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| Pitfalls of Personal Blogs at Work |
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It is critical for employers to provide employees with technology that enables them to do their jobs more efficiently. But there’s a potential downside: Employees may be using their computers to create personal “blogs.” This practice may seem harmless at first, but employers are now waking up to the potential dangers.
What is a blog? Essentially, it is a Web site journal displaying a running commentary by the author (i.e., the blogger). It may also include links to comments on certain postings. According to a recent report, an estimated 30 million Americans are readers of blogs, while about 8 million take credit for being a blogger.
In a blog, the commentary can cover virtually anything and everything, ranging from personal information, to politics and sports, to random observations. It requires only basic computer skills, and the necessary software is readily available.
What’s the harm if an employee is a blogger? The employee may use the blog for issues relating to his or her employment. He or she could include discussions about the employee’s supervisor or coworkers, human resource issues, details of the employee’s job and other proprietary information. As you might imagine, the repercussions from such disclosures can be significant -- in some cases, it could even lead to the downfall of your company.
Increasingly, employers are taking proactive steps to reduce their risks. In several highly publicized cases, employers have even terminated employees for the comments they have posted on their blogs. Other employers are in the process of developing company-wide policies concerning blogging.
Some of the common features of such policies require employees to:
- Identify themselves on the blogs;
- Establish that they speak for themselves, not the company;
- State their connection to the company if they discuss employment matters;
- Preserve the confidentiality of sensitive materials; and
- Avoid discussions of any customers, clients, vendors, suppliers or any such details without written approval.
These precautions may be especially important to employers in industries that deal with sensitive business information. Develop a formal policy that can stand up to legal scrutiny.
Don’t close your eyes to blogging in the workplace. This seemingly innocuous practice could have harmful ramifications if you are not careful.
Sandwich Generation: An Estate-planning Pickle
Are you caught in the middle of caring for older relatives and raising your own children? The term “sandwich generation” is often used to describe people in this situation. It can touch on some sensitive matters, especially when you must address the long-term needs of elderly parents or in-laws.
One practical approach is to have a frank and open discussion among all family members to review critical estate-planning issues. Here are a few areas that might be included in the family discussions.
Wills: With a legally enforceable will in place, parents may be able to ensure that their assets will be distributed according to their wishes. Their wills can be reviewed periodically to reflect changes in their personal circumstances, tax law revisions, etc. For instance, if another grandchild has been born, they will probably want to make sure that he or she gets a fair share of the assets.
Financial documents: Where do elderly parents keep financial statements, bank account records, mutual fund statements, life insurance policies, etc.? Let them know that you are not trying to invade their privacy, but that they must make provisions to ensure that they will receive all the money they are entitled to if they suffer an illness. Write down important names and numbers (and make a copy for the parents to keep).
Tax information: Similarly, you need to have access to the tax information of elderly parents (e.g., past returns, current transactions, required filings, etc.). Review their situation periodically and do not hesitate to consult with professional tax advisers.
Investments: If elderly relatives have been handling their own investments, it may be a good time for the family to sit down with a professional investment adviser. The adviser can help balance their portfolio to achieve all of their objectives.
Health care: Talk to parents about their preferences in the event that one or both of them becomes disabled. Some of the possible choices are home health care, a nursing home, a continuing-care retirement community or living with a family member. Even if the parents are still in good health, it will not hurt to investigate some of the possibilities.
Some parents have prepared “living wills” that eliminate some of the uncertainty in situations where a life support system may be needed. This matter, which is highly sensitive, should be discussed by all the relevant parties.
These issues may be difficult to talk about, but they should not be ignored. Rely on independent advice from your estate-planning advisers.
New Trends in Bankruptcy Cases
Where can small-business owners turn when they are financially distressed? Increasingly, the answer appears to be the state courts. There is a growing use of the state courts to settle bankruptcy cases instead of initiating insolvency proceedings in federal court.
Since the late 1980s, the number of bankruptcy filings has declined by about 42%. But according to the Small Business Administration, the annual number of small-business failures has stayed relatively consistent in recent years.
According to some legal experts, state bankruptcy courts have become more attractive in the wake of the federal Bankruptcy Abuse Prevention and Consumer Protection Act, which went into effect in 2005. Many of the new law changes were designed to protect unsecured creditors, but they also slowed down the process and may raise costs.
Employment Issues for Returning Reservists
Suppose one of your workers is in the military reserve and is called to active duty. You wish him or her all the best of luck and promise that the worker’s job will be available upon return. And you are good on your word: After the reservist reenters the workforce, you reinstate the employee in his or her previous position.
But if the worker’s performance is unsatisfactory from that point on -- or even worse, outright disruptive -- are you able to terminate the worker’s employment? The key federal legislation in this area is the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).
Background: USERRA prohibits an employer from denying any benefit of employment on the basis of an individual’s membership, application for membership, performance of service, application for service or obligation for service in the uniformed services. It also provides job protection to military personnel returning to work from active duty or training. Under USERRA, these workers are no longer treated as “at-will employees.”
Essentially, the worker cannot be terminated from employment unless the employer can establish “just cause” for the action. Alternatively, the worker may be fired if the employer can prove that he or she knew the actions would constitute just cause or the termination is found to be reasonable. Presumably, this indicates that the rules the employee has been accused of violating are reasonable for the workplace.
New case: A computer technician, also in the U.S. Naval Reserve, had been disciplined several times by her employer. The infractions cited by the employer included tardiness, absenteeism from meetings, unexplained early departures from work and violating the company’s standards of professionalism.
Following a military deployment, the reservist returned to work for the same employer. In a short time, the employer terminated her employment due to tardiness and lack of professionalism. Subsequently, the reservist initiated legal action under USERRA. The reservist alleged that the employer did not have just cause for the termination.
However, the Fourth Circuit Court of Appeals disagreed. Reason: The reservist had been warned about her behavior, and the reasons for her termination constituted just cause. Thus, in this particular case, the employer was protected under the federal law.
Returning military personnel who have been away for more than 180 days are protected for one year.
The protection lasts six months for those who have been gone for 31 days to 180 days. After these time periods, at-will employee status is revived.
If you have any questions about your rights and responsibilities in this area, contact experienced legal counsel.
Roundup of New Tax Law Extensions
As expected, Congress finally passed the Tax Relief and Health Care Act of 2006 late last year. The new law retroactively extends numerous tax law provisions that had officially expired at the end of 2005. In general, the extensions are retroactive to the beginning of 2006 and will now expire at the end of 2007 (unless further legislation is enacted).
The following is a brief summary of several key provisions included in the new tax law.
Individual taxpayers may claim an above-the-line deduction for qualified higher education expenses in lieu of one of the education tax credits. The maximum deduction is $4,000.
A taxpayer may elect to deduct state sales tax in lieu of deducting state and local income taxes. The deduction amount is based on a state-by-state table (plus the sales tax on certain high-cost items).
The new tax law extends the tax credit for qualified research and development costs. It also increases the value of the alternative incremental credit and adds a new simplified credit.
The Work Opportunity Tax Credit and the Welfare-to-Work Tax Credit are reinstated retroactive to 2006. For 2007, the credits are combined with certain enhancements.
The new law reinstates the above-the-line deduction for teacher classroom expenses. The maximum deduction remains at $250.
Generally, the write-off period for depreciable real estate is 39 years. The new law extends the use of a special 15-year depreciation period for leasehold and restaurant improvements.
The new law extends the availability of Archer Medical Savings Accounts (MSAs).
A business may be able to claim an expanded deduction for scientific property and computer equipment donated to educational institutions or other qualified charitable organizations.
The new law extends through 2008 numerous tax incentives for energy-saving purchases.
Finally, the new law contains several provisions designed to improve Health Savings Accounts (HSAs).
Recommendation: Seek professional assistance to determine the impact of the new tax law.
Legal Briefs
Checking Out – In a new case, crew leaders at a Delaware chicken farm were responsible for directing “chicken catchers” but did not have authority to hire or fire workers. Occasionally, they would issue disciplinary warnings. The Third Circuit Court ruled that the crew leaders’ “limited powers” meant that they were not necessarily exempt employees and could be eligible for overtime pay.
Keep on Truckin’ – Under the Fair Labor Standards Act (FLSA), travel time must be compensated if it is part of the worker’s principal activity and it benefits the employer. New case: Field engineers for a Florida county had to drive county-owned trucks to job sites. They picked up and dropped off the trucks at a parking garage. Result: The Eleventh Circuit Court of Appeals ruled that the time spent driving the trucks to and from the first and last stops of the day was a job requirement. Therefore, the engineers were owed back pay.
Mortgage Insurance – Beginning in 2007, the new tax law allows taxpayers to claim deductions for mortgage insurance premiums. However, there are income limits to this new deduction. Specifically, no deduction is allowed if your adjusted gross income for 2007 exceeds $109,000.
Where’s the Beef? – The Equal Employment Opportunity Commission (EEOC) is pursuing employers who use screening tests to change the workplace composition. New case: The EEOC sued an Iowa meatpacking company after an investigation showed that more female job applicants were being rejected as a result of a new pre-hire test. A jury decided that the practice was discriminatory and awarded damages of $3.3 million to the plaintiffs.
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