Employment-Based Preference EB-5 Program Assistance

For the National Law Review’s featured guest bloggers from Taft Stettinius & Hollister LLP.  Hugh E. Wall III discusses an immigrant visa program which gives preference to qualified foreign investors. 

The fifth employment-based preference (“EB-5”) immigrant visa program encourages qualified foreign investors to invest within the United States in exchange for permanent residency. The program is currently underutilized; of the 10,000 EB-5 visas available last year, the United States Customs and Immigration Service (“USCIS”) only issued 4,218 visas. The following list is a summary of the program features.

  • Pursuant to the basic program, an alien investor must make a capital investment of either $500,000 or $1,000,000, depending on whether the investor invests in a “Targeted Employment Area” (“TEA”), in a new commercial enterprise located within the United States. The enterprise must directly create or preserve at least ten full-time jobs for qualified U.S. workers.
  • Under the Regional Center Pilot Program, foreign investors must complete the basic program requirements by investing either $500,000 or $1,000,000 in a new commercial enterprise. However, unlike the basic program, under the Regional Center Pilot Program, the new commercial venture need not directly create the ten jobs required by the basic program. Instead, the commercial venture need only show that the investment indirectly created or preserved ten jobs.
  • To create a Regional Center, an individual or entity must file a Regional Center Proposal with USCIS to request approval of the investment proposal and the designation of the applying entity as a Regional Center. The entity applying for Regional Center status must maintain at least $100,000 in capital before the USCIS will award Regional Center status. There are currently 90 Regional Centers operating in 34 states. USCIS awards the vast majority of utilized EB-5 visas to alien investors who have invested in a Regional Center.
  • A TEA is an area with an unemployment rate that is at least 150% of the national average. If the foreign investor invests in a non-TEA, the investor must contribute the standard threshold minimum of $1,000,000. If the investor invests in a TEA, the investor need only invest $500,000 to be eligible for the EB-5 visa.

Copyright © 2010 Taft Stettinius & Hollister LLP. All rights reserved.

Time to Retire the ESOP from the 401k: Assessing the Liabilities of KSOP Structures in Light of ERISA Fiduciary Duties and Modern Alternatives

The National Law Review would like to congratulate Adam Dominic Kielich of  Texas Wesleyan University School of Law as one of our 2010 Fall Student Legal Writing Contest Winners !!! 

I. Introduction

401k plans represent the most common employer-sponsored retirement plans for employees of private employers. They have replaced defined benefit pension plans, as well as less flexible vehicles (such as ESOPs) as the primary retirement plan.1 However; some of these plan models have continued their legacy through 401ks through structures that tie the two together or place one inside the other. A very common and notable example is the Employee Stock Ownership Plan (ESOP). ESOPs are frequently offered by companies as an investment vehicle within 401ks that allow participants to invest in the employer’s stock as an alternative to the standard fund offerings that are pooled investments (e.g. mutual funds or institutional funds). Participants may be unaware that the company stock option in their 401k is a plan within a plan. These combination plans are sometimes referred to as KSOPs.2

Although this investment vehicle seems innocuous, KSOPs generate considerable risk to both participants and sponsors that warrants serious consideration in favor of abandoning the ESOP option. Participants face additional exposure in their retirement savings when they invest in a single company, rather than diversified investment vehicles that spread risk across many underlying investments. They may lack the necessary resources to determine the quality of this investment and invest beyond an appropriate risk level. Moreover, sponsors face substantial financial (and legal) risk by converting their plan participants into stockholders within the strict protections of ERISA.3 The risk is magnified by participant litigation driven by the two market downturns of the last decade. Given the growing risk, sponsors may best find themselves avoiding the risks of KSOPs by adopting a brokerage window feature (sometimes labeled self-directed brokerage accounts) following the decision in Hecker.4

II.  Overview and History of ESOPs

A.  ESOP Overview

ESOPs are employer-sponsored retirement plans that allow the employee to invest in company stock, often unitized, on a tax-deferred basis. They are qualified defined contribution plans under ERISA. As a standalone plan, ESOPs take tax deferred payroll contributions from employees to purchase shares in the ESOP, which in turn owns shares of the employer’s stock. That indirect ownership through the ESOP coverts participants into shareholders, which gives them shareholder rights and creates liabilities to the participants both as shareholders and as participants in an ERISA-protected plan. They may receive dividends, may have the option to reinvest dividends into the plan, and may be able to receive distributions of vested assets in cash or in-kind, dependent upon plan rules.5

ESOPs offer employers financial benefits: they create a way to add to employee benefit packages in a manner that is tax-advantaged while providing a vehicle to keep company stock in friendly hands – employees – and away from the hands of parties that may seek to take over the company or influence it through voting. Additionally, ESOPs create a consistent flow of stock periodically drawn out of the market, reducing supply and cushioning prices. Moreover, with those shares in the hands of employees, who tend to support their employer, there are fewer shares likely to vote against the company’s decision-makers or engage in shareholder activism.6

B.  Brief Relevant History of ESOPs

ESOPs are generally less flexible and less advantageous to employees than 401ks. ESOPs lack loan options, offer a single investment option, typically lack a hardship or in-service distribution scheme and most importantly, lack diversification opportunities. Individual plans may adopt more restrictive rules to maintain funds within the plan as long as possible, as long as it is ERISA-compliant. Perhaps the most important consequence of that lack of diversity is that it necessarily ties retirement savings to the value of the company. If the company becomes insolvent or the share price declines without recovery, employees lose their retirement savings in the plan, and likely at least some of the pension benefits funded by the employer. The uneven distribution of benefits to employees helped pave the way for ERISA in 1974.7

C.  Current State of Law on ESOPs

1.  ESOPs Within 401k Plans

After the ERISA regulatory regime paved the way for 401k plans, employers began folding their ESOPs and other company stock offerings into the 401ks. For decades employers could mandate at least some plan assets had to be held in company stock. When corporate scandals and the dot com bubble burst in 2001, it evaporated significant retirement savings of participants heavily invested in their employer’s stock, often without their choice. Congress responded by including in the Pension Protection Act of 2006 (PPA) by eliminating or severely restricting several permissible plan rules that require 401k assets in any company stock investment within 401k plans.8

2. ERISA Litigation of the 2000s

Participants who saw their 401k assets in company stock vehicles disappear with the stock price had difficulty recovering under ERISA until recent litigation changed how ERISA is construed for 401k plans. ERISA was largely written with defined benefit plans in mind. Defined benefit plans hold assets collectively in trust for the entire plan. Participants may have hypothetical individual accounts in some plan models, but they do not have actual individual accounts. ERISA required that suits brought by participants against the plan (or the sponsor, trust, or other agent of the plan) for negligence or malfeasance would represent claims for losses to the plan collectively for all participants, so any monetary damages would be awarded to the plan to benefit the participants collectively, similar to the shareholder derivative suit model. Damages were not paid to participants or used to increase the benefits payable under the plan.

Defined contribution plans with individual participant accounts, such as 401k plans and ESOPs, were grafted onto those rules. Therefore, any suit arising from an issue with the company stock in one of these plans meant participants could not be credited in their individual accounts relative to injuries sustained. It rendered participant suits meaningless in most cases because the likelihood of recovery was suspect at best.9

The Supreme Court affirmed this view in 1985 in Russell, and courts have consistently held that individual participants could not individually benefit from participant suits. Participants owning company stock through the plan could take part separately in suits as shareholders against the company, but these are distinguished from suits under ERISA. In 2008, the Supreme Court revisedRussell in LaRue and held that Russell only applied to defined benefit plans. Defined contribution plan participants could now bring claims individually or as a class and receive individual awards as participants. This shift represented new risks to sponsors that immediately arose with the market crash in 2007.10

III.  Risks to Employees

The primary risk to employees is financial; a significant component of employee financial risk is the investment risk. 401k sponsors are required to select investments that are prudent for participant retirement accounts. This is why 401k plans typically include pooled investments; diversified investment options spread risk. ESOPs are accepted investments within 401k plans, although they are not diversified.11 This increases the risk, and profit potential, participants can expose themselves to within their accounts. While added risk can be exponentially profitable to participants when the employer has rising stock prices or a bull market is present, the downside can also be significantly disastrous when the company fails to meet analyst expectations or the bears take over the markets.

Moreover, employees may be more inclined to invest in the employer’s stock than an independent investor would. Employees tend to be bullish about their employer for two reasons.12 First, employees are inundated with positive comments from management while typically negative information is not disclosed or is given a positive spin. This commentary arises in an area not covered by ERISA, SEC, or FINRA regulations. This commentary is not treated as statements to shareholders; they arise strictly from the employment relationship. This removes much of the accountability and standards that otherwise are related to comments from the company to participants and shareholders. Management can, and should, seek to motivate its employees to perform as well as possible. While the merit of misleading employees about the quality of operations may be debatable, the ability to be positive to such an end is not.

Second, employees tend to believe in the quality of their employer, even if they espouse otherwise. They tend to believe the company is run by experienced professionals who are leading the company to long term success. Going to work each day, seeing the company operating and producing for its customers encourages belief that the company must be doing well. It can even develop into a belief that the employee has the inside edge on knowing how great the company is, although this belief is likely formed with little or no knowledge of the financial health of the company. The product of the internal and external pressures is a strong likelihood employees will invest in an ESOP over other investment options for ephemeral, rather than financial, reasons.13

Additionally, participants may have greater exposure to the volatility of company stock over other shareholders due to 401k plan restrictions. While some plans are liberally constructed to give participants more freedom and choice, some plans conversely allow participants few options. This is particularly relevant to the investment activity within participant accounts. Participants may be limited to a certain number of investment transfers per period (e.g. quarterly or annually), may be subject to excessive trade restrictions, or may even find themselves exposed to company stock through repayment of a loan that originated in whole or in part from assets in the ESOP. Additionally, the ESOP may have periodic windows that restrict when purchases or redemptions can occur. While a regular shareholder can trade in and out of a stock in seconds in an after-tax brokerage account, ESOP shareholders may find themselves hung out to dry by either the ESOP or 401k plan rules. These restrictions are not penal; they represent administrative decisions on behalf of the sponsor to avoid the added expense generally associated with more liberal rules.

Although employees take notable risk to their retirement savings portfolio by investing in ESOPs within their 401k plans, it can add up to a tremendous financial risk when viewed in the bigger picture of an employee’s overall financial picture. Employees absorb the biggest source of financial risk by nature of employment through the company because it is the major, if not sole, income stream during an employee’s working years. This risk increases if the employer is also the primary source of retirement assets or provides health insurance. The employee’s present and future financial well being is inherently tied directly to the employer’s financial well being. This risk is compounded if the employee also has stock grants, stock options, or other stock plans that keep assets solely tied to the value of the company stock. If the employee is fortunate enough to have a defined benefit plan (not withstanding PBGC coverage) or retirement health benefits through the company, then that will further tie the long term success of the company to the financial well being of the employee. Adding diversification in the retirement portfolio may be a worthwhile venture when those other factors are considered in a holistic fashion.

IV.  Risks to the Sponsor

ERISA litigation is a serious risk and concern to sponsors. Although there is exposure in other areas related to participants as stockholders, ERISA establishes higher standards towards participants than companies otherwise have towards shareholders. Sponsors once were able to protect themselves under ERISA but since LaRue participants have an open door to reach the sponsor to recover losses related to the administration of the plan.14 ERISA requires sponsors to make available investment options that are prudent for 401k plans. The dormant side of that rule requires sponsors to remove investment options that have fallen below the prudent standard. Company stock is not excluded from this requirement.15

Any time the market value of the stock declines, the sponsor is at risk for participant losses for failure to remove the ESOP (or other company stock investment option) as an imprudent investment within the plan. Participants are enticed to indemnify losses through the sponsor. Such a suit is unlikely to succeed when the loss is short term and negligible, or the value declined in a market-wide downturn. However, as prior market downturns indicate, investors look to all possible avenues to indemnify their losses by bringing suits against brokers, advisors, fund companies, and issuers of their devalued assets. There is no reason to believe that participants would not be enticed to try this route; LaRuewas born out of the downturn in the early 2000s.16

The exposure for sponsors runs from additional costs to mount a defense to massive monetary awards to indemnify participants for losses. In cases where participants are unlikely to recover, sponsors still must finance the defense against what often turns into expensive, class action litigation or a long serious of suits. However, there is a serious risk of sponsors having to pay damages, or settle, cases where events have led to a unique loss in share value. Participants have filed suit under the theory that the sponsor failed to remove imprudent investment options in a timely fashion. BP 401k participants filed suit following the gulf oil leak under a similar theory that the sponsor failed to remove the company stock investment option from the plan, knowing that it would have to pay clean up costs and settlements. While it remains to be seen if these participants will be successful, they surely will not the last to try.17

Sponsors should take a good, long look at the ESOP to determine whether the sponsor receives more reward than risk – particularly future risk – from its inclusion. The risk to a company does not have as severe as the situation BP faced this year. Even bankruptcy or mismanagement that results in serious stock decline can merit suit when the sponsor fails to immediately withdraw the ESOP, since it has prior knowledge of the bankruptcy or mismanagement prior to any public release.

To hedge these risks, sponsors can adopt several options. First, sponsors may limit the percentage of any account that may be held in company stock. This is easily justified as the sponsor taking a position in favor of diversification and responsible execution of fiduciary duties. While this may not completely absolve the sponsor of the duty to remove imprudent investment options, it does act as a limit on liability. Although it does provide some protection against risk, it is an imperfect solution.

Second, ESOP plans can adopt pricing structures to discourage holding large positions of company stock for the purpose of day trading. Some 401k plans allow participants to trade between company stock and cash equivalents without restraint. When the ESOP determines share pricing based on the closing price of the underlying stock, it creates a window where participants can play the company stock very differently than the constraints of most 401k investment options.

It is a very alluring reason to take advantage of the plan structure by taking an oversized position in company stock. Add the possibility to indemnify losses in court and it becomes even more desirable. The process is simple: participants can check the trading price minutes before the market closes. If the stock price is higher than the basis, they sell and net profit. If it is below, they hold the stock and try against each day until the sale is profitable. They will then buy back into the ESOP on a dip and repeat the process. This is distinguishable from the standard diversified fund options in 401k plans, where ignorance of the underlying investments preempts the ability to game closing prices. Funds generally discourage day trading – and may even carry redemption fees to penalize it – and encourage long term investing strategies more consistent with the objective of retirement accounts.

Available solutions are directly tied to the cause of the problem; changing the ESOP pricing scheme can eliminate gaming closing prices. ESOPs can adopt other pricing schemes such as average weighted pricing and next day order fulfillment. Average weighted pricing gives participants the average weighted prices of all transactions in the stock, executed that day, by a given entity. For example, if the ESOP is held with Broker X as the trustee, it may rely upon Broker X to provide the prices and volumes of all of its executed orders that day in the stock, which is used to determine the average weighted price participants will receive that day. Alternately, participants could be required to place orders on one day and have the order fulfilled on the following day’s closing with that day’s closing price. Both of these pricing schemes introduce some mystery into the price that diminishes gaming the closing price. This is also an imperfect solution, even if combined with the first option, because it maintains the risks of the ESOP.

Sponsors may also take advantage of brokerage windows to expand employee investment options, including company stock, without the risks afforded to ESOPs. Brokerage windows create brokerage accounts within 401k plans. The brokerage window is not an investment in itself; it is a shell that allows employees to reach through the window to access other investments. Sponsors found good reason to be suspicious of brokerage windows, seeing it as liability for all the available investments that could be deemed imprudent for retirement accounts. A minute minority of participants saw it as a way to have their cake and eat it too during the last rise and fall of the markets; they could invest more aggressively within their 401ks and then demand sponsors indemnify their losses when the markets gave up years of gains on the basis of sponsor failure to review the available contents of the window under the prudence standard.

However, in Deere the court handed down a critcal decision: sponsors could not be responsible for the choices made by participants within brokerage windows. InDeere, several Deere & Co. (John Deere) employees sued the company for making available investments that were imprudent for 401k accounts that caused substantial losses in the 2007 market downturn. John Deere had not reviewed the thousands of available options under the ERISA prudence standard. Although the plaintiffs’ theory was a compelling interpretation of ERISA duties, the court rejected the theory on two grounds. First, it would be impossible for any sponsor to review every investment available through the window. Second, participants had taken ownership of the responsibility to review their investment decisions by choosing to invest through the window.18

Following the court’s decision in Deere, brokerage windows gained new life as a means for sponsors to expand investment availability at less risk. Rather than having to review a menu of funds and company stock for prudence under ERISA, sponsors can justifiably limit the fund selection directly offered through the plan and leave the rest of the options to the brokerage window. Importantly, this includes offering company stock in the window. By utilizing the brokerage window, sponsors allow access to the company stock without the liabilities of offering an ESOP through the plan. The sponsor will likely lose out on any benefits received from the ESOP, although for most established employers ESOPs are likely more of a convenience factor and a legacy offering rooted in the history of employer-sponsored plans.

Although Deere foreclosed participant abuse of brokerage windows, this option is not without its own negative aspects. Future litigation may reestablish some liability upon the sponsor for the brokerage link. Sponsors may face alternate liability under ERISA for selecting a brokerage window with excessive commissions or fees, similar to requirements for funds under ERISA.19 Given the flurry of awareness brought to 401k management fees and revenue sharing agreements between sponsors and fund providers following the market crash in 2007, it is likely that brokerage windows will be the hot ticket for participants in the next market crash. Therefore, sponsors should preemptively guard against future litigation by reviewing available brokerage window options to make sure any fees or commissions are reasonable and the categories of investment options are reasonable (even if specific investments in those categories are not).

Perhaps a lesser concern, sponsors need to consider overall plan operation and any negative impacts that may arise from shifting to a brokerage window-based investment offering. These concerns may be less of a legal risk issue than a risk of participant discontent and dealing with those effects. There are primarily two areas that brokerage windows can create discontent. First, when participants want to move from a fund to the brokerage window, they must wait for the sale to settle from the fund and transfer to the window, which generally makes the money available in the window the day after the fund processes the order. Conversely, selling investments in the window may delay transferring money into plan funds because of settlement periods and the added delay of settlement with the fund once the funds are available to move out of the window. Additionally, the settlement periods within the window may frustrate participants, although the plan has no control over those timeframes. Those natural delays in processing the movement of money may create discontent, especially for those participants trying to invest based upon short term market conditions.

Second, those same processes and delays can negatively affect plan distributions. Many plans offer loans and withdrawal schemes, and while sponsors may have their own reasons for making those options available, participants often use those offerings to finance emergency financial needs. Brokerage windows can complicate and delay releasing money to participants. Settlement periods will create delays; if money has to be transferred out of the window to another investment to make those funds available for a distribution that will add at least one more day before money can be released. If participants find themselves in illiquid investments, the money may not be able to move for a distribution at all. Although these issues may not be of legal significance but they will be significant to the people responsible for absorbing participant complaints and there may be additional expenses created in handling those issues.

An additional concern is that the Department of Labor (DOL) is still fleshing out several requirements surrounding brokerage windows and how they relate to ERISA requirements. For example, the DOL October 2010 modification of 401k disclosure rules affects plans as a whole, but it leaves open several areas of ambiguity around the specific effects on brokerage windows. Sponsors may face continuing financial costs complying and determining how to comply with DOL requirements. Future changes in the regulations may negatively affect plans that rely heavily on brokerage windows to provide access to a greater range of investment options.20

These considerations are not exhaustive to the benefits or risks of either ESOPs or brokerage windows, they merely highlight some of the more salient points as they relate generally to the legal and significant financial benefits and risks to sponsors. There may be additional concerns equally salient to sponsors given their particular situation, such as participant suspicion of the removal of the ESOP or unwillingness at the executive level to retire the ESOP.

V.  Conclusion

Although brokerage windows may open the door to some new liabilities, it closes the door to the risks of ESOPs, for both participants and sponsors. Sponsor diligence in administering retirement plans will always be the most successful method of checking liability; however, as discussed ESOPs risk putting sponsors in an unwinnable position. Removing the company stock option may not be the most beneficial option in all cases but it may be time for sponsors to consider retiring the ESOP from the 401k in light of the current regulatory regime. A brokerage window option is well suited to take advantage of participant ownership of the employer’s stock, as well as other investment opportunities, while limiting the risk that normally accompanies that ownership. Ultimately, sponsors must consider what is best for the plan and its participants over both the short term and the long term.

Endnotes.

1. Chris Farrell, The 401(k) Turns Thirty Years Old, Bloomberg Businessweek Special Report, Mar. 15, 2010,http://www.businessweek.com/investor/content/mar2010/pi20100312_874138.htm.

2. National Center for Employee Ownership401(k) Plans as Employee Ownership Vehicles, Alone and in Combination with ESOPs, (no date provided),http://www.nceo.org/main/article.php/id/15/.

3. Id.; 29 U.S.C. § 1104 (2010); the term “sponsor” can be used interchangeably with “employer” for purposes of this discussion, however there are some situations where the employer is not the sponsor, such as union plans, or the employer is not the sole sponsor in the case of multi-employer plans. This discussion relates to KSOPs where the sponsor is the employer. Different rules and different liability may apply to other plan structures.

4. Hecker v. Deere & Co., 556 F.3d 575, 590 (7th Cir. 2009), cert. denied, 130 S. Ct. 1141 (2010).

5. Todd S. Snyder, Employee Stock Ownership Plans (ESOPs): Legislative History, Congressional Research Service, May 20, 2003.

6. William N. Pugh et al. The Effect of ESOP Adoptions on Corporate Performance: Are There Really Performance Changes?, 21Managerial & Decision Econ., 167, 167-180 (2000).

7. Supra note 5.

8. Pension Protection Act of 2006 § 901, 29 U.S.C. 401 (2010).

9. LaRue v. DeWitt, Boberg & Assocs., Inc., 552 U.S. 248, 254-55 (2008).

10. Id. at 255-56.

11. Shlomo Benartzi et al., The Law and Economic of Company Stock in 401(k) Plans, 50 J.L. & Econ. 45, 45-79 (2007).

12. Id.

13. Id.

14. LaRue, 552 U.S. at 254-55.

15.  § 1104.

16. LaRue, 552 U.S. at 250-51.

17. E.g., In Re: BP P.L.C. Securities Litigation, MDL No. 2185, 2010 WL 3238321 (J.P.M.L. Aug. 10, 2010).

18. Hecker, 556 F.3dat 590.

19. §1104.

20. 29 C.F.R. § 2550 (2010).

© Copyright 2010 Adam Dominic Kielich

 

Alternatives to International Criminal Justice – Restorative Justice and Peace Through Peaceful Means

The National Law Review would like to congratulate Heejung Park of Washington University in St. Louis as one of our Fall 2010 Law Student Legal Writing Contest Winners! 

“Out of timber so crooked as that from which man is made nothing entirely straight can be carved.” -Immanuel Kant-

Individuals live their own lives, and have their own goals.  An entity may be an individual, a group, or a nation.  The purposes of two parties may be in harmony with each other and without conflict, or may not.  Such purposes may be good, or evil.  Essentially, problems occur when the purposes of two or more parties do not coincide.  The basic position of the traditional criminal justice system is to address problems simply by punishing the perpetrators.  However, over the last several decades, there have been new studies in the area of peace and human rights, and in this environment, new institutions may be welcome.  This is inspiring changes from the perspective of human integrity and the right to peace, which pursues harmonious coexistence.

If the criminal justice system, which aims to punish perpetrators, takes an interest in the perpetrators as well as the victims by enabling the perpetrators to truly repent for their offenses and voluntarily make restitution to their victims, while allowing the victims to accept the restitution based on a principle of forgiveness and tolerance, a foundation for peace and respect of others in the community will be formed. As such, it is very significant to prepare for a system wherein the pepetrator and the victim can remediatetheir hurt,and recover.  If we are working from a principle that values life above all, and values human rights to the extent that they carry more weight than the earth itself, such an approach must be inspiring.  It is not that easy to buildasociety that is better and more peaceful, in which everyone can live together harmoniously.  When criminals are punished, this does not mean that everything has been resolved.  Often,the root causesof a crime can be foundin the community, or even in the victim himself or herself.  On this basis, victims and communities also have a responsibility to take an interest in the perpetrators of crimes.  The intent must be to identify the fundamental causes of crimes, and by addressing these causes, to create a better society and a better country, byseeking an alternative to the international criminal justice system based on peaceful means.

To achieve this, one or more of the following three approaches may be effective.  The first is to constitute a truth commission to pursue truth and reconciliation. This approach has been successful in South Africa, as well as in some Latin American and Asian countries.  Truth will be identified, and reconciliation will be made based on investigations into violations of human rights and provisions concerning ethical and legal responsibilities and duties.  The Report of the Truth and Reconciliation Commission that was prepared by the government of South Africa in 2003 also addressed this issue.  Through the Truth and Reconciliation Commission, violations of human rights relating to apartheid have been addressed.[i] The second is to hold public inquiries.  This is closely related to post-conflict management.  “Bloody Sunday[ii]” in the UK is a representative sample.  In this event, 13 people were shot to death and several were injured on January 30, 1972, a Sunday. A high-profile public inquiry, it was led by English Supreme Court Justice Mark Saville together with a judge from New Zealand and a judge from Canada, and was established on April 3, 1998.  The last is “Community-based Restorative Justice”, which is the most important and is addressed intensively herein.  This is a mechanism that focuses on the post-conflict environment, and is deeply related to the peaceful coexistence of a community.  In this area, new justice systems have emerged, called “gacaca” and restorative justice.[iii]  Gacaca is a new court system that was launched by the Rwandese government on June 18, 2002.  This new court system follows the customary system for community hearings, which have been used whenever a conflict occurs in the community.  Begun at a Canadian church in the 1970s, restorative justice is a crime-fighting approach for victim-sensitive victim-offender mediation.

Criminal prosecution is not always the right solution.  It is a good method only when it can benefit society and nation.  If we acknowledge that unexpected pitfalls exist for everyone, then people should be given one more chance, even if they have committed a crime. The proposition of the “restoration of offenders” is not suitable for all conflicts.  Nonetheless, it is a new approach to consensus, and aims at facilitating mutual understanding.  The Bible features an approach similar to this restorative justice.[iv]  It also refers to accountability for healing that goes through discipline to move toward a peaceful environment, which is different from the existing criminal justice system.[v]   The Bible considers every individual a sinner.  It says that an individual can receive forgiveness when he/she sincerely repents, surrenders to God, and produces the fruit of repentance.[vi]  It further says that reconciliation will take place when one makes restitution and reparation for the harm, and this action bears fruit.[vii]  When this is done, the offender is able to commit himself/herself to the community and the nation by producing the fruit of the Spirit[viii], through his/her indebtedness and freedom from being forgiven. Curing offenders, allowing them to repent for their wrongdoings and to voluntarily make restitution and reparation, a win-win situation for perpetrator and victim, is possible in the love of God through the remediation of hurt, restoration, forgiveness, and tolerance.  Through this, the community can seek peace through social justice and tolerance.  Both perpetrators and victims have fundamental rights as human beings.  In this area, the roles of national reconciliation/mediation agencies, protection agencies, and NGOs are important.

These approaches may equally be applied to international criminal justice.  As demonstrated above, post-conflict management should be approached peacefully.   Disputes occur when the purposes of parties do not coincide with each other. This discord emerges in the form of conflict.  A conflict is a polarization of opinions or powers.  Ultimately, such polarization may reach the level of violence, which leaves residual trauma.  This process repeats itself, continuously.  The ring of this vicious circle should be peacefully severed.  Such an approach to peaceful means advocates solving problems through mediation (this is directed toward the future, and it is better than “victory”) at the stage of conflict; through the positive involvement of peace-building at the stage of polarization; and through nonviolence rather than violence, and reconciliation and conciliation (which is against the past, and requires healing) instead of trauma.

[i]Mark Freeman, Truth Commissions and Procedural Fairness, Part 1:‘Introduction’ 3 (Cambridge University Press, 2007).

[ii]Angela Hegarty, “Truth, Law and Official Denial: The Case of Bloody Sunday”15Criminal Law Forum 199 (2004).

[iii]Phil Clark, “Hybridity, Holism and ‘Traditional’ Justice: The Case of the Gacaca Community Courts in Post- Genocide Rwanda”, 39 Geroge Washinton International Law Review 4 20 (2007).

[iv]Tony F. Marshall, Restorative Justice An Overview 6 (Research Development and Statistics, 1998).

[v]Edward Bouverie Pusey, The Confessions Of Saint Augustine 5-6 (Kessinger Publishing, 2004).

[vi]Matthew, New International Version Bible,The New Testament: Matthew 2 (Word Of Life Press, 2009).

[vii]Jeremiah, New International Version Bible, The Old Testament: Jeremiah 706 (Word Of Life Press, 2009).

[viii]Paul, New International Version Bible, The New Testament: Galatians 185 (Word Of Life Press, 2009).

© Copyright 2010 Heejung Park

Congressional Approach to Misclassification of Employees as Independent Contractors Would Confuse Rather than Clarify the Law

From featured guest blogger at the National Law Review   Richard J. Reibstein of Pepper Hamilton LLP – good commentary on why what Congress is proposing concerning Independent Contractors won’t work and what should be done instead: 

Congress has introduced two bills intended to discourage businesses from misclassifying employees as independent contractors and end the issuance of Form 1099s to workers who are not legitimate independent contractors.  Both bills – one a labor bill and the other a tax bill – have the laudable objective of curtailing misclassification of employees as independent contractors.  But the two bills, although related, contain different tests for determining who is an independent contractor or employee. 

The Obama Administration has firmly endorsed both bills.  While some Administration-supported legislative initiatives have little chance of passage in the lame-duck session of Congress or in 2011, these bills have a far better chance of passage because they are both revenue raisers.  Between the two bills, the labor bill may be passed earlier, inasmuch as hearings on the bill have already been held.

It can hardly be disputed that businesses that intentionally issue Form 1099s to workers contribute to the tax gap, deprive workers of federal, state, and local workplace protections, and places businesses that properly classify workers at a competitive disadvantage.  But, what about unintentional misclassification by businesses confused by varying definitions and legal standards used to determine who is an independent contractor and who an “employee” under an array of labor, tax, and benefits laws?

A 2006 report to Congress by the Government Accountability Office addressing misclassification observed that “the tests used to determine whether a worker is an independent contractor or an employee . . . differ from law to law,” even among various federal labor, employment, and employee benefits laws.  The GAO report notes, “For example, the NLRA, the Civil Rights Act, FLSA, and ERISA each use a different definition of an employee and various tests, or criteria, to distinguish independent contractors from employees.”  A 2009 report by theGAO concluded that while “the independent contractor relationship can offer advantages to both businesses and workers” and “[m]any independent contractors are classified properly,” Congress should take steps to help businesses that “may be confused about how to properly classify workers.” 

The tax bill expressly seeks to clarify confusion over who is an employee or independent contractor under the federal employment tax laws; however, the labor bill not only contains a test at odds with the tax bill but is also inconsistent with the test used in most other federal laws dealing with labor and employment.

The passage of the labor bill as drafted, with or without passage of the tax bill, will contribute to an even more confusing legal landscape for the hundreds of thousands of businesses that treat certain workers as independent contractors.

The Tax Bill:  The Fair Playing Field Act of 2010 

In mid-September 2010, both the Senate (S. 3786) and House (H.R. 6128) introduced the more recent of the two bills addressing misclassification – the Fair Playing Field Act of 2010.  The bill would close what the sponsors of the legislation, Senator John Kerry (D-MA) and Representative Jim McDermott (D-WA), refer to as a “tax loophole allowing businesses to misclassify workers as independent contractors.”  As set forth in the preamble of the bill, “Such misclassification for tax purposes contributes to inequities in the competitive positions of businesses and to the Federal and State tax gap, and may also result in misclassification for other purposes, such as denial of unemployment benefits, workplace health and safety protections, and retirement or other benefits or protections available to employees.”

The “loophole” that the Fair Playing Field Act seeks to close is Section 530 of the Revenue Act of 1978.  For the past 30 years, that law has afforded businesses a “safe harbor” to treat workers as independent contractors for employment tax purposes as long as the company has had a reasonable basis for such treatment and has consistently treated such employees as independent contractors by reporting their compensation on a Form 1099.

The tax bill’s “findings” recognize that while “many workers are properly classified as independent contractors, in other instances workers who are employees are being treated as independent contractors.”  The bill continues: “Workers, businesses, and other taxpayers will benefit from clear guidance regarding employment tax status.”  The bill therefore directs the Secretary of the Treasury to issue guidance in the form of regulations “allowing workers and businesses to clearly understand the proper federal tax classification of workers.” 

The Fair Playing Field Act bill provides that, in issuing such guidance, the term “employment status” for any individual shall be determined “under the usual common law rules applicable in determining the employer-employee relationship, as an employee or as an independent contractor (or other individual who is not an employee).”  

The IRS and the courts have historically used the “common law” test for determining independent contractor status under the Tax Code.  But, as noted below, the other federal bill seeking to curtail misclassification not only refers to a different test for determining who is an employee and who is an independent contractor, but also is out of sync with prevailing judicial precedent.

The Labor Bill:  The Employee Misclassification Prevention Act (EMPA)

EMPA was introduced in late April 2010 by the Senate (S. 3254) and House (H.R. 5107).  EMPA would amend an existing law, the Fair Labor Standards Act (FLSA), by creating a new labor law offense: misclassification of an employee as an independent contractor. 

If passed, EMPA would also impose strict record-keeping and notice requirements upon businesses with respect to workers treated as independent contractors, expose such businesses to fines of $1,100 to $5,000 per employee for each misclassification, and award triple damages for violations of the minimum wage or overtime provisions of the FLSA.

EMPA also makes specific reference to the definition of “employee” found in the FLSA, a 1938 law that regulates child labor and mandates the payment of minimum wage and overtime for employees who work more than 40 hours in a workweek. For decades, courts have interpreted the word “employee” in FLSA cases under an expansive legal standard that is commonly referred to as the “economic realities” test.  As the Supreme Court has noted, this expansive interpretation under the FLSA derives from laws that were intended to prevent child labor violations, and “stretches the meaning of ‘employee’ to cover some parties who might not qualify as [an employee] under a strict application of traditional [common] law principles.”

As drafted, however, the EMPA bill would arguably incorporate the FLSA’s broad “economic realities” test into its definition of “employee.”  That test gives undue weight to the economic dependence by workers on the business that has retained them.  Such a test is inconsistent with the Supreme Court’s most recent judicial precedents applying the “common law” test and is at odds with what the that Court referred to as  the “common understanding…of the difference between an employee and an independent contractor.”

At least one house of Congress is presumably well aware of this disconnect.  As the Assistant Secretary of Labor testified in writing before the Senate at a hearing held on EMPA on June 17, 2010, “Whether a worker is an employee [or independent contractor] depends on which law is applicable.”  He continued, “We recognize that it is conceivable for a worker to be correctly classified differently under the different standards that apply for different statutory purposes.”  Thus, absent a legislative “fix,” a business that properly classified a particular worker under the “common law” test used to determine independent contractor status under the Tax Code, ERISA, and the nation’s discrimination laws, may be found to have misclassified the same worker under the new EMPA law if the “economic realities” test of the 1938 FLSA law is used. 

Congress Should Provide a Common Federal Definition of “Employee” for Misclassification Purposes

The “common law” test for determining if an individual is an independent contractor or employee focuses on whether the business controls the manner and means that the work is accomplished.  The Supreme Court has set forth twelve factors relevant to the issue of “control,” but noted that there are many additional factors that can be useful in determining employee status, including the additional factors set forth in the IRS’s so-called “20 factor” test.

According to the Supreme Court, the “common law“ test “comports…with our recent precedents and with the common understanding, reflected in those precedents, of the difference between an employee and an independent contractor.”  Those recent precedents include the Court’s determination of whether a worker was an employee or independent contractor under the nation’s pension law and under one of the most important post-Civil Rights discrimination laws – the Americans with Disabilities Act (ADA).

The sponsors of EMPA as well as witnesses who testified in favor of the bill’s passage at a Senate committee hearing in June have noted that EMPA is intended to serve a number of important objectives: closing the tax gap that has deprived the federal and state governments of tax revenues; affording protections to misclassified workers under an array of federal laws that govern employers and employees (including ERISA, FLSA, OSHA, and the federal discrimination laws); and promoting fair business competition by outlawing the practice of misclassification, which creates an unfair advantage for businesses that improperly avoid the payment of payroll taxes.  Notably, these are the very same purposes set forth in the preamble of the Fair Playing Field Act.  Thus, both misclassification bills are intended to serve the same broad tax, labor, and business purposes.  There is no reason, therefore, for Congress to have two different and potentially conflicting tests for determining if a worker is an employee or independent contractor. 

The FLSA is one of over a dozen major federal labor and employment laws; it is not a misclassification statute.  Congress appears to have attached EMPA to the FLSA merely as a matter of legislative convenience. The value of piggy-backing new legislative initiatives on existing laws can have many benefits, such as eliminating the need for Congress to draft definitional, administrative, procedural, and other similar provisions for a new piece of legislation. 

This valuable use of legislative piggy-backing, however, should not automatically incorporate special definitional sections within the existing law where the definitions were enacted to serve purposes wholly unrelated to the purpose of the new legislation.  Indeed, the Congressional Declaration of Policy underlying the FLSA, which was enacted as part of the New Deal legislation, was to address “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.”  The broad purposes of EMPA have little if nothing to do with the narrow remedial purposes of the FLSA or the child labor law statutes that were used to craft the expansive definition of “employee” in the FLSA. 

The Congressional goal expressed in the Fair Playing Field Act of “allowing workers and businesses to clearly understand the proper federal tax classification of workers” is beneficial, but if Congress allows EMPA to be passed with a different definition of “employee” than what prevails under the Tax Code and most other federal laws, all Congress will have done is created more confusion among workers and businesses.  In addition, in order to comply with all federal laws covering “employees,” a prudent business would have to disregard the “common law” test applicable under most federal statutes including the Fair Playing Field Act and only treat workers as independent contractors if they satisfied the narrower test under the New Deal child labor and wage and hour law.  This would have the effect of limiting the use of legitimate independent contractors, a result that Congress has never articulated as a purpose of either of the two bills.  Indeed, as stated in the preamble to the Fair Playing Field Act, Congress has found that “many workers are properly classified as independent contractors….”

What Congress Should Do

Congress should use the legislative process to take one of the following two steps to remedy this important discrepancy between the two bills or, if only the labor bill is passed, to ensure that it does not create even greater confusion about who is and who is not an independent contractor: 

  • Modify the definition of “employee” within EMPA so that it uses the same wording found in the Fair Playing Field Act for determining employee or independent contractor status.  Such determinations under that law should be made, as stated in the Fair Playing Field Act, “under the usual common law rules applicable in determining the employer-employee relationship, as an employee or as an independent contractor (or other individual who is not an employee).” 
     
  • Make it crystal clear in the legislative history of the bill, including the Senate and House committee reports, that the definition of “employee” for purposes of EMPA should be construed in a manner consistent with both the “common law” test – which is the prevailing judicial standard under most federal laws including ERISA, the ADA, and the Tax Code – and the “common understanding” of contemporary independent contractor relationships. 

Another approach would be to amend the definition of “employee” or “employ” under the FLSA to language that updates the New Deal definitional terms and, like the Fair Playing Field Act bill,  incorporates the “common law” test that prevails under virtually every other federal law.   

The urgent need for thoughtful federal legislation in the area of misclassification is hard to argue against.  The one witness that testified in a critical manner about EMPA at the Senate hearing this past June did not suggest that federal legislation is not needed.  Rather, he criticized the size of the proposed penalties for misclassification, the nature of the record-keeping requirements, the language of the proposed notice to be given to all workers, and the potential that the anti-retaliation provision could reward unethical conduct. 

The determination of whether an individual worker is an independent contractor or employee is, more often than not,  in the “gray area” and it oftentimes presents a close question of law.  Regardless of whether Congress conducts further hearings on EMPA, it is imperative that legislators avoid placing businesses and workers in the untenable position where they may be found by the very same court to have properly classified an individual under one of the two new proposed laws but improperly classified him or her under the other.

Copyright © 2010 Pepper Hamilton LLP

Congress has introduced two bills intended to discourage businesses from misclassifying employees as independent contractors and end the issuance of Form 1099s to workers who are not legitimate independent contractors.  Both bills – one a labor bill and the other a tax bill – have the laudable objective of curtailing misclassification of employees as independent contractors.  But the two bills, although related, contain different tests for determining who is an independent contractor or employee. 

The Obama Administration has firmly endorsed both bills.  While some Administration-supported legislative initiatives have little chance of passage in the lame-duck session of Congress or in 2011, these bills have a far better chance of passage because they are both revenue raisers.  Between the two bills, the labor bill may be passed earlier, inasmuch as hearings on the bill have already been held.

It can hardly be disputed that businesses that intentionally issue Form 1099s to workers contribute to the tax gap, deprive workers of federal, state, and local workplace protections, and places businesses that properly classify workers at a competitive disadvantage.  But, what about unintentional misclassification by businesses confused by varying definitions and legal standards used to determine who is an independent contractor and who an “employee” under an array of labor, tax, and benefits laws?

A 2006 report to Congress by the Government Accountability Office addressing misclassification observed that “the tests used to determine whether a worker is an independent contractor or an employee . . . differ from law to law,” even among various federal labor, employment, and employee benefits laws.  The GAO report notes, “For example, the NLRA, the Civil Rights Act, FLSA, and ERISA each use a different definition of an employee and various tests, or criteria, to distinguish independent contractors from employees.”  A 2009 report by theGAO concluded that while “the independent contractor relationship can offer advantages to both businesses and workers” and “[m]any independent contractors are classified properly,” Congress should take steps to help businesses that “may be confused about how to properly classify workers.” 

The tax bill expressly seeks to clarify confusion over who is an employee or independent contractor under the federal employment tax laws; however, the labor bill not only contains a test at odds with the tax bill but is also inconsistent with the test used in most other federal laws dealing with labor and employment.

The passage of the labor bill as drafted, with or without passage of the tax bill, will contribute to an even more confusing legal landscape for the hundreds of thousands of businesses that treat certain workers as independent contractors.

The Tax Bill:  The Fair Playing Field Act of 2010 

In mid-September 2010, both the Senate (S. 3786) and House (H.R. 6128) introduced the more recent of the two bills addressing misclassification – the Fair Playing Field Act of 2010.  The bill would close what the sponsors of the legislation, Senator John Kerry (D-MA) and Representative Jim McDermott (D-WA), refer to as a “tax loophole allowing businesses to misclassify workers as independent contractors.”  As set forth in the preamble of the bill, “Such misclassification for tax purposes contributes to inequities in the competitive positions of businesses and to the Federal and State tax gap, and may also result in misclassification for other purposes, such as denial of unemployment benefits, workplace health and safety protections, and retirement or other benefits or protections available to employees.”

The “loophole” that the Fair Playing Field Act seeks to close is Section 530 of the Revenue Act of 1978.  For the past 30 years, that law has afforded businesses a “safe harbor” to treat workers as independent contractors for employment tax purposes as long as the company has had a reasonable basis for such treatment and has consistently treated such employees as independent contractors by reporting their compensation on a Form 1099.

The tax bill’s “findings” recognize that while “many workers are properly classified as independent contractors, in other instances workers who are employees are being treated as independent contractors.”  The bill continues: “Workers, businesses, and other taxpayers will benefit from clear guidance regarding employment tax status.”  The bill therefore directs the Secretary of the Treasury to issue guidance in the form of regulations “allowing workers and businesses to clearly understand the proper federal tax classification of workers.” 

The Fair Playing Field Act bill provides that, in issuing such guidance, the term “employment status” for any individual shall be determined “under the usual common law rules applicable in determining the employer-employee relationship, as an employee or as an independent contractor (or other individual who is not an employee).”  

The IRS and the courts have historically used the “common law” test for determining independent contractor status under the Tax Code.  But, as noted below, the other federal bill seeking to curtail misclassification not only refers to a different test for determining who is an employee and who is an independent contractor, but also is out of sync with prevailing judicial precedent.

The Labor Bill:  The Employee Misclassification Prevention Act (EMPA)

EMPA was introduced in late April 2010 by the Senate (S. 3254) and House (H.R. 5107).  EMPA would amend an existing law, the Fair Labor Standards Act (FLSA), by creating a new labor law offense: misclassification of an employee as an independent contractor. 

If passed, EMPA would also impose strict record-keeping and notice requirements upon businesses with respect to workers treated as independent contractors, expose such businesses to fines of $1,100 to $5,000 per employee for each misclassification, and award triple damages for violations of the minimum wage or overtime provisions of the FLSA.

EMPA also makes specific reference to the definition of “employee” found in the FLSA, a 1938 law that regulates child labor and mandates the payment of minimum wage and overtime for employees who work more than 40 hours in a workweek. For decades, courts have interpreted the word “employee” in FLSA cases under an expansive legal standard that is commonly referred to as the “economic realities” test.  As the Supreme Court has noted, this expansive interpretation under the FLSA derives from laws that were intended to prevent child labor violations, and “stretches the meaning of ‘employee’ to cover some parties who might not qualify as [an employee] under a strict application of traditional [common] law principles.”

As drafted, however, the EMPA bill would arguably incorporate the FLSA’s broad “economic realities” test into its definition of “employee.”  That test gives undue weight to the economic dependence by workers on the business that has retained them.  Such a test is inconsistent with the Supreme Court’s most recent judicial precedents applying the “common law” test and is at odds with what the that Court referred to as  the “common understanding…of the difference between an employee and an independent contractor.”

At least one house of Congress is presumably well aware of this disconnect.  As the Assistant Secretary of Labor testified in writing before the Senate at a hearing held on EMPA on June 17, 2010, “Whether a worker is an employee [or independent contractor] depends on which law is applicable.”  He continued, “We recognize that it is conceivable for a worker to be correctly classified differently under the different standards that apply for different statutory purposes.”  Thus, absent a legislative “fix,” a business that properly classified a particular worker under the “common law” test used to determine independent contractor status under the Tax Code, ERISA, and the nation’s discrimination laws, may be found to have misclassified the same worker under the new EMPA law if the “economic realities” test of the 1938 FLSA law is used. 

Congress Should Provide a Common Federal Definition of “Employee” for Misclassification Purposes

The “common law” test for determining if an individual is an independent contractor or employee focuses on whether the business controls the manner and means that the work is accomplished.  The Supreme Court has set forth twelve factors relevant to the issue of “control,” but noted that there are many additional factors that can be useful in determining employee status, including the additional factors set forth in the IRS’s so-called “20 factor” test.

According to the Supreme Court, the “common law“ test “comports…with our recent precedents and with the common understanding, reflected in those precedents, of the difference between an employee and an independent contractor.”  Those recent precedents include the Court’s determination of whether a worker was an employee or independent contractor under the nation’s pension law and under one of the most important post-Civil Rights discrimination laws – the Americans with Disabilities Act (ADA).

The sponsors of EMPA as well as witnesses who testified in favor of the bill’s passage at a Senate committee hearing in June have noted that EMPA is intended to serve a number of important objectives: closing the tax gap that has deprived the federal and state governments of tax revenues; affording protections to misclassified workers under an array of federal laws that govern employers and employees (including ERISA, FLSA, OSHA, and the federal discrimination laws); and promoting fair business competition by outlawing the practice of misclassification, which creates an unfair advantage for businesses that improperly avoid the payment of payroll taxes.  Notably, these are the very same purposes set forth in the preamble of the Fair Playing Field Act.  Thus, both misclassification bills are intended to serve the same broad tax, labor, and business purposes.  There is no reason, therefore, for Congress to have two different and potentially conflicting tests for determining if a worker is an employee or independent contractor. 

The FLSA is one of over a dozen major federal labor and employment laws; it is not a misclassification statute.  Congress appears to have attached EMPA to the FLSA merely as a matter of legislative convenience. The value of piggy-backing new legislative initiatives on existing laws can have many benefits, such as eliminating the need for Congress to draft definitional, administrative, procedural, and other similar provisions for a new piece of legislation. 

This valuable use of legislative piggy-backing, however, should not automatically incorporate special definitional sections within the existing law where the definitions were enacted to serve purposes wholly unrelated to the purpose of the new legislation.  Indeed, the Congressional Declaration of Policy underlying the FLSA, which was enacted as part of the New Deal legislation, was to address “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.”  The broad purposes of EMPA have little if nothing to do with the narrow remedial purposes of the FLSA or the child labor law statutes that were used to craft the expansive definition of “employee” in the FLSA. 

The Congressional goal expressed in the Fair Playing Field Act of “allowing workers and businesses to clearly understand the proper federal tax classification of workers” is beneficial, but if Congress allows EMPA to be passed with a different definition of “employee” than what prevails under the Tax Code and most other federal laws, all Congress will have done is created more confusion among workers and businesses.  In addition, in order to comply with all federal laws covering “employees,” a prudent business would have to disregard the “common law” test applicable under most federal statutes including the Fair Playing Field Act and only treat workers as independent contractors if they satisfied the narrower test under the New Deal child labor and wage and hour law.  This would have the effect of limiting the use of legitimate independent contractors, a result that Congress has never articulated as a purpose of either of the two bills.  Indeed, as stated in the preamble to the Fair Playing Field Act, Congress has found that “many workers are properly classified as independent contractors….”

What Congress Should Do

Congress should use the legislative process to take one of the following two steps to remedy this important discrepancy between the two bills or, if only the labor bill is passed, to ensure that it does not create even greater confusion about who is and who is not an independent contractor: 

  • Modify the definition of “employee” within EMPA so that it uses the same wording found in the Fair Playing Field Act for determining employee or independent contractor status.  Such determinations under that law should be made, as stated in the Fair Playing Field Act, “under the usual common law rules applicable in determining the employer-employee relationship, as an employee or as an independent contractor (or other individual who is not an employee).” 
     
  • Make it crystal clear in the legislative history of the bill, including the Senate and House committee reports, that the definition of “employee” for purposes of EMPA should be construed in a manner consistent with both the “common law” test – which is the prevailing judicial standard under most federal laws including ERISA, the ADA, and the Tax Code – and the “common understanding” of contemporary independent contractor relationships. 

Another approach would be to amend the definition of “employee” or “employ” under the FLSA to language that updates the New Deal definitional terms and, like the Fair Playing Field Act bill,  incorporates the “common law” test that prevails under virtually every other federal law.   

The urgent need for thoughtful federal legislation in the area of misclassification is hard to argue against.  The one witness that testified in a critical manner about EMPA at the Senate hearing this past June did not suggest that federal legislation is not needed.  Rather, he criticized the size of the proposed penalties for misclassification, the nature of the record-keeping requirements, the language of the proposed notice to be given to all workers, and the potential that the anti-retaliation provision could reward unethical conduct. 

The determination of whether an individual worker is an independent contractor or employee is, more often than not,  in the “gray area” and it oftentimes presents a close question of law.  Regardless of whether Congress conducts further hearings on EMPA, it is imperative that legislators avoid placing businesses and workers in the untenable position where they may be found by the very same court to have properly classified an individual under one of the two new proposed laws but improperly classified him or her under the other.

Copyright © 2010 Pepper Hamilton LLP

How the Supreme Court Skirted ADEA Issues During Reductions in Force and What Must be Done to Fix It

Congratulations to the Fall 2010 National Law Review Student Legal Writing Contest Winners Charles “Chip” William Hinnant III and John Erwin Barton of  the  Charlotte School of Law. 

Jack Gross was born in 1948, and grew up in Mt. Ayr, Iowa.[i] His father was an Iowa Highway Patrolman and his mother was a 3rd grade teacher.[ii] Throughout his childhood and into his adult life, health issues defined Mr. Gross.[iii] He developed chronic ulcerated colitis, and as a result underwent multiple operations involving the removal of his colon, and a part of his large intestine.[iv]When he graduated from Drake University with a B.S. in Personnel Management, he weighed 87 pounds.[v]

Upon graduating Mr. Gross went to work for Farm Bureau as a claims adjuster, eventually becoming the highest volume adjuster in the company.[vi]He stood out for his outstanding contributions, earned many professional designations, and began teaching classes to other employees.[vii]Mr. Gross’ exceptional work performance and contributions to his company were reflected in his annual reviews, which were in the top 3-5% of his company for 13 consecutive years.[viii]Yet, notwithstanding Mr. Gross’ improbable story, in 2003, all claims department employees over the age of 50 with a title of supervisor and above were demoted on the same day.[ix]Mr. Gross was replaced by a person he had hired who was in her early forties, did not have the required skills for the position as stated on the company job description, nor his breadth of experience.[x]Mr. Gross would later file an age discrimination lawsuit pursuant to the Age Discrimination in Employment Act (ADEA)[xi]in federal court, and the rest as they say, is history.

On June 18, 2009, the Supreme Court of the United States decided Gross v. FBL Financial Services, Inc.,[xii] which simultaneously held that mixed-motive theories are never proper in ADEA cases and that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove that age was the “but-for” cause of the challenged adverse employment action.[xiii] In effect, the Gross holding abrogated the mixed-motive theory presumably applicable to ADEA cases established inPrice Waterhouse v. Hopkins,[xiv]and led to a celebrated victory for employers to the detriment of older, ADEA protected employees just like Jack Gross, the prototypical individual that the ADEA was created to protect.

While Gross has considerably heightened the burden placed upon ADEA plaintiffs, particularly given the near universal absence of direct evidence of age discrimination in ADEA cases,[xv] its holding imposes a logically impossible burden upon ADEA plaintiffs in Reduction in Force (RIF) cases that the Supreme Court seems to have not contemplated given that Gross did not involve a RIF.[xvi] In short, during a RIF, an ADEA plaintiff always loses.  In order to correct this logical inconsistency, either the Supreme Court must grant certiorari to an ADEA RIF case to affirmatively correct its mistake, or Congress must pass legislation limiting the holding of Gross to non-RIF scenarios, if not all ADEA cases.

How Gross Prevents an ADEA RIF Plaintiff from Ever Prevailing at Trial

Gross prevents an ADEA RIF plaintiff from ever prevailing at trial because an employer will always be able to claim that a legitimate, non-discriminatory reason for the adverse action taken against the employee exists. Inherent in any RIF are financial troubles that force an employer to terminate some of its employees in an effort to remain in business; as a result, the courts have recognized that a RIF is a legitimate business justification for an adverse employment action.[xvii]

Consequently, prior to Gross, when an employer utilized a RIF as a legitimate business justification for an adverse employment action, the plaintiff was required to make an “additional showing” that age was a motivating factor in their termination in order to prevail using a mixed-motive theory of discrimination.[xviii]

However, because Gross simultaneously eliminated the mixed-motive theory as a viable option for ADEA plaintiffs and heightened the requisite showing necessary for a plaintiff to prevail from age as a “motivating-factor” of the adverse employment action to age as the “but-for” cause of the adverse employment action, such an “additional showing” can neverbe made under the law as it is currently interpreted.

Because an employer will always be able to claim that a RIF constitutes a legitimate business reason for termination, under Gross, a plaintiff cannot ever offer evidence that “illegal … motives … were the ‘true’ motives”[xix]for the adverse employment action taken against them.

As a result, an ADEA RIF plaintiff can never prove that “but-for” their age, the employer would not have initiated the adverse action against them given the ever-present excuse of a RIF. Thus, while Gross is detrimental to all ADEA plaintiffs, it is particularly prejudicial to ADEA plaintiffs whose adverse action is a result of a RIF, as it creates a logical impossibility for these plaintiffs to everhave a chance of prevailing against their employer.

What the Supreme Court Can Do to Fix the Gross Problem

The Supreme Court can and needs to fix the Gross problem and the confusion it has created for lower courts by granting certiorari to an ADEA RIF case and explicitly stating that mixed-motive theories are and must be applicable to ADEA RIF cases, and that evidence of age discrimination can be considered a “motivating factor,” rather than the “but for” cause, of illegal age discrimination within the burden shifting framework articulated within McDonnell Douglas Corp. v. Green.[xx]

As of this moment, the lower district and circuit courts are confused as to the application of Gross and its relationship with the McDonnell Douglas prima facie case and burden-shifting framework. Furthermore, this confusion is certain to increase as more RIF and non-RIF ADEA cases are filed in the near future as a result of the current economic recession, and as the unworkable nature of theGross holding in ADEA RIF cases is further exposed. Notably, post-Gross ADEA cases are relatively few and far between at the time this article is being written; however, early signs support the contention that the lower courts are not in conformity with how to interpret Gross.

The Tenth Circuit explicitly states that Gross has created some uncertainty regarding burden shifting in the ADEA context.[xxi] The Jones decision discusses in detail the application of Gross to McDonnell Douglas and clearly states that the court will not overturn their prior decisions applying the burden-shifting framework to ADEA claims.[xxii]

Furthermore, the Sixth Circuit attempts to reconcile Gross’ “but for” language with the burden shifting test in McDonnell Douglas.  By applying similar language from the application of Title VII in McDonnell Douglas, that “where there is a reduction in force, a plaintiff must … show that age was a factor [emphasis added] in eliminating his position”[xxiii]the court attempts to pigeonhole the two decisions together.  The use of the language “a factor” instead of “the factor” in the Johnsondecision enunciates the line that the court has drawn between “but for” causation of age discrimination and age being a “motivating factor” in determining whether illegal age discrimination is afoot.

The Ninth Circuit on the other hand, has essentially followed Gross to the letter.[xxiv] In the McFadden decision, the Ninth Circuit holds alongside the Supreme Court and agrees that the McDonnell Douglas burden-shifting framework does not apply to ADEA claims, and that a plaintiff must carry the burden of persuasion throughout the case.  Therefore, no burden shifting occurs, and causation must be “but-for.”

These cases, et al., are the first evidence of post-Gross confusion, and illustrate the growing problem facing the lower courts as well as plaintiffs soon to bring mixed-motive age discrimination cases involving RIFs. Some circuits and district courts continue to apply theMcDonnell Douglas burden-shifting framework and will consider whether age was a “motivating factor” of an adverse employment action, while others require a heightened burden of proof that age was the “but for” cause of an adverse employment action. Such varying interpretations of Gross will inevitably lead to circuit splits, the absence of uniformity in the application of federal law, and a future Supreme Court decision to clean up the mess.

Thus, the Supreme Court should grant certiorari to an ADEA RIF case and seek to dispel the impossible burden it has placed upon RIF plaintiffs.

What Congress Can Do to Fix the Gross Problem

Congress can fix the Gross problem by enacting legislation that limits the scope of the Gross decision to non-RIF ADEA cases, or, in the alternative, to all ADEA cases by explicitly stating that the mixed-motive theory articulated in Price Waterhouse v. Hopkins,[xxv] as well as the burden shifting framework articulated in McDonnell Douglas Corp. v. Green,[xxvi] are fully applicable to ADEA cases.

As this article is being written, both houses of Congress have responded to theGross problem by proposing bills entitled the “Protecting Older Workers Against Discrimination Act,”[xxvii] the stated purpose of which are “to amend the Age Discrimination in Employment Act of 1967 to clarify the appropriate standard of proof.”[xxviii] While these bills clearly reflect Congressional understanding of the harm that Gross causes ADEA plaintiffs, their current language as well as their present place in the legislative process creates foreseeable problems that should be swiftly resolved.

First and foremost, both bills are presently tied up in Committees.[xxix]As a result, amidst a nationwide economic recession resulting in numerous corporate RIFs as discussed infra, plaintiffs filing age discrimination lawsuits while in post-Gross, pre-Congressional action “purgatory” will be left without a remedy.

Second, because such “purgatory plaintiffs” will likely exist given the current economic recession, Congress should seek to include retroactive language in the proposed bills in an effort to afford these plaintiffs a remedy. Currently, no such retroactive language exists in either bill proposal.[xxx]

Third, the proposed bills as presently written include no language recognizing theGross problem’s disproportionate and logically impossible burden it places on ADEA RIF plaintiffs, as opposed to the more classic, non-RIF ADEA plaintiff.[xxxi]While it may be reasonably presumed that general language that disavows the Gross decision’s applicability to ADEA cases would prevent its application to ADEA RIF plaintiffs as well, there is no sense in leaving any provisions of these bills subject to judicial interpretation.

The role of Congress cannot be understated in fixing the Gross problem, and while it has taken the proper initial steps to remedy the subversion of federal law thatGross represents, timeliness, retroactivity, and precision in language choice to guarantee the protection of ADEA RIF plaintiffs soon to be effected is essential in ensuring that the rule of law is upheld.  As Justice Ginsburg famously stated in another recent travesty of judicial interpretation in the employment context,[xxxii]“the ball is in Congress’ court.”[xxxiii]

Why Fixing the Gross Problem Matters Now More than Ever

A survey of ADEA charges filed with the EEOC from 1997 to 2009 indicates that in 2008 and 2009, more ADEA charges were filed with the EEOC than in any other fiscal year in the 12-year sample size.[xxxiv]Furthermore, a tremendous increase in ADEA charges is glaringly apparent from 2007 to 2008.[xxxv]While no known data exists to support the contention, it can be reasonably inferred that such a substantial rise in ADEA charges filed with the EEOC is a byproduct of the ongoing economic recession in the United States.

As this article is being written and during the time period reflected in the EEOC charge data, numerous corporate employers, all of which are subject to the protections of the ADEA, are reducing their workforces in droves in an effort to reduce operating costs and maintain profit margins. To name a few that can be quickly found with a simple Google search, the health insurer Humana,[xxxvi] the discount retailer Target,[xxxvii] the drug manufacturers Sanofi-Aventis,[xxxviii]Eli Lilly,[xxxix]and Bristol-Meyers Squib,[xl] the oil giant Shell,[xli] the healthcare giant Cardinal Health,[xlii]and the telecommunications provider AT&T,[xliii]are all reducing their workforces during the current economic recession.

With every RIF that takes place between now and the moment that either the Supreme Court or Congress act to eliminate the applicability of the Gross decision to ADEA RIF cases if not ADEA cases as a whole, multitudes of ADEA protected plaintiffs adversely effected by a RIF that may or may not have a compelling case for illegal age-motivated discrimination against their employer, will ultimately be denied the legal protections afforded to them under federal law.[xliv]

Above all else, the Supreme Court, Congress, and the readers of this article must remember that people like Jack Gross are exactly those that the ADEA was meant to protect.  Now, the Supreme Court has to fix its mistake, or Congress must do it for them.

 

[i]Testimony of Jack Gross:  Hearings Before the Senate Judiciary Comm., 111thCong. (2010).

[ii]Id.

[iii]Id.

[iv]Id.

[v]Id.

[vi]Id.

[vii]Id.

[viii]Id.

[ix]Id.

[x]Id.

[xi]29 U.S.C.A 621 (1967)

[xii]129 S. Ct. 2343 (2009).

[xiii]Id.

[xiv]109 S. Ct. 1775 (1989).

[xv]See Generally, Desert Palace, Inc. v. Costa, 123 S.Ct. 2148 (2003).

[xvi]See 129 S.Ct. 2343 (2009).

[xvii]See Hardin v. Hussmann Corp., 45 F.3d 262 (8th Cir. 1995); Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th Cir. 2000).

[xviii]See Hardin v. Hussmann Corp., 45 F.3d 262 (8th Cir. 1995).

[xix]NLRB v. Transp. Mgmt. Corp., 103 S. Ct. 2469, 2473 (1983).

[xx]93 S. Ct. 1817 (1973).

[xxi]Jones v. Okla. City Pub. Schs., 617 F.3d 1273, 1278 (10th Cir. 2010).

[xxii]Id.

[xxiii]Johnson v. Franklin Farmers Cooperative, 378 F. Appx. 505, 509 (6th Cir. 2010).

[xxiv]McFadden v. Krause, 357 F. Appx. 17 (9th Cir. 2009).

[xxv]109 S. Ct. 1775 (1989).

[xxvi]93 S. Ct. 1817 (1973).

[xxvii]H.R. 3721, 111th Cong. (2009), 2009 FD H.B. 3721 (NS) (Westlaw), See also S. 1756, 111th Cong. (2009), 2009 FD S.B. 1756(NS) (Westlaw).

[xxviii]Id.

[xxix]Id. (H.R. 3721 presently rests in the Subcommittee on Health, Labor, Employment, and Pensions, while S. 1756 presently rests in the Committee on Health, Education, Labor, and Pensions.)

[xxx]See http://www.govtrack.us/congress/billtext.xpd?bill=h111-3721 andhttp://www.govtrack.us/congress/billtext.xpd?bill=s111-1756

[xxxi]See Id.

[xxxii]Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S. Ct. 2162 (2007)

[xxxiii]Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 661, 127 S. Ct. 2162, 2188 (2007) (Ginsburg, J., Dissenting).

[xxxiv]http://www.eeoc.gov/eeoc/statistics/enforcement/adea.cfm (24,582 charges were filed in 2008 and 22,778 charges were filed in 2009.)

[xxxv]Id. (Only 19,103 charges were filed in 2007.)

[xxxvi]Catherine Larkin and Alex Nussbaum, Humana Plans to Reduce Workforce by 1,400 This Year, Bloomberg Businessweek, Feb. 17, 2010,http://www.businessweek.com/news/2010-02-17/humana-plans-to-reduce-workf…

[xxxvii]Scott Mayerowitz and Alice Gomstyn, Target Among the Latest Chain of Grim Layoffs: Major Companies From Communications to Retail Layoff 40,000; More Americans Lose Jobs, ABC News, Jan. 27, 2009,http://abcnews.go.com/Business/CEOProfiles/story?id=6731375&page=1

[xxxviii]Linda A. Johnson, Sanofi-Aventis to Reduce US Workforce by 1,700, The Boston Globe, Oct. 8, 2010,http://www.boston.com/news/health/articles/2010/10/08/sanofi_aventis_to_…

[xxxix]Eli Lilly to Reduce Workforce, United Press International, Sept. 14, 2009,http://www.upi.com/Business_News/2009/09/14/Eli-Lilly-to-reduce-workforc…

[xl]Ellen Gibson, Bristol-Myers to Cut 3% of Workforce to Reduce Costs, Bloomberg Businessweek, Sept. 23, 2010,

http://www.businessweek.com/news/2010-09-23/bristol-myers-to-cut-3-of-workforce-to-reduce-costs.html

[xli]Shell To Layoff Workforce To Reduce Cost, Energy Business Review, April 30, 2009, http://utilitiesnetwork.energy-business-review.com/news/shell_to_layoff_…

[xlii]Press release, Cardinal Health, Cardinal Health to Reduce Workforce to Respond to Economic Conditions, (March 31, 2009.)

http://cardinalhealth.mediaroom.com/index.php?s=43&item=295 (

[xliii]AT&T to reduce workforce by 12,000, San Antonio Business Journal, Dec. 4, 2008,

http://www.bizjournals.com/sanantonio/stories/2008/12/01/daily29.html

[xliv]See the Age Discrimination in Employment Act at 29 U.S.C.A 621 (1967)

Charles “Chip” William Hinnant III and John Erwin Barton © Copyright 2010

Marketing and PR Social Networking Best Practices

The Business of Law Blog Spot at the National Law Review recently featured Amy Juers of Edge Legal Marketing who shared a great top ten list of Social Networking Best Practices and a great video on businesses implementing social media strategies: 

When should your team get involved in social networking marketing tactics, and which sites offer the most appropriate venue to shorten the sales cycle? Many marketing departments are still holding back on this initiative for good reason, it is practically impossible to manage what you do not understand.

Determining the right time to jump in is not as important as investigating the sites to determine if your involvement would complement your legal technology marketing or legal services marketing, sales, client communication, or any host of business initiatives. Simply jumping in for the sake of getting your feet wet is not a strategic social networking tactic.  You should do research to gain an understanding of your options, match options with organizational goals, and then consider launching initiatives through multiple outlets. If you do not have time to research this or determine if or how to weave social networking into your organization, call experts in legal marketing and PR services and ask them for social networking strategy advice.

Whether or not sites that are popular today will evolve and remain popular next year cannot be predicted, however, given every teenager knows of this technology and actively uses it, your customers and prospects of the future are developing social networking finesse and will expect to connect with you in a few years in these ways.  If the popular “must have” social networking sites of today fade into the abyss, rest assured, new “must have” networking outlets will emerge to satisfy social networking needs in business. Think of today’s big buzz social networking websites like a wave that has water in it that you can choose to ride or let pass. If you miss this one, certainly there will be another. Because no one knows how long this wave will be upon us, rather than simply waiting for this to pass, there are plenty of good reasons to investigate and consider getting involved today.

Why use Social Networking for Legal Marketing and PR

Connections through social networking sites allow groups to quickly catch up on each other’s business, while also allowing for the free-flow of information.  People are increasingly becoming more excited about checking their social networking page rather than checking email for good reason, spam has a difficult time finding its way into your “friend” list and the platform for interaction is growing increasingly dynamic.

How extensively you get involved with social networking initiatives depends upon how these initiatives align with your firm’s goals. Your firm may want to leverage a site like Facebook to create a client group, post news, share client success stories or post YouTube videos of client testimonials and demos. LinkedIn has recently added greater flexibility into their site as well. For any firm sending out electronic newsletters, or client communications, creating a chat group or client networking group on these sites provides another outlet for sharing important content that may otherwise get buried if it were delivered as an email message.

Top 10 Social Networking Best Practices

  1. Conduct your own investigation. Before you determine whether or not to invest resources or any energy into creating a business profile and joining a site, investigate the leading sites and kick the tires! Social networking sites require zero “real cash” outlay, costing only the investment of research time.
  2. Select social networking opportunities that support business goals. Test the waters before you dive in, ask your prospects, clients and employees which social networking site they prefer. Not every site is going to be a fit and align with your firm goals.
  3. Get the word out – and if needed – educate your clients! Connect to your prospects, clients and who’s who in your channel. Introducing a “chat” group on Facebook for clients makes little sense if your clients have no understanding of how to create a profile or get connected.
  4. Structure or limit the time invested in managing a social networking site.Whether responding to posts, making connections with people, or adding content to your profile, make regular updates once or twice weekly. Calendar for 15-minutes one time per week to maintain each site.
  5. Avoid getting personal. Publish content relevant to your expertise to establish thought-leadership status. No one really wants to know if you just finished a cup of coffee or if your dog has fleas.
  6. Don’t over-stimulate with too much content. Keep postings brief and informational.
  7. Resist begging. Create a consistently informational space and followers will line up to “friend” you.
  8. Avoid posting on what may be sensitive topics. Events will unfold in the industry or within a competitors business that may be highly tempting to post about. The safest approach is to stay neutral, be informative and remain professional.
  9. Measure your activity. You cannot analyze what you cannot measure. Track your tweets, followers, time spent, and conversions.
  10. Keep current on social networking trends.Subscribe to a social networking blog or legal industry RSS feed  to receive legal industry social networking, marketing and PR updates daily or weekly.

Recommended Social Media Resource Webcast

Watch this YouTube webcast video, The Business Value Behind Social Media featuring social media experts Charlene Li, David Meerman Scott and Chris Brogan as they weigh in on social media and discuss the latest strategies and opportunities that executives face when considering the implementation of social media initiatives. This webcast was recorded at the Premier Business Leadership Series in Las Vegas in November 2010. Please note, although informative this video is approximately an hour long.

© 2010 Edge Legal Marketing

New York Joins Other States in Suing FEDEX for Misclassification of its Ground Division Drivers as Independent Contractors

This week’s featured blogger at the National Law Review is Richard J. Reibstein of Pepper Hamilton LLP. Richard provides some great analysis of the FedEx issues related to the classification of it’s drivers as independent contractors. 

A year ago, the Attorneys General of New York, New Jersey, and Montana issued a joint statement that they intended to sue FedEx Ground for misclassifying drivers as independent contractors instead of employees.  Now, the second of those two Attorney Generals has done so when New York Attorney General Andrew Cuomo recently  filed a lawsuit against FedEx Ground on behalf of the State of New York.

The New York lawsuit was filed the same week as the Attorney General of theMontana, Steve Bullock, announced that his office settled its driver misclassification claims against FedEx Ground for $2.3 million.  The New York lawsuit also follows by two months the filing of a similar misclassification lawsuit by the Attorney General of  Kentucky, Jack Conway, and comes three months after the Attorney General of Massachusetts, Martha Coakley, settled its driver misclassification claims against FedEx Ground for $3 million.

Cuomo’s lawsuit (New York State v. FedEx Ground Package System, Inc.) was filed in the New York Supreme Court for New York County. It alleges that, by classifying its drivers as independent contractors, FedEx’s Home Delivery unit fails to provide its drivers the rights afforded to “employees” under New York’s labor laws, which includes the Unemployment Insurance, Workers Compensation, Wage Payment, and Overtime laws.  According to the complaint filed in court, Cuomo alleges that “FedEx has the power to control, and does in fact control, almost all aspects of its drivers’ work” including “hours, job duties, routes, and even clothing.”  There are reportedly over 700 drivers in the Home Delivery unit.  (Click “More” for “Takeaway” below)

Unlike FedEx’s Ground Division, its Express Division treats its drivers as employees, affording them rights under the state and federal labor laws.

Over sixty class action caseshave been brought against FedEx Ground under state and federal laws; many of those cases have been consolidated in a federal court in Indiana.  While FedEx Ground has won some important court battles in the past two years, it has lost a number including a California class action case in which it was required to pay $30 million in damages and legal fees.

FedEx Ground also defended itself against an IRSaudit over the misclassification issue.  Within the past year, the IRS withdrew a $319 million citation against FedEx Ground for unpaid federal employment taxes, penalties, and interest under the “safe harbor” provisions of the Revenue Act of 1978.  That “safe harbor” provision would be eliminated if Congress passes the “Fair Playing Field Act of 2010.”  Another independent contractor bill, the Employee Misclassification Prevention Act, is currently pending in Congress.  Eighteen states have passed laws cracking down on independent contractor misclassification in the past three years.

Takeaway: The New York lawsuit against FedEx Ground further demonstrates that misclassification has substantial legal consequences.  Regardless of the outcome of the New York case, defending enforcement actions and class action lawsuits is costly.  FedEx’s experience has led many companies, which utilize the services of a significant number of independent contractors, to take proactivesteps designed to enhance independent contractor compliance. Those steps are discussed by the author in an article found athttp://www.pepperlaw.com/publications_article.aspx?ArticleKey=1769.

Copyright © 2010 Pepper Hamilton LLP

eDiscovery & Social Media

The National Law Review’s featured guest blogger last week was Meredith L. Williams of  Baker Donelson provides some great insight on discovery issues related to social media sites: 

Social media is not going anywhere, so we must learn to live with it and use it to our advantage and within the confines of the newly articulated and always changing rules.  If ever a doubt, one can look to the Nielson Report (“What Americans Do Online: Social Media and Games Dominate Activity,” Aug. 2, 2010) that states two-thirds of the internet population utilize social media sites.  Internet users now spend more than 10% of their online time on social media sites, and usage is constantly increasing.  With this rise in social media usage, the issues surrounding ediscovery in the realm of social media data is an important consideration of litigation.

The definition of legal discovery is locating all documents that are relevant to support the litigation.  But how does ediscovery work when the content is not owned or controlled by the business? How does a business preserve data that is outside of its firewall? Finally, how does one seek relevant information held on social media sites?

Social media sites are not like email or word processing documents when it comes to preservation. These sites are operated outside of a business’s firewall by a third party. Data is normally scattered on many sites and connected by many people or custodians.  Finally, the retention policy or schedule of a business does not affect data located on social media sites.   When a business maintains social media pages, it has a duty to preserve the data that may be relevant in anticipated or actual litigation.

Seeking information from social media sites can be difficult at best.  Many times discovery of this data must be gained through consent or authorization of a third party, which only causes an extra, and often expensive, burden.  Each third party is different in how it maintains the data, and each has the right to delete any content for violation of its terms of use policy, at any time. That deleted information could be relevant to litigation.

Unfortunately for businesses, the courts are only beginning to outline the duty of preservation and the right to discover the information from social media sites.  The best line of defense for many businesses is to develop internal policies and training programs to educate all employees of the risks of using social media.  In addition, new software now exists that can aid in preserving data.

Duty to Preserve

The 2006 Federal Rules of Civil Procedure amendments changed the discovery rules to allow a party to request “electronically stored information” within the “possession, custody, or control” of the responding party.  A duty to preserve potentially relevant evidence exists when litigation is “reasonably anticipated.”  In addition, parties who fail to preserve electronically stored information (ESI) are subject to penalties. Social media data fits the definition of ESI; thus, businesses must deal with the issue of preserving and possibly producing social media data that falls under their data retention policy.

Due to the fact that social media sites are owned and controlled by third parties, vendors are beginning to develop technology to capture dynamic web pages for preservation.  The first few companies in this market include Iterasi, Smarsh, Arkovi and LiveOffice.  Additionally, Adobe may be used to capture web images in static format.  These are but a few examples of new technologies that businesses are considering to meet their duty to preserve and produce ESI.

Recent Case Law

Additional issues remain – whether the information on social media sites is considered private, whether it is discoverable and whether it is admissible as evidence.  Recent case law has addressed these as yet unanswered issues.

In Guest v. Leis, 255 F.3d 325 (6th Cir. 2001), the court held that there is a lack of expectation of privacy regarding public postings on social media sites.  The user has the right to select privacy preferences on his social media sites.  Certain settings allow the public to see limited information and authorized, connected individuals to have greater access. In addition, many social media site privacy policies specifically state that certain postings are subject to a weakened privacy expectation.  Courts have generally held that when a user makes information available publically via their privacy settings, there is a lower expectation of privacy and, therefore, the information is discoverable.

Jumping ahead to the current year, we find EEOC v. Simply Storage Mgmt., LLC, No. 1:09-cv-1223-WTL-DML (S.D. Ind. May 11, 2010).  In this case, the court compelled production of relevant content from social media sites.  The court discussed discovery of social media site data as simply “requir[ing] the application of basic discovery principles in a novel context.”  The facts of Simply Storage Mgmt, involved the defendant seeking production of social media site profiles and communications from Facebook and MySpace.  The court ordered the plaintiff to produce the content that was relevant to the case.  The plaintiff argued that requiring such production would infringe on his privacy.  However, the court held that the expectation of privacy is not a basis for shielding discovery.  In addition, the court found that any privacy concern therein was lessened due to the fact the information had already been shared.

Earlier this year, Crispin v. Audigier (C.D. Cal.) (May 26, 2010), brought us a new ruling regarding social media and the Stored Communications Act (SCA).  In this case, the court was reluctant to allow discovery of private social media email communications.   The case involved a copyright infringement claim.  Audigier subpoenas the private social media messages of Crispin.  A magistrate judge disagreed with Crispin’s arguments that these communications fell under the SCA, preventing the provider of the messaging service from releasing private communications, because the social media sites messaging services are used solely for public display.  However, the district court reversed the ruling, holding that Facebook and MySpace allow private message or e-mail services which are separate from the general public posting.  This case held that the SCA protects Facebook and MySpace messages that aren’t publicly available.  Therefore, these messages cannot be subpoenaed in civil litigation.  In addition, the court left the door open for further clarification, noting that “Facebook wall postings and the MySpace comments are not strictly ‘public,’ but are accessible only to those users plaintiff selects.”

On the other side of the country, we find a slightly different ruling with Romano v. Steelcase Inc., 2010 WL 3703242 (N.Y. Sup. Ct. Sept. 21, 2010).  TheRomanocourt allowed discovery of an entire social media site with all current and deleted postings.  The court ordered the plaintiff to provide the defendant with access to private postings from two social media sites. The court reasoned that information contradicting the plaintiff’s claims was included on the public sections of the plaintiff’s social media site and, therefore, it was reasonable to believe that the private sections might contain additional relevant information. The court even cited Facebook and MySpace policies, which warn users they should have “no expectation of privacy.”

Even if one is able to surmount the difficult hurtle of obtaining data from a social media site, an equally daunting challenge remains – getting the data admitted.  The main issue with admissibility is authenticity; spam, viruses, hackers and the like make social media sites susceptible to manipulation or fraud.   For this reason, courts have consistently been cautious when admitting social media data. In some cases, judges have become online “friends” with a party in order to authenticate postings, photos, captions and comments. (Barnes v. CUS Nashville, LLC).  Other courts have allowed printed copies with time date stamps to corroborate facts. (Treat v. Tom Kelley Buick Pontiac GMC, Inc.). Finally, some courts have used circumstantial evidence associated with the creation of the data (i.e. metadata and hash tags) to authenticate social media content.  (Lorraine v. Markel Am. Insur. Co.).  Admissability remains  an area of concern as the use of social media data in discovery becomes the norm.

Discovery of Social Media Data

A lawyer must decide early on whether relevant information exists on social media sites.  Within that evaluation, the costs to preserve, collect, review and produce the social media information should be considered.

Start discovery of social media by conducting large sweeping web searches for public social media sites of adverse parties or adverse witnesses.  Many individuals do not lock profiles or use privacy settings; therefore,  all postings, messages, comments, etc. are open to the public.  Preserve the sites with date stamps.

If an individual’s social media sites are set to private, and, therefore, not open to the public, what can a lawyer do?  Many boards of ethics do not allow lawyers to “friend” anyone to gain access to private profiles of information (NY State Bar Association Ethics Opinion 843 (Sept. 10, 2010)). So, instead of friending an individual, use discovery requests.  Start with a document request asking for all postings and messages that are related to and relevant in the litigation.  One can also consider requesting an access wavier to social media sites that allow for complete access to the site.  LinkedIn has a standard wavier located on its site. Finally, ask for all social media identifications used by the adverse party in an interrogatory.  Regardless of what direction taken, social media should be a part of the ediscovery process.

Conclusion

In conclusion, a business should take inventory of what social media sites are being used within the organization.  Then, set policies to help educate all employees of the risks regarding social media usage.  Finally, decide if backup software is needed to help with preservation and production of the business’s own social media data.  Regardless of retention schedule taken with social media, plan to always show the court that you’ve done your best, which is all that is expected.

For lawyers, be prepared to incorporate social media into an edisovery plan.  Start early within the litigation.  Draft standard document requests, waiver forms or interogatories around social media production.  Finally, be aware of the changing legal landscape on privacy, discoverability and admissibility, as these areas will continue to change, more and more rapidly in the future.

©2010 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. All Rights Reserved.

Legal and Risk Management Implications of Cloud Computing

We’ve been seeing a whole bunch of things at the National Law Review about the legal risks and risk management issues related to cloud computing.  Accordingly, we’d like to share some of the better articles we’ve come across on the NLR and on Twitter…

For an Overview of What Cloud Computing or SaaS is and the Advantages and Disadvantages for Businesses, Especially Law Firms…..

Are You Ready For the Cloud? from Baker Donelson

Lawyers Should Not Be Wary of SaaS and Cloud Computing by Niki Black of Lawyerist.com

What Cloud Computing Really Means from InfoWorld.com

What Lies Ahead? Business and Legal Issues in the Coming Decade from Much Shelist

For Risk Management and Legal Considerations Related to Cloud Computing or SaaS…..

The Cloud and Your Data from Risk Management

The Legal Issues Around Cloud Computing by Amit Agarwal of Digital Inspiration

Privacy and Information Security for Emerging Businesses by Poyner Spruill

For Specific Things to Consider When Choosing a Cloud Computing Provider….

Putting Cloud Data Storage Providers to the Test by Risk Management

7 Questions For Any Cloud Based Service from the Legal Typist, Inc.

How to Evaluate Cloud Computing Providers by Jason Baker – Data Center Knowledge

Copyright ©2010 National Law Forum, LLC

Time Is Running Out for One-Time Estate Planning Opportunities: Gift Tax Rates Will Increase in 2011, Bonus Gift Tax Exemption Available for Some Gifts Made in 2010-11 and Opportunity for Gifts or Trust Distributions to Grandchildren

Very comprehensive post recently received at the National Law Review from Michael D. Whitty of Vedder Price P.C. on year end estate and tax planning issues: 

As the end of the year approaches, it appears increasingly unlikely that Congress will pass legislation on gift and estate taxes before 2011.  Many one-time opportunities for gifting and tax planning will expire at the end of 2010.

Executive Summary:

  • Gift Tax Will Increase in 2011. For 2010 only, the tax rate on gifts that exceed the $13,000 gift tax annual exclusion and the $1 million lifetime gift tax exemption is only 35%, compared to a 45% rate in 2009 and rates of up to 55% in 2011 and beyond.  Persons who are otherwise facing substantial estate taxes should consider making gifts this year to take advantage of the 35% rate.
  • Bonus Gift Tax Exemption Available for Some Gifts Made in 2010–2011. Due to quirks in the way the $1 million lifetime gift tax exemption is determined, some donors may not have a full $1 million exemption this year, but if they use the full exemption by the end of 2010, they can obtain a bonus exemption in 2011.
  • Opportunity for Gifts or Trust Distributions to Grandchildren. Some gifts or trust distributions to grandchildren (or similar younger-generation beneficiaries) can be made in 2010 without any generation-skipping transfer tax (GST tax).  Such gifts and distributions must be carefully structured to avoid GST tax in the future, however
  • Low Interest Rates May Not Last Much Longer. Interest rates have remained low this year, but they will eventually increase.  This year could be the best opportunity for the foreseeable future to use a leveraged techniquesuch as a grantor retained annuity trust (GRAT), an installment sale to a grantor trust, an intra-family loan (including refinancing an existing family loan), or a charitable lead annuity trust.
  • Converting to Roth IRA with Charitable Deduction to Offset the Tax. Conversion of a regular IRA to a Roth IRA in 2010 may provide substantial benefits for certain individuals, in particular those with sufficient liquid assets outside of the IRA to pay the tax.  The tax burden can be further reduced, or offset entirely, with substantial charitable gifts made this year.  The temporary sunset (for 2010 only) of the phase-out of itemized deductions (including charitable deductions) for high-income earners will allow those taxpayers to obtain a greater after-tax benefit from their 2010 charitable deductions.

Gift Tax Rates Will Increase in 2011

Due to political considerations, the 2001 estate tax act eliminated the estate tax for only one year—2010.  The gift tax was retained, even for 2010, primarily to avoid the loss of income tax revenue.  For 2010 only, the tax rate on gifts that exceed the $13,000 gift tax annual exclusion and the $1 million lifetime gift tax exemption isonly 35%.  This is a substantial discount from the 45% rate for 2009 and rates of up to 55% that will apply after 2010.

Persons facing substantial estate taxes who can afford to transfer assets and pay gift taxes now should give serious consideration to making gifts this year.  Gifts in 2010 should substantially reduce the total tax cost of transferring wealth to descendants and other beneficiaries as a result of four factors:

  • the lower gift tax rate for 2010;
  • the shift of future income and appreciation out of the taxable estate;
  • the potential for valuation discounts that often apply to gifts but not bequests of the same property; and
  • the potential to reduce the taxable estate by the amount of gift taxes paid if the donor survives the gift by three years.

This is illustrated by the three examples in the table on the following page, each involving a donor who has previously used his or her available gift tax annual exclusions and $1 million lifetime gift tax exemption.  The donor owns $10 million of other assets in addition to a controlling interest in a company, which would be included in the donor’s estate without valuation discounts (Example 1).  Examples 2 and 3 assume a gift of the interest in the company structured in a way that achieves valuation discounts for lack of marketability and lack of control.

It appears increasingly likely that Congress will not act in 2010 to retroactively impose a higher gift tax rate on gifts made previously in 2010.  However, to avoid that risk entirely, a gift could be set up in advance of the year-end and then executed in late December 2010 after the possibility of a retroactive rate increase disappears.  Other, more complicated alternatives can be structured to allow final decisions to be postponed into 2011.

Large gifts require some planning and implementation, especially if special entities are to be created and appraisals obtained to determine valuation discounts.  Consequently, it is important for donors interested in taking advantage of this opportunity to contact their advisors as soon as possible so that there is sufficient time to plan and implement the transfers.  Donors who wait until December may not have enough time to implement full and optimal strategies.

Gift Tax Exemption Available for Some Gifts Made in 2010–2011

The common understanding that there is a $1 million lifetime exemption from gift taxes in 2010 and 2011 is not exactly correct.  There are some modest but real variations in the way the gift tax exemption is determined in those years.  As a result, donors who used $500,000 or more of their exemption before 2010 do not have a full $1 million lifetime gift tax exemption in 2010.  However, those who use their full amount by the end of 2010 can obtain a small amount (up to $36,585) of bonus exemption in 2011.

For example, a donor who has made $1,000,000 of taxable gifts before 2010 will have no additional lifetime gift tax exemption in 2010, but will have another $36,585 of exemption in 2011.  On the other hand, a donor who had made $600,000 of taxable gifts before 2010 will have only an additional $394,386 (not $400,000) of lifetime gift tax exemption remaining in 2010, but if he or she makes a taxable gift of at least $394,286 in 2010, that taxpayer would have an additional $41,742 of exemption available in 2011.  In each case, careful calculations must be made to determine a donor’s remaining gift tax exemption for 2010 and the amount of taxable gifts that should be made in 2010 to obtain the maximum possible additional exemption in 2011.

Table:  Illustration of Benefits of Taxable Gifts in 2010

Description Example 1: Bequest in 2015  

Example 2: Gift in 2011

 

 Example 3: Gift in 2010
Value of property in 2010, before transfer

(transfer = by bequest or gift, as indicated)

 $10,000,000 $10,000,000 $10,000,000
Period of appreciation before transfer 5 years 1 year 0 years
Appreciation before transfer, at 5% per year $2,762,816 $500,000 (None)
Value at time of transfer $12,762,816 $10,500,000 $10,000,000
Valuation discounts (33%*) $0 ($3,465,000) ($3,300,000)
Value subject to transfer $12,762,816 $7,035,000 $6,700,000
Transfer tax type Estate Gift Gift
Marginal transfer tax rate 55% 55% 35%
Transfer taxes (estate or gift; federal and state combined) $7,052,689 $3,699,250 $2,345,000
Value of other estate in 2015** $10,000,000 $6,300,750 $7,655,000
Estate taxes on other estate $5,671,059 $3,682,200 $4,478,000
Net to beneficiaries *** $7,276,251 $8,919,300 $10,832,000
Cost of postponement compared to 2010 gift ($3,555,749) ($1,912,700) (None)
Effective tax rate **** 63.62% 45.28% 38.65%
*  Valuation adjustments for factors such as lack of marketability and minority interest are commonly in this range, but sometimes higher or lower.  A qualified appraisal should be arranged as part of the planning on the transaction.  This table’s Example 1 assumes that the interest is retained until death in a manner that does not qualify for valuation discounts.
**   Value of other estate = $10 million less gift taxes paid (Examples 2 and 3), plus value of other estate in 2015, less estate taxes on other estate
***  Net to beneficiaries = pre-discount 2010 value less transfer (estate or gift) tax, plus value of other estate in 2015, less estate taxes on other estate
**** Effective tax rate = tax ÷ (tax + net to beneficiaries)

Opportunity for Gifts or Trust Distributions to Grandchildren

In years before and after 2010, gifts or trust distributions to grandchildren (or similar younger-generation beneficiaries) were subject to a generation-skipping transfer tax in addition to any gift tax that might be due.  The GST tax is a flat tax at the top estate tax rate, and only applies after a lifetime exemption is fully used.  Because the GST tax is suspended for 2010, gifts or trust distributions this yearcan avoid that additional tax.  Such gifts and distributions must be carefully structured to avoid future GST tax, however.  Transfers to trusts or trust equivalents (including UTMA accounts) for the benefit of a grandchild will still be subject to GST tax when later distributed to the grandchild.  A direct transfer to a grandchild (including, we believe, a guardianship estate for a minor grandchild) will avoid the tax, both now and later.  Persons planning gifts or bequests to grandchildren should consider whether a gift this year might be more advantageous.  Trustees expecting future distributions to grandchildren of the trust’s donor should consider whether accelerating the distribution into 2010 would provide more of a tax advantage.  In both cases, an attorney  can help analyze whether and to what extent taking action this year would help.

Low Interest Rates May Not Last Much Longer

Interest rates remained low this year, but they will eventually increase.  We may never see a better opportunity to use leveraged techniques such as GRATs, installment sales to grantor trusts, intra-family loans (including refinancing existing family loans) and charitable lead annuity trusts.  A weighted average of Treasury rates is used to calculate the rates used in these wealth transfer techniques.  Once those rates increase, techniques that perform best with low interest rates will lose some of their advantage.  This would affect some of the most attractive wealth transfer techniques, all of which are described in prior newsletters:

  • GRAT:  a gift of future appreciation while retaining the present value of the transferred property
  • Charitable lead annuity trust (CLAT):  a gift of future appreciation while transferring the present value of the transferred property to charities of the donor’s choice
  • Installment sale to grantor trust:  a sale of appreciating property without immediate income tax consequences, with low interest rates and principal repayment in the future
  • Intra-family loan (including refinancing of a prior loan):  giving family members the benefit of lower interest rates than those available from commercial lenders

Because these leveraged techniques will be far more powerful while interest rates remain low, now is the time to put these techniques to work for you.

Converting to Roth IRA with Charitable Deduction to Offset the Tax

Starting with 2010, the income ceiling for conversions of regular IRAs to Roth IRAs was eliminated.  Conversion of a regular IRA to a Roth IRA in 2010 or 2011 can provide a substantial benefit for certain individuals, in particular those with sufficient liquid assets outside of the IRA to pay the tax.  Conversions in 2010 are generally more favorable than those postponed to 2011, both for a lower tax rate (under current law) and for the option to spread the additional taxable income over two years (2011 and 2012).

The tax burden of a Roth IRA conversion can be further reduced, or offset entirely, with substantial charitable gifts made this year.  Donors who have substantial charitable plans but do not wish to donate large amounts to independent charities in the current year could make substantial charitable gifts this year to a private foundation or donor-advised fund, from which those funds could be donated in turn to other charities over many years.  Private foundations and, to a lesser extent, donor-advised funds take some time to set up in time for gifts to be completed by year-end.  If this opportunity is of interest, donors should contact their advisors as soon as possible.

From 1990 through 2009, and again after 2010, high-income taxpayers (with $166,800 or more of adjusted gross income in 2009) lost up to the lesser of 3% of their AGI or 80% of their itemized deductions (including charitable deductions).  The temporary sunset (for 2010 only) of this reduction of itemized deductions will allow those high-income taxpayers to obtain a greater after-tax benefit from their 2010 charitable deductions.

To Reduce Tax Uncertainty, Plan Now, Execute in December

Some tax legislation in the 2010 post-election “lame duck” session cannot be ruled out, and the chances for tax legislation in early 2011 are even greater.  Unfortunately, the opportunities described in this Bulletin will generally have to be implemented by the end of 2010 to take full advantage of them.  Fortunately, the types of tax legislation that would most likely be passed in early 2011 will not remove the advantages of transactions completed in 2010.

Time for Action

Many of the opportunities described in this Bulletin have an absolute expiration date:  December 31, 2010.  Others may not be available much longer than that in this volatile economic and legislative environment.  Your advisors to identify the opportunities that are most relevant in your situation and implement them while the opportunities remain available.

FEDERAL TAX NOTICE:  Treasury Regulations require us to inform you that any federal tax advice contained herein (including in any attachments and enclosures) is not intended or written to be used, and cannot be used by any person or entity, for the purpose of avoiding penalties that may be imposed by the Internal Revenue Service.

© 2010 Vedder Price P.C.