Category Archives: Blog

ALERT!! October 1 Deadline for Obamacare Notices

Deadline for Employers to Distribute Obamacare Notices is October 1

All employers covered by the Fair Labor Standards Act (FLSA) are required to notify their employees about coverage options through the Obamacare insurance exchanges by October 1, 2013.  Section 1512 of the Affordable Care Act (commonly known as Obamacare) created a new Fair Labor Standards Act section – 18B – requiring a notice to employees of coverage options available through the new insurance exchanges, or “marketplace.”  This notice requirement applies to all employers with at least $500,000 in annual revenue—not just large employers who are required to offer their employees health insurance under Obamacare.

Information about the notification requirement is available on the U.S. Department of Labor’s website by following the links posted below. The sites also include model notices that can be used both by employers who are required to offer insurance and by those who are not required to offer insurance.

Please contact one of the employment lawyers at Warren and Young for further guidance in preparing and distributing these notices and for general guidance in navigating the many new requirements Obamacare places on employers.

http://www.dol.gov/ebsa/newsroom/tr13-02.html

http://www.dol.gov/ebsa/pdf/FLSAwithplans.pdf

http://www.dol.gov/ebsa/pdf/FLSAwithoutplans.pdf

Another world

To those of us who live and work in the heartland of our country, what happens (or doesn’t happen) in our nation’s capital seems pretty far removed from our daily life.  What the politicians, lobbyists and others do is sometimes confounding, but often amusing.  And as one might expect, it appears Washingtonians have even developed their own vocabulary, or code, to describe the people, processes, behaviors and events that occur “inside the Beltway.”

This piece from the New York Times is a wonderful reference for anyone who is in a position of needing to understand the code, or who just wants a chuckle.  http://nyti.ms/15MyCF9

Enjoy.

Should you have a lawyer on your Board of Directors – Part II

Earlier this week I posted an article from Corporate Counsel describing some survey results concerning whether the general counsel of a company would be a good candidate for being on the board of directors – of their own company, or of another company.  As I indicated, I think having an experienced corporate lawyer on the board of a company can be a good thing, but I have concerns about an in-house general counsel serving on the board of his own company, or an outside attorney serving on the board of his client.

The attached article, also from Corporate Counsel, summarizes my concerns and my position clearly: http://www.corpcounsel.com//corporatecounsel/PubArticleCC.jsp?id=1202618869420

In it, Ben Heineman, Jr., formerly with General Electric, argues that having an in-house general counsel on the board of his company creates “insoluble conflicts of interest,” but also states that it is important for the general counsel to be highly engaged with the board of directors as a resource and colleague.  I couldn’t agree more.  In my experience, having a mutually trusting, credible relationship with the members of the board is critical for any lawyer advising or making recommendations to a client on the many issues facing companies today.

My conclusion – experienced corporate lawyers are good candidates for membership on a board of directors, just not on the board of their employer/client.

Should you have a lawyer on your Board of Directors

I’ve been practicing for over 32 years now, and I’ve served as outside general counsel to several companies.  On those with active boards of directors, I often heard the question – should the general counsel serve on the board?  If not, should the board elect an attorney as a member?

See the attached article from Corporate Counsel.  http://t.co/tK8ZdxSqvC  It deals squarely with this  issue.  Based on recent survey results of general counsel, the consensus appears to be that the general counsel or another attorney would be valuable board members, although there are always caveats about a GC serving on their own company board.  I tend to agree.  Lawyers bring a different perspective to the deliberations of the board.

The other result of the survey – and a disturbing one – is that the number one concern of most general counsel is regulation and compliance, not creating value for the company.  Sad that shareholder value takes a back seat to handling the regulatory environment in today’s world.

 

Lawyers do have a sense of humor

Our law firm has been around since 1921.  Over the course of those many years, we occasionally run into or hear of lawyers who actually have a sense of humor.  Here is one.

Vermont attorney Andrew Delaney wrote a wonderful letter on behalf of a small website operator in response to a “take down” notice he received from a large New York law firm (with offices all over the world).  The New York firm was representing the American Bankers’ Association.  The ABA (by which I mean the “other” ABA, not “my” ABA – the American Bar Association) claimed it had a copyright on the “routing number” used  to identify banks within the Federal Reserve system.  But it’s just a number, you say.  Most people would.  But intellectual property rights are all the rage these days, so the big city firm with the well-heeled client (after all, they’re bankers) decided to intimidate the small website operator.

Attorney Delaney’s letter is fun to read and deserves a cheer from all of us who practice in small firms that from time to time come up against our colleagues from the City.  Find the letter here: http://pdfserver.amlaw.com/cc/delaneyletter.pdf

With appreciation to Corporate Counsel, an ALM Media Properties publication.

Stuart W. Cordell, partner

Debt Payments After A Loved One Passes

. . . What is a survivor’s responsibility?

It is happening more and more often.  An aging parent, or a spouse, has a balance due on their credit card when they die.  The next month, when the bill arrives, should the surviving spouse, or the children, pay it?

The short answer is “Maybe.”  Let me explain.  The probate estate of the deceased card holder is primarily responsible for the debt.  If there are assets in the probate estate (meaning, assets titled in the decedent’s name alone or payable to the estate), then those assets will be subject to the payment of legitimate debts of the decedent.  In that case, the creditor files a “claim” against the estate, and receives payment from the executor as part of the estate administration.

But what if there is no probate estate?  For example, if all the property is titled in joint and survivorship form with a spouse or children, or is payable to a designated beneficiary, such as a retirement plan, annuity or life insurance, there is no requirement to file with a probate court.  If there is no probate estate, then the creditor has no assets against which to make a claim.

We see this situation in many estates we administer.  When asked whether the survivors are responsible for the bill, I always respond with “Were you a co-signer or guarantor on the card?”  Often they don’t know.  If the answer is “No”, then I advise not to pay the bill.  If the answer is “I don’t remember”, then I advise not to pay the bill until we learn more.  In that situation, our procedure is to write to the company, notify them of the death (sending a photocopy of the death certificate), and ask for documentation of who signed the card agreement.  If the creditor can demonstrate that someone else is responsible for the bill, because he or she signed the application or guaranteed the account, then we’ll take steps to settle the debt.  But if there is no documentation, then we advise not to pay the bill.

We’ve also seen some new developments in this area.  For example, credit card companies and debt collectors have written off a lot of decedent’s accounts, and have become aware of the “no probate estate” arguments.  As a result, they are becoming more aggressive in trying to collect the balance due.  Instead of trying to file claims with probate courts, they are contacting survivors directly and trying to convince them to pay the bill.

The tactics the credit card companies are using are slick.  Improved technology makes it easier to find people.  Debt collectors are training their employees to act as if they care – teaching them to be a good listener, be empathetic, use anger-deflecting phrases and prey on the loyalty or morality of the survivor.   They offer their employees stress-relieving tools, such as yoga classes, game tables, free snacks, full scale lunches and even the occasional massage.  In the final analysis, it’s all about getting paid.

However, many people are unaware they have no legal obligation to pay a deceased relative’s debts.  Most debt collectors do not volunteer that information.  If asked the direct question – “Am I legally responsible for this?”, they should say no.  But you must ask the question first.

Another development is the predatory or bogus “debt collector” who is really just a scam artist.  They tend to call loved ones shortly after a death, even before the funeral (they check out death notices for names and addresses).  They refer to a “large debt” the decedent allegedly owed, request immediate payment, and threaten “further action.”  They don’t name a specific collection agency, and try to pressure the relative into divulging personal information over the phone.  It’s a con, and they strike because a family’s guard is down when they are grieving.

The same rules apply in this situation.  Know your rights.  If you weren’t a co-signer or guarantor on a debt, you have no obligation to pay it.  Collectors should deal with an attorney or the executor, not directly with the family.  Ask for detailed information from them, including a written demand letter that includes a copy of the document that created the “debt.”  If they persist, you can always contact an attorney or your state attorney general’s consumer hotline.