some legal ways employees might get out of having the vaccine:

Collective bargaining agreements: vaccinations are definitely considered a “term or condition of employment” that must be bargained for if the workplace is unionized. Employers can commit an unfair labor practice if they impose them unilaterally in a unionized workplace.

Religious accommodations: protections against religious discrimination include any sincerely held religious or spiritual belief. EEOC recently issued an informal discussion letter on this topic. They offer this advice on whether a practice or belief is “religious” such that it is covered by discrimination laws: “Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Disability accommodations: EEOC says that mandatory vaccinations must still accommodate disabilities. They’ve issued a fact sheet on pandemic preparation. Their fact sheet includes this information:

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Pregnancy: If vaccinations are contra-indicated due to pregnancy, then the employer must accommodate the pregnancy the same as they would any other medical condition. In the informal discussion letter I mention above, EEOC says this about pregnancy: “In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination.”

Lots of people think this kind of intrusion is outrageous. I'm not sure where those folks were when their states passed laws mandating vaccines.

So what do you think? Should a private employer be allowed to require employees to have vaccinations? If so, what's next? Can they do a cavity search for drugs and office supplies? Require you to have a vasectomy? Where does it end? When does Congress step in? My guess is that employer intrusions will only get worse for employees, and that Congress will do nothing about it for years to come.

Time To Repeal Anti-Communist Discrimination Laws?

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Is there any group more irrelevant in America today than communists? Back when Joe McCarthy was in his heyday smoking out suspected communists and socialists, our major rival on the international arena was the Soviet Union. Now that the Berlin Wall is down, the USSR is no more, and the Communist Party in the U.S. has about zero influence on U.S. politics, it might just be time to get rid of some antiquated anti-Communist laws.

I bet you didn't know that Title VII, the law that prohibits discrimination in the workplace, contains this clause:

(f) Members of Communist Party or Communist-action or Communist-front organizations
As used in this subchapter, the phrase “unlawful employment practice” shall not be deemed to include any action or measure taken by an employer, labor organization, joint labor-management committee, or employment agency with respect to an individual who is a member of the Communist Party of the United States or of any other organization required to register as a Communist-action or Communist-front organization by final order of the Subversive Activities Control Board pursuant to the Subversive Activities Control Act of 1950 [50 U.S.C. 781 et seq.].

Wait? Any action? So Title VII doesn't prohibit sexual harassment against a Communist? It doesn't prohibit race or national origin discrimination against a Communist? That's what the law says, although I haven't seen it used as a defense this way.

WTH? Why hasn't anyone gotten this silly remnant of the Cold War off the books? Well, the State of Nevada is leading the way. The Nevada legislature is taking steps to remove a similar provision from Nevada law.

I did a quick search and found similar provisions in Nebraska, Pennsylvania and Arizona. I'm sure there are more.

Surely the repeal of a law allowing discrimination based on political beliefs is something we can all agree on. It's time to move on past the Cold War and into the new millennium. Let's hear it for Nevada for leading the way.

EMPLOYERS PAY THE FUTA PRICE OF THEIR STATE'S LACK OF FINANCIAL DISCIPLINE

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Employers pay federal unemployment tax (FUTA) at a rate of 6.0% on the first $7,000 of covered wages paid to each employee each year. However, employers can offset this tax with credits of up to 5.4% (the “normal credit”)  for amounts paid to a state unemployment fund by January 31 of the subsequent year. Thus, the net FUTA rate for many employers is only 0.6%.

Under federal law, states with financial difficulties can borrow funds from the federal government to pay unemployment benefits. However, if a state defaults on its repayment of the loan for at least 2 years, the normal credit available is reduced. This effectively increases the employer's FUTA tax rate by 0.3% for each year in which the loan isn't repaid. Are there states out there that have defaulted on repayment? Of course.

Is your state on the default list? Here is the list and how much it is costing their employers:

--0.9% credit reduction - Indiana.

--0.6% credit reduction - Arkansas, California, Connecticut, Florida, Georgia, Kentucky, Missouri, Nevada, New Jersey, New York, North Carolina, Ohio, Rhode Island, and Wisconsin.

--0.3% credit reduction - Arizona, Delaware, and Vermont.

EMPLOYERS PAY THE FUTA PRICE OF THEIR STATE'S LACK OF FINANCIAL DISCIPLINE

To contact us Click HERE

Employers pay federal unemployment tax (FUTA) at a rate of 6.0% on the first $7,000 of covered wages paid to each employee each year. However, employers can offset this tax with credits of up to 5.4% (the “normal credit”)  for amounts paid to a state unemployment fund by January 31 of the subsequent year. Thus, the net FUTA rate for many employers is only 0.6%.

Under federal law, states with financial difficulties can borrow funds from the federal government to pay unemployment benefits. However, if a state defaults on its repayment of the loan for at least 2 years, the normal credit available is reduced. This effectively increases the employer's FUTA tax rate by 0.3% for each year in which the loan isn't repaid. Are there states out there that have defaulted on repayment? Of course.

Is your state on the default list? Here is the list and how much it is costing their employers:

--0.9% credit reduction - Indiana.

--0.6% credit reduction - Arkansas, California, Connecticut, Florida, Georgia, Kentucky, Missouri, Nevada, New Jersey, New York, North Carolina, Ohio, Rhode Island, and Wisconsin.

--0.3% credit reduction - Arizona, Delaware, and Vermont.

LAST MINUTE GIFTING BY CHECK

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Time is running out for 2012 gift giving. End of year gifting by check is always an issue for those trying to use their annual exclusion amounts, but in 2012 the issue also relates to those attempting to make larger gifts to use their unified credit amounts before the scheduled reduction of the unified credit in 2013.

The issue with using checks to make gifts is that until the check clears the bank, the donor can revoke the gift by issuing a stop payment or by removing adequate funds from the bank account. A gift that can be revoked is not complete until revocability ends. Thus, a check written in 2012 that does not clear until 2013 is at risk of being a 2013 gift, not a 2012 gift, since the donor could have stopped payment in 2013 before it cleared.

There is case law on gifts by check, and when they will be treated as complete. The safest course is to deliver the check in 2012, have it deposited by the recipient, and have it clear in 2012.

Failing that, Revenue Ruling 96-56 provides a safe harbor. Under that ruling a gift by check delivered in 2012 will be a gift as of the date the check is deposited or presented for payment if:

(1) the check was paid by the drawee bank when first presented to the drawee bank for payment;

(2) the donor was alive when the check was paid by the drawee bank;

(3) the donor intended to make a gift;

(4) delivery of the check by the donor was unconditional; and

(5) the check was deposited, cashed, or presented in 2012 and within a reasonable time of issuance.

Thus, depositing the check in 2013 will be a problem.

These rules are not the same as for charitable contribution deductions – those rules are more liberal.

An Employment Lawyer's Debate Questions for President Obama

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This is the first in a series that I am doing along with a group of employment attorneys around the country. Management and employee side attorneys will be providing their own debate questions for the Presidential and Vice Presidential candidates this week. The first candidate is President Barack Obama.

Here are some questions I’d ask the President at the debates if I had a chance:

The very first piece of legislation you signed into law was the Lilly Ledbetter Fair Pay Restoration Act, empowering women to recover wages lost to discrimination by extending the time period in which employees can file claims. You’ve also advocated for passage of the Paycheck Fairness Act, which would have required employers to demonstrate that any salary differences between men and women doing the same work are not gender-related. Plus, you convened a National Equal Pay Task Force to ensure that existing equal pay laws are fully enforced. Why do you feel so strongly about the need for pay equity in America and what do you think about the Republican party’s strong opposition to your efforts toward pay equity?

Then I’d probably ask:

Your opponent wrote an editorial saying we should let the automobile industry go bankrupt rather than bail them out during the worst part of the recession. Do you think the bailout was worth it, and are you glad you saved over a million jobs and supported an industry that has added hundreds of thousands of new jobs when most industries are cutting workers?

I’d follow up with:

You’ve said that you believe people who work full time should not live in poverty. Before the Democrats took back Congress, the minimum wage had not changed in 10 years. Although Congress did raise the minimum wage during your administration, the minimum wage’s real purchasing power is still below what it was in 1968, and full time minimum wage workers are mostly below the poverty line. You’ve said you want to further raise the minimum wage, index it to inflation and increase the Earned Income Tax Credit. Why do you think it’s important to make sure that full-time workers can earn a living wage that allows them to raise their families and pay for basic needs such as food, transportation, and housing?

Then I’d ask:

You repealed Don’t Ask Don’t Tell, which limited gay and lesbian Americans’ right to serve in the military and be honest about their sexual orientation. You’ve also instructed the Justice Department to stop enforcing the Defense of Marriage Act, and you are in favor of the Respect for Marriage Act, which would uphold the principle that the federal government should not deny gay and lesbian couples the same rights and legal protections as other couples. Why do you think it’s important to treat gays and lesbians with respect and to end discrimination against them, and what more will you do to ensure equality for all Americans?

I’d end with:

Most Americans probably think they’re entitled to some sick time off of work, yet three out of four low-wage workers have no paid sick leave. You’ve said you support efforts to guarantee workers seven days of paid sick leave per year. Why do you think it’s unfair that a single mom playing by the rules can get fired or lose wages because her child or she gets sick, and what do you plan to do to ensure paid sick leave for all American workers?

There are, of course, lots more questions I could ask. I think the choice between the candidates as far as workplace issues is crystal clear.


Here's another perspective, from Robin Shea, a management-side employment lawyer.

Can Employers Discriminate Against You Because You're Unemployed? Absolutely

To contact us Click HERE
There's been lots of fuss about a recent article in AOL Jobs, Employer Explains Why He Won't Hire the Unemployed. Outrageous, people cry. That can't be legal!

Yet discrimination against the unemployed is indeed legal. Many companies consider unemployment to be a factor that automatically disqualifies applicants.

But it can't really be happening, can it? Yes. Unemployment discrimination is rampant. Whether unemployed for a few weeks or months or even years, employers think less of the unemployed. Some companies are even posting ads saying that the unemployed need not apply.

While a handful of states (New Jersey, Oregon, DC) have passed laws against unemployment discrimination, it's legal almost everywhere in the United States. Other states have tried to pass laws and failed or been vetoed.

But there ought to be a law!

Yes, there should. And President Obama has proposed the American Jobs Act, which has many provisions that will help put Americans back to work. Included in that law is a prohibition against discriminating against the unemployed.

What do you do in the meantime?

Unemployment is having a disparate impact on older workers and minorities. If you're facing discrimination due to being unemployed and you're over 40, a minority, disabled, pregnant, or in some other category that is disproportionately unemployed, you might want to file a charge of discrimination with EEOC and explain that the company's policy has a disparate impact on people in your category (age, race, national origin, etc.).

Don't forget to tell your member of Congress to support the American Jobs Act if you think this type of discrimination should be illegal. And, of course, don't forget to vote in November. The choice is clear on which candidates support workers, and which support the 1% "job creators." I'll stick with supporting workers any day.

No Flu Shot? That's a Firing

To contact us Click HERE
Did you hear the latest story about 150 people fired for not getting a flu shot? That's right. An employer fired 150 healthcare workers the day before Thanksgiving (doesn't this story keep getting better?) because they mandated each and every employee get a flu shot and these 150 folks didn't do it.

I can't think of anything much more intrusive than requiring an employee to insert something unwillingly into their bloodstream, but there is a growing trend in the healthcare industry to do just that.

Sue the bastards, you say? Hmm. I'm not so sure they would win. In general, requiring vaccines of health care workers is legal, and in some states it is required. Some legal ways employees might get out of having the vaccine:

Collective bargaining agreements: vaccinations are definitely considered a “term or condition of employment” that must be bargained for if the workplace is unionized. Employers can commit an unfair labor practice if they impose them unilaterally in a unionized workplace.

Religious accommodations: protections against religious discrimination include any sincerely held religious or spiritual belief. EEOC recently issued an informal discussion letter on this topic. They offer this advice on whether a practice or belief is “religious” such that it is covered by discrimination laws: “Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Disability accommodations: EEOC says that mandatory vaccinations must still accommodate disabilities. They’ve issued a fact sheet on pandemic preparation. Their fact sheet includes this information:

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Pregnancy: If vaccinations are contra-indicated due to pregnancy, then the employer must accommodate the pregnancy the same as they would any other medical condition. In the informal discussion letter I mention above, EEOC says this about pregnancy: “In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination.”

Lots of people think this kind of intrusion is outrageous. I'm not sure where those folks were when their states passed laws mandating vaccines.

So what do you think? Should a private employer be allowed to require employees to have vaccinations? If so, what's next? Can they do a cavity search for drugs and office supplies? Require you to have a vasectomy? Where does it end? When does Congress step in? My guess is that employer intrusions will only get worse for employees, and that Congress will do nothing about it for years to come.

Can Employers Discriminate Against You Because You're Unemployed? Absolutely

To contact us Click HERE
There's been lots of fuss about a recent article in AOL Jobs, Employer Explains Why He Won't Hire the Unemployed. Outrageous, people cry. That can't be legal!

Yet discrimination against the unemployed is indeed legal. Many companies consider unemployment to be a factor that automatically disqualifies applicants.

But it can't really be happening, can it? Yes. Unemployment discrimination is rampant. Whether unemployed for a few weeks or months or even years, employers think less of the unemployed. Some companies are even posting ads saying that the unemployed need not apply.

While a handful of states (New Jersey, Oregon, DC) have passed laws against unemployment discrimination, it's legal almost everywhere in the United States. Other states have tried to pass laws and failed or been vetoed.

But there ought to be a law!

Yes, there should. And President Obama has proposed the American Jobs Act, which has many provisions that will help put Americans back to work. Included in that law is a prohibition against discriminating against the unemployed.

What do you do in the meantime?

Unemployment is having a disparate impact on older workers and minorities. If you're facing discrimination due to being unemployed and you're over 40, a minority, disabled, pregnant, or in some other category that is disproportionately unemployed, you might want to file a charge of discrimination with EEOC and explain that the company's policy has a disparate impact on people in your category (age, race, national origin, etc.).

Don't forget to tell your member of Congress to support the American Jobs Act if you think this type of discrimination should be illegal. And, of course, don't forget to vote in November. The choice is clear on which candidates support workers, and which support the 1% "job creators." I'll stick with supporting workers any day.

No Flu Shot? That's a Firing

To contact us Click HERE
Did you hear the latest story about 150 people fired for not getting a flu shot? That's right. An employer fired 150 healthcare workers the day before Thanksgiving (doesn't this story keep getting better?) because they mandated each and every employee get a flu shot and these 150 folks didn't do it.

I can't think of anything much more intrusive than requiring an employee to insert something unwillingly into their bloodstream, but there is a growing trend in the healthcare industry to do just that.

Sue the bastards, you say? Hmm. I'm not so sure they would win. In general, requiring vaccines of health care workers is legal, and in some states it is required. Some legal ways employees might get out of having the vaccine:

Collective bargaining agreements: vaccinations are definitely considered a “term or condition of employment” that must be bargained for if the workplace is unionized. Employers can commit an unfair labor practice if they impose them unilaterally in a unionized workplace.

Religious accommodations: protections against religious discrimination include any sincerely held religious or spiritual belief. EEOC recently issued an informal discussion letter on this topic. They offer this advice on whether a practice or belief is “religious” such that it is covered by discrimination laws: “Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Disability accommodations: EEOC says that mandatory vaccinations must still accommodate disabilities. They’ve issued a fact sheet on pandemic preparation. Their fact sheet includes this information:

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Pregnancy: If vaccinations are contra-indicated due to pregnancy, then the employer must accommodate the pregnancy the same as they would any other medical condition. In the informal discussion letter I mention above, EEOC says this about pregnancy: “In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination.”

Lots of people think this kind of intrusion is outrageous. I'm not sure where those folks were when their states passed laws mandating vaccines.

So what do you think? Should a private employer be allowed to require employees to have vaccinations? If so, what's next? Can they do a cavity search for drugs and office supplies? Require you to have a vasectomy? Where does it end? When does Congress step in? My guess is that employer intrusions will only get worse for employees, and that Congress will do nothing about it for years to come.

Job Loss Not Irreparable Harm? In What Universe?

To contact us Click HERE
Employers are using noncompete agreements to force employees to stay in lousy jobs with lousy working conditions more and more. The poor employee is put in a situation where, if they leave a crappy job, the employer sends a nastygram to their new employer and threatens to sue unless the employee is fired. Then the employee is left to defend themselves with no job and no money.

What's an employee to do?

Well, they can file a suit against an employer for something called declaratory relief, asking the court to determine their rights. The problem is, there's no quick way to get declaratory relief. By the time a judgment is issued, the employee has spent tens of thousands, if not hundreds of thousands, of dollars and the job prospect is long gone.

Employers, if they even think an employee is about to breach a noncompete, can get an injunction. They can ask the court, on an emergency basis, to order the employee to stop working for a competitor or stop contacting clients. They tell the court that the potential loss of customers, the potential that a competitor will learn their secret ways of doing business, is irreparable harm. The courts are quick to find that any potential dollar loss to employers would be irreparable. As an example, in Ticor Title Ins. Co. v. Cohen, 173 F.3d 63, 69-70 (2d Cir.1999) the court found it was ,"very difficult to calculate monetary damages that would successfully redress the loss of a relationship with a client that would produce an indeterminate amount of business in years to come."

Employees don't get the same treatment. A recent case confirms the courts' attitude that loss of a job is not irreparable harm for an employee. In Hyde v. KLS Professional Advisors Group, a case out of the Second Circuit, the court found that “difficulty in obtaining a job is undoubtedly an injury, but it is not an irreparable one” because the employee could be adequately compensated with money damages if they win at trial.

So let's see. Loss of corporate money and relationships: irreparable. Loss of human money and relationships: not irreparable. Nice.

I find this kind of reasoning to be not only specious, but immoral and unjust. The way noncompetes are being handled in the justice system is a travesty. Something has to change, but nothing will until voters rise up and demand at least equal rights for humans as compared to their corporate masters.

Here are just some of the irreparable harms real people suffer when they have their new job yanked out from under them:

• Loss of their homes to foreclosure
• Destruction of their credit
• Legal discrimination based on the fact that they are unemployed
• Legal discrimination based on the fact that they have bad credit
• Damage to their resume with a very short-term job
• Damage to their reputation with the new employer who fired them to get out of being sued
• Emotional injuries suffered from being unemployed
• Loss of insurance and resulting health issues

Sure, rich employees can fight and ultimately win against bully employers trying to enforce illegal noncompetes. But most can't afford to fight. They end up out of their industry a year or two, and many end up unemployed that long. Who pays the cost? Taxpayers suffer the increased cost of unemployment benefits, welfare, healthcare and other costs. We also suffer a damaged economy that much longer.

I would submit that most noncompetes violate antitrust laws and are unenforceable due to the employer having no legitimate interest to protect in enforcement. Yet these bully employers usually get away with it because employees can't afford to fight. Maybe it's time for employees to start contacting the Justice Department about antitrust violations if they can't afford to fight. Would the government step in to help against an employer who wants to prevent competition? I don't know.

Because the courts refuse to recognize the utter devastation job loss will certainly wreak by enjoining employers from interfering with their employment with unlawful and unenforceable noncompetes, Congress and state legislatures need to take action to protect individuals. If you think this is wrong, tell your representatives the law needs to change. Only iff enough people speak up will anyone listen.

EMPLOYERS PAY THE FUTA PRICE OF THEIR STATE'S LACK OF FINANCIAL DISCIPLINE

To contact us Click HERE

Employers pay federal unemployment tax (FUTA) at a rate of 6.0% on the first $7,000 of covered wages paid to each employee each year. However, employers can offset this tax with credits of up to 5.4% (the “normal credit”)  for amounts paid to a state unemployment fund by January 31 of the subsequent year. Thus, the net FUTA rate for many employers is only 0.6%.

Under federal law, states with financial difficulties can borrow funds from the federal government to pay unemployment benefits. However, if a state defaults on its repayment of the loan for at least 2 years, the normal credit available is reduced. This effectively increases the employer's FUTA tax rate by 0.3% for each year in which the loan isn't repaid. Are there states out there that have defaulted on repayment? Of course.

Is your state on the default list? Here is the list and how much it is costing their employers:

--0.9% credit reduction - Indiana.

--0.6% credit reduction - Arkansas, California, Connecticut, Florida, Georgia, Kentucky, Missouri, Nevada, New Jersey, New York, North Carolina, Ohio, Rhode Island, and Wisconsin.

--0.3% credit reduction - Arizona, Delaware, and Vermont.

LATE GIFT FILING COULD NOT USE UNIFIED CREDIT

To contact us Click HERE

In a recent Chief Counsel Advice, a taxpayer made a gift in the prior year, but did not file a gift tax return. The taxpayer later died. On the estate tax return for the taxpayer, the earlier unreported gift was reported.

The IRS concluded that a gift tax was due for the year of the unreported gift. This resulted, even though the taxpayer had available unified credit in the year of the unreported gift to avoid gift tax in that year. The quirk in this case is that the taxpayer used her unused unified credit against gifts made in a later tax year, which tax year was then closed for statute of limitation purposes at the time of the IRS adjustments. Since the IRS could not apply unified credit in the earlier year, and then assess gift taxes in the later years (because the statute of limitations was closed), the only recourse for the IRS was to deny the use of the credit in the earlier year. The theoretical basis for such a special determination was the consistency doctrine, per similar facts and issues addressed in PLR 199930002.

Interestingly, interest on the unreported gift was determined to run from the due date of the return for the unreported gift year, and not from the due dates of later years when gift tax would have been imposed if all the gifts had been reported in order. While one perhaps can justify the loss of the use of the unified credit in the earlier unreported year, it does seem inappropriate to charge interest from that year since in no circumstance would taxes have had to been paid in that year.

Chief Counsel Advice 201249015

What You Don't Know About the Minimum Wage Will Hurt America

To contact us Click HERE
I bet you don't think about the minimum wage very much, unless you're one of the folks trying to live on it. There's a move afoot to raise the minimum wage, and you should support it. It's in everyone's best interest to make sure working Americans make a living wage.

Senator Tom Harkin has proposed the Rebuild America Act, which would, among other provisions, raise the minimum wage. It's about time we revisit the minimum wage. Here are some important facts you should know about the minimum wage:

Way below inflation: If the minimum wage had been raised to keep pace with inflation since it was $1.60/hour in 1966, it would now be $10.55.

Annual income: If you work full time on minimum wage, your annual income is $15,080. Go ahead. Try living on that for a year. Morgan Spurlock tried it for 30 days in his old TV show. If you never saw it, you missed an eye-opener.

Tipped employees: Tipped employees have a minimum wage of $2.13/hour. Tip well!

Affording an apartment: In no state in the U.S., even those with higher minimum wages, can a minimum wage worker afford a two-bedroom apartment at fair market value working only 40 hours/week.

Disproportionately women: 64% of minimum wage workers are women. Compare that to the percentage of women who are CEOs, at 4%. Something is wrong here.

Good for the economy: Minimum wage workers tend to spend their pay increases, mainly because they have to. Increases in the minimum wage are good for the economy.

Majority big corporations: Most minimum wage workers are working for big corporations, who have reported record profit increases. The old canard that it would put mom and pop shops out of business is malarkey. 

More college educated: More college-educated folks make minimum wage than those who never graduated high school. If you think minimum wage workers brought their troubles on themselves by dropping out, you are wrong.

Now that you have the facts, I hope you'll tell your Congressional representatives and Senators that you support raising the minimum wage to something Americans can actually live on.

An Employment Lawyer's Debate Questions for President Obama

To contact us Click HERE
This is the first in a series that I am doing along with a group of employment attorneys around the country. Management and employee side attorneys will be providing their own debate questions for the Presidential and Vice Presidential candidates this week. The first candidate is President Barack Obama.

Here are some questions I’d ask the President at the debates if I had a chance:

The very first piece of legislation you signed into law was the Lilly Ledbetter Fair Pay Restoration Act, empowering women to recover wages lost to discrimination by extending the time period in which employees can file claims. You’ve also advocated for passage of the Paycheck Fairness Act, which would have required employers to demonstrate that any salary differences between men and women doing the same work are not gender-related. Plus, you convened a National Equal Pay Task Force to ensure that existing equal pay laws are fully enforced. Why do you feel so strongly about the need for pay equity in America and what do you think about the Republican party’s strong opposition to your efforts toward pay equity?

Then I’d probably ask:

Your opponent wrote an editorial saying we should let the automobile industry go bankrupt rather than bail them out during the worst part of the recession. Do you think the bailout was worth it, and are you glad you saved over a million jobs and supported an industry that has added hundreds of thousands of new jobs when most industries are cutting workers?

I’d follow up with:

You’ve said that you believe people who work full time should not live in poverty. Before the Democrats took back Congress, the minimum wage had not changed in 10 years. Although Congress did raise the minimum wage during your administration, the minimum wage’s real purchasing power is still below what it was in 1968, and full time minimum wage workers are mostly below the poverty line. You’ve said you want to further raise the minimum wage, index it to inflation and increase the Earned Income Tax Credit. Why do you think it’s important to make sure that full-time workers can earn a living wage that allows them to raise their families and pay for basic needs such as food, transportation, and housing?

Then I’d ask:

You repealed Don’t Ask Don’t Tell, which limited gay and lesbian Americans’ right to serve in the military and be honest about their sexual orientation. You’ve also instructed the Justice Department to stop enforcing the Defense of Marriage Act, and you are in favor of the Respect for Marriage Act, which would uphold the principle that the federal government should not deny gay and lesbian couples the same rights and legal protections as other couples. Why do you think it’s important to treat gays and lesbians with respect and to end discrimination against them, and what more will you do to ensure equality for all Americans?

I’d end with:

Most Americans probably think they’re entitled to some sick time off of work, yet three out of four low-wage workers have no paid sick leave. You’ve said you support efforts to guarantee workers seven days of paid sick leave per year. Why do you think it’s unfair that a single mom playing by the rules can get fired or lose wages because her child or she gets sick, and what do you plan to do to ensure paid sick leave for all American workers?

There are, of course, lots more questions I could ask. I think the choice between the candidates as far as workplace issues is crystal clear.


Here's another perspective, from Robin Shea, a management-side employment lawyer.

Can Employers Discriminate Against You Because You're Unemployed? Absolutely

To contact us Click HERE
There's been lots of fuss about a recent article in AOL Jobs, Employer Explains Why He Won't Hire the Unemployed. Outrageous, people cry. That can't be legal!

Yet discrimination against the unemployed is indeed legal. Many companies consider unemployment to be a factor that automatically disqualifies applicants.

But it can't really be happening, can it? Yes. Unemployment discrimination is rampant. Whether unemployed for a few weeks or months or even years, employers think less of the unemployed. Some companies are even posting ads saying that the unemployed need not apply.

While a handful of states (New Jersey, Oregon, DC) have passed laws against unemployment discrimination, it's legal almost everywhere in the United States. Other states have tried to pass laws and failed or been vetoed.

But there ought to be a law!

Yes, there should. And President Obama has proposed the American Jobs Act, which has many provisions that will help put Americans back to work. Included in that law is a prohibition against discriminating against the unemployed.

What do you do in the meantime?

Unemployment is having a disparate impact on older workers and minorities. If you're facing discrimination due to being unemployed and you're over 40, a minority, disabled, pregnant, or in some other category that is disproportionately unemployed, you might want to file a charge of discrimination with EEOC and explain that the company's policy has a disparate impact on people in your category (age, race, national origin, etc.).

Don't forget to tell your member of Congress to support the American Jobs Act if you think this type of discrimination should be illegal. And, of course, don't forget to vote in November. The choice is clear on which candidates support workers, and which support the 1% "job creators." I'll stick with supporting workers any day.

No Flu Shot? That's a Firing

To contact us Click HERE
Did you hear the latest story about 150 people fired for not getting a flu shot? That's right. An employer fired 150 healthcare workers the day before Thanksgiving (doesn't this story keep getting better?) because they mandated each and every employee get a flu shot and these 150 folks didn't do it.

I can't think of anything much more intrusive than requiring an employee to insert something unwillingly into their bloodstream, but there is a growing trend in the healthcare industry to do just that.

Sue the bastards, you say? Hmm. I'm not so sure they would win. In general, requiring vaccines of health care workers is legal, and in some states it is required. Some legal ways employees might get out of having the vaccine:

Collective bargaining agreements: vaccinations are definitely considered a “term or condition of employment” that must be bargained for if the workplace is unionized. Employers can commit an unfair labor practice if they impose them unilaterally in a unionized workplace.

Religious accommodations: protections against religious discrimination include any sincerely held religious or spiritual belief. EEOC recently issued an informal discussion letter on this topic. They offer this advice on whether a practice or belief is “religious” such that it is covered by discrimination laws: “Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Disability accommodations: EEOC says that mandatory vaccinations must still accommodate disabilities. They’ve issued a fact sheet on pandemic preparation. Their fact sheet includes this information:

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Pregnancy: If vaccinations are contra-indicated due to pregnancy, then the employer must accommodate the pregnancy the same as they would any other medical condition. In the informal discussion letter I mention above, EEOC says this about pregnancy: “In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination.”

Lots of people think this kind of intrusion is outrageous. I'm not sure where those folks were when their states passed laws mandating vaccines.

So what do you think? Should a private employer be allowed to require employees to have vaccinations? If so, what's next? Can they do a cavity search for drugs and office supplies? Require you to have a vasectomy? Where does it end? When does Congress step in? My guess is that employer intrusions will only get worse for employees, and that Congress will do nothing about it for years to come.

EMPLOYERS PAY THE FUTA PRICE OF THEIR STATE'S LACK OF FINANCIAL DISCIPLINE

To contact us Click HERE

Employers pay federal unemployment tax (FUTA) at a rate of 6.0% on the first $7,000 of covered wages paid to each employee each year. However, employers can offset this tax with credits of up to 5.4% (the “normal credit”)  for amounts paid to a state unemployment fund by January 31 of the subsequent year. Thus, the net FUTA rate for many employers is only 0.6%.

Under federal law, states with financial difficulties can borrow funds from the federal government to pay unemployment benefits. However, if a state defaults on its repayment of the loan for at least 2 years, the normal credit available is reduced. This effectively increases the employer's FUTA tax rate by 0.3% for each year in which the loan isn't repaid. Are there states out there that have defaulted on repayment? Of course.

Is your state on the default list? Here is the list and how much it is costing their employers:

--0.9% credit reduction - Indiana.

--0.6% credit reduction - Arkansas, California, Connecticut, Florida, Georgia, Kentucky, Missouri, Nevada, New Jersey, New York, North Carolina, Ohio, Rhode Island, and Wisconsin.

--0.3% credit reduction - Arizona, Delaware, and Vermont.

EMPLOYERS PAY THE FUTA PRICE OF THEIR STATE'S LACK OF FINANCIAL DISCIPLINE

To contact us Click HERE

Employers pay federal unemployment tax (FUTA) at a rate of 6.0% on the first $7,000 of covered wages paid to each employee each year. However, employers can offset this tax with credits of up to 5.4% (the “normal credit”)  for amounts paid to a state unemployment fund by January 31 of the subsequent year. Thus, the net FUTA rate for many employers is only 0.6%.

Under federal law, states with financial difficulties can borrow funds from the federal government to pay unemployment benefits. However, if a state defaults on its repayment of the loan for at least 2 years, the normal credit available is reduced. This effectively increases the employer's FUTA tax rate by 0.3% for each year in which the loan isn't repaid. Are there states out there that have defaulted on repayment? Of course.

Is your state on the default list? Here is the list and how much it is costing their employers:

--0.9% credit reduction - Indiana.

--0.6% credit reduction - Arkansas, California, Connecticut, Florida, Georgia, Kentucky, Missouri, Nevada, New Jersey, New York, North Carolina, Ohio, Rhode Island, and Wisconsin.

--0.3% credit reduction - Arizona, Delaware, and Vermont.

What You Don't Know About the Minimum Wage Will Hurt America

To contact us Click HERE
I bet you don't think about the minimum wage very much, unless you're one of the folks trying to live on it. There's a move afoot to raise the minimum wage, and you should support it. It's in everyone's best interest to make sure working Americans make a living wage.

Senator Tom Harkin has proposed the Rebuild America Act, which would, among other provisions, raise the minimum wage. It's about time we revisit the minimum wage. Here are some important facts you should know about the minimum wage:

Way below inflation: If the minimum wage had been raised to keep pace with inflation since it was $1.60/hour in 1966, it would now be $10.55.

Annual income: If you work full time on minimum wage, your annual income is $15,080. Go ahead. Try living on that for a year. Morgan Spurlock tried it for 30 days in his old TV show. If you never saw it, you missed an eye-opener.

Tipped employees: Tipped employees have a minimum wage of $2.13/hour. Tip well!

Affording an apartment: In no state in the U.S., even those with higher minimum wages, can a minimum wage worker afford a two-bedroom apartment at fair market value working only 40 hours/week.

Disproportionately women: 64% of minimum wage workers are women. Compare that to the percentage of women who are CEOs, at 4%. Something is wrong here.

Good for the economy: Minimum wage workers tend to spend their pay increases, mainly because they have to. Increases in the minimum wage are good for the economy.

Majority big corporations: Most minimum wage workers are working for big corporations, who have reported record profit increases. The old canard that it would put mom and pop shops out of business is malarkey. 

More college educated: More college-educated folks make minimum wage than those who never graduated high school. If you think minimum wage workers brought their troubles on themselves by dropping out, you are wrong.

Now that you have the facts, I hope you'll tell your Congressional representatives and Senators that you support raising the minimum wage to something Americans can actually live on.

An Employment Lawyer's Debate Questions for President Obama

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This is the first in a series that I am doing along with a group of employment attorneys around the country. Management and employee side attorneys will be providing their own debate questions for the Presidential and Vice Presidential candidates this week. The first candidate is President Barack Obama.

Here are some questions I’d ask the President at the debates if I had a chance:

The very first piece of legislation you signed into law was the Lilly Ledbetter Fair Pay Restoration Act, empowering women to recover wages lost to discrimination by extending the time period in which employees can file claims. You’ve also advocated for passage of the Paycheck Fairness Act, which would have required employers to demonstrate that any salary differences between men and women doing the same work are not gender-related. Plus, you convened a National Equal Pay Task Force to ensure that existing equal pay laws are fully enforced. Why do you feel so strongly about the need for pay equity in America and what do you think about the Republican party’s strong opposition to your efforts toward pay equity?

Then I’d probably ask:

Your opponent wrote an editorial saying we should let the automobile industry go bankrupt rather than bail them out during the worst part of the recession. Do you think the bailout was worth it, and are you glad you saved over a million jobs and supported an industry that has added hundreds of thousands of new jobs when most industries are cutting workers?

I’d follow up with:

You’ve said that you believe people who work full time should not live in poverty. Before the Democrats took back Congress, the minimum wage had not changed in 10 years. Although Congress did raise the minimum wage during your administration, the minimum wage’s real purchasing power is still below what it was in 1968, and full time minimum wage workers are mostly below the poverty line. You’ve said you want to further raise the minimum wage, index it to inflation and increase the Earned Income Tax Credit. Why do you think it’s important to make sure that full-time workers can earn a living wage that allows them to raise their families and pay for basic needs such as food, transportation, and housing?

Then I’d ask:

You repealed Don’t Ask Don’t Tell, which limited gay and lesbian Americans’ right to serve in the military and be honest about their sexual orientation. You’ve also instructed the Justice Department to stop enforcing the Defense of Marriage Act, and you are in favor of the Respect for Marriage Act, which would uphold the principle that the federal government should not deny gay and lesbian couples the same rights and legal protections as other couples. Why do you think it’s important to treat gays and lesbians with respect and to end discrimination against them, and what more will you do to ensure equality for all Americans?

I’d end with:

Most Americans probably think they’re entitled to some sick time off of work, yet three out of four low-wage workers have no paid sick leave. You’ve said you support efforts to guarantee workers seven days of paid sick leave per year. Why do you think it’s unfair that a single mom playing by the rules can get fired or lose wages because her child or she gets sick, and what do you plan to do to ensure paid sick leave for all American workers?

There are, of course, lots more questions I could ask. I think the choice between the candidates as far as workplace issues is crystal clear.


Here's another perspective, from Robin Shea, a management-side employment lawyer.