Publications — Page 49 of 50 — Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events

What To Do When the OSHA Inspector Appears

Published on: January 10, 2013 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Sooner or later, your facility will be the subject of an inspection by the Occupational Safety and Health Administration (“OSHA”). OSHA usually does not provide any advance notice of these inspections (which always seem to occur at the “wrong” time). Nevertheless, how facility representatives handle themselves can directly influence the severity of the outcome of the inspection.

To help you improve your company’s chances of a favorable outcome, basic procedures and rules must be carefully followed. Safety Officers and Plant Managers can and should be prepared for these inspections and must be able to quickly and easily implement a well-practiced and automatic response at the time. Time spent in preparation of these visits will ensure that the facility is exhibited in its most favorable light. This will minimize both the time the Inspector spends at the facility as well as the severity of any penalty assessment.

Your OSHA inspection response/action plan should take into account the following elements:

Historically Low Interest Rates Create Attractive Estate Planning Opportunities

Published on: September 7, 2012 | by John R. Blasi

Today’s low interest rate environment, coupled with generous gift and estate tax exemptions, has made this an ideal time to effectively transfer wealth to heirs. Under the Internal Revenue Code (the “Code”), Section 7520, the Internal Revenue Service (the “IRS”) uses a rate based on 120 percent of the Midterm Applicable Federal Rate to discount the value of an annuity, an income interest for life or a term of years, or a remainder or reversionary interest in a trust to present value (hereinafter referred to as the “7520 Rate”). The IRS published the 7520 Rate (which varies from month to month) for September 2012 in Revenue Ruling 2012-24: the 7520 Rate is at the historically low rate of 1.0%. This presents attractive estate planning opportunities for those interested in the following techniques: (1) Grantor Retained Annuity Trusts (“GRATs”); (2) Charitable Lead Annuity Trusts (“CLATs”); and (3) Intra-Family Loans.

GRATs allow a person to transfer property with high appreciation potential to an irrevocable trust while also retaining the right to receive a fixed annuity payable at least annually for a chosen number of years. At the end of the annuity term, the remaining trust property passes to the grantor’s beneficiaries. The transfer of the property to the GRAT is a gift for gift tax purposes to the extent that the initial value of the trust property exceeds the present value of the grantor’s retained annuity interest for the month the GRAT is created. The present value of the grantor’s retained annuity interest is determined using the 7520 Rate for the month the GRAT is created. If the trust property appreciates at a rate exceeding the 7520 Rate, the grantor will be successful in passing wealth to the beneficiaries free of estate and gift taxes. The catch is that the grantor must survive the annuity term; otherwise, the trust property is included in the grantor’s estate for estate tax purposes at its date-of-death value. The minimum annuity term of a GRAT is currently two years.

Those with charitable impulses may want to consider using CLATs. Under the terms of a CLAT, a charity receives annuity payments for the term of the trust; at the end of the term, the balance of the property remaining in the CLAT passes to one or more non-charitable beneficiaries (e.g., the children of the donor). The annuity amount is valued by assuming that the charity’s lead interest will earn a rate equal to the 7520 Rate for the month the donor funds the CLAT. Accordingly, donors also benefit from a CLAT in a low interest rate environment because the investment performance must exceed only the 7520 Rate to result in the passing of wealth without estate and gift taxes; while outside the scope of this alert, there are Generation-Skipping Transfer Tax implications if the non-charitable beneficiaries include certain related individuals (e.g., grandchildren of the donor).

DOL’s New Guidebook May Trigger More FMLA Claims

Published on: August 31, 2012 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Employment Law Newsletter

On June 27, 2012, the Untied States Department of Labor (DOL) issued a new 16-page guide book entitled “NEED TIME? The Employee’s Guide to the Family and Medical Leave Act.” The guide book provides a “simple overview” of the leave benefits accorded to employees under the FMLA.

Among other things, the guide includes an easy to follow flow chart employees and employers can utilize to determine FMLA eligibility, provides information on how FMLA leave is to be processed by employers, and encourages employees to bring a copy of the guide book to their medical providers to assist them in complying with the medical certification process. The manual also provides information on how employees can file a complaint with the DOL if they believe their FMLA rights have been violated by an employer. The guide is currently available in English on the DOL’s website, http://www.dol.gov/whd/fmla. A Spanish version is expected in the near future.

New and More Restrictive EEOC Enforcement Guidelines on Criminal Background Checks

Published on: August 31, 2012 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Employment Law Newsletter

Many employers use criminal background checks to “weed out” individuals who engage in activities that pose significant risks to the workplace. This past April the United States Equal Employment Opportunity Commission (EEOC) issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 (“Guidance”). Employers should consult the Guidance before considering criminal histories when making employment decisions.

While having a criminal record is not a protected characteristic under Title VII, the Guidance warns that excluding an individual from employment on the basis of an arrest or criminal history may result in unlawful race or national origin discrimination under Title VII in one of two ways. First, the Guidance points to statistical evidence showing that Blacks and Hispanics are arrested and convicted in far greater numbers than Caucasians. Thus, an employer taking these records into account may unintentionally discriminate along racial and national origin lines because Blacks and Hispanics are disproportionately arrested as compared to other groups (commonly known as unintentional disparate impact discrimination). Second, an employer can utilize the existence of an arrest or conviction as a pretext to intentionally deny employment on the basis of race or national origin (commonly known as intentional disparate treatment discrimination).

New NLRB Report Stymies Employers’ Efforts to Reign in Employee Social Networking Activities

Published on: August 31, 2012 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

The prevalence of social media in today’s workplace is undisputed. With the lack of discretion often displayed on social media sites such as Facebook, it is no wonder employers seek to control inappropriate employee communications and the unauthorized dissemination of confidential employer information through policies restricting employee social networking activities. The National Labor Relations Board (the “Board”), however, has issued a new social media report that sets forth substantial limitations on employers’ efforts to regulate social networking activities. More important, the report puts employers on notice that most workplace social medial policies will be deemed in violation of the federal labor law if subject to the scrutiny of the Board.

In its May 30, 2012, Report of the Acting General Counsel Concerning Social Media Cases (“the Report”), the Board analyzed provisions of numerous social networking policies that, according to the Board, constitute impermissible restraints on rights accorded employees under Section 7 of the National Labor Relations Act (the “NLRA”) to freely discuss the terms and conditions of employment with fellow employees. In general, the Report suggests that the mere existence of a social media policy that could reasonably be construed by employees “to chill the exercise of Section 7 rights” is a violation of the NLRA. This would be the case even if the employer has not invoked the policy to discipline employees for social networking activities. Thus, the Board cautioned that social media policies should be narrow in their scope and clearly carve out protected discussions among employees concerning wages and benefits, discipline, working conditions and other the terms and conditions of employment.

Until recently, many of us would not have questioned a policy putting employees on notice that they may be subject to discipline for posting disparaging or defamatory remarks about the company and its employees. However, employers may be stunned to learn that such standard provisions are among those that the Board will view as impermissible under the NLRA. While the Report provides numerous additional examples, the following provisions deemed unlawful by the Board are illustrative of the Board’s expansive view of Section 7 rights.

The NLRB Speaks Again: Routine Confidentiality Requirements for Internal Investigations Take a Back Seat to Employees’ Section 7 Rights

Published on: August 30, 2012 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Internal investigations by employers into allegations of unlawful harassment, theft or other workplace misconduct are commonplace in today’s work environment. In an effort to protect the complainant, the accused and the witnesses – not to mention the fundamental integrity of the investigation – employers typically warn those participating in the investigation that the matters discussed are confidential and are not to be discussed outside the context of the investigation. This standard common sense practice has now been deemed a potential violation of employee rights under the Section 7 of the National Labor Relations Act (NLRA) by the National Labor Relations Board.

As noted in our previous article in this issue, the NLRB is flexing its muscles to challenge employer practices in non-unionized workplaces that historically were not on the Board’s radar screen. These have included attacks on standard social media policies and employee handbook disclaimers as violations of employees’ rights to engage concerted activity. The NLRB’s July 13, 2012, ruling in Banner Health Systems is just another example of the Board’s extending its reach into non-unionized workplace. In that decision, the Board reasoned that a blanket confidentiality warning to employees during the course of an internal investigation could discourage employees from seeking the support of co-workers in pursuing or defending a claim of workplace misconduct. Because Section 7 of the NLRA accords employees the right to freely communicate with co-workers about the terms and conditions of employment without fear of retaliation by the employer, the Board concluded that any suggestion by the employer to maintain the confidentiality of the investigation could discourage employees from exercising these rights.

Although the Board stopped short of invalidating all confidentiality instructions during the course of an internal investigation, it cautioned that a blanket prohibition will not pass muster. To survive a challenge the employer must show that prior to giving a confidentiality instruction it engaged in a case-specific analysis to determine whether (1) witnesses were in need of protection; (2) evidence was in danger of being destroyed; (3) testimony was in danger of being fabricated; and, (4) there was “a need to prevent a cover up.” Absent such factors, the NLRB will find the confidentiality instruction a violation of Section 7 of the NLRA.

Protecting Social Security Retirement Benefits from Creditors In One Easy Step

Published on: February 8, 2012 | by Eric B. Levine

By: Eric Levine

In this turbulent economy, many people are finding it difficult to make ends meet. With income being stretched to the limit, some people are sometimes unable to pay bills on time or in full. When this happens, creditors are frequently pursuing payment by hiring debt collectors to recover the money that is owed them. In some cases, creditors will go so far as to obtain legal judgments against the non-paying individuals. Afterwards, they try to recover the amount recognized in the judgment by attempting to acquire the personal assets of the persons against whom the judgment was entered.

As creditors try to acquire a person’s assets, they can take steps leading to the freezing of bank accounts and turnover of funds in those accounts. They may place liens on both personal and real property that can result in judicial sales of such property. They may even garnish wages, which is the deduction of money directly from one’s salary. If done correctly, a judgment by a creditor can place a stranglehold on someone’s assets until payment in full is made.

NJ Legislature Proposes Minimum Wage Hike

Published on: January 13, 2012 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Employment Law Newsletter

For the first time in three years, proposed legislation being championed by Senate and Assembly Democrats would raise the minimum wage from $7.25 to $8.50. The bill was introduced despite the December recommendation from the Minimum Wage Advisory Commission that the rate remain unchanged for 2012. Should the bill be adopted, New Jersey’s minimum wage rate would be among the highest in the country, topped only by Oregon and Washington. Although Gov. Christie has hinted at a veto, he expressed his intention to listen to arguments on both sides of the issue.

Attention Home Health Care Agencies: Your Domestic Caretakers May Soon Be Accorded Wage and Hour Protections of the FLSA

Published on: January 13, 2012 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Employment Law Newsletter

Although many domestic workers are covered by the Fair Labor Standard Act’s (FLSA) minimum wage and overtime requirements, there presently exists an exemption from these requirements for home health care workers providing “companionship services for individuals who are unable to care for themselves.” In 2007, the United States Supreme Court ruled that home healthcare providers employed by third-party agencies were entitled to this exemption, resulting in significant wage and overtime savings to these agencies.

On December 15, 2011, the U.S. Department of Labor (DOL) announced proposed regulations aimed at closing the exemption to caretakers employed by third-party agencies. The highlights of the proposed regulations include:

Just the Facts, Ma’am: DOL Issues Fact Sheets Advising Employees of Legal Rights

Published on: January 13, 2012 | by Lindabury, McCormick, Estabrook & Cooper, P.C.

Employment Law Newsletter

The U.S. Department of Labor (DOL) recently issued two Fact Sheets to provide general information about employee rights under the Fair Labor Standards Act and the Family Medical Leave Act.

Fact Sheet #73: Break time for Nursing Mothers under the FLSA: This Fact Sheet provides information about an employer’s obligation to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth” as required by the 2010 amendments to the FLSA. Among other things, the Fact Sheet provides the following additional information about the law’s requirements: