Direct deposit can be required…if there’s an ‘opt-out’

Most employers find that paying workers through direct deposit is far simpler and easier than paying via check. But can employers force employees to accept direct deposit?

Well, not exactly. According to the Department of Labor, you can’t refuse to pay people by check if they really, truly insist on a check. However, you can make direct deposit standard practice, and you can force people who don’t like it to “opt out”…as opposed to inviting people who want it to “opt in.”

Some states have additional rules and restrictions on direct deposit, though, so it’s important to speak with an attorney before you make a change in policy.

No more ‘automatic tips’ for large groups at restaurants?

Many restaurants and other businesses automatically add a tip to the bill for groups over a certain size. But that’s likely to change in 2014, thanks to a new decision from the IRS.

As of January 1, 2014, these automatic tips must be treated as “wages,” subject to payroll tax withholding. This will mean much more paperwork for the businesses (not to mention making the waiters and other servers unhappy).

Darden Restaurants, which owns the Olive Garden, Red Lobster and Longhorn Steakhouse chains, has announced that it is experimenting with getting rid of automatic tips. Many other service businesses are expected to follow suit.

New rule on when same-sex spouses are entitled to FMLA leave

Here’s a complicated wrinkle for businesses that have employees who are in a same-sex marriage.

The question is whether these employees are “married” for purposes of the federal Family and Medical Leave Act, such that they’re eligible to take time off to care for a spouse.

Previously, the IRS has ruled that employees are “married” for purposes of employee benefit plans if same-sex marriage is legal in the state where the marriage occurred.

But now, the U.S. Department of Labor says that employees are “married” for purposes of FMLA if same-sex marriage is legal in the state where the employee resides. [Read more…]

Companies may have to force employees to use safety equipment

If an employee is going to be working in hazardous conditions, does the employer merely have to provide appropriate safety equipment … or does it have to actually force the employee to use it?

The latter, according to the OSHA Review Commission.

The case involved a marine contractor in Florida that was renovating a boat ramp. An employee of the contractor was observed using a jackhammer on concrete without wearing goggles or earplugs. [Read more…]

What to consider before signing a contract with a software vendor

Many contracts that a business will sign with a software vendor (or any other professional service provider relating to software) involve sharing detailed business or customer data. This is especially true with any type of cloud computing service. Before you sign a contract, ask yourself these questions:

What can the provider use my data for? Obviously, a vendor needs to be able to use your data to provide you with the contracted services. But many standard contracts also allow the provider to use the data (typically in aggregate form or without specific customer identifiers) for a number of other purposes, such as improving its own products, or even selling it to third parties. Do you really want your customer data treated in this way?

Will the data be safe? What systems does the provider have in place to maintain security? These can include passwords, antivirus software, alarm systems, limits on which of the vendor’s employees have access to the data, and backup and disaster recovery systems. [Read more…]

Commercial landlord is responsible for disability access

A commercial landlord who leased space for a restaurant and a liquor store can be held liable in court if the premises aren’t accessible to the disabled – even though the lease said that disability access was completely the responsibility of the tenant.

That’s the word from a federal court in California.

The case is a warning to commercial landlords that they need to be proactive and make sure that tenants are fulfilling their responsibilities under the Americans With Disabilities Act.

A landlord and a tenant can agree that it’s up to the tenant to make sure that the premises are accessible. However, if the tenant fails to do so, the landlord is still legally on the hook, the court said. [Read more…]

Time to update your company’s cell-phone policy

About 85% of American companies have a written policy that limits workers’ use of cell phones while driving. The goal is to improve employee safety, while also preventing lawsuits from people who are injured by distracted employees.

That’s great – but many of these policies were adopted several years ago, and need to be reviewed now because the legal landscape has changed.

Here are some of the problems with many older policies:

► They’re not inclusive enough. Many older policies prohibit employees from talking on the phone while in a company car, or while using an employer-provided device. That’s good, but an effective policy should also prohibit any business-related phone call while driving, regardless of who owns the car or the phone. [Read more…]

Company policy may override medical marijuana law

Many states have now legalized or decriminalized marijuana possession, and even more have legalized marijuana use for medical purposes. But while these laws may allow employees to avoid criminal consequences for smoking pot, they might not allow them to avoid workplace consequences.

Take the case of a Wal-Mart employee in Michigan. His doctors prescribed marijuana to control pain related to cancer, and he was a registered user under Michigan’s medical marijuana law. But when he tested positive for the substance under Wal-Mart’s drug use policy, the company fired him.

The employee sued Wal-Mart, but a federal appeals court upheld the firing. [Read more…]

Former shareholder couldn’t sue for discrimination

Bob Mariotti was a manager, shareholder and director of a family company that sold building supplies. At some point he experienced a “spiritual awakening” and began to expound religious ideas that often offended the other members of his family.

Eventually, the rest of the family decided to fire him as a manager. However, he continued to receive compensation as a shareholder and to act as a director for another six months, until he was voted out of those positions as well.

Mariotti sued the company for religious discrimination. But a federal appeals court in Philadelphia rejected his suit. [Read more…]

Company can’t fire worker whose spouse is sick

Marc Flagg worked for a Boston-area medical supplier for 18 years, apparently receiving positive performance reviews the whole time.

But in late 2007, his wife underwent surgery to remove a brain tumor, requiring expensive rehabilitative care afterward. As a result, Flagg had to leave work about a half-hour early each day to pick up his daughter from school. His manager apparently had no problem with the arrangement, or the fact that Flagg didn’t “punch out” during this time.

A few months later, Flagg’s wife was back in the hospital due to a recurrence of her tumor. The company then fired Flagg, claiming his failure to punch out resulted in his being paid for time he didn’t work. The termination meant that Flagg’s health insurance was cancelled and his unemployment benefits were denied. [Read more…]

OSHA goes after companies for discouraging workers from reporting injuries

First, the good news: According to the federal Occupational Safety & Health Administration, the number of reported workplace injuries dropped by more than 30 percent over the last 10 years.

Now the bad news: OSHA believes a big reason for the decline in reported injuries is that workers are becoming afraid that they’ll be retaliated against if they report them.

Of course, under federal law, it’s illegal for employers to retaliate against workers for reporting injuries, and it’s also illegal for them to reward employees in return for not reporting injuries. [Read more…]

U.S. settles first lawsuit under new health privacy law

The U.S. has settled its first lawsuit under the a new health care privacy law, and appears poised to aggressively target other employers who ask their workers about family illnesses.

The case involved a fabric distributor in Oklahoma that apparently required its workers to undergo physical exams in which they were asked whether cancer, heart disease or mental disorders ran in their families. The company quickly settled the case and agreed to pay $50,000 in damages to a job applicant who had been asked to provide such a family history.

This was the first lawsuit brought under the Genetic Information Nondiscrimination Act, or GINA. The law – which prohibits employers from asking about genetic testing results or family medical histories – was intended to encourage people to undergo genetic testing without having to worry about negative repercussions in the workplace. [Read more…]

Employee or contractor? Obamacare raises the stakes

It’s not always clear whether a worker should be treated as an “employee” or an “independent contractor.” But how a worker is classified it makes a huge difference to both workers and businesses – and that’s especially true as a result of the Affordable Care Act, better known as Obamacare.

Generally speaking, employers have a big incentive to treat workers as contractors rather than employees. If a worker is a contractor, then the employer might not have to worry about complying with wage and hour laws, payroll taxes, or unemployment and worker’s comp insurance. An employer might also be shielded from certain types of lawsuits, such as for discrimination, wrongful termination, or personal injuries that the worker causes to third parties. [Read more…]

No visitation rights for grandmother after adoption

A woman wasn’t entitled to visitation with her grandson after he was adopted by non-relatives, the West Virginia Supreme Court ruled recently.

The boy’s biological parents had their parental rights terminated due to abuse and neglect. The boy was placed with the grandmother for a short period, but then moved to a foster home. The grandmother continued to visit the boy regularly after he was placed with the foster parents, but the foster parents asked the court to cut off her visitation rights once they formally adopted the child.

The grandmother argued that she should still be able to visit the boy if doing so was in his “best interests.” [Read more…]

Woman loses out when ex-wife suddenly reappears

Barbara Sullivan considered herself happily married to retired pro football player Thomas Sullivan for two decades before his death. After he died in 2002, it appeared his NFL retirement benefits would leave her in stable financial shape.

But four years later, a woman named Lavona Hill suddenly stepped into the picture, claiming she was Sullivan’s wife and was entitled to all the benefits.

As it turns out, Sullivan had previously been married to Hill. Several years before Sullivan married Barbara, he separated from Hill. But the couple never actually got divorced, which meant that Sullivan and Barbara – who was completely unaware of Hill’s existence – were never technically married in the first place. [Read more…]

‘Surrogate mother’ contracts are okay, one court says

A “surrogate mother” who agreed in writing to carry a child to term for a couple can’t change her mind later and keep custody of the baby, the Wisconsin Supreme Court recently decided.

Monica Schissel was a childhood friend of a woman who couldn’t have children of her own due to battles with cancer.

She volunteered to act as a surrogate mother, carrying a baby to be fertilized in-vitro with her own eggs and the husband’s sperm. Monica and the couple signed a contract under which the couple would become the full legal parents of the child with exclusive custody. Monica also agreed to cooperate in a court’s termination of her parental rights and in her friend’s adoption of the child. [Read more…]

Divorce judge could resolve family business dispute

A divorce judge could have the final say about a business dispute between a couple who used to operate a family business together, according to the Pennsylvania Superior Court.

The couple had owned a company that operated a motel. The husband was the president and the wife was the treasurer. One day, the husband fired the wife and replaced her with his daughter. He also changed the locks, removed the wife from the company checking account, and told the police not to allow her onto company property.

Not surprisingly, the wife responded by filing for divorce.

The divorce judge announced a plan to resolve all disputes pertaining to the business as part of the divorce, and issued a deadline for filing any claims. [Read more…]

Husband punished for hiding assets from ex-wife

A man divorced his wife in California in 1999, and soon fell way behind in his alimony and child support payments. He moved to Pennsylvania and remarried in 2006.

Shortly before his remarriage, the man acquired some valuable real estate from his mother. A few days after the wedding, he conveyed the real estate – along with ownership shares in his corporation – into a “tenancy by the entireties” with his new wife. That meant that he no longer owned the property individually, and a creditor couldn’t go after the property without his new wife’s permission.

Meanwhile, the man’s ex-wife filed a lawsuit to collect the overdue support. In 2008, a court awarded the ex-wife a judgment of $550,000. [Read more…]

Ways to reduce conflict in child custody

Some of the most contentious battles in divorce cases involve children. Parents are naturally inclined to argue over custody and visitation rights, but sometimes they also have different and very strong beliefs about how children should be raised. Parents may bicker over whether children should attend sleep-away camp, go to a certain church or school, play a sport, have limits on TV or computer time, and so on.

In addition, sometimes couples are still angry at each other and use child-rearing battles as a proxy for their own ongoing conflict.

While some disagreement is probably unavoidable, there may be techniques that can reduce the stress for parents who have high-conflict custody issues, and avoid the hassle and expense of constantly returning to court to battle over minor problems. For instance: [Read more…]