Same-Sex Adoption in Virginia

The recent election has many in the LGBTQ community concerned about the rights of parents in same-sex marriages. There is no case on the issue currently pending before the Supreme Court, and the President-Elect has not said he wishes to see the Court overturn Obergefell v. Hodges. However, it is wise–as is having a Will and a Power of Attorney–for married same-sex couples to have the non-biological parent adopt any children of the marriage. Marriage between same-sex partners does not automatically grant the non-biological parent any parental, custody, visitation or other legal rights related to the spouse’s child(ren). Even a joint legal custody order—though better than nothing—does not convey upon the child or parent the same legal benefits as an adoption. No couple wants to worry that a court case may change their rights to parent their child. In Virginia, the spouse of a biological parent can adopt that child through a process which typically doesn’t require appointment of Guardian Ad Litem or even a court hearing.  If you would like to find out more about same-sex adoption or other issues, please contact us to set up a consultation.

Are your “Independent Contractors” really Employees?

By:  Lonnie C. Rich

In July, 2015, the Department of Labor (DOL) issued a new interpretation with a six-factor “economic analysis” for determining whether someone is an employee or an independent contractor. “Control” is no longer the dominant factor. 

At its most basic level, the issue may now be reduced to the following question: 

Is the worker economically dependent on the employer and “suffered or permitted” to work, or is the worker in business for himself or herself and truly not dependent upon the employer for work?

The six factors used in answering that question are set out below.  Each factor needs to be considered when classifying a worker.

1.       Is the work an integral part of the employer’s business?  For a construction company, carpenters are integral.  For that same construction company, a software developer that develops software to track bids, materials, schedules and orders is not integral and may operate more like an independent contractor.

2.       Does the worker’s managerial skills affect the worker’s opportunity for profit or loss?  If the worker has the opportunity for making more or less depending on their management actions – job selection, hiring employees, advertising, buying more efficient equipment or computer programs, they are more like an independent contractor.  If the worker can simply do their job well or can work more or less hours, that is not managerial skill, but making choices just like an employee.

3.       How does the worker’s relative investment compare to the employer’s investment?  A rig welder’s investment in equipped trucks costing about $40,000, is minimal compared to the millions invested by the employer.  The greater the disparity in investment, the more likely one is to be an employee.

4.       Does the work performed require special skill and initiative?  The skill of a worker does not necessarily indicate independence from the employer.  Even if there are special skills, those skills may not be used in an independent way.  If special skills lead to economic independence from the employer, then the worker is more like an independent contractor.

5.       Is the relationship between worker and employer permanent or indefinite?  If either, that suggests employee, not an independent contractor. 

6.       What is the nature and degree of employer’s control?  Is the worker’s control such that he or she seems to be conducting their own business?  Lack of immediate and direct control (“looking over another’s shoulder”) or control over hours is not indicative of independent contractor status.  With technological advances and enhanced monitoring, there are new ways for employers to exercise control.

DOL has concluded that most workers are employees, not independent contractors.

While this is not binding, the DOL opinion will be given deference by the courts.

Employers need to be concerned about whether they have classified their workers correctly.  Failure to do so can have significant implications for employment taxes, minimum and overtime wages, unemployment and workers compensation insurance as well as entitlement benefits. Getting it wrong can result in significant liability.

RRBMDK has attorneys available to assist you in interpreting, creating and maintaining proper worker classification.

What is Collaborative Divorce?

Many men and women going through a divorce want it to be amicable and transparent.  The collaborative divorce is actually a process where the parties agree from the beginning to work as part of a team, which includes attorneys as well as other professionals, to resolve custody, support, and property distribution.  The collaborative practice is client-centered and client-controlled.
 

Based on the particular needs of the parties, the team may include a neutral financial planner, a children’s therapist, and a divorce coach, who is a mental health professional.  The   collaborative divorce process focuses on open communication and information sharing rather than litigation strategy.  Information is freely disclosed and the parties commit to full disclosure at the commencement of the process. 

Prior to commencing the team work, the parties enter into a collaborative agreement stating that they will negotiate an acceptable settlement without going to court.  The hope is that the parties may more effectively resolve the issues if they do not have the fear of litigation hanging over their heads.  If the parties later determine they cannot reach an agreement through the collaborative process, their collaborative attorneys will not represent them in court, which may provide incentive to stick with the collaborative process, even if frustration arises.

A collaborative divorce includes many benefits, including the potential for improved communication and trust between the parties, and placing the parties and family in the priority position rather than focusing on legal strategic positioning.  It is a newer method for resolving difficult and challenging family law issues, but it is a positive step toward keeping families out of the courtroom.  

Wills and Estate Planning -- Engaging an Attorney

 by Lonnie C. Rich

 Once you have decided that you want to get your Will, Trust and other planning documents prepared, you need to pick an attorney.  How do you do that?  How much does it cost? How long does it take?  What do I need to bring to the first meeting?

The best way to pick an attorney is to choose someone that 1) you know personally and trust, and 2) has experience with estate planning.  The next best way is to ask for a referral from a trusted friend or professional advisors: CPA, financial advisor, or insurance agent. Remember, you may need to return to the attorney on multiple occasions as life changes require you to update your current plan and documents, so be sure you are comfortable with whomever you choose. 

In your first conversation with an attorney, ask how they charge and what is included.  RRBMDK, like many attorneys, works on an hourly basis; but we give a fairly narrow range of the likely fees.  This has the disadvantage of a little uncertainty, but has the advantage of fairness – some pay a little more or little less than others because their situation or desires take more time or less time than others.  Other attorneys offer a flat fee which is usually based on the higher end of the estimated time to perform the services.  The flat fee offers certainty, but means that you may pay more than the actual work justifies on an hourly basis.

As to how long it takes, that usually depends on your urgency.  Some attorneys routinely take several months.  At RRBMDK, it is usually 2-3 weeks from start to finish; but we can work faster in an emergency.

What do you need for the first meeting?  Some attorneys ask you to fill out a lengthy questionnaire. At RRBMDK, our experience is that many potential clients wither under such a load; and then they never complete the process.  Rather, we ask for a simple family tree and a one-page financial – 20 minutes of your time. 

Lonnie C. Rich, a partner at RRBMDK, has been helping client with Estate Planning in Northern Virginia for over 30 years.  If you have questions, give him a call.

Marriage Equality

On October 6, 2014, the U.S. Supreme Court let stand the decision in Bostic v. Schaefer, which held that same-sex couples cannot be denied the right to marry.  There are many implications for the LGBT community, especially in estate planning. 

For same-sex couples who can now get married in Virginia, you will have all of the benefits of a traditional marriage.  1) You will have an unlimited marital deduction, which means that same-sex couples can give an unlimited amount during their life or at death to their spouse without any estate or gift taxes. 2) Each individual has a $5.34M personal exemption from estate taxes; and with an election can combine that exemption with their spouse for a $10.68M exemption for both together.  3) As spouses, you can make an election which would double your annual exclusion amounts from $14,000 to $28,000 for purposes of annual gifts to as many people as you want.  4) Now, a same-sex spouse will be able to make health care decisions even if there is not a formal written advance medical directive.  This has always been the law for a traditional spouse. 5) Same-sex couples will be able to take title to property as “tenants by the entireties,” which provides significant creditor protection for the non-debtor spouse.

The recent extension of the right to marry to same-sex couples has many implications, not just in estate planning, but in other areas of the law, such as family law and retirement, both of which involve individual rights and responsibilities.   

Consideration of Criminal Records in the Hiring Process

          Criminal background checks have always been somewhat of a controversial tool for reaching hiring decisions.  The federal law that prohibits job discrimination, Title VII of the Civil Rights Act of 1964, protects applicants and employees from discrimination in every aspect of employment, including screening practices and hiring. Title VII protects employees and applicants from policies or practices that disproportionately screen out members of a particular race, ethnicity, or other protected class.  Title VII does not bar criminal background checks, but it does govern how such information may be used by an employer.

          The Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces Title VII.  In April 2012, the EEOC issued updated guidance (Guidance) for employers, explaining how they can screen out applicants who might be dangerous or pose a safety risk without engaging in discrimination.[1]  The concern about criminal background checks is based on data showing that arrest and incarceration rates are much higher for African Americans and Latinos.[2]  The EEOC makes clear that employers will violate Title VII if they intentionally discriminate among individuals with similar criminal histories or if their policies have a disproportionate adverse impact based on race, national origin or some other protected status and employers are unable to demonstrate “business necessity” for utilizing an applicant’s criminal history in making a hiring decision. [3]

The EEOC explains that in deciding whether a particular offense should disqualify an applicant or employee, employers must consider:

·         the nature and gravity of the criminal offense or conduct

·         how much time has passed since the offense or sentence, and

·         the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on).

According to the EEOC, employers should give applicants with a record an opportunity to explain the circumstances and provide mitigating information showing that the employee should not be excluded based on the offense.

Protected persons who are denied employment because of a criminal background check may have viable Title VII claims where:

– Denial of employment was based solely on an arrest;

– The employer used a blanket exclusion that screened out all persons who have ever been convicted of a crime;

– The exclusion did not take into account the nature of the crime, the amount of time elapsed since it occurred, and the nature of the job;

– The employer did not provide an opportunity for the excluded person to explain a criminal matter;

– The employer has a reputation for excluding persons with criminal backgrounds; or

– The employer has expressed stereotypical views concerning the criminality of certain racial or ethnic groups.

The EEOC identified the following "Best Practices" that employers can take when considering arrest and conviction records in making employment decisions:

– Develop written policies and procedures for screening applicants and employees regarding criminal conduct;

– Train managers, hiring officials, and decision makers regarding implementation of the policies and procedures;

– Limit inquiries regarding criminal records to those that are "job related for the position in question and consistent with business necessity"; and

– Keep information regarding applicant and employee criminal records confidential.

Of note is that Virginia law protects applicants with criminal records that have been expunged.[4]  An employer may not ask applicants to disclose expunged criminal charges, whether on an application form, in an interview, or in another forum.  An applicant need not refer to any expunged charges if asked about his or her criminal record.

            EEOC’s Guidance is not binding law, but it sets the standard that the EEOC will use when evaluating discrimination complaints based on the use of criminal history information in employment decision.  However, courts may use it in their analysis of these issues and employers need to act carefully.   Most hiring practices almost always benefit from review by an attorney familiar with these laws and recent decisions. You can contact one of RRBMDK’s employment attorneys if you have any questions about the recent EEOC Guidance or other aspects of your hiring practices.

[1] EEOC Enforcement Guidance: Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, Issued April 25, 2012.  http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm#sdendnote128anc

[2] See Pew Ctr. on the States, Collateral Costs: Incarceration’s Effect on Economic Mobility 6 (2010), http://www.pewcenteronthestates.org/uploadedFiles/Collateral_Costs.pdf?n=8653(“Simply stated, incarceration in America is concentrated among African American men. While 1 in every 87 white males ages 18 to 64 is incarcerated and the number for similarly-aged Hispanic males is 1 in 36, for black men it is 1 in 12.”). Incarceration rates are even starker for 20-to-34-year-old men without a high school diploma or GED: 1 in 8 White males in this demographic group is incarcerated, compared to 1 in 14 Hispanic males, and 1 in 3 Black males. Pew Ctr. on the States, supra, at 8, Figure 2.
[3] 42 U.S.C. §§ 2000e-2(k)(1)(A)(i), (ii), C.
[4] Va. Code Ann. § 19.2-392.4

Characteristics of At-Will Employment

     The vast majority of employment relationships in place today are at-will.  That means that there is no contract specifically governing the employment relationship between the employer and a given individual employee.   At-will employment generally has the following characteristics:

•  Unspecified duration.  At-will employment is characterized by an undefined period into the future, but without a commitment for a certain minimum period.  The vast majority of employer-employee relationships are at-will.

      For example, a small business retail establishment who hires someone to work as a sales associate either full or part-time is typically an at-will employee.  Generally, employers advertise their staffing needs, prospective employees apply, and then the employer hires one or more applicants.  Often the new employee is provided employment forms, but not typically a written contract binding them to service for a certain period of time. 

• Can be terminated without cause.  Generally the employment relationship remains intact so long as the relationship remains mutually beneficial to both employee and employer.    While no cause is required to terminate the at-will employment relationship, causal explanations for terminations related to financial hardships or corporate mergers are common.  Termination for cause might include, stealing, lying, failing a drug or alcohol test, falsifying records, insubordination, and deliberately violating company policy.   

When an employee finds himself out of a job, he or she often struggles to understand why.  However, the law does not require employers to provide a cause, or explanation, for the termination in an at-will employment relationship. 

•  Can be terminated without notice.   Employees customarily give current employers a period of notice before commencing employment with a new employer, particularly if the new employer is in the same field as the current employer.  However, this notice period is not required in at-will employment relationship and is done merely as a courtesy to the old employer.  

           So which employees are not at-will employees?  Employees covered by a written contract, such as a union agreement or other contract, are not at-will employees.  Employment contracts are common for temporary employees and high level executives among other individuals.  It is also possible to have an implied contract based on your employer’s words or actions.

      

           In addition, under the laws of Virginia (and many other jurisdictions, including D.C.) the discharge of an employee for exercising rights guaranteed by public policy (as embodied in a specific statute) may give rise to an action for wrongful termination.

            While employers have wide latitude to dismiss at-will employees without notice or cause, the law does not permit discrimination, including terminations, based on race, color, national origin, gender, religion, age, or disability.  If you suspect you have been wrongfully terminated, it is best to talk to an attorney about your particular situation.   By first talking with any of the RRBMDK attorneys that handle employment matters, you’ll be able to make an informed decision about your situation and whether legal action makes sense.