BREAKS FOR NURSING MOTHERS

Many of the provisions of the health care reform legislation do not take effect for years to come, but a new breastfeeding break requirement took effect on March 23, 2010 with very little media attention. Employers now are required to provide reasonable break times for female employees for lactation purposes for one year after the child's birth. Employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother, but an employer is not required to compensate an employee for this break unless the employer already provides compensated breaks and the employee uses that time for nursing. Employers must provide a location for breastfeeding, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the pubic. Employers with fewer than 50 employees are not subject to the break time requirement if compliance would impose an undue hardship, determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer's business.


-Submitted By Meredith Cook, Esq.
603-629-4511
mcook@wiggin-nourie.com

Mediation Update

Last month, the Supreme Court of New Hampshire issued a decision titled “Lillie-Putz Trust v. Downeast Energy” in which the Court affirmed two superior court orders, dismissing the Trust’s writ with prejudice and denying a motion for reconsideration, based on the Trust’s refusal to appear for a scheduled mediation. The case provides a good reminder that Courts take the mediation process seriously, and participants should as well. That approach not only complies with Superior Court Rule 170 – it vastly increases the chances for resolution, and probably saves all participants from higher litigation costs and business disruption.

-Submitted By Christopher Pyles, Esq.
603-629-4725
cpyles@wiggin-nourie.com

Get Your Mandatory DOL Posters – for free!

For Employers – Remember, you are required to conspicuously post various Department of Labor notices. The Department has recently sent out reminders that those mandatory posters are available, for free. Go to:

http://www.labor.state.nh.us/mandatory_posters.asp for further details.

-Submitted By Christopher Pyles, Esq.
603-629-4725
cpyles@wiggin-nourie.com

Appearances at Hearings Can Matter

A September article in the Wall Street Journal highlights how judges and juries may take a person’s appearance into account during a trial. While common sense dictates that parties appearing in court, or before administrative agencies, should dress appropriately, the WSJ article from Thursday, September 2, 2010, written by Christina Binkley and entitled “Opening Statement: What to Wear to Court” provides a good reminder that proper attire shows respect for the tribunal, shows that the person is taking the proceeding seriously, and can even send a more subtle message about the party or witness. While the appearance of a person should not make or break a case, the article is a good reminder that a tribunal may look beyond objective facts, and may consider appearances when making judgments about credibility. The article focuses on the courtroom, but the message holds true for administrative hearings and even meetings with investigators or auditors.

-Submitted By Christopher Pyles, Esq.
603-629-4725
cpyles@wiggin-nourie.com

Employee Theft and Unemployment Benefits

An employer may terminate an employee for stealing, and the employee cannot collect unemployment benefits. Accordingly, the employer does not suffer any adverse impact on its unemployment tax rate. However, a recently passed law now allows employees who steal less than $500 from a previous employer to collect benefits, if they are laid off from their next job, and credits the employee for the time they worked at their previous job even though they were fired for stealing. According to a very helpful article in the New Hampshire Business Review for the week of August 27, 2010, the new law clarifies the term “gross misconduct” by removing the word “dishonesty” and replacing it with “theft of an amount greater than $500.” The NHBR article, written by Bob Sanders, provides a complete analysis of the change, and some interesting statistics on gross misconduct in the workplace.

-Submitted By Christopher Pyles, Employment Attorney
603-629-4725
cpyles@wiggin-nourie.com

Bullying in the Workplace

Over the last several months, school bullying has received increasing attention. From the cases of Phoebe Prince and Carl Walker-Hoover in Massachusetts, to the New Hampshire case involving older children bullying a younger child to get a tattoo, the heightened concern over school bullying has led to legislation. Several months ago, Governor Lynch signed a Bill into law that revised the People’s Safety and Violence Prevention Act, to protect children from physical, emotional and psychological violence caused by bullying and cyber-bullying.

New Hampshire, New York, and at least fourteen other states have explored expanding anti-bullying legislation from the school to the workplace. New Hampshire’s proposal was tabled without further action in February 2010, and none of the other states have passed their bills into law. The growing legislative interest in prohibiting workplace conduct that may be insulting, threatening, intimidating, or humiliating is worth tracking. Legislative materials filed in New York suggest that bullying claims are four times more prevalent than sexual harassment claims, so the passage of any workplace bullying law could very likely lead to an increase in claims. While every employer should take reasonable precautions to make sure that employees act professionally, the potential for anti-bullying laws impacting the workplace is a possible expansion in law that bears monitoring.

-By Christopher Pyles, Employment Attorney
603-629-4725
cpyles@wiggin-nourie.com

Tax-Free Death of a Billionaire?

George Steinbrenner's death in July of 2010 is likely to result in a federal estate tax savings of an estimated $500 million dollars for his heirs. The federal estate tax has lapsed this year and, if no further Congressional action is taken, it will resurface in 2011 with a mere $1 million per-person exemption. Had Steinbrenner died in 2009, when the federal estate tax was 45 percent, with a $3.5 million per-person exemption, his estimated $1.1 billion estate could have paid federal estate taxes of almost $500 million, depending on how the estate was structured.

Steinbrenner's estate will still be liable for any applicable state level estate taxes, but New York's State's estate tax is 16%. Neither will his heirs completely escape taxes as they will still have to ultimately pay a capital gains tax if and when assets are sold. And due to a change in tax law this year, the tax would be applied to the amount by which the assets have appreciated since Steinbrenner acquired them. There also continues to be the lingering threat made by some members of Congress that they will seek to impose the 2009 federal estate tax retroactive to the beginning of 2010. As the year progresses, it appears increasingly unlikely that the estate tax will be retroactively imposed. Nevertheless, and in spite of the fact that the constitutionality of such a decision would be litigated for years to come, and that the retroactive imposition of the tax would be fraught with practical complications, Steinbrenner's estate has not alluded the estate tax entirely quite yet.

- Jaime Gillis, Estate Planning Attorney

H-1B VISAS FOR SPECIALTY WORKERS AND PROFESSIONALS STILL AVAILABLE TO U.S. BUSINESSES

The recent sluggishness of the U.S. economy has had a positive impact in immigration law. Many of our nation’s best and brightest are foreign-born professionals and entrepreneurs. They come to the United States seeking education in our world-class higher educational system or seeking to invest and participate in our economy. Many of these foreign-born graduates, professionals, and investors participate in the H-1B visa program - to the benefit of our nation’s businesses, nonprofits, educational institutions, and even our government.

The H-1B visa is available to U.S. businesses and other institutions seeking to employ foreign workers in specialty occupations requiring expertise in specialized fields. These occupations include executives, accountants, engineers, scientists, doctors, computer programmers, and others requiring a bachelor’s degree or higher or equivalent experience. Participation in the H-1B visa program is accomplished through the filing of an H-1B petition with U.S. Citizenship and Immigration Services (USCIS), the Department of Homeland Security component administering the program.

At the beginning of every fiscal year, October 1, an allotment of 65,000 visas is made available to the program (the Regular Cap). An additional 20,000 visas are also made available each fiscal year to H-1B petitioners hiring foreign workers who possess a master’s degree or higher from a U.S. institution of higher education (U.S. Master’s Cap). Finally, a maximum of 6,800 visas are deducted from the 65,000 visa allotment and made available exclusively to U.S. petitioners seeking to higher Chile and Singapore nationals who are eligible for H-1B1 visas under the terms of the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Petitions filed in the H-1B visa program can be filed six (6) months ahead of the beginning of the fiscal year or on April 1. Petitions filed after the cap is reached are rejected for that fiscal year.

Historically, the H-1B visa program is a competitive visa classification. Over the past decade the H-1B cap has been reached almost every year on the first days visas are available - or on April 1 for an October 1 start date. In the past USCIS used a lottery system to select which petitions where accepted under the caps. This system was costly and unpredictable. U.S. businesses that undertook the expenses of preparing petitions under the H-1B visa program stood to lose their investment, and the future productivity of this worker, due to simple chance.

The recession and economic contraction of the past year or so has lessened demand for these visas. Last year, the H-1B cap was not reached for fiscal year 2010 until December 22, 2009 - almost three (3) months after the beginning of fiscal year 2010.

This year, fiscal year 2011, USCIS has received 26,000 H-1B petitions under Regular Cap and 11,300 H-1B petitions under the U.S. Master’s Cap as of July 23, 2010. This leaves approximately 46,700 H-1B visas available to H-1B petitioners seeking to hire foreign workers for an October 1 start-date. The availability of these visas for the foreseeable future allows U.S. businesses, nonprofits, and other institutions to benefit from the productivity, drive and ingenuity many foreign professionals, and graduates of U.S. universities, possess and contribute to their employers. U.S. businesses can plan their hiring carefully without fear of losing their potential hire to a roll of the dice.

If you or your business has been waiting to participate in the H-1B program, now is the time. If you would like additional information regarding participation in the H-1B program or to schedule a meeting, please contact the Wiggin & Nourie, PA Immigration Department.

Lesser-Known Aspects of Health Care Reform

With a law spanning thousands of pages, it is no surprise there are components to health care reform receiving little attention. Here are a few:

* Small businesses with fewer than 25 full-time employees may be eligible for tax credits to purchase health insurance for their employees if the employer's workers have average wages of less than $50,000.

* Beginning January 1, 2011, nonprescription drugs cannot be reimbursed tax-free through a health savings account (HSA) for flexible spending account (FSA).

* Employers must provide an unpaid breastfeeding break for nursing mothers. Employers with 50 or more employees must provide a nursing location other than a bathroom that is shielded from view and free from intrusion by co-workers and the public.

* Employers will be able to offer employees rewards of up to 30% of the value of coverage for participating in wellness programs and meeting certain health-related standards, but this provision will not become effective until 2014.

* Effective January 1, 2011, employers must report the value of employer-provided health coverage on each employee's W-2 form.

Is LegalZoom Legal?

Irrespective of whether the courts ultimately rule that LegalZoom is engaging in the unauthorized practice of law or not, there is an inherent problem with using LegalZoom or any other do-it-yourself approach to estate planning. As estate planners, we may begin the drafting of a plan with templates, it would be inefficient not to do so. However, at Wiggin & Nourie, the templates we use are the product of decades of varied legal experience and opinion. The templates are constantly updated to ensure that they remain technically correct. Further, there are dozens of templates and a great deal of care is taken in selecting which template to use to lay the groundwork for any client's plan. Once selected, the template is carefully tailored to a client's specifications and the content of the document is explained in detail to the client. Moreover, our client conferences provide us with the ability to develop a relationship with clients and an opportunity to extract information surrounding client finances, goals and family dynamics that are relevant to the drafting process. Finally, once a plan is executed, we ensure that it is safely stored and we continue to follow-up with the client for years to come to ensure that trust funding issues are attended to and that technical modifications and updates continue to be made as necessary. In short, there is a human and professional component to estate planning that should not be discounted.

I think that people generally have a tendency to underestimate the work that goes into the preparation of an estate plan, it requires a great deal more than simply printing off forms. LegalZoom and other such services reinforce the opinion that estate planning may easily be accomplished by generating simple forms, but if you are considering the use of such services, you should look closely at the service provider's disclaimer. You will likely see, as in the case of LegalZoom, that the service provider is not serving as your attorney, does not review the documents you prepare for legal sufficiency and does not guarantee that the documents are correct. Preparing estate planning documents without the benefit of a legal opinion may result in unintended consequences that may be costly to correct in the future. In my experience, the vast majority of clients engage in estate planning to gain a sense of reassurance that their family will be cared for after their death in the manner that the client thinks is most appropriate, to pay for documents to be prepared without receiving the benefit of legal advice may undermine the entire purpose of the planning in the first place.

http://www.abajournal.com/news/article/suit_claims_legalzooms_document_prep_is_unauthorized_practice