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Tuesday, October 9, 2012

DANESHVAR LAW'S FINANCIAL AND LEGAL TO DO LIST FOR NEW PARENTS

A growing family requires a reassessment of one's personal finances for good reason. According to 2011 figures from the Department of Agriculture, the estimated annual cost to raise a child is $12,290 to $14,320 for an average-income family. That's why it's crucial to make sure you take care of your family's financial and legal needs. Here's a quick to do list for new parents to use with the birth of each child. 1. Obtain a Social Security Number for your child Get your child's Social Security number as soon as possible because it will entitle you to several tax benefits that will help with some of your new child-rearing costs. It will also allow you to open up a bank account for them. 2. Review Employer Benefits & Paychecks It's time to increase the number of allowances you check off on your W-4 form at work. This will increase the amount of your take-home pay in response to the increased deductions you'll receive for the child. Don't forget to add your child to your health insurance plan, and review possible plan changes. Check to see if your pediatrician is on your current plan, and if so, check to see what's covered. You may also what to sign up or increase the amount you put into a flexible spending account (FSA) for health care if it's available at work. With an FSA, pre-tax dollars are set aside from your paycheck (up to $3,000 for medical and $5,000 for child care). You withdraw funds tax free from the accounts as you incur qualified expenses. 3. Add your Child as a Beneficiary and Increase your Insurance Increase your life insurance to provide for the future needs of the child in your absence. Of course, don't forget to also add your child as a beneficiary. It's also a good idea to increase disability insurance. 4. Create or Update Your Will A will allows you to designate a guardian for your new child in your will in the event that you and your spouse die. You also may want the will to establish a trust to manage estate assets for your child should both of you die before your child is old enough to manage the inherited assets. 5. Start Saving for College Start saving money for college. Consider looking into a 529 Plan. A 529 Plan is a tax advantaged education savings plan operated by a state or educational institution designed to help families set aside funds for future college costs.

Thursday, March 22, 2012

Affordable Insurance for Small Businesses

Most employers are trying to do right by their workers and offer decent wages and benefits. But offering health coverage can be costly. The Affordable Care Act is changing that by reducing the cost for small businesses.

Employers with fewer than 25 full-time equivalent workers may qualify for a small business tax credit of up to 35 percent of premium costs (up to 25 percent for non-profits) to offset the cost of providing health coverage. Additional tax credits will be available in the future.

And starting in 2014, businesses with 100 or fewer employees will be able to find coverage in Affordable Insurance Exchanges.

CHECK OUT The Top 5 Things Small Business Owners Should Know About the Affordable Care Act for more information.

Tuesday, December 13, 2011

Partial Day Absences for Salaried Exempt Employees

On November 25, 2009, the Department of Labor Standards and Enforcement (DLSE) issued an Opinion Letter clarifying how and when a California employer may deduct for a full and partial day absence from an exempt salaried employee’s accrued paid time off (vacation and sick leave bank). Pursuant to California law, an exempt employee must receive his or her full salary for any week in which the employee performs any work without regard to the number of days, or hours worked. DLSE Manual § 51.6.8-51.6.9 and 29 CFR §541.602(a). Thus, under California law, it is illegal to dock the pay of an exempt employee for a partial day absence. However, under both federal and California law, the employer is permitted to dock the pay of an exempt salaried employee when the employee is absent from work for one or more full days for personal reasons other than sickness, or disability (29 CFR § 541.602(b)(1); DLSE Manual §51.6,14,3.) and for absences of one or more full days caused by sickness, or disability (including work-related accidents), if the deduction is made from a bona fide plan, practice, or policy of providing compensation for such sickness or disability (29 CFR § 541.602(b)(2); DLSE Manual § 51.6.15.2.)

California employers may deduct time for a partial day absence from an exempt employee’s accrued paid time off, if the Company's vacation policy requires its employees use their vacation hours for illness when the employee does not have any more accrued sick days. According to the DSLE Opinion Letter, while a partial day absence cannot be deducted from an exempt employee’s salary, such an absence may be deducted from accrued paid time off, accrued vacation time, or fringe benefits without affecting the employee’s status as a salaried exempt from overtime employee.

Please note that an employer is prohibited from docking a salaried exempt employee’s pay for a partial day absence even if the employee has no accrued leave, and doing so may lead either the court or the Labor Commissioner to conclude that the employee is not exempt from overtime.

Here's a summary to help you out...

-Employees exempt from the overtime requirements of California law under the Professional, Administrative or Executive exemptions must be paid a salary. This means the employee must receive the same amount of pay regardless of the number of hours worked each week.
-If an otherwise exempt employee performs no work during a full workweek, the employer does not have to pay the employee any salary.
-If the employee does not get sick days, you cannot deduct anything from the salary if the employee takes a sick day.
-If an otherwise exempt salaried employee absents himself or herself for a full day or more on personal business, such absence may be deducted on a pro rata basis from the salary owed.
-If an exempt employee performs any work during the work day, no deduction may be made from the salary of the employee as a result of what would otherwise be a “partial day absence.”
-If the employer has a PTO policy (as opposed to a sick leave policy), and the exempt employee exhausts the PTO, the employer can deduct the salary for partial day absences as long as the absence is at least four hours.
-No deduction may be made from the salary of an exempt employee for absences occasioned by sickness or accident unless the absence for sickness or accident exceeds the weekly period.
-Deductions may be made for absences in increments of full working day occasioned by sickness or disability (including industrial accidents) if the deduction is made in accordance with a bona fide plan, policy or practice of providing full compensation for loss of salary occasioned by both sickness and disability and the employee has exhausted his or her leave under the policy. In other words, an employer cannot deduct for sick days unless it first gives the employee some sick days to exhaust and the employee in fact exhausts those sick days.
-No Deduction From The Employee’s Salary May Be Made For Absences Occasioned By The Employer Or By The Operating Requirements Of The Business if the absence is less than a week. (i.e., if the employer shuts down the office for two days). If the employee is ready, willing and able to work, deductions may not be made for the time when work is not available. If the office closure is a full week, the employer does not have to pay employees for that week.

You can also read the Opinion letter here.

As always, please call Daneshvar Law at (323) 850-5801 or email us at info@DaneshvarLaw.com to help you comply with current labor and employment laws.

Friday, December 9, 2011

New Employment Laws for California

Ring in the new year with an updated handbook because there are a plethora of new employment laws which have been passed. Daneshvar Law is offering special rates to businesses in need of handbooks. You can contact us at (323) 850-5801 for more information.

Here's a quick summary of what's changed.

S.B. 459 imposes a fine -- from $5000 to $25,000 -- on employers that "willfully" misclassify someone as an independent contractor.

S.B. 299 requires employers with five or more employees to maintain group health coverage for employees on a pregnancy disability leave (PDL), for the four-month duration of the PDL. This new law will have an impact for all employers. For employers with 50 or more employees, the requirement to maintain health benefits was capped at 12 weeks during a pregnancy leave covered by the FMLA. And, smaller employers had no obligation to maintain health coverage during a PDL.

A.B. 22 prohibits employers, excluding financial institutions, from obtaining consumer credit reports on applicants or employees, except in limited circumstances. The law does not bar employers from conducting criminal background checks or checking references, or from doing credit checks where required by law.

A.B. 240 permits employees, in proceedings before the Labor Commissioner for underpayment of minimum wages, to recover liquidated damages of twice the amount of wages that were unpaid, plus interest. Previously, employees could recover liquidated damages only in court actions.

A.B. 592 adds new language to the California Family Rights Act (CFRA) specifying that it is an unlawful employment practice "to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under" the CFRA.

A.B. 887 revises the Fair Employment and Housing Act (FEHA) to include gender, gender identity, and gender expression in the list of protected characteristics (along with race, sex, age, disability, etc.). Gender expression is defined as a "person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth."

A.B. 1236 prohibits the state, counties, or cities from requiring private employers to use the federal government's E-Verify system. Note that, for most employers, the use of E-Verify is voluntary.

A.B. 1396, which takes effect January 2013, imposes substantial new obligations on employers that pay employees on commission.

S.B. 272 clarifies the organ/bone marrow donor paid leave law that took effect on January 1, 2011. The law now specifies that the paid leave periods under the existing law (30 days for organ donors and five days for bone marrow donors) are measured in business days and that employers must maintain an employee's health benefits during the leave.

S.B. 559 expands the FEHA and Unruh Civil Rights Act to prohibit discrimination on the basis of genetic information, similar to federal GINA (the Genetic Information Nondiscrimination Act). Note that existing California law already barred employers from subjecting applicants or employees to genetic testing or from discriminating based on genetic characteristics.

In addition to the above California law changes, there may be additional Federal actions which will be announced at the beginning of the year. Also still to be decided this year is the Brinker decision affecting Meal and Rest Periods.

Wednesday, November 30, 2011

More Protection For The Transgendered Community Under The Vital Statistics Modernization Act

A bill sponsored by the Transgender Law Center and Equality California was signed into law by Gov. Jerry Brown. The bill, Vital Statistics Modernization Act, simplifies changing ones birth certificate for transgender Californians. Another bill, the Gender Nondiscrimination Act, was also signed by the governor and it provides further protection from discrimination for California residents who identify as transgender.

The Vital Statistics Modernization Act has been regarded as a key step to reducing the difficulty that transgender residents face with documents required by the state. The process for a person looking to change his or her gender on a birth certificate is streamlined. According to the only documents necessary to make the change is a note from a medical professional stating that the person has "undergone 'clinically appropriate treatment'". The Executive Director of the sponsor organization Transgender Law Center stated, "Having identity documents that match who we truly are is critical to our ability to work, travel and thrive." The difficulty to travel around the U.S. or internationally by plane is especially difficult for a person who has changed genders due to the scrutiny faced at security checkpoints.

The other bill changed the definitions under the law to bolster the protections against discrimination for transgender men and women. The Transgender Law Center said that these changes "provide[s] clarity to those who are victims of unlawful discrimination as well as for business owners, employers and other entities required to comply with the anti-discrimination protections..." Contact Daneshvar Law at (323)850-5801 if you believe that you have been discriminated against on the basis of your gender or sexual orientation.

What's the difference between a will and trust?

A will is a legal document that describes how you want your assets distributed when you die. How things get distributed is actually controlled by a legal process called probate -- that’s when the court controls and supervises the allocation, instead of your family members. You’ll want to avoid probate because it’s time-consuming and expensive owing to lawyer and court costs. You can stop the probate process by having an estate plan in place.

With a living (revocable) trust, you maintain control and can change the trust, or even dissolve it, for as long as you’re alive.

A key difference between a will and a living trust is that a will doesn’t take effect until you die, meaning it can’t offer you protection if you can’t make decisions because you’re in a coma or have a debilitating illness. With a living trust, someone you designate will take care of your affairs, not the court -- it’s not part of public record. It’s not protected from creditors (so if you owe money, creditors can take it out of your trust), and you’ll have to pay taxes on the income earned by the trust. You also can’t avoid estate taxes with a living trust.

Another option is an irrevocable trust, which can’t be changed or dissolved once it’s been created. You may have to pay gift taxes on the value of the property transferred into the trust, but all of the property in the trust is out of your taxable estate. Property transferred to your beneficiaries through an irrevocable trust will protect you from probate. Also, property in an irrevocable trust may be protected from your creditors.

To avoid probate, create a comprehensive estate plan. A comprehensive estate plan is more than just a will and a trust. Typically, it will contain a living trust, a pourover will (where all of your property goes to the trustee of your trust), an advanced health care directive (this is a power of attorney for health care), durable power of attorney and guardianship (if you have children who are minors).

Wednesday, November 23, 2011

Disparate Treatment and Impact for Wrongful Termination

Employers may often not realize it, but inconsistency in small-business activities is obvious to employees and others working with the business. Human resources departments need to handle situations professionally with similar treatment for all employees to avoid discrimination under civil rights and other federal discrimination laws covering disabilities and age. A wrongful termination lawsuit and disparate treatment or disparate impact arguments are of concern any time a small business discharges an employee.

To avoid these lawsuits, employers should follow a specific procedure with documentation and a checklist to avoid discrimination complaints in their business.

Treating employees less favorably based on age, religious views, race, sex, disability or national origin is disparate treatment, a form of discrimination under the law in the United States. Actions leading to a wrongful termination lawsuit may give the courts a reason to find for the employee on disparate treatment discrimination. If an employer warns some of its employees before termination and do not warn others, the business shows vulnerability under disparate treatment and discrimination laws. Discrimination applies to race, sex, age, disability or religious beliefs, and Caucasians can allege discrimination and wrongful termination when the employer favors other races. Disparate treatment is the most frequent proof for discrimination claims, reports the Introlaw website.

Disparate Impact occurs when an employer fails to follow the same procedure for all employees, the employee may win a discrimination lawsuit without proving disparate treatment. Disparate impact relates to the hardship created by the discrimination and is often used in age discrimination lawsuits. Disparate impact relates to disparate treatment, and a wrongful termination lawsuit may claim that the impact or hardship created plays a role in the discrimination. A greater impact proven to a specific group such as women or older employees may impact the business as well.

To avoid Wrongful Termination Claims, an employer should do the following:

1. Review state laws on termination, including any payday laws applicable, so that it complies with all dates and rules.

2. It should develop office procedures and a checklist for termination of employees.

3. Use fair dealing with all employees, even if the state is an employment-at-will state.

4. Give notification of infractions and make a record in the personnel file. Have the employee acknowledge receipt of a copy of each notification with a signature and date.
Termination. Give the employee a warning before termination, and record the warning date and information. Have the employee sign documents acknowledging receipt of the warning. Provide the employee with the real reason for termination, based in fact. Do not use excuses trying to make it easy for you or the employee. Make a case for misconduct if it exists. Pay your employee as required by law and offer any help you can. If you intend to oppose an unemployment compensation claim, document the file with dates and actions to take after termination. You have limited time to respond to an unemployment benefits claim.