Motschenbacher & Blattner LLP

MORE INSIGHTS INTO THE FMLA

The Family and Medical Leave Act (FMLA) has been around since 1993, but much confusion persists about this ground-breaking legislation. Here are the answers to several basic questions about the FMLA.

Q. What is the law's main focus?

A. The law permits eligible employees to take up to 12 weeks of unpaid leave from work for the birth or adoption of a child, for reasons relating to their medical condition or to care for another family member.

An eligible employee maintains benefits during the leave period, but must continue to pay the required employee portion for such benefits. The employee also has the right to return to the same or equivalent position, pay and benefits at the conclusion of the leave.

Q. Who is an eligible employee?

A. It is someone who has been employed by the business for at least 12 months and worked at least 1,250 hours during that period. This rule applies if the business has 50 or more employees within 75 miles of the worksite.

Q. What notification must the employee provide?

A. The employee must provide 30-day advance notice for foreseeable events. This includes scheduled surgery and the adoption or birth of a child. The employer is allowed to delay the leave if the employee fails to provide the requisite 30-day notice.

Q. Can an employer require proof of a medical condition?

A. Yes. The employer may request that the employee obtain certification from a health care provider in order for the employee to take a medical leave. Upon completion of a leave for the employee's own medical condition, the employer may require the employee to obtain a certification of fitness to return to work. The employer can delay the start of FMLA for 30 days if the employee does not provide advance notice or proper certification.

Q. What notification must the employer provide?

A. An employer must give an employee requesting FMLA written notice, within two business days, if the employee is not eligible for FMLA. If the employer does not respond to a leave request within two business days, the employee is eligible to take the leave.

Q. Does the employee have to take the leave in consecutive weeks?

A. No. The employee can take 12 weeks off during any 12-month period. The leave may be taken on an intermittent basis. For instance, an employee might switch to part-time status until the equivalent of 12 weeks has been used.

Note: Employers covered by the FMLA must display a notice outlining the law's provisions. The notice must be in a conspicuous place whether or not the employer currently has any eligible employees.

SHOULD YOU FEAR PROBATE?

According to the perception of some people, going through the probate process is nothing short of enduring a barbaric form of torture. In reality, probate isn't always the “necessary evil” it is often portrayed to be.

Probate serves an important purpose and usually does not take as long as people think it will. This is especially true if the decedent has established a legally valid will. On the other hand, there are times when it is possible to avoid probate and, in fact, it may be advisable to do so.

Background: The term “probate” is used to describe the legal procedure for winding up a decedent's affairs, paying debts (including medical or nursing home bills) and distributing the assets of the estate. If there is an existing will, the heirs may use an attorney to have the will validated. It must be determined that the will is authentic and that this is the final will that the decedent created.

If no will exists, things get a little more complicated. In that case, the court will have to appoint an administrator to handle the estate. Normally, the prime candidates will include the spouse of the decedent or an adult child of the decedent.

Without a will to provide guidance as to the decedent's intentions, the court must apply state law to determine who should be the beneficiaries of the estate. This could run contrary to the designations actually desired by the decedent. Note: Consider the potential implications for your own estate.

Since probate is a court-supervised process, it requires payment of legal fees and related administrative fees. Generally, these fees are absorbed by the decedent's estate. Furthermore, distributions from the estate are delayed—and your patience may be tried—until the process is completed.

One way to avoid probate for certain assets is to use a form of joint ownership. For instance, if the decedent owned real estate with a spouse as joint tenants with a right of survivorship, the real estate automatically passes to the surviving spouse upon the decedent's death. Probate is not required for this asset.

WHO HAS TO PAY THE DAMAGES?

How can you be held responsible for an act you didn't commit? It is possible under the legal principle of “vicarious liability.”

Even if you can prove your innocence beyond a shadow of a doubt, that does not necessarily mean you are relieved of liability. If the wrongful act is not criminal, the focus is on compensation to the victim, not punishment of the guilty party.

In fact, the courts often extend liability for wrongdoing to the person “responsible” for the person who caused the injury or damage. For example, an employer might be held liable for acts by an employee. Similarly, under certain circumstances parents could have to pay for damages caused by a child.

Consult with an attorney concerning actual occurrences.

SEXUAL HARASSMENT PART 2: EMPLOYEE'S VIEW

This is the second of a two-part series on sexual harassment. The first part was for employers; this article applies to employees.

Frequently, victims of sexual harassment, who usually are women, believe they have little, if any, recourse available to them. However, giant strides have been made in recent years.

There are two basic types of sexual harassment. Quid pro quo harassment occurs when employment decisions are determined by whether a person submits to sexual advances or demands. Environmental harassment is unwelcome sexual conduct that creates an intimidating or offensive work environment.

Here are six steps to follow for victims of sexual harassment.

Step 1. Frequently, the party responsible for sexual harassment—perhaps the employee's supervisor—is not aware that his or her conduct is offensive. This is particularly true with environmental harassment. The first step for addressing the problem is to let the responsible party (or parties) know that you find the conduct to be offensive. Even if the issue is not resolved to your satisfaction, you have managed to put the harasser on notice that you find his or her conduct to be offensive.

Step 2. If the harassment continues, consult the company manual concerning the proper procedures. For example, you may be required to report grievances to a designated company officer. Follow the guidelines to the letter. Be especially careful to meet any time restraints.

Step 3. If your company does not have a predetermined policy, report the problem to your immediate supervisor. If your supervisor is the one responsible for the offensive conduct, go up the management ladder to the next-highest-ranking officer. It is critical, especially in environmental harassment cases, to report the incident soon after it occurs.

Step 4. Keep a detailed record of all harassment incidents, your reported complaints and any other occurrences related to the harassment. List the dates, times, individuals involved, and what was said and/or done.

Step 5. If you are unable to resolve the matter through company procedures, you may want to file an administrative charge with the U.S. Equal Employment Opportunity Commission (EEOC) or a state-run agency. The EEOC or the state will investigate the claim. If the matter still is not resolved and your claim is determined to be valid, you may be issued a “right to sue” letter.

Step 6. Subsequently, you may initiate a legal action for injuries suffered due to the sexual harassment. Physical injury is not required; you may also sue for emotional distress. Some of the results of a successful lawsuit are:

Reinstatement of a lost job;

Back pay for compensation forfeited;

Fringe benefits lost;

Damages for emotional distress;

Required sexual harassment training; and

Attorney's fees and court costs.

Final word: The best thing to do is to consult with an attorney experienced in employee rights. Remember that you have legal remedies at your disposal.

PLUSES AND MINUSES IN NEW TAX LAW

The new Small Business and Work Opportunity Tax Act of 2007 provides several key tax breaks for small-business owners, but it also includes several revenue-raisers. Here is a quick roundup of the main provisions.

Section 179: Effective for the 2007 tax year, the new law increases the maximum amount that may be “expensed” (i.e., currently deducted) under Section 179 to $125,000. (It was scheduled to be $112,000 for 2007.)

S corporations: The new law contains several provisions that benefit S corporations and their owners, including tax breaks for qualified subchapter S subsidiaries (Q-Subs) and electing S business trusts (ESBTs) for tax years beginning after 2006.

Work Opportunity Tax Credit: The new law extends the Work Opportunity Tax Credit (WOTC), which is available for hiring workers from certain disadvantaged groups, through August 31, 2011. It also broadens the list of workers eligible for the WOTC to include disabled veterans.

Family business simplification: The tax filing requirements are eased for certain husband-and-wife teams operating an unincorporated business. This provision reduces paperwork and applies to tax years beginning after 2006.

Employer tip credit: Despite the minimum wage increase over the next two years, the employer's tip credit for excess FICA tax will still be based on the previous minimum wage of $5.15 per hour.

Kiddie tax: The “kiddie” tax applies to the unearned income above an annual threshold ($1,700 for 2007) that is received by children under age 18. The new law raises the age limit for 2008 to age 19, or age 24 for full-time students, if the child's earned income does not exceed half of his or her annual support.

Suspended interest: The IRS now has 36 months (previously 18 months) before it must stop charging interest and filing related penalties if it fails to notify you about a tax deficiency.

Due process hearings: The new law eliminates the requirement that the IRS must hold a collection due process hearing before issuing a levy on delinquent employment taxes.

Of course, this is just an overview. Obtain expert advice for your situation.

Yearend Bonuses— In a new case, employees claimed that bonuses promised to them if they performed well should be included in their regular pay for the purpose of establishing overtime pay. The company had not established any fixed amounts for the bonuses. Nevertheless, a District Court ruled that the employer had to include bonuses in the employee's regular rate of pay because it used the bonuses as incentives. Upshot: Specify your company's bonus plan in writing.

Living Wills— Do you have a “living will” in place? This document provides direction for caregivers in the event of a disabling injury or illness where an individual is unable to provide informed consent. Discuss it with your family before contacting an estate planning attorney.

Reversal of Fortune— An employee claimed that her company blacklisted her after she revealed environmental hazards. Eventually, she was awarded damages for emotional distress. In a controversial decision, the Circuit Court of Appeals in Washington, D.C., ruled it was unconstitutional to impose federal income tax on the damages. But now the Court has vacated the decision. Reason: The tax exclusion is properly limited to damages for physical injuries.

Proper Notice— A company sent an e-mail to employees outlining its arbitration policy. When an employee sued for disability discrimination, it required him to arbitrate the dispute out of court. But the Massachusetts District Court said that such a notification is held to a higher standard. Note: An appeals court ruled that e-mail may be acceptable in some situations.

The information you obtain at this site is not, nor is it intended to be, legal advice. You
should consult an attorney for individual advice regarding your own situation.

You may reproduce materials available at this site for your own personal use and for
non-commercial distribution. All copies must include the above copyright notice.