Our Thoughts

Don’t Buy (or Post) Those NLRB Posters Just Yet

2012-04-23T14:51:28Z

Most employers have April 30, 2012 circled on their calendar. That was the day a new rule from the National Labor Relations Board (NLRB) was to take effect requiring employers to post a notice of employees rights under the National Labor Relations Act . . . Not anymore.

The U.S. Court of Appeals for the District of Columbia issued an injunction last week preventing the rule from taking effect. The Court ruled that a legal question needed to be resolved before the rule could take effect: does the NLRB have the authority to require employers to post such a notice? Last week, a federal judge in South Carolina determined that the NLRB exceeded its authority when it approved the poster requirement.

For now, employers do not have to purchase the NLRB poster and those that have can leave them in the closet on April 30^th– but do not throw them away – this battle is far from over! Check back here for updates on the NLRB poster rule and other important developments in employment law.

Retaliation Claims Continue Trending Upwards

2012-04-13T14:18:27Z

In 2011 – for the second year in a row – there were more charges of retaliation filed with the U.S. Equal Employment Opportunity Commission (“EEOC”) than any other type of charge. Retaliation occurs when an employee suffers an adverse employment action, e.g. termination or demotion, because they complained about some impermissible employer activity. Last year, 37.4% of all EEOC charges were based on retaliation; ten years ago retaliation only accounted for 27% of EEOC charges.

Generally speaking, retaliation claims are easier to prove than discrimination claims; a point not lost on the Plaintiffs’ bar. Additionally, over the past few years court decisions have opened the door for even more retaliation charges to be filed.

Two 2011 decisions by the U.S. Supreme Court continued this trend. In Thompson v. North American Stainless, LP, the Supreme Court held that it was impermissible retaliation for an employer to terminate the fiancée of a complaining employee, opening the door for third-parties to assert charges of retaliation.

In Kasten v. Saint-Gobain Performance Plastics Corp., the Supreme Court held that an employee’s oral complaint of a wage and hour violation was afforded the same protection as a written complaint. This decision means employers must now also be mindful – and should keep records of – any oral complaints by employees that could lead to retaliation claims.

For more information on handling and preventing retaliation claims, please contact Theo Lu at (706) 259-2586 or click on the email link on his bio page.

The Three-Minute FMLA Quiz Every Human Resources Professional Must Pass

2012-03-16T20:14:50Z

Three minutes, six questions. That’s all it takes to discover whether you know what you MUST know about the FMLA.

Does the FMLA apply to my company?
Answer: The FMLA only applies to employers with 50 or more employees.
Which employees are eligible for unpaid leave under the FMLA?
Answer: Employees who have been employed with the company for a total of 12-months, worked a minimum of 1,250 hours within the last 12-months, and work at a location with 50 or more employees within a 75 mile radius are eligible for FMLA leave.
How much leave unpaid FMLA leave are eligible employees entitled to?
Answer: Eligible employees are entitled to 12 weeks of unpaid, job-protected leave during a 12-month period.
When can an employee take FMLA leave?
Answer: Generally, there are three reasons (1) The birth or care of a newborn, and the placement of a child for adoption or foster care (both men and women are eligible); (2) the employee’s own “serious health condition” that makes the employee unable to perform their job; (3) to care for a spouse, child or parent with a “serious health condition”.
What is considered a “serious health condition”?
Answer: The FMLA defines a “serious health condition” as “"illness, injury, impairment or any physical or mental condition that requires inpatient medical care or continuing treatment by a health care provider.” While this definition is vague and open for interpretation, employers do have the right to request that the employee provide medical certification from a doctor when the employee requests FMLA leave for his or her own serious health condition, or the serious health condition of his or her parent, spouse or child.
What does the FMLA require or prohibit an employer from doing?
Answer: When an eligible employee returns from FMLA leave, the employer must return them to the same position, or an equivalent position, with equal pay, benefits and perks. An equivalent position must involve the same or substantially similar duties, responsibilities and authorities. Covered employers cannot: (1) prevent eligible employees from taking FMLA leave; (2) consider FMLA leave as a negative factor in any employment action (hiring, firing, promotion or discipline); or (3) retaliate against employees who request FMLA leave or complain about a violation of the FMLA.

Bonus Question – Are there special provisions for military families?
Answer: YES! The spouse, child, parent or next of kin of a “covered active duty” service member can take leave for a “qualifying exigency”. A “qualifying exigency” is a specific activity arising out of the fact that a covered military member is on active duty, including issues related to short notice deployment, making financial and legal arrangements, arranging childcare, attending counseling, and post-deployment activities.

Under the military caregiver provision, the spouse, child, parent or next of kin of a covered service member, including the National Guard or Reserves, can take leave to care for the service member who incurred a serious injury or illness in the line of duty.

Employees taking leave under these provisions are entitled to a total of 26 weeks of unpaid, job-protected leave (including regular FMLA leave) during 12-month period.

This quiz is just a starting point. There’s a lot more to the FMLA and compliance can be tricky. So if you had trouble answering any of these questions or you’d like some additional guidance, please contact Theo Lu at (706) 259-2586 or click on the email link on his bio page.

Choosing Your Executor - Part 1

2012-02-28T21:08:52Z

An important question that you will need to answer when meeting with your attorney to have your Will prepared or updated, is who you want to serve as your Executor. The Executor is the person you ask to carry out your wishes as expressed in your Will. Sometimes an Executor is referred to as your “personal representative” because they are there to do for you what you want done after your death. Picking the right Executor therefore is one of the most important things you will do in planning your estate. A good selection will help ensure a smooth transition for your family and relieve some of their stress. Selecting the wrong Executor can cause hard feelings and worse can cause your family confusion and stress.

A recent study showed that there is mass confusion over what the role of an executor actually entails. Start your decision making process by considering the fiduciary nature of the position and its duties. These include: having the Will probated (proven), gathering and inventorying the assets of the estate, determining the valid debts and liabilities of the Estate, filing tax returns, paying the estate’s taxes and valid obligations, settling business interests, filing (unless waived) an accounting with the probate court, distributing property to intended beneficiaries, including making decisions as to what and how to distribute (e.g. distribute an asset with equal value to all equal beneficiaries, or distribute ownership of all or some of the assets to all equal beneficiaries).

There are three general types of people to choose as your executor: (1) a family member or close friend (2) a professional, or (3) a hybrid of the two. What to consider in selecting the best option for your situation?

(1) Individuals (Family Member or Friend)

You can name any person you want to as your executor as long as they are over age 18 and are mentally competent. The individual is generally your spouse, a sibling, an adult child, or a friend. They technically need not have any special training but there is some preferred knowledge and character traits that should be considered.

You should choose someone who is responsible, trustworthy, and is comfortable working with professionals such as lawyers and accountants. The person shouldn’t be a procrastinator. You want somebody who will do the work and not get mixed up with the emotional aspects.

Remember that the executor’s position is a job and the executor is entitled to reasonable compensation. Sometimes, if an attorney is assisting, a family member who acts as executor will forego payment or be paid hourly by the estate for his or her work.

Talk with your potential individual executors. It’s not the best practice to just surprise someone with the job title after your death.

You can name two or more executors (i.e. co-executors) but selecting multiple non-professionals to serve as co-executors may bring more challenges than you intend. Be aware that each will have to sign court filings and other important documents throughout the entire process (which can be anywhere from several months to several years). They will also have to make unanimous decisions on all issues. There is nothing worse than a deadlock.

Do you reasonably feel that your co-executors can collaborate together and still meet the necessary deadlines? They may be on good terms today, but what about in the future?

If you have dysfunction in your family (and who doesn’t?), naming multiple individuals who can’t get along today as your co-executors will not inspire a sense of togetherness. Given the way family dynamics work and the complexity of your estate, if you want co-executors, it may be best to select a professional to serve as co-executor with an individual.

To Be Continued – Part 2 will cover the pros and cons of a Professional Executor and Hybrid Executors.

BOA Just Says No to Fannie Mae

2012-02-27T14:14:14Z

Bank of America said Thursday that it would no longer sell new mortgages to Fannie Mae.

This is the latest news in the continuing saga of what role the mortgage giants Fannie Mae and Freddie Mac will play in this country’s residential housing future, and is the latest news in the fight over how many defaulted mortgages Bank of America will have to buy back from Fannie Mae because the original loans had not conformed to proper underwriting standards.

In mortgage circles this is huge news. Bank of America was Fannie Mae’s third-largest provider last year and the bank originated $156.1 billion in mortgages last year of which $37.7 billion were sold to Fannie Mae.

Meanwhile, Fannie and Freddie face questions over what role they will play in the housing market. On February 21st the Treasury Department’s new housing reform report was issued, and the report concluded that Fannie Mae and Freddie Mac must be eliminated - period.

Of course if Fannie Mae and Freddie Mac are eliminated most economists expect that average interests would increase and that it would be harder to obtain a traditional 30 year fixed rate mortgage.

Georgia Garnishment Laws Changed...Again!

2012-02-23T18:51:29Z

Governor Nathan Deal recently signed into law House Bill 683 which specifically authorizes non-lawyers to sign garnishment pleadings on behalf of a company. As discussed in our blog dated September 20, 2011, the Georgia Supreme Court issued an opinion that an attorney must sign all garnishment pleadings filed by a company in superior or state court. Any company employee who signed such pleadings was engaging in the unauthorized practice of law. This legislation counter-acts this ruling, and allows companies to go back to their routine practice of having human resources or payroll professionals sign garnishment pleadings. The new legislation increases the amount of fees that a company may deduct for processing the garnishment. Please note that while non-lawyers may once again sign garnishment pleadings submitted to superior or state court, an attorney must represent the company if the company’s answer is contested or if the company is in default. If you have any questions regarding garnishment proceedings, including how your company can deduct fees for processing garnishments, please contact your MBN attorney.

New Draft of Settlement Statement

2012-01-16T21:12:48Z

The Consumer Financial Protection Bureau released its second round of alternative prototypes of a settlement disclosure form to be used during closing to replace the current HUD-1 and Truth in Lending disclosure.

Right now, anyone who applies for a mortgage gets two disclosures that contain basic information about the mortgage: the Truth in Lending form and the Good Faith Estimate.

Last month, the CFPB tested two prototypes for a disclosure of final loan terms and closing costs. They were both similar. This time around, the CFPB created a different format for this information which are much longer. The current disclosures can be viewed online and are two different formats in five page drafts called Mimosa and Sassafras are available on the CFPB website.

New TIL and GFE Form

2011-10-20T13:28:53Z

The Consumer Financial Protection Bureau (CFPB) recently released its fifth version of the draft mortgage disclosure form comparing a fixed-rate loan and an adjustable-rate loan. The CFPB said it will test this version of the disclosure with consumers, and consumers are invited to go to this page to enter comments on the proposed form: ”Know Before You Owe". It appears that the Bureau will finalize this form which combines the Truth in Lending form and Good Faith Estimate form in the very near future.

The CFPB has indicated it will release the first draft of a revised HUD-1 before Thanksgiving. The last revision to the HUD form, which was effective on January 1, 2010, completely changed the form from a 2 page form to a 3 page form and is very unpopular in the industry.

Companies Now Required to Use Attorney When Answering Garnishments

2011-09-20T18:27:20Z

On September 12, 2011, the Georgia Supreme Court adopted an informal State Bar of Georgia opinion stating that any non-lawyer who answers a garnishment in Georgia is engaging in the unauthorized practice of law. This decision means that all companies must now use an attorney licensed in Georgia when answering a summons of garnishment. If a company does not have in-house counsel, then it must engage outside counsel to review and prepare the answers to a summons of garnishment. Any non-lawyer employee who answers on behalf of a company will effectively be engaging in the unauthorized practice of law, and the court may issue a default judgment against the company because the answer was not filed by a licensed attorney.

Most Employers are Required to Display New NLRB Poster

2011-09-20T18:02:35Z

The National Labor Relations Board (“NLRB”) recently issued a new rule requiring most private sector employees to post a notice (“Notice”) informing employees of their rights under the National Labor Relations Act (“NLRA”). Pursuant to the rule, which becomes effective on November 14, 2011, the Notice must contain specific language informing employees of their right to form, join, or assist a union; to bargain collectively; to join in other concerted activities; and to refrain from such activities.

The rule states that the Notice must be 11-by-17 inches in size, and it must be posted in all places where other employment-related notices are posted. The Notice must be posted in English as well as a foreign language if the foreign language is spoken by 20% or more of the employer’s workforce (the NLRB will provide translations of the Notice in other languages). Employers that typically post personnel rules and policies on an internet or intranet site should also post the Notice there, in addition to a physical posting. Employers are not required to distribute the posting by email, Twitter or other electronic means. A copy of the Notice is available for download on the NLRB website at www.nlrb.gov.

There is a chance that the rule will not go into effect on November 14, 2011 due to an increasing backlash against it. Representative Scott DesJarlais of Tennessee recently introduced House Bill 2854 seeking to repeal the rule. Additionally, the National Association of Manufacturers has filed a lawsuit against the NLRB in the federal district court in Washington, DC in an attempt to block the rule. Due to these recent developments, we recommend that employers be prepared to post the Notice but refrain from posting it until the November 14, 2011 deadline in the event that the rule is successfully challenged.