LOOK TO THE WINDOW AND LISTEN FOR THE BELLS

December 21, 2010  This is Utah SHRM Legal-mail no. 2010-20 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).  This update is best viewed in an HTML format.  Please reply with your name and “UNSUBSCRIBE” in the subject field if you no longer wish to receive this message. With your kind permission, and with the approaching holidays, I’d like to take a brief break from the usual employment law updates and instead, briefly write about something at least as important, if not more important. 2010 was a hard year, indeed a tremendously hard year. Americans abroad died in war.  Americans at home were (and are) in a state of constant political war and turmoil and seemed unable, even unwilling, to try to find ways we could work with each other.  The thunder of our words. hurled across political and other divides, seemed intent on destruction rather than creation. The beast of an economy has been rough on all of us and on each business.  We all have struggled, and worried and fret and then done the same all over again. As if all that was not burdensome enough, this was a hard year personally. In 2010, people close to me got diseases like cancer and diabetes, lost their jobs, lost their businesses, lost their homes, lost their marriages, lost their lives and/or sometimes even lost their hope and their way. “Lost” describes well how I often felt, as do other words…confusion, uncertainty, pain, grief, fear and sadness. These words dominated me in 2010.  Perhaps you too?  Or perhaps similar words? Maybe there is a reason Christmas and the other winter holidays (like Hanukkah, Kwanzaa and even Festivus) come at the end of the year.  Maybe the calendar knows we need to feel unburdened and loved at this time of the year.  Maybe the planners of time understand we must have a reason to look to a new year with something other than angst, dread and despair. We have been there before, haven’t we?  As a nation and as individuals?  Watching a recent repeat performance of the 2009 Mormon Tabernacle Choir (the “Choir”) Christmas program, I was reminded of the story of Henry Wadsworth Longfellow’s Christmas.  In case you have not heard it, or do not recall it, here is the condensed version. Longfellow, his wife and their five children loved their New England lives, and especially the New England bells of Christmas.  They enjoyed all for eighteen wonderful years.  But then, as it does, tragedy struck.  His wife died in a fire.  The Civil War began to rage.  His son nearly died from war wounds.  And Longfellow despaired.  He wrote a poem with the now famous lament, “And in despair I bowed my head; ‘There is no peace on earth,’ I said; ‘For hate is strong, And mocks the song Of peace on earth, good-will to men!’”  But then he again heard his beloved New England bells.  And at once he was filled with the treasured memories of his wife, and the laughter of his other four children, and the recovery of his wounded son.  Christmas was both his link to his past happiness, his way to find happiness in the here-and-now and his beacon to the coming year.   The Christmas bells gave him the infusion of love, peace and hope that allowed him to carry on despite the tragedy that sought to set him back.  We now know him for the poem and carol, “I heard the bells on Christmas Day.” My mother (who would have been 80 today) was no stranger to tragedy herself.  She had her own Longfellow-ism, one not even original to her.  She used to tell me, “When God closes a door, he always opens a window.” So, despite everything else, this year I plan to look to the window and listen for the bells.  I hope you will too. Merry Christmas, Happy Holidays and Happy New Year. And, because I can never match the eloquence of actor Ed Herrman and the beauty of the Choir, here is a link to their inspiring and touching version of Longfellow’s Christmas: http://deseretbook.com/video/view/358   Written by: Employment Attorney, Michael Patrick O’Brien Utah State and Salt Lake SHRM legal director Email: mobrien@joneswaldo.com Phone: 801-534-7315 Website: www.joneswaldo.com Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O’Brien.  Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.

SHRM Newsletter

This is Utah SHRM Legal-mail no. 2010-19 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).  This update is best viewed in an HTML format.  Please reply with your name and “UNSUBSCRIBE” in the subject field if you no longer wish to receive this message.

SENATE EXTENDS EMPLOYER TUITION TAX BREAKS: National SHRM reports that the United States Senate voted this week to approve a massive $858 billion tax package that includes a two-year extension to a popular tax break for employer-provided tuition assistance. The proposal passed by an 81-19 vote, showing wide bipartisan support. According to national SHRM, “The legislation extends for two years the tax breaks enacted during the presidency of George W. Bush, including Section 127 or the tuition assistance tax exclusion for employees. The tax cuts were set to expire on December 31, 2010. Section 127, which allows employees to exclude up to $5,250 a year in employer-provided tuition assistance for undergraduate and graduate-level courses, has been a popular tax provision among employers and employees. The two-year extension of the tuition tax break was welcome news for business and employee advocacy groups such as the Society for Human Resource Management (SHRM) and the Coalition to Preserve Employer-Provided Education Assistance, which support a permanent extension of Section 127. Although the legislation passed by the Senate will extend Section 127 for two years, members of the coalition have promised to keep pushing for a permanent extension of popular tax provision.”  The tax bill now goes on for a vote in the United States House of Representatives, where it is expected to pass.  President Obama has indicated he will sign the bill into law.

EMPLOYERS PREDICT MORE LAWSUITS IN 2011: Responding to a 2010 survey by an employment practices liability insurer, a significant percentage of employers are predicting they will face increased job-related lawsuits next year.  Over one third of these companies (36%) participating in the survey said that an employment lawsuit was their most costly potential loss in 2011.  Almost 20% of responding companies said they expected to face an employment lawsuit in 2011.  The survey results seem driven in part by the record number of employment charges filed this past year with the Equal Employment Opportunity Commission (EEOC), as well as by the fact that employment claims typically rise in difficult economic times.

COURTS BATTLE OVER HEALTH CARE REFORM: One key element of health care reform requires smaller businesses to provide coverage to employees or pay fees into a pool for coverage.  But one of the most interesting, important and controversial parts of the health care reform package passed by Congress last year was the mandate requiring that uninsured individuals purchase some kind of insurance coverage, even if it must be done with some sort of public assistance.  The theory behind this mandate is that if more people are covered by private sector insurance, it will help bring down the overall costs of health care.  This is supposed to happen by getting some insurance payments to providers who often give health care services to this group without any payment (and who then charge the rest of us more money to make up the difference).  The individual mandate also carries with it the hope that if the uninsured can be covered by private insurance, there will be no need to try to cover them with a public insurance option like Medicare or Medicaid.  The individual mandate has been controversial, described by some as an affront to individual liberty and beyond the legislative power of the federal government.  Thus, shortly after it was passed, several lawsuits were filed challenging the constitutionality of the health care reform law.  The courts are now starting to issue rulings on these lawsuits, and they do not seem to be able agree on the appropriateness of health care reform anymore than the rest of the population.  For instance, federal courts in Michigan and Western Virginia have upheld the mandate, but a different federal court in Eastern Virginia has struck it down.  A Florida court has not yet ruled on a lawsuit pending there.  The individual mandate rule does not take effect until 2014, so the courts still have time to sort this all out.  The final verdict likely will come from the United States Supreme Court.

SUPREME COURT BUSY WITH OTHER EMPLOYMENT CASES TOO: The United States Supreme Court also will be busy next year with several other employment issues.  The Court has agreed to review the decision granting class certification to 1.5 million current and former Wal-Mart employees in their gender discrimination case. A federal judge and the U.S. court of appeals in San Francisco cleared the lawsuit to proceed as a class action despite the employer’s arguments that the hiring decisions at issue were made by thousands of different local stores and not as part of any national policy. The Court is also considering whether federal law allows for a claim of third party retaliation.  This case involves a claim by a male worker that he was discharged because his fiancée had brought a sex discrimination claim against the company that employed both of them.  Disagreeing with the Equal Employment Opportunity Commission (EEOC), which enforces the law, the lower federal appeals court had dismissed the male worker’s claim as not proper under the statute because he did not engage in any protected conduct himself.  If the Court rules for the plaintiff-employees in these cases, employers could face expanded risks of lawsuits for employment decisions.  Stay tuned for further developments!

OSHA SAYS NO TO TEXTING AND DRIVING: The federal Occupational Safety and Health Administration (OSHA) has announced an initiative against job-related driving by employees who are distracted by such things as texting and electronic devices.  In October of 2010, an assistant Secretary of Labor for OSHA sent an open letter telling employers they have a “responsibility and legal obligation” to implement and enforce policies prohibiting employees from work-related driving while distracted by things such as texting.  This letter also noted that federal safety laws will be violated when employers require that employees engage in conduct that distracts them while driving on the job.  His letter also suggested violations will occur when employers structure work to make distracted driving a practical necessity or when they encourage it via incentives.  So, take a look at your practices and policies on this point.  And, if you are reading this update while driving, STOP IT!  Good lawyers do not let friends (or clients) text and drive.

 

Written by: Employment Attorney, Michael Patrick O’Brien Utah State and Salt Lake SHRM legal director Email: mobrien@joneswaldo.com Phone: 801-534-7315 Website: www.joneswaldo.com

 

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O’Brien. Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.

SHRM Newsletter: Health Care Reform W-2 Form Reporting Delayed

This is Utah SHRM Legal-mail no. 2010-15 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).

CONTENTS:

-  HEALTH CARE REFORM W-2 FORM REPORTING DELAYED
-  DOL STRATEGIC PLAN FOCUSES ON MISCLASSIFIED WORKERS
-  NEW FINANCIAL INSTITUTION DIVERSITY REQUIREMENTS
-  SOME NEW CALIFORNIA EMPLOYMENT LAWS
-  REMEMBER VOTING INTEGRITY AND ELECTION LEAVE STATE LAWS

HEALTH CARE REFORM W-2 FORM REPORTING DELAYED: The Internal Revenue Service (IRS) has delayed for one year a requirement of the health reform law that employers report the value of an employee’s health plan on tax forms.  The IRS issued a notice (found at: http://www.irs.gov/pub/irs-drop/n-2010-69.pdf) indicating that the W-2 reporting requirement will not become mandatory until an employer issues W-2 forms for employee income earned in 2012.  The IRS also has issued a draft (remember, this is only a draft) W-2 form for reporting 2011 income (available at:  http://www.irs.gov/pub/irs-utl/draft_w-2.pdf).  Regarding employer-sponsored health care benefits, the draft form states, “Cost of employer-sponsored health coverage (if provided by the employer). The reporting in Box 12, using Code DD, of the cost of employer-sponsored health coverage is for information only. The amount reported with Code DD is not taxable.”  The bottom line on all this appears to be that you can-but need not-report the value of health benefits on W-2 forms until you issue them in January of 2013, reporting employee income earned in the year 2012.  For more information, see: http://www.shrm.org/LegalIssues/FederalResources/Pages/W2Reporting.aspx The United States Treasury Department and the IRS anticipate issuing guidance on this reporting requirement before the end of this year, so stay tuned for updates!

DOL STRATEGIC PLAN FOCUSES ON MISCLASSIFIED WORKERS: The national five year strategic plan for the United States Department of Labor (DOL) includes plans for an increased crackdown on employer who misclassify workers as independent contractors instead of as employees.  DOL plans to work jointly with the United States Department of Treasury (i.e. the IRS) to “detect and deter” such misclassifications, which DOL says occur in as many as 30% of US employer and deprives the federal treasury of “billions” of dollars.  Another interesting note, according to the strategic plan: “the FLSA recordkeeping regulations under development will require that covered employers notify each of their workers of their rights under the FLSA, and provide employees with information regarding their hours worked and wage computations.”  You can read the full plan (reader warning…it is over 100 pages long) at: http://www.dol.gov/_sec/stratplan/StrategicPlan.pdf

NEW FINANCIAL INSTITUTION DIVERSITY REQUIREMENTS: Banks, credit unions and various other financial institutions face new diversity requirements as a result of the passage of the federal financial reform law in July of 2010.  The news law requires the federal agencies affected (Treasury, FDIC, Federal Reserve, National Credit Union Administration, etc.) to establish an office of minority and women inclusion to promote equal employment opportunity and diversity within the regulated financial institutions.  Contractors working with such agencies will have to agree, in their contracts, to fairly include women and minorities in their workforces.  Here are links to a couple of resource articles explaining these requirements in more detail:  http://www.shrm.org/hrdisciplines/Diversity/articles/pages/federalagencydiversity.aspx and http://www.dcemploymentlawupdate.com/2010/07/articles/federal-contracts-1/financial-reform-bill-establishes-diversity-requirements/

SOME NEW CALIFORNIA EMPLOYMENT LAWS: National SHRM has a helpful article on its website about some new employment laws taking effect in California, including a new paid leave requirement for organ donation.  Here is a link to the article: http://www.shrm.org/LegalIssues/StateandLocalResources/Pages/CalifEnactsNewEmploymentLaws.aspx Some headline highlights from the article include: (1) “California law previously entitled state employees who had exhausted available sick leave to take up to 30 days paid leave for donating organs to another person, and up to five days paid leave for donating bone marrow to another person. Known as the Michelle Maykin Memorial Donation Protection Act, SB 1304 adds a new Labor Code provision extending this public employee benefit to private employees. Private employers with 15 or more employees will be required to provide up to 30 days of paid leave per year for an organ donation in any one-year period, and up to five days of paid leave per year for a bone marrow donation. Leave may be taken in one or more periods.” (2) “California law provides unemployment insurance benefits to eligible employees who are unemployed through no fault of their own. Until passage of AB 2364, these provisions contained a ‘good cause’ exception allowing employees to retain their eligibility if they left employment to protect their ‘children’ from domestic violence abuse. AB 2364 amends this domestic violence ‘good cause’ exception to specify that an employee retains their eligibility if they voluntarily left employment to protect their ‘family’ (not simply ‘children’ as under prior law) from domestic violence abuse.” (3) “AB 569 amends California Labor Code § 512 to exempt the following categories of employees (as defined by the statute) from the meal period provisions otherwise applicable to nonexempt employees: construction occupation, commercial drivers, security officers, gas and electrical corporation employees and those of a publicly-owned local electric utility. The exemption applies only to such employees covered by a valid collective bargaining agreement that expressly provides for the wages, hours of work, and working conditions of employees, which expressly provides for meal periods for those employees, for final and binding arbitration of disputes concerning application of its meal period provisions, for premium wage rates for all overtime hours worked, and a regular rate of pay of not less than 30 percent more than the state minimum wage rate.”

REMEMBER VOTING INTEGRITY AND ELECTION LEAVE STATE LAWS: As election day 2010 approaches, keep in mind that some state laws regulate an employer’s efforts to influence the votes of its employees.  Other state laws require that employers allow time off for employees to vote if their work shifts would preclude them from voting.  Here are a couple of links to various state voting leave laws: http://www.shrm.org/LegalIssues/StateandLocalResources/StateandLocalStatutesandRegulations/Documents/statevotinglaw.pdf and http://www.wileyrein.com/resources/documents/fm14049.pdf Utah’s voting leave law states as follows: “(1) (a) Each employer shall allow any voter to be absent from service or employment on election day for not more than two hours between the time the polls open and close. (b) The voter shall apply for a leave of absence before election day. (c) (i) The employer may specify the hours during which the employee may be absent. (ii) If the employee requests the leave of absence at the beginning or end of the work shift, the employer shall grant that request. (d) The employer may not deduct from an employee’s usual salary or wages because of the absence. (2) This section does not apply to an employee who has three or more hours between the time polls open and close during which the employee is not employed on the job. (3) Any employer who violates this section is guilty of a class B misdemeanor.”  Utah law also makes it a criminal misdemeanor for an employer to try to influence an employee’s vote, stating, “It is unlawful for any corporation, or any officer or agent of any corporation, to influence, or attempt to influence, induce, or compel by force, violence, or restraint, or by inflicting or threatening to inflict any injury, damage, harm, or loss, or by discharging from employment or promoting in employment, or by intimidation, or in any manner whatever, any employee to vote or refrain from voting at any election provided by law, or to vote or refrain from voting for any particular person or measure at that election.”  Similarly, Utah law also provides as follows: “It is unlawful for any employer, corporation, association, company, firm, or person to:(i) enclose their employees’ salary or wages in envelopes on which there is written or printed any political mottoes, devices, or arguments containing threats, express or implied, intended or calculated to influence the political opinion, views, or action of the employees; or (ii) within 90 days of any election provided by law to put up, or otherwise exhibit, in its, their, or his factory, workshop, mine, mill, boarding house, office, or other establishment or place where employees may be working or be present in the course of employment, any handbill, notice, or placard containing any threat, notice, or information, that if any particular ticket or candidate is or is not elected: (A) work in the establishment will cease in whole or in part; (B) the establishment will be closed; (C) wages of workmen be reduced; or (D) other threats, express or implied, intended or calculated to influence the political opinions or actions of employees.”

Written by: Employment Attorney, Michael Patrick O’Brien
Utah State and Salt Lake SHRM legal director
Email: mobrien@joneswaldo.com
Phone: 801-534-7315
Website: www.joneswaldo.com

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O’Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.

Consumer Safety – Tips for a Safe Winter in the Home

Fall is transitioning to winter and we will be spending more time inside our homes.  That means we should be focusing on ways to keep the home safe.  There are some general tips we should all consider and some specific tips for the holiday season.

Cold weather requires heat in the home.  Different heat sources bring different safety hazards that we should guard against.

• Any heat source that uses fuel to generate heat creates carbon monoxide as a byproduct.  Carbon monoxide is the silent killer because you cannot see it, smell it, hear it or taste it, and hundreds of people die each year as a result of carbon monoxide poisoning.  A carbon monoxide detector should be installed in or near every sleeping area in the home.  They are expensive, there is no doubt about it, but the cost is a small price to pay to keep family members safe. Also, have your fuel burning heat sources inspected periodically.  Finally, never use the oven, grills or generators as heat sources in the home.
• If you have space heaters, be sure to look for stickers that indicate they have been safety tested.  Give space heaters plenty of room, at least three feet from anything flammable.   Always make sure that space heaters are safe from children and pets.  Finally, never leave space heaters on when you leave the home or are sleeping.
• Be prepared for power outages.  When the power goes out not only are you in the dark, you are without heat.  If you have a non-power driven heat source, such as a fireplace, use it as a heat source but pay careful attention to such sources at all times.  Move perishable food outside to keep them safe longer and run water at various faucets to keep pipes from freezing.   Finally, make sure you have flashlights, lanterns, warm clothing, portable radios and cell phones on hand.
• Wood stoves and fireplaces should be inspected routinely by qualified professionals who can spot any cracks or flammable build-up in chimneys.  Burn clean fuels after flues are opened and make sure that proper screens are in place.  And, of course, have properly operating smoke detectors in all sleeping areas and on all levels of your house.

In addition to the general safety considerations that come with cold weather, winter ushers in the holiday season.  A Home Safety Council survey found that 53 percent of the families surveyed said they plan to hang holiday lights, 40 percent will decorate outdoors and almost one-third (29 percent) will decorate with candles.  Accordingly, the Council has focused on three major safety areas for the holiday season:[1]

Candle Safety

While candles provide a warm and festive atmosphere, research shows home fires caused by candles peak during the holiday season, with the highest number of candle fires occurring on Christmas Day, followed by New Year’s Day and Christmas Eve.* This year candle safety tops the Home Safety Council’s list of holiday safety tips:

• Make sure an adult is in the room and paying attention whenever you light a candle. Blow out all candles before going to sleep or leaving the room.
• Do not permit children to keep or use candles or incense in their rooms. Candles should only be used when a sober adult is present and awake.
• Never use lighted candles on or near a Christmas tree or other evergreens.
• Keep candles at least three feet away from anything that can burn, including other decorations and wrapping paper.
• Always use stable, nonflammable candle holders with a hurricane glass to protect the open flame.
• Place candles where they will not be knocked down or blown over and out of reach of pets and young children.
• If you have children in your home, store candles, matches and lighters out of their sight and reach in a locked cabinet.
• To eliminate the risk of an open candle flame, use battery-powered candles whenever possible, especially when you combine candles with greenery or other decorations.

Holiday Electrical Safety

Holiday lights and electrical decorations create holiday cheer both inside and outside the home, but they can also create fire hazards and electrical shock risks if they are not handled properly. The Home Safety Council recommends taking the following electrical safety precautions while decorating your home this year:

• Inspect holiday lights and extension cords before decorating. Replace any that are fraying or damaged. Pay special attention to lights, cords or decorations that may have been damaged from winter weather conditions.
• Check for red or green UL marks on all light strings and extension cords. The green holographic UL Mark means the light strings should be used only indoors. The red holographic UL Mark indicates the light strings can be used both inside and out — and can withstand conditions related to outdoor use.
• Follow manufacturer’s guidelines for stringing light sets together. As a general rule, UL recommends using no more than three standard-size sets of lights together.
• Hang or mount light strands carefully to avoid damaging the cord’s insulation.
• Do not overload extension cords or electrical receptacles.
• Unplug all holiday lights when you go to sleep or leave home.
• Plug outdoor decorations into outlets protected by Ground Fault Circuit Interrupters (GFCIs) to prevent shock.
• Automatic lighting timers can be used to ensure that lights are not left on. These are available for both indoor and outdoor use.
• Roll up excess electrical cords and keep them away from high traffic areas. Do not run electrical cords under rugs.
• Never keep an extension cord plugged in when it is not in use.
• When replacing a light bulb, be sure to use the correct bulb size (wattage) that is right for the fixture.
• Use safety caps to keep children from putting things into electrical receptacles outlets.

Ladder Safety

Falls are by far the leading cause of home injury fatalities. The safest way to climb indoors and out is to use a safe and sturdy ladder. Follow the Home Safety Council’s ladder safety tips when using a ladder to decorate the tree, retrieve stored decorations or hang holiday lights:

• Always use a sturdy ladder when climbing, it’s too risky to climb on a chair.
• Before using a ladder outdoors, choose a location that is well away from all power lines. Coming in contact with live wires can be fatal.
• Place the ladder on level ground and open it completely, making sure all locks are engaged.
• Use the 4-to-1 rule for extension ladders: for each 4 feet of distance between the ground and the upper point of contact (such as the wall or roof), move the base of the ladder out 1 foot.
• Always face the ladder when climbing and wear slip-resistant shoes, such as those with rubber soles.
• Keep your body centered on the ladder and gauge your safety by your belt buckle. If your buckle passes beyond the ladder rail, you are overreaching and at risk for falling.
• Make sure rungs are dry before using the ladder.
• Stand at or below the highest safe standing level on a ladder. For a stepladder, the safe standing level is the second rung from the top, and for an extension ladder, it’s the fourth rung from the top.

Finally, garage usage is higher during the cold months so it is important to make safety in those areas a priority.  Carbon monoxide can be a big issue because some appliances, such as water heaters, are commonly located in garages.  Also, there is the obvious; the carbon monoxide generated by running vehicles.  Never idle or warm up your vehicle inside a garage and make sure your garage meets all building codes when it comes to ventilation.

Fire is also a common garage danger.  Many people keep flammable substances in their garages, which is fine if they are properly stored in sealed containers and are out of reach for children.  Also, to avoid fires caused by spontaneous combustion, do not allow debris or rag piles to accumulate.  In short, a clean and well organized garage is a safer garage.

The seasons change like clockwork and it is easy to become complacent as the days pass from summer through fall to winter.  We all need a reminder to spend some time and effort on keeping everyone safe around the home.  This is your reminder.

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[1] Excerpted from http://homesafetycouncil.org/AboutUs/Media/media_w027.asp.

Temporary Exclusion of 100% of Gain on Qualified Small Business Stock

By Bruce Babcock
Attorney at Law, Jones Waldo, Tax Law Practice Group

Section 1202 permits a taxpayer, other than a corporation, to exclude in general 50% of the gain realized on the sale of “qualified small business stock” if the taxpayer holds the stock for more than five years before the sale. If the stock represents an interest in a qualified business entity (under empowerment zone rules), as well as meeting all the requirements to qualify for the general 50% exclusion, a 60% exclusion applies. Seventy-five percent of the gain may be excluded if the qualified small business stock is acquired after February 17, 2009, and before September 28, 2010, and held for more than five years (but the alternative minimum tax preference applies).

The 2010 SBJA has amended Section 1202(a)to provide a very temporary 100% exclusion of the gain from the sale of qualified small business stock. All of the gain from qualified small business stock acquired after the date of enactment—September 27, 2010—and before January 1, 2011, is excluded. Moreover, the minimum tax preference does not apply to such stock. In other words, no regular tax or alternative minimum tax is imposed on the sale of this stock if it is held for at least five years.

Information for Property and Business Owners Impacted by the Red Butte Creek Oil Spill

On June 12, 2010, Chevron’s pipeline on the East Bench of Salt Lake City leaked crude oil into Red Butte Creek near Red Butte Gardens to the Veteran’s Administration Hospital and the University of Utah, residential areas, Liberty Park and the Jordan River. Chevron estimates that approximately 800 barrels (33,600 gallons) of crude oil discharged into the Creek and that as of July 7, it had recovered approximately 640 barrels.

Chevron’s Cleanup Obligations. Chevron is required under the federal Oil Pollution Act and state environmental laws to clean up the oil leak, including cleaning up impacted real property and water bodies. Chevron initiated emergency response actions immediately following the spill to recover and clean up the oil and is continuing cleanup with flushing the Creek, cleaning oil stained shorelines and recovering oil. Chevron is also developing a longer term plan to address oil recovery and cleanup, restoration and monitoring. The Utah Water Quality Board issued a Notice of Violation and Order to Chevron on July 13, which requires Chevron to submit a long term cleanup plan to the state within 30 days and notifies Chevron of potential fines.

Government Cleanup Team. Chevron, the U.S. Environmental Protection Agency (EPA), the Utah Department of Environmental Quality (DEQ), Salt Lake City, Salt Lake County and the Salt Lake Valley Health Department have formed a cleanup team called the Red Butte Canyon Spill Unified Command to coordinate oversight of Chevron’s cleanup.

Chevron Claims Procedure. Chevron is required under the Oil Pollution Act to set up a claims procedure for submittal and reimbursement of covered claims. Chevron has retained a claims adjustor to process claims. To file a claim, call the toll free claims line at 866/752-6340.

Covered Claims. Chevron is required to reimburse private property owners for the following costs and damages:

• Removal Costs – Costs to remove oil or to prevent, minimize or mitigate oil pollution that are consistent with the National Contingency Plan.
• Real or Personal Property Damages – Damages to owner or tenant for injury to or economic losses resulting from destruction of real or personal property.
• Subsistence Use Damages – Damages for loss of livelihood associated with use of natural resources.
• Profits and Earning Capacity Damages – Damages for loss of profits or impairment of earning capacity due to the injury, destruction, or loss of real or personal property.

Possible Considerations to Determine if Impacted Property or Business Owner has a Claim for Reimbursement Against Chevron.

• Does your property abut Red Butte Creek?
• Are there visible oil impacts on your property?
• Can you smell oil odors?
• Is your property listed for sale or do you have a pending sale?
• Do you have a pending application to refinance your home?
• Have you incurred temporary living expenses (for example, hotel expenses)?
• Have you incurred costs to monitor indoor air quality?
• Have you incurred cleanup costs?
• Have you experienced lost profits from loss of business or lost rentals?

Legal Assistance. We can advise you concerning:

• Assessing and preparing claims against Chevron for recovery of response costs or damages.
• Facilitating the inspection of your property by Salt Lake City to address your concerns.
• Reviewing and commenting on Chevron’s Cleanup and Recovery Plan regarding cleanup of your property.
• Retaining an environmental consultant to document the condition of your property, conduct indoor air monitoring or oversee Chevron’s cleanup of your property.
• Bodily injury claims.
• Property sale disclosure requirements.
• Potential real property tax reduction.
• Potential citizen suit to enforce Chevron’s cleanup obligations in the event Chevron does not satisfy its cleanup obligations.

Recovery of Attorney and Consultant Fees. It is uncertain whether Chevron is required to reimburse property owners for claims for consultant or attorney fees in connection with claims for response costs or damages. Although Chevron is likely required to reimburse impacted property owners for consultant fees related to any cleanup costs, it may not be required to cover other consultant fees or attorney fees. Attorney fees are covered for citizen suits to enforce Chevron’s cleanup obligations.

Salt Lake City Assistance. Salt Lake City has retained an independent environmental consultant to address citizen and property owner concerns and has appointed a neutral Community Ombudsman. Contacts:

• Robin Carbaugh, Community Ombudsman: 801/870-1428 or ombudslc@gmail.com
• Renee Zollinger, SLC Environmental Manager: 801/535-7215

Information Links:

• Chevron: http://www.chevron-pipeline.com/redbuttecanyonspill/
• Salt Lake City: http://www.slcgov.com/emergency.htm
• Utah Department of Environmental Quality: http://www.deq.utah.gov/Issues/redbuttespill/index.htm
• Utah Rivers Council: http://www.utahrivers.org/

*This blog is a periodic publication of Jones Waldo and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult with a qualified attorney concerning the particular circumstances and any specific legal questions you may have.

Cutrubus

An interesting piece on the Chrysler/dealers arbitrations: http://www.autonews.com/apps/pbcs.dll/article?AID=/20100531/RETAIL07/305319967/-1