Author: National Law Forum

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Seeking Corporate Dissolution: One Way to Turn Up the Heat on a Deadbeat Debtor

Posted in the National Law Review an article by Jeffrey M. Schwartz of Much Shelist Denenberg Ament & Rubenstei P.C. regarding a seldom-used remedy that can significantly increase your chances of recovering a debt:

Put yourself in the place of a creditor. One of your customers, an Illinois corporation, owes you money. The customer does not dispute the debt and has even admitted it in writing. However, you can’t get the customer to pay. You have tried everything. First, you are told “the check is in the mail” and of course, it does not show up. The customer then agrees to a payment plan but fails to make the required payments. Finally, the customer promises to “pay next month when we have the money.” Still no check. In a last ditch effort, you call repeatedly, but the customer has now gone incommunicado. It has become obvious that the only way to collect the debt is to file a lawsuit.

You are hesitant, however, because of the time and expense it will take to obtain and enforce a judgment. After all, the customer will likely go to great lengths to delay the lawsuit and hold you at bay for as long as possible. From the customer’s point of view, the worst case scenario is that it will have to pay you the money it has already admitted it owes. Is there anything you can do to minimize the time and expense of obtaining and enforcing a judgment?

You may want to consider a seldom-used remedy that can significantly increase your chances of recovering a debt. Under the Illinois Business Corporation Act, a creditor may seek to have its claims against an Illinois corporation satisfied by bringing an action for dissolution in the state’s circuit court. By adding a cause of action for corporate dissolution to a collection lawsuit, creditors may increase pressure on the debtor to pay what is owed or resolve the dispute in a timely, cost-effective manner. In essence, this alternative remedy can change the dispute from a simple beach of contract or collection matter to a scenario where the customer risks losing control of the corporation and must fight for its very existence.

The Illinois Business Corporation Act, which has little case law interpreting it, does not require much. The statute provides that in an action brought by a creditor, a circuit court in Illinois may dissolve a corporation if it is established that:

  1. The creditor’s claim has been reduced to judgment, a copy of the judgment has been returned unsatisfied and the corporation is insolvent; or
  2. The corporation has admitted in writing that the creditor’s claim is due and owing, and the corporation is insolvent.

(Note: Many other states have similar statutes that allow a creditor to satisfy a claim against a corporation through dissolution or liquidation. Accordingly, if your customer is not an Illinois corporation, you should check to see if its state of incorporation has a similar statute.)

One advantage of using this statute is that it does not actually require a creditor to obtain a judgment. The creditor need only show that the debtor has admitted in writing that it owes the money and that the corporation is insolvent. The written admission can come in a variety of forms. For example, the debtor may have sent a letter or e-mail admitting that it owes the debt or may have acknowledged the debt in a forbearance or settlement agreement. In addition, the admission need not be made directly to the creditor. According to People Ex Rel. Day v. Progress Ins. Ass’n, a 1955 Illinois Appellate Court decision, it may be sufficient that the indebtedness is recognized in the debtor’s books and records. Furthermore, the insolvency requirement is satisfied if the corporation is “unable to pay its debts as they become due in the usual course of its business,” as stated in the Illinois Business Corporation Act.

The statue also allows the circuit court, as an alternative to dissolution, to (1) appoint a custodian to manage the business and affairs of the corporation to serve for the term and under the conditions prescribed by the court; and (2) appoint a provisional director to serve for the term and under the conditions prescribed by the court. Like the prospect of dissolution itself, these alternatives put the debtor at risk of losing control of the company.

While your customer may be willing to take the chance that a judgment will be entered against it after extensive litigation and delay, it may not be willing to risk dissolution or loss of control of the corporation. Therefore, adding a count for corporate dissolution to a collection lawsuit can alter the playing field and give you—the creditor—significant negotiating power to resolve the dispute quickly and on better terms.

© 2011 Much Shelist Denenberg Ament & Rubenstein, P.C.

 

 

Fifty Ways To Leave Your Lover And Nine Ways To Attack Patents

Recently posted in the National Law Review an article by Warren Woessner of Schwegman, Lundberg & Woessner, P.A. about the Patent Reform Bill, H.R. 1249:

As a “quick guide” to the Patent Reform Bill, H.R. 1249, that will soon become law, these are the sections of the Act and of the present statute that will all be, or remain effective, upon enactment, to facilitate blocking the issuance of applications or cancellation of objectionable claims. I will try to be brief, but it is not easy. Section references are to section of the Bill; “s.” references are to sections of 35 U.S.C.

  1. Sec. 3: Derivation proceedings (This replaces s. 291 – Interfering patents)
  2. Sec. 6: Citation of prior art and written statements  (Modifies s. 301 – Citation of prior art in an issued patent).
  3. S. 302-307 – “Old” ex parte reexamination is not affected by Bill. (But, remember, ex parte reexamination is essentially unused now.)
  4. S. 251-253. Reissue section is unscathed.
  5. Sec. 6: Inter partes review (Substantially modifies inter partes reexamination – must wait to file until after “opposition period” for post-grant review).
  6. Sec. 6: s. 321: Post-grant review (This is the new “opposition” section – must be filed within 9 mos. of issuance.)
  7. Sec. 8: Adds s. 122(e)   to permit preissuance submissions of art by third parties.
  8. Sec. 12: Adds s. 257: “Supplemental examination to consider, reconsider, or correct information.” Commentators have noted that these proceedings will permit patent owners to purge “fraud,” but there are exceptions.
  9. Sec. 18: Transitional post-grant review proceeding  for review of validity ofbusiness method patents – Can be initiated by defendant in civil suit.

Since reissue, ex parte reexamination, and supplemental examination are owner-initiated, perhaps I should have titled this post, “Nine Ways to Limit Patent Protection”, but then I would have had to list sections involving limiting false marking suits and  the ban on patenting human organisms.  I hope that this will help you locate specific parts of the Bill and of 35 USC as the commentary begins to pile up. As Prof. Hal Wegner summarizes this array:

“A major feature of the [Bill] is the creation of a variety of new post-grant review procedures. The difficulty with both the current and the new procedures results in part from the fact that essentially nothing is being  taken away while time consuming procedures are added to the burden of the upper end professionals at the Patent Office, all at a time when the Board is slowly sinking into an ever greater backlog.” (H.C. Wegner, The 2011 Patent Law: Law and Practice, Version 5.0, Sept. 8, 2011).

Hear! Hear! And, by the way, the Patent Office Board of Appeals and Interferences  is now “The Patent Trial and Appeal Board.” Check out its duties at Section 6 of the Bill.

© 2011 Schwegman, Lundberg & Woessner, P.A. All Rights Reserved

 

 

 

 

 

Mind the Gap: Reducing the Sponsorship Gap Between Men and Women in the Workplace

Recently posted in the National Law Review an interesting  article by Brande Stellings of Catalyst Inc. regarding how a mentor differs from a sponsor and compensation that women face and the gaps in career advancement and compensation that women face

While recently moderating a panel on mentors and sponsors in the workplace, I was struck when one of the panelists, a seasoned, extremely accomplished General Counsel at a prestigious institution, mused aloud that she had had many sponsors in retrospect, but did not know there was a name for it.

This is not surprising.  Everyone knows what a mentor is.  But not everyone knows how a mentor differs from a sponsor.  And recent Catalyst researchindicates it is this critical difference that helps explain the gaps in career advancement and compensation that women face right out of the gate, as well as over time, in comparison to their male peers.  

Statistics regarding women’s advancement in the legal profession are well-known.  The National Association of Women Lawyers (“NAWL”) annual survey of women in AmLaw 200 law firms shows that women’s representation in the equity partner ranks has plateaued at the 15-16% range in the five years since NAWL began the survey.  The MCCA survey of women general counsels in the Fortune500 fares a bit better, with women clocking in just under 19%.  These numbers are not dissimilar to women in US business generally. The annual Catalyst census of women’s representation of Fortune 500 Board directors and executive officers has also stalled out in the 14-15% range.

How do we move off this plateau and get closer to gender parity in our top leadership positions?

For years, many have looked to mentoring as a solution.   Yet, for all the time and resources invested in mentoring, it has not yielded dramatic results. Indeed, Catalyst research has revealed a paradox. According to Catalyst’s landmark study of high-potential MBA graduates, Mentoring: Necessary but Insufficient for Advancement, more women than men reported having mentors, but mentoring provided a much bigger pay-off for men than women.  For example, mentoring was a statistically significant predictor of promotion for men but not for women.   We also found that men with mentors made more than women with mentors in their first post-MBA job – to the tune of $9260.

Why is it that men reap much bigger rewards from mentoring than women in terms of promotion and compensation?

Mentoring: Necessary but Insufficient for Advancement found that although more women than men have mentors, women’s mentors have less clout.  In other words, men are more likely to be mentored by CEOs or other senior executives who are in a position to act on behalf of their protégés.  These powerful mentors act as sponsors.  A sponsor is someone with power and rank and significant influence on decision-making processes.  A sponsor can ensure that a high-performing woman’s work is noticed, that she is put on key projects or client engagements, and advocate for her promotion.

Take the example of a woman partner who is now a leader in her firm and in the profession.  When she first came up for partner at her firm, she and her supporters assumed she would make partner. When she did not, her supporters rallied around her, engaged the support of other partners, including, critically, a member of the partner election committee, and she made partner the following year.

In the example above, note that the most important work of the lawyer’s sponsors was done behind closed doors.  As a sponsor stated in our latest report:

A lot of decisions…are made when you’re not in the room, so you need somebody who can…advocate for you and can bring up the important things of why you should advance. You need somebody or people at that table…speaking for you….I can’t think of a person who rose without a sponsor or significant sponsors.

Catalyst research regarding differences between women and men’s mentors in the high-potential MBA population corresponds to the findings in Catalyst’sWomen of Color in US Law Firms research report.  Of all the groups of lawyers Catalyst surveyed, women of color were the most likely to say they had a mentor, and white men were the least likely to say they had a mentor.  The difference emerges in terms of access to influential mentors.  Women of color were leastlikely to feel their mentors were influential.

Sponsorship does not replace mentoring, by any means.  Mentoring is still necessary, but it is not sufficient on its own.   Good advice without the opportunity to put that advice into action will take one only so far.  As Catalyst research demonstrates, women get a lot of advice, but are not getting ahead.

To learn more about the latest research on sponsorship, and hear from women leaders in the business and legal world, join me at the Seventh Annual National Association of Women Lawyers General Counsel Institute on November 3, 2011 for a panel discussion, Beyond Mentoring: Career Advancement Strategies.  For more information on NAWL’s General Counsel Institute and to register, visit NAWL’s website.

© 2011 Catalyst Inc.

Department of State Releases October 2011 Visa Bulletin

Recently posted in the National Law Review an article by Eleanor Pelta, Eric S. Bord and A. James Vázquez-Azpiri of Morgan, Lewis & Bockius LLP regarding the DOS October 2011 Visa Bulletin:

The U.S. Department of State (DOS) has released its October 2011 Visa Bulletin. The Visa Bulletin sets out per country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their status to that of permanent resident, or to obtain approval of an immigrant visa application at an American embassy or consulate abroad, provided that their priority dates are prior to the cutoff dates specified by the DOS.

What Does the October 2011 Bulletin Say?

EB-1: All EB-1 categories remain current.

EB-2: Priority dates remain current for foreign nationals in the EB-2 category from all countries except China and India.

The relevant priority date cutoffs for Indian and Chinese nationals are as follows:

China: July 15, 2007 (forward movement of three months)

India: July 15, 2007 (forward movement of three months)

EB-3: There is continued backlog in the EB-3 category.

The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:

China: August 8, 2004 (forward movement of three weeks)

India: July 15, 2002 (forward movement of one week)

Mexico: December 8, 2005 (forward movement of two weeks)

Philippines: December 8, 2005 (forward movement of two weeks)

Rest of the World: December 8, 2005 (forward movement of two weeks)

How This Affects You

Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward or backward, or remain static and unchanged. Employers and employees should take the immigrant visa backlogs into account in their long-term planning, and take measures to mitigate their effects. To see the October 2011 Visa Bulletin in its entirety, please visit the DOS website at http://www.travel.state.gov/visa/bulletin/bulletin_5560.html.

Copyright © 2011 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

Ninth Circuit Finds Grocers’ Revenue-Sharing Agreement Must Go Through Full Rule of Reason Check-Out

Recently posted in the National Law Review an article by attorney  Scott Martin of Greenberg Traurig, LLP regarding Sitting en banc and affirming a district court decision, the U.S. Court of Appeals for the Ninth Circuit recently held:

Sitting en banc and affirming a district court decision, the U.S. Court of Appeals for the Ninth Circuit recently held in California ex rel. Harris v. Safeway, Inc.,[1]that an agreement among four large competing Southern California supermarket (“chains”) to share revenues during a labor dispute was neither protected from antitrust scrutiny under the non-statutory labor exemption nor so inherently anticompetitive as to be condemned per se or evaluated under a truncated “quick look” test. Rather, the agreement — which reimbursed to a chain targeted by a strike an estimation of the incremental profits, for a limited period of time, on sales that flowed to the other chains in the arrangement as a consequence of the strike — was subject to traditional rule of reason analysis, balancing any legitimate justifications against any substantial anticompetitive impacts.

Dissenting in part, Chief Judge Kozinski (joined by Judges Tallman and Rawlinson) stated that the majority’s “groundbreaking” ruling on the inapplicability of the non-statutory labor exemption was “very likely an advisory opinion,” and had “no basis in the record, common sense or precedent.”

The case arose from circumstances surrounding 2003 labor negotiations between local chapters of the United Food and Commercial Workers (UFCW) union and three of the supermarket chains that, with the union’s consent near the expiration of the labor contract, formed a multi-employer bargaining unit to negotiate. Along with the fourth chain (which also had a labor agreement that expired within months), the supermarket chains entered into a Mutual Strike Assistance Agreement (MSAA). The MSAA provided that if one of the chains was targeted for a selective strike or picketing (a so-called “whipsaw” tactic by which unions increase pressure on one employer within a bargaining unit), the other chains[2] would lock out all of their employees within 48 hours. As part of the MSAA, the chains also entered into a revenue-sharing provision (RSP), under which any of them that earned revenues during a strike or lockout above their historical shares relative to the other chains would pay 15 percent of those excess revenues to the other chains in order to restore their pre-strike shares.[3]

After negotiations with the UFCW broke down, a strike ensued. Picketing was focused on only two of the chains in the bargaining unit, and lasted for approximately four-and-a-half months. The two picketed chains ultimately were reimbursed under the RSP to the tune of approximately $146 million.

While the strike was underway, the State of California filed suit, claiming that the RSP was an unlawful restraint of trade under Section One of the Sherman Act.The grocers sought summary judgment on the ground that the RSP was immune from Sherman Act scrutiny pursuant to the non-statutory labor exemption, which shield certain restraints from Sherman Act challenge in order to allow for meaningful collective bargaining. The State also sought summary judgment on the grounds that the provision was unlawful per se, or should have been analyzed under an abbreviated (“quick look”) analysis. The district court denied both motions, and the parties pursued a streamlined appeal, after agreeing to a stipulated final judgment for defendants under which the State would not pursue the theory that the RSP was unlawful under a full rule of reason analysis, and the grocers would not pursue their affirmative defenses other than the non-statutory labor exemption.

On appeal to the Ninth Circuit, the original panel (in an opinion by Judge Reinhardt, who dissented in part[4]from the later en banc opinion that requires a full rule of reason analysis) considered the history of profit-sharing arrangements and the circumstances and details of the chains’ arrangement, applying a “quick look” analysis of sorts, and concluded that the RSP was likely to have an anticompetitive effect. The Ninth Circuit panel rejected the application of the non-statutory labor exemption, and also found that “driving down compensation to workers” as a consequence of the agreement did not constitute “a benefit to consumers cognizable under our laws as a ‘pro-competitive’ benefit.”[5]The Circuit then agreed to hear the case en banc.

In the en banc decision, the majority declared that “novel circumstances and uncertain economic effects” of the RSP required “open discovery and fair consideration of all factors relevant under the traditional rule of reason test,” thus approving the district court’s original determination of the proper standard. The Ninth Circuit majority acknowledged that application of the full test was “not a simple matter,” but concluded that “[g]iven the limited judicial experience with revenue sharing for several months pending a labor dispute, [it could not be said] that the restraint’s anticompetitive effects are ‘obvious’ under a per se or quick look approach.” The court distinguished the RSP from other profit-pooling arrangements subject to stricter scrutiny on the grounds that, by its terms, the RSP (i) was effective only for a limited and unknown duration, thus arguably preserving incentives to compete during the revenue-sharing period; and (ii) did not include all participants in the relevant markets, leaving other competitors in the market who could discipline pricing.

However, the majority then opined that the RSP was not entitled to protection from antitrust analysis under the non-statutory labor exemption. In so doing, the court distinguished the supermarket chains’ RSP from the agreement among a group of NFL teams to unilaterally impose terms and conditions from a lapsed collective bargaining agreement that was considered in the U.S. Supreme Court’s decision in Brown v. Pro Football, Inc., 518 U.S. 231 (1996) (holding that the non-statutory labor exemption may extend to an agreement solely among employers). The Ninth Circuit majority determined that revenue-sharing is not an accepted practice in labor negotiations with a history of regulation; does not play a significant role in collective bargaining; is not necessary to permit meaningful collective bargaining; does not relate to the “core subject matter of bargaining” (wages, hours and working conditions); and restricts a business or “product” market, not a labor market.

Because the State of California had stipulated to a dismissal in the event that it did not prevail on a categorical basis under a per se or quick look analysis (which it did not), Chief Judge Kozinski wrote in dissent that the majority had in effect written an impermissible advisory opinion, and had gone “out of its way to rule on thenon-statutory labor exemption.” Chief Judge Kozinski went even further, however, In his view, “all of the relevant Brown factors weigh heavily in favor of exempting the RSP from antitrust review.” This was not a case of employers using a labor dispute as a pretext for price-fixing, but rather one of employers responding to union strike tactics, and then only to the degree that the tactics were effectively deployed. According to Chief Judge Kozinski, adding to strikes “the additional threat of antitrust liability — with its protracted litigation, unpredictable rule of reason analysis and treble damages — will no doubt force employers to think twice before entering into a revenue-sharing agreement in the future” and, contrary to precedent and policy, force employers “to choose their collective-bargaining responses in light of what they predict or fear antitrust courts, not labor law administrators, will eventually decide.”[6]

With the Ninth Circuit having effectively elevated the antitrust laws over the labor laws, one might postulate a fair chance of a petition for certiorari being accepted by the U.S. Supreme Court in this case implicating significant questions of both law and public policy. Unfortunately, in light of the stipulated dismissal, such review may have to wait, as the grocery chains may lack standing, let alone incentive, to seek it here.

[1]Nos. 08-55671, 08-55708 (9th Cir. July 12, 2011).

[2]The fourth chain, which was not in the original multi-employer bargaining unit, was not required by the MSAA to engage in the lockout.

[3]The RSP would be in effect until two weeks following the end of a strike or lockout, and it required the chains to submit weekly sales data for an eight-week period prior to the strike or lockout to a third-party accountant.

[4]Judges Schroeder and Graber joined in Judge Reihardt’s partial dissent.

[5]California ex rel. Brown v. Safeway, Inc., 615 F.3d 1171, 1192 (9th Cir. 2010).

[6]Quoting Brown, 518 U.S. at 247.

©2011 Greenberg Traurig, LLP. All rights reserved.

 

Ten Years Later : The legacy of September 11

Recently posted in the National Law Review an article by Morgan O’Rourke of Risk and Insurance Management Society, Inc. (RIMS) regarding  moments, none resonates so clearly in my mind as the attacks of September 11, 2001.

Of all the “where were you when?” moments, none resonates so clearly in my mind as the attacks of September 11, 2001. I’m not a sentimental person by any means but even a decade later, I find myself getting choked up when watching or reading reports of that day.

Everyone has a story. I was working in Midtown Manhattan. From my 20th floor office window, I had a view of the towers and watched as they buckled and fell before my eyes. No one in the office said anything. There were no words.

As I made my way to the train that would take me home to Long Island, the city was in shock. The expressions of sorrow, horror, confusion and fear that I saw likely mirrored my own. As I walked, I stared in a daze at the black smoke in the distance until I realized that I had been walking in the middle of the street for blocks with no regard for traffic. But no car horns ever sounded. At the train station, the mood was the same. Even though trains were delayed, no riders complained. Who would dare when you were sharing the platform with downtown workers covered in the dust of collapsed buildings that once dominated the New York skyline?

When I finally made it home, everyone wanted to hear about what I saw, but I didn’t want to talk about it. How do you describe what it’s like to watch a skyscraper full of people fall to the ground?

Thankfully, no one I knew died. I was lucky. Loss was everywhere, however, and when I finally returned to the city after a few days, sagging shoulders and hollow, glassy-eyed stares were all too common. I had to stop reading the newspapers because the reports became too excruciating. It was all I could do to keep from crying.

It’s a cliche to say that the world irrevocably changed on September 11, but it did. In a sense, the world shrank. Terrorism was no longer something that only happened overseas. The fears of the world were our fears now. And with that came the increased need for more and better security. To a certain extent, Americans had always taken their safety for granted, but now this kind of thinking was obsolete. The attacks showed us that all risks were possible and our mitigation plans were going to have to change to reflect this reality. Ten years later, this mindset lives on every time we go to the airport or participate in a disaster preparedness drill. It is a testament to our resiliency that we now find most of these things to be annoying. Evidently, not even terrorists could stop us from complaining.

If there can be anything positive to take away from this tragedy, perhaps it is that September 11 has made us more vigilant to all the risks that are around us and, as a result, organizations and individuals alike have taken great steps to reduce these threats. We still have blindspots, as evidenced by Hurricane Katrina, for instance. But overall, the argument could be made that in some ways we may be safer than we were 10 years ago.

Of course, this doesn’t mean the painful memories of September 11 have vanished, particularly for the families and friends of the nearly 3,000 people who died that day.

But there has been progress. At the World Trade Center site, the National September 11 Memorial and Museum will open this month on the anniversary of the attacks, while the new One World Trade Center steadily climbs to its eventual 1,776-foot height after years of political infighting and financial controversy. Hopefully, these signs of rebirth, coupled with the memory of those we lost, can inspire us to move beyond tragedy and create a new legacy for September 11 — a legacy of a better, safer world.

Risk Management Magazine and Risk Management Monitor. Copyright 2011 Risk and Insurance Management Society, Inc. All rights reserved.

Senate Passes Sweeping Patent Reform Legislation

Recently posted in the National Law Review an article by Linda C. Emery, Mark F. Foley, Alexander M. Gerasimow, and Gottlieb John Marmet regarding the new legislation on September 8, 2011  designed to significantly overhall the US patent system:  

 

The U. S. Senate passed sweeping legislation on September 8, 2011, designed to significantly overhaul the U.S. patent system. The Leahy-Smith America Invents Act (“Act”) (HR 1249) makes numerous changes to the U.S. patent laws, most notably conforming U.S. patent law to the laws of most other countries by granting patent protection to the first person to file for patent protection rather than the first to invent, as it is now. Portions of the Act will take effect immediately, while others will become effective in 12 to 18 months. President Obama is expected to sign the bill into law promptly.

Other notable changes to the patent laws include:

  • Third parties are given the opportunity to challenge the Patent Office’s decision to grant a patent.
  • Third parties may cite prior art to the Patent Office during prosecution of a patent application.
  • Strategies to reduce taxes are not patentable.
  • Only the government and those suffering a competitive injury will be allowed to sue for false patent marking.
  • Failure to obtain the advice of counsel cannot be used to prove willful infringement.
  • Creates a mechanism by which the Patent Office will reevaluate and possibly invalidate previously issued business method patents.
  • Eliminates the requirement that inventors describe the “best mode” of making and using the invention as a basis for challenging the validity of a patent.
  • Allows individual inventors or very small companies to file patent applications at significantly lower fees, allowing those small companies and inventors to afford filing a patent application where they might not otherwise be able to afford such an application.

Companies and individuals who already have patents or pending patent applications should review their current practices and bring them in-line with the new patent laws in order to maintain their competitive edge. Inventors should also file an application as soon as possible, and must take additional steps to avoid disclosure or commercialization of their inventions prior to filing a patent application or risk losing the right to seek patent protection.

©2011 von Briesen & Roper, s.c

Coming Home: Service Members Bring Value, Benefits to Workplace

Posted in the National Law Review an article by Drew B. Millar of Dinsmore & Shohl LLP regarding a significant number of returning servicemen and women are out of work:

Among the millions of Americans who are out of work are a significant number of returning servicemen and women. Many employers are distracted by the host of employment issues that can arise in employing these individuals and, to some extent, their families. Among the applicable laws are the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and the Family and Medical Leave Act (FMLA).

While an understanding of the rights afforded to servicemembers by these statutes is essential, employing these individuals provides much more than a sense of patriotism for employers. Specific tax incentives exist (and more have been proposed) to get these individuals back to work. Many possess unique skills and abilities that would be an asset to any workforce. This article provides simple guidance about the laws that employers need to be aware of that impact the hiring of veterans and provide incentives for doing so.

USERRA mandates that employees be given a leave of absence to serve in the uniformed services and prohibits discrimination against employees because of their service. USERRA applies to all public and private employers regardless of size. This leave of absence can be as long as five (5) years and there are specific pronouncements on how the leave can be treated and what benefits the employee is entitled to while on qualifying leave. After the employee’s period of service has ended, the employer has an obligation to re-employ the individual in the same or similar position depending on the length of the leave period.

The FMLA also has a leave provision specifically designed to protect injured servicemembers and their families. While employees must have worked at least 1,250 hours during the preceding twelve-month period, under USERRA, an employee returning from fulfilling his or her National Guard or Reserve Military obligation shall be credited with the hours of service that he or she would have performed (based on pre-service work schedule) but for the period of military service to meet this requirement.

Military Caregiver leave or Covered Servicemember leave permits a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of unpaid leave during a rolling twelve-month period to care for a injured member of the Armed Forces, National Guard, or Reserves. A covered servicemember also includes a veteran “who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness” if the veteran was a member of the armed services at any time in the five years preceding the medical treatment. The 12-month period to be used for purposes of tracking this leave entitlement begins when the employee starts using his or her leave. Therefore, it is possible that the 12-month period utilized for tracking other forms of FMLA leave may not be the same as what is being utilized for tracking this entitlement.

Importantly, an employee is not entitled to more than 26 total weeks of FMLA leave including Military Caregiver leave, during the 12-month period that commences with the need for leave. Therefore, an employee is not entitled to 26 weeks of leave to care for a family member under this provision, plus an additional 12 weeks of leave for other FMLA-qualifying reasons. Employees may utilize the 26-week entitlement for each servicemember and for each illness or injury incurred. An employee may take 26 weeks of leave in consecutive 12-month periods for family members covered by this provision.

While these laws may seem to discourage the hiring of our returning servicemembers, employers who wisely elect to recruit such individuals can make a significant dent in their federal taxes. Currently, the Work Opportunity Tax Credit (WOTC) Program provides up to a $2,400 credit if the hired veteran is 1) a member of a family that has received Food Stamps for at least 3 consecutive months in the 15 months prior to the date of hire; or 2) a person with a disability who is participating in a vocational rehabilitation program through US Veteran’s Administration. The aforementioned credit increases to $4800 for disabled veterans who were 1) hired within one year of having been discharged, or released from active duty, or 2) unemployed for any six of the last 12 months. In addition, a majority of states offer partial, or total exclusions, from state-level taxes for combat and/or other military compensation paid to troops/reserves. President Barack Obama also recently proposed a $2,400 tax credit for hiring an unemployed veteran and $4,800 for hiring a veteran who has been unemployed for six months or longer. The existing tax credit for hiring veterans with a service-connected disability would also be raised to $9,600.

Many federal and state programs are also available for these men and women to receive training and be reintegrated into the workforce. Several resources, including Employer Support of the Guard and Reserve (www.esgr.org) and the Department of Labor’s VETS Program (http://www.dol.gov/vets/), provide services to servicemembers and employers to assist in these efforts. The Kentucky Office of Employment and Training also has Veterans Employment Representatives and Disabled Veteran Outreach Specialists specifically assigned to assist veterans with their employment and training needs (http://oet.ky.gov/des/veteran/veteran.asp).

In short, an employer in today’s job market would be wise to actively recruit individuals who have returned from active duty in the military or have the prospect of being called to active duty at some point during their employment. These employees bring valuable skills and hiring them should be a serious consideration of any employer in this economic climate.

© 2011 Dinsmore & Shohl LLP. All rights reserved.

Chief Litigation Officer Summit Fall 2011 15-17 September 2011, Red Rock Casino, Resort, Spa, Las Vegas, NV

The National Law Review is  pleased to announce the Chief Litigation Officer Summit Fall 2011 is taking place on the 15 through 17 of  September 2011, Red Rock Casino, Las Vegas, NV.

A Unique Event

The future of litigation will bring new matters, increased competition and a strong need for budget maximization. Employment, IP, product liability, commercial and securities litigation continue to become more complex and therefore more costly. As a Chief Litigation Officer, one of the main challenges is to stay within budget, and tactics such as eDiscovery and specialized outside counsel certainly compound this challenge.

Executives that can find solutions and best practices to work through these challenges will stand out amid a mounting sea of litigation counsel. By employing alternative billing structures, one can allow for fair and accurate budgeting in hopes of maximizing resources, which will help contribute to a successful trial. Skillful planning, organizing and managing of cases is absolutely necessary to stay on top of your game during the trial or deciding on alternative dispute resolution. Enhancing outside counsel relationships through effective communication can greatly increase your odds and assist in dealing with a building case load.

The Chief Litigation Officer Summit provides a unique forum for service providers to gain access to the leading in-house counsel across the nation. Over three days, service providers will meet and interact with the heads of litigation from the country’s leading organizations through a number of one-on-one business meetings and many networking activities. In addition, service providers will attend strategic conference sessions and keynote presentations delivered by these heads of litigation. Within the luxurious settings of The Red Rock Casino, Resort & Spa, this networking event presents a unique opportunity to develop meaningful and valuable business relations.

marcus evans will seek CLE accreditation in those states requested by registrants which have continuing education requirements. CLE credit hour information will be displayed on the certificate of attendance, which is provided to the attendees after the event has run and once each State has confirmed approval. marcus evans certifies that this activity has been approved for CLE credits by the State Bar of California and the State Bar of Pennsylvania.

Our executive delegation is selected according to the following criteria:

  • Scope of Responsibility
  • Budget
  • Sign-off Authority
  • Company Revenue
  • Interest in Purchasing Products and Services

Delegates will include decision makers with the job titles of General Counsel Litigation, Assistant General Counsel Litigation, Associate General Counsel, Litigation, Chief Litigation Officer, Vice President, Litigation and Senior Litigation Counsel with ultimate responsibility for litigation within their corporations.
Six Reasons Why You Should Attend the Summit:

  • Attend innovative summit sessions that outline tools to maximize the profitability of your company or organization
  • Network with an executive, focused group of your peers to discuss and debate differentiated strategies and develop future business contacts
  • Meet with leading Solution Providers to gain solutions to your most pressing business challenges
  • Maximize your time spent at the event by pre-selecting Keynote presentations, summit sessions, one-on-one meetings and networking activities through the Secured Summit Web site and scheduling software
  • Extensive opportunities for informal peer networking throughout the weekend through day and evening leisure activities
  • Documentation of presentations and information presented at the Summit via the interactive Web site

 

 


Delegate Package 

  • Pre-event Secured Web site access for scheduling
  • Executive Summit Program
  • 8-10 one-on-one business meetings with Solution Provider executives
  • Post-event Web site access for documentation and information on next event
  • Two nights accommodation at the Resort
  • All meals, receptions & special events
  • Participation in the Summit networking activities


For information on attending as a Delegate, please contact:
Marketing Manager
E: webenquiries@marcusevansbb.com
T: 246 627 3761

 

Specialty Healthcare 357 NLRB Decision No. 83: Impact on Nursing Home and Resident Care Industry

Posted on September 6, 2011 in the National Law Review an article by  Joshua W. Pollack of von Briesen & Roper, S.C. regarding a decision for those in the nursing home and resident care industry:

 

Recently, the National Labor Relations Board (NLRB) handed down an important decision for those in the nursing home and resident care industry: Specialty Healthcare, 357 NLRB No. 83. In this decision, the Board redefined the standard for “unit determination” cases for the “non-acute health care industry.” The Board’s conclusion reversed twenty years of precedent and made further unionization in the nursing home industry likely.

The Board’s decision makes unionization more likely because a key factor in the success of an organizing campaign is the size of the bargaining unit. Traditionally, unions fare better when organizing a smaller unit, whereas employers fare better when the union must organize a larger unit. Under the newly announced “traditional community of interest” standard, smaller units will be harder to challenge by employers, and thus are likely to proliferate. The Board summarized the new standard

[when a union] petition[s] for an election in a unit of employees who are readily identifiable as a group (based on job classifications, departments, functions, work locations, skills, or similar factors), and the Board finds that the employees in the group share a community of interest after considering the traditional criteria, the Board will find the petitioned-for unit to be an appropriate unit, despite a contention that employees in the unit could be placed in a larger unit which would also be appropriate or even more appropriate, unless the party so contending demonstrates that employees in the larger unit share an overwhelming community of interest with those in the petitioned-for unit.

Applying this standard, the Board held that a unit of Certified Nursing Assistants was the appropriate bargaining unit because the employer was unable to show that there was a larger group that had an “overwhelming community of interest” that overlapped the interest of the CNAs. In application, this rule will make it harder for employers to challenge prospective units and increase a union’s ability to organize smaller units.

Employers should be aware that Specialty Healthcare gives unions an advantage in their organizing efforts, and as a result employers should take proactive steps to prepare for a potential union campaign, especially those employers in the non-acute health care industry. At a minimum, supervisors should know the warning signs of unionization and how to respond. Supervisors should also be empowered with the information necessary to articulate the company’s position of a union-free workplace with credibility. Lastly, employers should also institute policies that guide employees regarding union solicitation, union access to facilities, and employee uniform policies.

©2011 von Briesen & Roper, s.c