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We want to send a special THANK YOU to the more than 300 of you who attended HR Law & Solutions last week. It is always such a pleasure for all of us – it feels like an annual reunion! Congratulations to all of our raffle winners, and especially to our new HR Law & Solutions Hall of Fame recipients (pictured left to right): Patti Reigle (of Digestive Health Physicians), Fran Barker (of Physicians’ Primary Care), and Kim Hopkins (of McGregor Baptist Church.

As we mentioned during our What Would You Do? session, the National Labor Relations Board (“NLRB”) recently issued a report on employer handbook policies. It is…interesting, to say the least. The report gives examples of (supposedly) lawful and unlawful handbook policies on issues like confidentiality, conduct toward supervisors and fellow employees, conflicts of interest, and employees leaving work. Generally, “lawful” vs. “unlawful” turns on whether the NLRB thinks the particular policy infringes upon employees’ Section 7 right to engage in concerted activity regarding terms, conditions, or privileges of employment.

Continue Reading Seminar Wrap-Up and NLRB Report on Handbook Policies

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In 2014, S Corporation returns greatly outnumbered both “regular” corporate returns and partnership returns. Perhaps one of the reasons that S Corporations continue to be so popular, particularly relative to partnerships, is the ability in some circumstances to limit or avoid the imposition of self-employment tax on corporation income that passes through to the individual shareholder. For 2014 the self-employment tax rate was 15.3%, with the elimination of the (larger) Social Security component on compensation over $117,000.

The S Corporation Approach to Self-Employment Tax

An individual partner in a partnership is generally subject to this 15.3% self-employment tax on the pro rata share of the partnership’s income passed through to them, subject to the limits described above. However, the rules under Subchapter S differ significantly. If an S Corporation shareholder provides services to the corporation – let’s call them an “owner-operator” – and is paid a salary, that compensation is subject to FICA tax (the equivalent of self-employment tax) as if the owner-operator were an employee of an unrelated corporation. Alternatively, the corporation could not pay the owner-operator a salary but instead simply distribute cash to the owner-operator on a pro rata basis. As a shareholder is already subject to income tax on his or her pro rata share of the corporation’s net income, whether distributed or not, this distribution would not be separately taxed and, more importantly, would not be subject to the 15.3% self-employment tax. Few S Corporation owner-operators would ever take even $1 as compensation if this would be the actual result. Continue Reading What is “Reasonable” Compensation for S Corporation Owner-Operators?

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True, tax-exempt organizations are altruistic in nature. But even a tax-exempt organization needs to attract and retain talent.  And altruism will only go so far in landing a key executive hire. So what can charitable institutions do to give themselves a bit of an extra edge when it comes to hiring a key executive?

One option is to provide deferred compensation outside of the “typical” 403(b) or 401(k) Plan. This additional deferred compensation is often referred to as “non-qualified deferred compensation.” This post will cover the basic, non-qualified deferred compensation (“NQDC”) alternatives available to a private (i.e., non-governmental) tax-exempt organization.

Basic Rules Applicable to Tax-Exempt Organizations

Any NQDC plan sponsored by a tax-exempt entity must comply with the rules of Section 457 of the Internal Revenue Code. There are basically two (2) types of Section 457 arrangements that a tax-exempt entity can sponsor, commonly called “Section 457(b) Plans,” and “Section 457(f) Plans.” Continue Reading Enhancing Executive Compensation for Tax-Exempt Organizations

We are looking forward to hearing from Stephen Bienko, our HR Law keynote speaker on March 24. He will be presenting “Discovering Your WHO: Unifying the Workplace Through Effective Communication and Leadership.” Stephen has quite an accomplished and varied career – he is the founder and President of 42 Holdings, the majority owner of the College Hunks Hauling Junk and Moving brands. In the past, he was a professional athletic trainer and sports agent, and a New Jersey State Trooper. In 2013, Stephen testified on Capitol Hill before the House Small Business Subcommittee on Health and Technology on the impact of Obamacare on small business, and he has been featured on Fox News, Fox Business, Bloomberg TV, and the Wall Street Journal.

In preparation for the seminar, Stephen prepared a short video message.  Be sure to listen to the whole video so you can learn about Stephen’s challenge for attendees — the winner will receive a special prize from Stephen!

https://www.youtube.com/watch?v=g1TWqUI-h0M

Big thanks to Stephen for putting together the video.  Registration for the 23rd Annual HR Law & Solutions seminar will be closing shortly so be sure to sign up soon!

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We are in the final countdown to the 23rd HR Law & Solutions seminar! On March 24, over 250 HR professionals, business owners, and managers will gather to learn about new employment case law and legislation; to analyze thought provoking real-life scenarios involving disability/medical leave, wage/hour, retaliation, and LGBT related matters; and to get answers to common employment questions that plague their workplaces.

One session we’re particularly excited to offer this year is “A View from the C-Suite,” which will bring together several leading CEOs and other C-Suite professionals as they share insight on key HR issues, strategies, and best practices for dealing with tough workplace issues. We are so grateful to our amazing panelists, including Samira Beckwith, President and Chief Executive Officer, Hope Healthcare Services; Peter Dys, President and Chief Executive Officer, Shell Point Retirement Community; Larry Hart, Lee County Tax Collector; Gail Markham, President, Markham Norton Mosteller Wright & Company; and Sara Stensrud, Executive Vice President and Chief Human Resources Officer, Chico’s FAS Inc. (pictured above).

Continue Reading HR Law & Solutions 2015: Counting Down, Questions for the C-Suite?

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Henderson Franklin’s Employment Law Group will present its 23rd Annual HR Law & Solutions seminar on Tuesday, March 24, 2015 at Sanibel Harbour Resort & Spa. This year’s conference will provide a fun day of learning for human resource professionals and business owners.

Topics and Speakers

Legislative and Case Law Update presented by Attorneys Robert Shearman and Vicki Sproat

A View From the C-Suite panel discussion moderated by Attorney John Potanovic, with panelists: Samira Beckwith, President and Chief Executive Officer, Hope Healthcare Services; Peter Dys, President and Chief Executive Officer, Shell Point Retirement Community; Larry Hart, Lee County Tax Collector; Gail Markham, President, Markham Norton Mosteller Wright & Company; and Sara Stensrud, Executive Vice President and Chief Human Resources Officer, Chico’s FAS Inc.

What Would You Do? This interactive session presented by Attorneys Suzanne Boy and John Potanovic will share thought provoking real-life scenarios and help attendees identify and resolve issues involving disability/medical leave, wage/hour, retaliation, and LGBT related matters.

Discovering Your WHO: Unifying the Workplace Through Effective Communication and Leadership presented by keynote guest speaker Stephen Bienko.

Breakout Sessions with Employment Law Attorneys John Potanovic, Suzanne Boy, Vicki Sproat, and Bob Shearman; Immigration Attorney Tulio Suarez and Workers’ Compensation Attorneys David Roos and Michael McCabe.

Continuing Education

Continue Reading 23rd Annual HR Law & Solutions Seminar: Registration is Open!

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Thanks to Richard Cohen and his Employment Discrimination Report blog and the Washington Post for focusing attention on the recent report by the U.S. Equal Employment Opportunity Commission (EEOC) about the rapid increase in retaliation claims in the workplace. For years, employment discrimination complaints (i.e., claims by employees that they were discriminated against on the basis of one or more protected factors like race, gender, national origin, age, etc.) were at the top of the EEOC charts as far as number of claims filed. However, as noted back in January 2013, since 2010 there have been more retaliation claims filed with the EEOC than any type of discrimination claim.

The big increase involves claims filed by eligible employees (those who work for employers with at least 15 employees and most public employers) that they were demoted, fired, transferred, denied a raise or a promotion or similar complaints in retaliation for having complained about race, gender, age or other types of discrimination – sometimes even where the alleged discrimination involved someone else. According to the EEOC, a record 38,539 retaliation charges were filed in fiscal year 2013.

The statistics for Florida are similar. In 2013, a total of 3,095 retaliation claims were filed, representing about 41% of the complaints filed with Florida offices of the EEOC. This compares to 2,533 race discrimination complaints, representing 33% of all charges filed.

What accounts for the increase?

Continue Reading Employee Retaliation Claims Continue to Rise

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If yes, please download the new “Historic Records Report” before Dec 31, 2014.

In order to comply with the National Archives and Records Administration’s retention and disposal schedule, United States Citizenship and Immigration Services will on January 1, 2015, delete all E-Verify transaction records more than 10 years old from the system. After that, employers will no longer have access in E-Verify to cases created prior to December 31, 2004.

For employers that want a record of cases that are more than 10 years old, E-Verify has created a new Historic Records Report that will include all transaction records for cases more than 10 years old. However, access to the report is only available until December 31, 2014.

It is a best practice to record the E-Verify case verification numbers on the relating Form I‑9. Accordingly, employers are encouraged to retain the Historic Records Report with the Forms I-9.

Hereinafter, E-Verify will delete transaction records more than ten years old annually. USCIS will advise employers each year when the Historic Records Report is available for downloading.

For more information and guidance on downloading see the Fact Sheet and Instructions.

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Twenty-three states now permit medical or recreational marijuana use, yet the overwhelming number of public and private employers continues to prohibit employees from using the drug. As the number of states allowing private marijuana use grows, businesses are having growing concerns about their rights to enforce workplace drug policies and otherwise operate their businesses in a drug-free environment. A case will soon be heard that will likely examine these competing interests directly.

The ABA Journal and New York Times report that in Colorado, where the drug is now legal for recreational use, an employee fired for using marijuana off-duty has appealed his termination to that state’s highest court. The Colorado Supreme Court will hear oral arguments on September 30, 2014 in a suit filed by a fired customer service representative who uses medical marijuana to control painful spasms he has suffered since he was paralyzed in a car crash.

Continue Reading Medical Marijuana and Employers’ Rights

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Football fans around the globe may be rejoicing at the official start of the NFL season, but the cheering may be somewhat less than usual this year. That’s because a number of current and former NFL cheerleaders have filed lawsuits in Florida, New Jersey, New York, California and other states for violations of state and federal wage and hour laws, including the Fair Labor Standards Act (FLSA). The cheerleaders are claiming they were significantly underpaid—or in some cases not paid at all—for their services, which include performing during games, rehearsing prior to games, and attending community events. Teams that have been sued include the Tampa Bay Buccaneers, New York Jets, Buffalo Bills, Oakland Raiders and Cincinnati Bengals.

In the Florida Complaint, plaintiff Manouchcar Pierre-Val filed a proposed federal class action seeking to represent a class of cheerleaders who worked for the Tampa Bay Bucs within the last three years, and who were allegedly not compensated at the required minimum wages due under the FLSA. The lawsuit claims that the cheerleaders were paid only $100 per game for an average of 8 home games per season, plus limited wages for appearances made at paid corporate events. However, according to the complaint, the cheerleaders actually worked many more hours each week and each year for which they were not properly compensated as required by federal and Florida law. Plaintiff Pierre-Val alleges she received about $2.00 per hour for all of her services.

Continue Reading Football Season Off to a Litigious Start