Publications Archive

On June 7, 2017, U.S. Secretary of Labor Alexander Acosta announced the withdrawal of the DOL’s 2015 guidance on employee / independent contractor classification under the Fair Labor Standards Act (“FLSA”) (Administrator’s Interpretation No. 2015-1) and its 2016 guidance on joint employment under the Migrant and Seasonal Agricultural Worker Protection Act (“MSWPA”) (Administrator’s Interpretation No. 2016-01). Both were “informal” guidance documents, meaning that they did not substantively change the law but rather signaled the DOL’s interpretation of certain provisions of the law and its likely high-priority enforcement targets. As we reported in our July 2015 Newsflash, the misclassification guidance defined the concept of employment so broadly that “most” workers were employees under the FLSA. Similarly, in the 2016 MSWPA guidance, the DOL indicated its expansive view of the concept of joint employment. Both guidance documents were an abrupt shift away from traditional interpretations and enforcement priorities of the DOL. As a finding of joint employment or employee misclassification can subject an employer to significant penalties, this withdrawal will likely be welcomed by many employers and business advocates.

Last week the House of Representatives passed the American Health Care Act (AHCA). Although at this point it is just a bill and not the law, the House bill provides insights into what the future may hold for employer plans. The House bill was passed using the budget reconciliation process, which limits debate in the Senate and allows for enactment with a simple majority of Senators rather than the usual 60-vote threshold. Budget reconciliation improves the odds (but does not guarantee) passage of the AHCA by the Senate. In a nutshell, provisions of the Affordable Care Act (ACA) that directly impact the federal budget are repealed or amended by the AHCA. Other features of the ACA, namely the benefit coverage and employer reporting requirements, are left unchanged. Below are the highlights of the House bill as it impacts employer-sponsored benefit plans.

The Nebraska Supreme Court Ruling in Bergmeier v. Bergmier says yes.

In a Nebraska divorce or separation, the husband and wife’s “marital estate” is to be equitably divided. The marital estate consists of property accumulated and acquired during the marriage through the joint efforts of the parties. Non-marital property, on the other hand, is not ordinarily divided and is instead set off the party who acquired it. 

Some couples spend many months making plans for their wedding. Aside from all of the details you’ll consider for the big day, there are some important estate planning-related discussions that you should have both before and after you say “I do.”

Claims processing for health care and disability plans is a routine administrative task that is often taken for granted. If the employer has a fully insured plan, the insurer handles claims. If the employer has a self-funded health care plan, usually an outside third party administrator is hired to handle claims for benefits. Either way, the employer who sponsors the plan typically depends on someone else to ensure that the paperwork is being handled correctly.

All too often, employers rely on restrictive covenant agreements to provide protection in the event of an employee separation only to find out that the restrictions they put in place do not hold up to scrutiny.

With the beginning of a new year and a new Presidential ad­ministration, it was a fair statement to say that change was com­ing for employers in 2017. Would the Affordable Care Act be repealed? Would the new salary basis threshold under the Fair Labor Standards Act be implemented? What changes would be in store for immigration law and employer-sponsored visas? As we approach the end of the first quarter of 2017, we are generally left with still more questions than answers.

We have entered round two of the bout between President Trump’s administration and various challengers over the legality of the President’s Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States,” originally issued on January 27, 2017 (the “Order”). In round one, the Ninth Circuit upheld a lower court’s decision halting enforcement of the original Order during the pendency of litigation. In an effort to bypass the delayed implementation of the original Order, President Trump signed a new, scaled-back version of the Order on March 6, 2017, which is set to go into effect on March 16, 2017. Leading the second round of litigation over the new Order are Hawaii and Washington with Massachusetts, Minnesota, New York, and Oregon joining in the Washington suit with respect to the original Order. As was the case with the original Order, the new Order includes two key provisions that have the potential to affect your workforce. Click here to read the full article.

As employers are well aware, the Fiscal Year 2018 H-1B cap season is in full gear. In order to be considered for one of the 85,000 coveted H-1B visas, employers must file their H-1B cap petitions during the first five business days of April (April 3rd – April 7th, 2017) requesting that employment commence on October 1, 2017. Employers historically have had the option of paying an extra $1,225 fee to request premium processing for their H-1B cap petitions if they are selected in the H-1B lottery. This guarantees a response (not necessarily an approval) from the U.S. Citizenship and Immigration Services (“USCIS”) within 15 calendar days. Click here to read full article.

President Trump has directed the Secretary of Labor to re-examine the Department of Labor’s final so-called “Fiduciary Rule” to determine whether it “may adversely affect the ability of Americans to gain access to retirement information and financial advice,” and to prepare a new cost-benefit analysis of the Fiduciary Rule that focuses on potential adverse impacts on investors, retirees, and the retirement services industry. If (as anticipated) the results of this analysis indicate adverse impacts, President Trump has ordered the Department of Labor to “publish for notice and comment a proposed rule rescinding or revising the Rule, as appropriate and as consistent with law.”  Read more here: How Did President Trump Change the DOL’s Fiduciary Rule?

On Friday, January 27th, President Trump issued an Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” Two days earlier, on Wednesday, January 25th, President Trump issued two other Executive Orders titled “Border Security and Immigration Enforcement Improvements” and “Enhancing Public Safety in the Interior of the United States.” Collectively, the three Executive Orders affect many aspects of the immigration system. Thus far, employment-based immigration, specifically, has been affected to a lesser extent, although that may change if President Trump signs a recently-leaked draft Executive Order. Please be aware that the situation is still fluid as practical tweaks and adjustments are being implemented and legal challenges are working their way through the courts. Below is a summary of two key provisions that have the potential to immediately affect your workforce. Click here to read full article.

For many years I’ve advised clients the IRS is the worst creditor to have. Why? The IRS, like many creditors, charges interest if you do not pay the amount you owe on time. But the IRS also imposes penalties, which add up quickly and result in a much larger liability than just the income tax you owe.

On January 13, 2017, the United States Supreme Court granted a request to address the question of whether employers could contractually require employees to waive the right to bring employment disputes as a class or collective action (Epic Systems Corp. v. Lewis, Docket No. 16-285). Class/collective action waivers are generally included in arbitration agreements or arbitration clauses within other employment agreements requiring the resolution of employment disputes through arbitration, rather than through the court system or administrative process. Such waivers require employees to give up their right to bring class or collective actions with other employees against the employer.

Now that President Trump’s first 100 days in office has begun and his administration turns to policy and legal decisions. President Trump has stated that he plans to cut “regulations by 75 percent,” which leaves many wondering what will happen to the labor and employment regulations issued under the Obama Administration. Although it is impossible to predict with certainty, a federal law known as the Administrative Procedure Act (the “APA”) provides some guidance.

As has been widely reported, on Friday President Trump issued an executive order directing that federal agencies “waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications” as the first official act of the new Trump Administration. In addition, the executive order directed that federal agencies “take all actions consistent with law to minimize the unwarranted economic and regulatory burdens of the Act, and prepare to afford the States more flexibility and control to create a more free and open healthcare market.”

On January 19, 2017, the Federal Trade Commission (“FTC”) announced the annual changes to the Hart-Scott-Rodino Antitrust Improvement Act of 1976 (the “HSR Act”) pre-merger notification thresholds.

Historically, Internal Revenue Service (“IRS”) enforcement regarding misclassifying partners as employees has been relatively lax. Recent guidance focused on this issue, however, may signal that the IRS will more actively enforce the rule that an individual may not be both an employee and a partner of the same entity. This article by Jeff Schaffart and Josh Norton discusses the implications of this guidance.

‘Tis the season for giving, so here are five things you should know about the gift tax:

As employers are well aware, the Form I-9 is used to verify the identity and employment authorization of individuals hired for employment in the United States. A revised Form I-9, dated 11/14/2016, was recently published by the U.S. Citizenship and Immigration Services and is available at https://www.uscis.gov/i-9. Employers must begin using the new version no later than January 22, 2017. Until then, employers can use either the version dated 03/08/2013 or the new version.

On December 13, 2016, President Obama singed the 21st Century Cures Act into effect that provides welcome relief to small employers concerning health reimbursement arrangements. As background, the Affordable Care Act effectively prohibited employers from offering health reimbursement arrangements that were not integrated with qualifying group health plans, which eliminated the long standing practice of small employers reimbursing employees for premiums paid towards individual health insurance policies.

In a stunning development, a federal district court in Texas has issued a nationwide injunction blocking implementation of the new salary basis rule under the Fair Labor Standards Act (“FLSA”) mere days before it was scheduled to take effect on December 1, 2016. The ruling will have a significant impact on businesses throughout the United States and raises uncertainty as to whether the increased salary basis threshold will be upheld moving forward.

In a similar development to the DOL’s salary basis rule, the U.S. District Court for the Eastern District of Texas also issued a nationwide injunction halting implementation of certain aspects of the Fair Pay and Safe Workplaces Executive Order (the “Order”). The Order affected federal contractors subject to affirmative action requirements and was scheduled to go into effect on January 1, 2017. Since issuance, the Order has been controversial within the federal contracting community, as it would have required disclosure of certain labor law violations and could have resulted in companies being barred from eligibility to receive federal contracts. The Order also would have prevented companies from using mandatory arbitration clauses to resolve disputes under Title VII of the Civil Rights Act on contracts worth more than $1,000,000. Both of those aspects of the Order have now been halted. It is unclear whether the injunction will be challenged, but the DOL has already informed all procurement officials at federal agencies to stop implementation of those pieces of the Order subject to injunction. The court did not enjoin the paycheck transparency requirements of the Order which will require federal contractors to provide wage statements to employees noting total hours worked, overtime hours worked, rate of pay, gross pay, and an itemized list of any deductions taken from the employee’s pay.

As the saying goes, “death and taxes” are some of the few certainties in this life. In the case of the federal estate tax, the rate is high: 40%. This means you may be leaving your not-so-favorite Uncle Sam a big portion of your estate. However, under current law, the majority of Americans will not pay the federal estate tax. The federal estate tax can be minimized, or perhaps even eliminated.

The Nebraska Supreme Court recently issued an important, taxpayer favorable ruling in Stewart v. Nebraska Dept. of Rev.[1] In Stewart, the court ruled that the federal “economic substance” and “sham transaction” doctrines do not apply in determining whether a corporation is a qualified corporation for purposes of Nebraska’s special capital gains exclusion. This ruling effectively blesses pre-transaction planning that causes a corporation to become a qualified corporation.

When doing sophisticated estate and wealth transfer planning for a high net worth client, there may be no more effective weapon in the estate planner’s arsenal than the “grantor trust.” Although the use of grantor trusts by practitioners certainly involves federal estate and gift tax planning considerations, it is the grantor trust’s federal income tax feature that fundamentally differentiates it from other planning options, and it is this characteristic that has led one of the nation’s leading trusts and estates lawyers to state that "grantor trusts are among the most powerful estate planning tools.”

For employers, the cost of noncompliance with the Immigration and Nationality Act ("INA") has always been high, but it just got higher as a result of recent adjustments for inflation. In the case of Form I-9 violations, penalties have risen 96%. These dramatically increased amounts apply to civil monetary penalties assessed after August 1, 2016 for violations that occurred after November 2, 2015. The penalties are serious business and act as a solemn reminder that employers should regularly audit their Form I-9 compliance processes.

An agent under a durable financial power of attorney (“POA”) is appointed by you to act on your behalf with regard to your property, business, and financial affairs. Your agent is legally permitted to perform acts that you designate, which may include simple tasks, such as paying bills and depositing checks, or more complicated tasks, such as managing your real estate, investments, or business.

The nature of the stock options must be understood in order to properly factor them into the marital estate, and the concept of vesting and maturity are important. Vesting relates to when the employee can exercise the option, and maturity relates to whether the right to exercise is absolute.

You’ve worked hard to get here…you’ve made a conscious effort to save for retirement, start college savings funds for your children and stick to your financial plan. But does your financial plan include your post-death intentions or does it fall short?