The Family Medical Leave Act, (FMLA) allows parents to take leave to care for their children only if the children are incapable of self-care and have a disability as defined by the ADA, (providing assistance and supervision for daily self-care in three or more activities of daily living, or instrumental activities of daily living in addition to an ADA disability). Typically, this includes Down Syndrome or other developmental disabilities, brain damage, paralysis, serious illnesses that are long term and an accident that impacts major life activities seriously.

The activities that qualify for leave include grooming and hygiene, bathing, dressing, and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories and using a post office.

Before the amendment, it might have been argued that an adult child going through chemotherapy or having surgery did not have an ADA disability, but now there’s no question because of the provision for “irregular cell growth”

So, documentation is the key, especially where certification is required. If an employer does not believe that the certification is sufficient, they must advise the employee in writing that it is incomplete or insufficient, and should state what additional information is required. However, you need to carefully review your decision, as you do not want to be a test case for the collision of these laws.

Transitory illness such as a non-serious bout with the flu or broken bones that do not interfere seriously with self care would be examples of the kinds of conditions that would not make an adult child capable of self care.

Even though cancer probably is a disability now, cancer treatments do not necessarily rise to the level of making the adult incapable of self care.

Some of the most common misconceptions regarding FMLA are:

1       Care for an adult child is not covered.

2       Serious health conditions are always covered.

3       Mental retardation does not qualify as a serious health condition.

4       Care for an adult daughter who just had a baby is covered under FMLA.

5       An adult child’s disability must be something other than a serious health condition that has prompted the FMLA leave  request.

Melissa Roush is an employment law attorney in Austin, Texas who highly recommends an audit of your compensation practices. The IRS is coming–be proactive! Contact Melissa at (512) 523-8388 or melissa@msroushlaw.com.

Chris Cronn who is actively addressing the concerns of business across the country stated that “we are entering into an era we have never seen before”. That sentiment was echoed amongst the concerned business owners in the room, as we are entering into a brave new world of unknown regulation and enforcement.

Business Owner, Bobby Jenkins also expressed concern for the effect that it would have on his business, expressing the need for Healthcare Reform, but not sure if this is the answer. ABC Home & Commercial Services has always offered healthcare coverage for its employees, and he is unsure how this will affect his business long-term.

September 23^rd is D-Day for the first wave of regulations. Luckily, it will not hit all businesses like the invasion of Normandy, as these changes will essentially affect plan changes after September 23^rd.  Unlike the attack on Pearl Harbor, businesses are aware of what is coming and have the opportunity to complete a cost benefit analysis as to whether to try and remain on a grandfathered plan, exempt to some of the provisions under the Healthcare Reform Act.

The Law Office of Melissa S. Roush PLLC has three main concerns for clients other than the increasing costs for healthcare coverage, which many of her clients and colleagues are already seeing, and additional taxes. First, the additional administration and reporting required by business and human resources professionals, from providing a 1099 to everyone and their mother, to the reporting requirements to Health & Human Services, and my favorite reporting on W-2s the value of coverage (which allegedly will continue to be non-taxable for employees). Second is the increased oversight and budgets of federal agencies to enforce Healthcare Reform. According to the IRS 2011 Budget 3.4 million is dedicated to enforcement. Finally, it is unclear whether anyone really knows everything that is in the over 2000 page bill that was passed overnight. The tan, botox, and teeth whiting tax might give us all a laugh, but what about the Long Term Care requirement, in which employers will automatically enroll employees in long term care coverage, which they will be able to access in five years. An employee must affirmatively opt out of this coverage.

Employers cannot use the wait and see method of business, rather they need all of their armed forces; Human Resources, Benefits Provider, Attorney, and CPA to prepare for battle through self-examination and create a strategy to address increased costs and exposure.

Melissa Roush is an employment law attorney in Austin, Texas who highly recommends careful review of how Healthcare Reform will affect your business-be proactive. Contact Melissa at (512) 523-8388 or melissa@msroushlaw.com.

Effective August 23, 2010, The Department of Homeland Security (DHS) released final rules on how companies can store their Forms I-9 electronically.  Through the period from 2006 to this publication 4 years of questions have arisen and the answers to those questions have been incorporated into the final rules.

There are five key clarifications that have been provided since the interim rules.

1. I-9s must be completed within three business days, not calendar days.
2. You may use electronic or paper systems or a combination of electronic and paper systems.
3. You may change to electronic storage systems provided that the systems meet the performance requirements of the regulations.
4. There’s need to retain audit trails only when the I-9 is created, completed, updated, modified, altered or corrected, but not for each time a Form I-9 is viewed electronically,.
5. Your company is not required to provide a confirmation of a Form I-9 unless an employee requests a copy. If an employee does not request a confirmation then it is optional for the employer.

With the latest push to save filing space in offices the “e-filing” will likely be a welcome change.  You should notify your HR, Payroll and IT departments are all aware of the change to ensure compliance with the new rules.

Melissa Roush is an employment law attorney in Austin, Texas who highly recommends an audit of your verification practices. The Federal Government is focusing on the enforcement of this issue–be proactive! Contact Melissa at (512) 523-8388 or melissa@msroushlaw.com.

According to statistics presented by the Middle Class Task Force, women in the U.S. still only earn $.77 for every .00 a man earns, with an even larger wage gap for women of color.

Terrell McSweeny, Vice President Biden’s domestic policy advisor, stated that the nation’s gender pay gap cannot be fully addressed without passing the Paycheck Fairness Act. “The Paycheck Fairness Act gives women more tools to get fair pay in the workplace. For example, the legislation allows employees to inquire about wages or share salary information without fear of reprisals. The Act closes loopholes that make it harder for women to challenge being paid different wages for the same work, and it ensures that women who prove their case are compensated fairly.”

According to the Middle Class Task Force’s website, “These issues are not just about basic fairness – and in the case of pay discrimination, justice – but also of basic economics. The gender pay gap constrains our economy’s growth, by reducing the number of women in the work force and by preventing them from maximizing their potential in the most productive jobs. As families depend more women’s wages, eliminating wage discrimination is also critical for middle class economic security -  families who are working hard can hardly afford to lose part of a paycheck to discrimination.” (http://www.whitehouse.gov/blog/2010/07/20/equal-pay-and-work-family-policies-are-critical-middle-class-economic-security)

In essence, the government will be collecting data on employers to gain a better understanding of the scope of the issue and undertake enforcement efforts. They will also launch a public education campaign to educate employers on their obligations and employees as to their rights.

In short, there is a much larger burden on employers to justify acceptable reasons for pay disparity between sexes because they now must prove that the difference is based on a “bona fide factor other than sex” that is “job related” and “consistent with business necessity.”

Melissa Roush is an employment law attorney in Austin, Texas who highly recommends an audit of your compensation practices. The IRS is coming and they want more of your money–be proactive! Contact Melissa at (512) 523-8388 or melissa@msroushlaw.com

Focus on Immediate Survival- Save Long Term Planning for Later

Being an entrepreneur is complicated.  Enterprises often face having too few resources but an abundance of expenses.  Even so, when you choose to make trade-offs, don’t be pennywise but pound foolish.  Spend smart money on a few key legal documents to build essential infrastructure for your company.

By spending this money when you start your company, you can be protected from several critical issues that may seriously damage your business later- and it is far more expensive to have these issues fixed after the fact, than it is to properly address them in the beginning.

Here are three examples of common mistakes we see short-sighted entrepreneurs make:

Ownership:

As with any business relationship, but especially so in the world of start-ups, ownership is issue number one.  You need to document  which members of your team own what share of your company, or risk the fate of Mark Zuckerberg, who has been forced to face numerous lawsuits (and settled out of court for at least million) regarding who truly owns Facebook.  If you have a “friend” or advisor who helps you develop your company’s software, make sure he/she knows what his payment is and that his equity in the company is documented; otherwise, when your business takes off he may suddenly become “a founding partner”.  These documents are relatively inexpensive to create in the beginning compared to the value of protecting your stake in the company.

Partnership Responsibilities:

Your legal documents should state the owners’ duties and responsibilities in the company, and what those will become if something changes.  It is important to distinguish who does what from the beginning of your venture (and while everyone involved is still happy with each other).  We find that a good way to make these distinctions is to provide a checklist of things to consider, such as: “What happens if a partner dies? What happens if a partner wants out? How are you going to handle it if one of the partners decides they want to do something else and they aren’t contributing as much in terms of time or capital?”  When a start-up faces one of these situations without an answer in the middle of a turbulent period, it can be crippling.  If everything has been mapped out beforehand, the answer is already in writing and you have a definite plan to move forwards.

Intellectual Property:

You need to own your name in order to truly own your business, because a recognizable brand has tangible monetary value.  But simply using your name first does not give you an exclusive right to it.  In fact, if another company in a distant state files to trademark your name, they may be able to use ICANN procedures to shut down your website and litigate against you as an infringer.  Conversely, a federal trademark gives you the ability to shut down malicious sites, squatters, and copycat sites that are using your name illegally. By protecting your brand, you increase the value of your company.

While it can be difficult to make the decision to spend more cash in the beginning, remember that you are far more likely to avoid pitfalls and attract investment dollars if you have these issues taken care of.  Dollars spent today can protect your company’s value tomorrow.  Proper legal documentation of your entity, its ownership and management, and your brand can be invaluable as you grow and change.

Visit the MWR Legal Springboard Blog for more critical legal advice for entrepreneurs!

“We are going after the root cause of illegal immigration and getting rid of the culture of compliance among employers,” said Matthew Chandler, a spokesperson for ICE.

To date, the’ve issued more than .4 million in fines on businesses that have hired unauthorized workers.

President Barack Obama stated that “businesses must be held accountable if they break the law by deliberately hiring and exploiting undocumented workers…[I]f the demand for undocumented workers falls, the incentive for people to come here illegally will decline as well.”

Since the change in strategy, ICE is going after a larger group of employers than it has in the past. The companies have been fined and required to terminate the employment of undocumented workers immediately.

Because the Obama Administration has been lax on the actual number of deportations that result from their forensic I-9 audits, critics of this new strategy claim that those illegal workers are simply moving to different jobs.

Given that the President also noted that this approach for would pave the way for a legislative overhaul to give legal status to the millions of illegal immigrants already in the country, you get an idea as to where this is heading.

It is important to note that this change in policy will not affect employers exposure to liability relating to 1-9 violations and hiring or continuing to retain undocumented workers.

In other words, nothing has really changed from an HR point of view, except that more employers are receiving substantial fine notices based on the results of forensic I-9 Audits.

Be advised that ICE attempts to turn workers into confidential informants, and rehiring any worker who has been terminated in response to an ICE Notice of Suspect Documents would have more severe consequences.

Melissa Roush is an employment law attorney in Austin, Texas who highly recommends an audit of your compensation practices. The IRS is coming and they want more of your money–be proactive! Contact Melissa at (512) 523-8388 or melissa@msroushlaw.com

A 5 Piece Presentation from the Minds of MWR Legal

Compilations of an extensive interview conducted by Jason Myers

Myth #1- Online Form Documents Make Incorporation Easy

These days, many entrepreneurs hope to get their legal structures online for cheap or for free, without realizing the inherent risks involved. There are many considerations for each unique situation when creating an entity that a form document simply cannot take into account.

If you have partners, intend to go after investment, or plan to sell your company down the road, a “form fill” document will likely end up costing you more in legal fees than you possibly could have saved by taking the cheap route in the first place. While we love the accessibility of information on the internet, there are myriad arrangements and issues among partners that a form document simply cannot cover and you may never realize until you are in hot water.

A prime example, and a recurring one, is the tale of the partner who loses interest. Entrepreneurs generally have a multitasking, furiously busy lifestyle and can only funnel so much energy into each project they are involved with. If your partner decides to be less active in the organization, and you don’t have a provision to cover it, you may be stuck paying him/her a partnership share while receiving minimal participation and support for the business.

The formation of any entity beyond a sole member LLC (which gives you some liability protection as a sole proprietor) truly deserves, if nothing more, a conversation with your attorney. Your attorney will be able to help you understand the benefits of different types of entities so that you take into account tax, fundraising, and other considerations. Spending this time with your legal advisor to discuss the relevant issues to your unique situation can be an invaluable exercise, with the benefits far outweighing the risk of initial investment.

When we meet with our entrepreneur clients regarding a partnership, we generally provide a questionnaire to fill out before the consultation. The questionnaire will immediately address certain issues that often remain undiscovered; that is, they remain undiscovered until problems occur and the resolution of the disagreement can mean the fate of the business. In these tense situations you could end up in expensive court battles or face other serious threats to your company and its people.

It is far easier to resolve these issues before things get to this point, by asking questions such as: “What happens in the event of a partner’s death?” (will his wife or children now own and control part of your company?) or “What are the duties of each partner, and what is the recourse for failure to complete these?” and “What happens if partners disagree on the direction of the business?” and so on, until a agreement is drafted for your specific reality.

This rigorous questioning has saved businesses before they even start. We were once approached by three women to build a partnership, and by the end of the meeting one of the partners realized she wasn’t going to be a good fit for the business. By parting ways in the beginning they saved themselves a lot of misery that would have been caused by the later discovery of their misunderstandings. It could have created a lot of pain and hard feelings, as well as legal fees to clean up the mess. Instead, the two other women executed a partnership agreement that worked for them.

The bottom line is this: The myth that it is outrageously expensive to have an attorney provide you with an entity that fits your unique situation isn’t necessarily true, and in the end it may be worth its weight in gold.

Visit MWR Legal to learn more about our talented legal minds and how we can help your company.

512.320.0601

This all started in the Ontario, Calif. police department where all officers were issued text pagers, which of course, had a certain number of characters allotted every month or they would be charged extra. So of course, many of the officers went over their monthly allotments, and the department decided to search through their messages to see if their overages were being caused by work-related texts, or if it was indeed too many personal texts.

When the department reviewed officer Jeff Quon’s text messages, they not only found personal text messages (during work hours), but many of them were sexually explicit. So, of course, the department disciplined officer Quon accordingly, and made the SWAT members pay for the overage charges.

Apparently, officer Quon felt that his Fourth Amendment rights to privacy had been violated and so he got a group together to sue the department.

But to no avail. The court found that the police department’s search was legitimate and reasonable, especially since the department had a very distinct policy regarding the review of electronic communications (originally established for email, but they were able to make the case about text pagers and cell phones because the policy was extended verbally when the equipment was issued).

Private employers can substantially reduce their potential exposure on privacy-based claims by acting reasonably when searching and reviewing employee’s electronic communications, but you need to have your ducks in a row (in other words, a written policy is needed about how you will handle the investigation of personal communications on work-issued equipment.)

There’s still a lot of gray area in this, however. Many people are using work issued equipment to review personal emails and social media sites, and the employee does have some claims to personal privacy, and this overall issue is going to keep coming up in the courts.

Please review your policies regarding search of employee communications through your equipment. If the policy is stated clearly, and you perform these searches specifically and according to your policies, you’ll significantly reduce your liability.

The Employee Misclassification Prevention Act is back–and it’s targeting abuses in the classifications of employees versus independent contractors. Among the bill’s many provisions, some of the larger issues for employers include:

✴      The requirement to keep records on the correct status of each worker as an employee or non-employee (It will be considered a violation of FLSA for this miscalculation)

✴      Increased penalties for this misclassification (up to $1100 per employee for first-time violators, and up to $5000 per employee for repeat or willful violators)

✴      Requirements to notify workers in writing of their classification.

✴      Directing the Department of Labor to perform tarted audits focusing on employers in industries that frequently misclassify employees.

And many, many more.

It all started with a study in 2005 that showed that no taxes were being collected on over seven percent of workers (totaling over 10.3 million individuals).

That certainly got the IRS’s attention, and since the government has only one way to increase their revenues, they’re looking for every opportunity for tax penalties.

Similar bills were introduced last year, Taxpayer Responsibility, Accountability, and Consistency Act of 2009 (H.R. 3408 & S. 2882), in addition to addressing misclassification issues, would revise “safe harbor” provision under the Revenue Act of 1978 which current allows employers to designate certain workers as independent contractors for federal employment tax purposes.

Deputy Labor Secretary Seth Harris testified at the Senate Committee hearing regarding a number of the Department of Labor’s regulatory activities aimed at reducing worker misclassification, including the “Plan/Prevent/Protect” compliance strategy which will require employers to (1) develop a “plan” to address the risks of employment law violations and this plan should be made available to workers to participate in the process, (2) implement the plan to “prevent” legal violations, and (3) ensure the plan “protects” workers and review it on a regular basis.

This proposed legislation if passed would have an instant effect on employers not only relating to wage and hour laws, but also tax laws and the National Labor Relations act. Now is the time to act to take proactive steps to protect your business now, rather than waiting for increased penalties and the public awareness campaign that is on the horizon.