Mary Siceloff, Author at Weintraub Tobin

Webinar: The Employment Law Issues Trustees, Conservators, and other Fiduciaries Face

When: Apr 28, 2020
Where: Webinar

On Tuesday, April 28, Weintraub attorney Ryan E. Abernethy is presenting a webinar hosted by the California Lawyers Association.

Summary:
In fulfilling their fiduciary obligations, trustees, conservators, and other fiduciaries are often thrust into situations where they are required to act as an employer. From managing caretakers, issuing paychecks, and setting schedules to hiring and firing trust employees, this is perilous territory because California employers are saddled with a host of regulations they are expected to understand and follow precisely.

Date & Time:
Tuesday, April 28, 2020
12:00 PM – 1:00 PM PST

Location:
Webinar

Credits:
1 Participatory MCLE Credits
1 Legal Specializing in Estate Planning; Trust & Probate Law

Cost:
$55.00

Registration:
To register, please click here. Please note that if you don’t already have an account with CLA, you will need to create one before registering. To create an account with CLA please click here.

Postponing Elective Surgeries To Contain Covid-19 Spread And Conserve Resources Presents Challenges For Healthcare Providers

Published: April 24, 2020

by Jeanne L. Vance

The World Health Organization (WHO) declared the COVID-19 pandemic on March 11, 2020.[1] As a result, there are more patients in need of immediate and attentive care, and many practices now have to consider how to continue providing necessary services while containing the spread of COVID-19 with balancing current and future needs for clinician services, medical supplies and access to personal protective equipment (PPE). In response to this, the Centers for Disease Control and Prevention have recommended the postponement of non-essential adult elective surgeries and medical and surgical procedures to conserve resources,[2] and the Centers for Medicare & Medicaid Services (CMS) and the American College of Surgeons (ACS) have provided guidelines for same.[3] Factors to be considered include patient risk factors, availability of beds, the number of staff and PPE, as well as urgency of the procedure.[4]

Shall We Check His Text Messages? The Growing Trend of Creating Wills in the Digital Age

Published: April 23, 2020

by Carlena L. Tapella

Co-Authors: Thomas W. Shaver, Esq., John M. Andersen, Esq., and Agnieszka K. Adams

California Trusts and Estates Quarterly

This article was first published in Volume 26, Issue 1, 2020 of the California Trusts and Estates Quarterly, reprinted by permission.

In 2018, the Michigan Court of Appeals determined that an electronic note a decedent typed into his cell phone qualified as his last will and testament under Michigan law. The Tennessee Court of Appeals ruled that a will where the decedent affixed an electronic image of his signature in the presence of two witnesses and died approximately one week after the will was witnessed had been executed in conformity with the law. With the growing trend toward recognizing electronically prepared and signed documents in other areas of the law, California is poised to join several states that allow a testator to prepare a will in digital format. California Assemblymember Miguel Santiago (D – District 53) introduced Assembly Bill 1667 to amend Probate Code section 6113, and to add Chapter 2.5 to Part 1 of Division 6 of the Probate Code, to provide that a will created electronically is a valid last will of a decedent. This article discusses the current state of California law governing the execution of a will, proposed legislation as drafted and adopted by the Uniform Law Commission, the nuances of the legislation of other states that currently authorize electronic wills, and the experience and concerns of trusts and estates practitioners that should inform the recognition of electronic wills in California.

To read the full article please click here.

Webinar: Employment Issues Upon Re-Entry to the Workplace

When: Apr 30, 2020

The COVID-19 pandemic has changed the workplace landscape. While the anticipated re-opening of the economy is on the horizon, employers must be aware of a number of employment issues when employees begin to re-enter the workplace. This webinar addresses the most common questions employers are currently asking about what is and is not required, allowed, or recommended when bringing employees back to work. We will provide an overview of the following topics during this free webinar:

Conflicting Shelter Orders – Which one applies and which order do we follow to bring employees back to work?
What can an employer do if employees refuse to return to the worksite?
May a furloughed employee choose to stay on unemployment instead of returning to work?
Return-to-Work Social Distancing Policies and Protocols – Are they required or recommended?
What are the OSHA and CDC guidelines for maintaining workplace safety and reducing the spread of COVID-19?
What About Employee Privacy – Can an employer obtain medical information or screen employees before they enter the worksite?
What are the EEOC and DFEH guidelines regarding reasonable accommodations for employees who may be at risk if they return to the worksite?
Do OSHA reporting and workers’ compensation benefits apply if an employee contracts COVID-19 at work?
Are employees still eligible to take emergency paid sick leave or emergency FMLA leave under the FFCRA once the shelter orders are lifted?
What sick pay and statutory leave benefits are available to laid off employees who are rehired?
What policies should employers review and update based on the impact of COVID-19?

This webinar was presented live on April 30, 2020. You can view a recording of the webinar on our YouTube page. Please keep in mind that this is a fluid situation and information is constantly being updated. We recommend that you check with your professional advisors to make sure you have the most current information.

EEOC Updates its Guidance & FAQs Regarding COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

Published: April 22, 2020

by Lizbeth (Beth) V. West
The Labor & Employment Law Blog

The EEOC has updated its COVID-19 Guidance by adding a number of new FAQs to address issues related to the anticipated re-entry into the workplace. The new FAQs discuss things like: an employer’s right to screen employees before entering the workplace to avoid a “direct threat” to the health and safety of employees; documentation to support an employee’s request for an accommodation; and “undue hardship” considerations when denying an accommodation based on the impact of COVID-19 on the business. Below is a list of the new FAQs. The complete EEOC’s Guidance and FAQs can be found here.

D.5. During the pandemic, if an employee requests an accommodation for a medical condition either at home or in the workplace, may an employer still request information to determine if the condition is a disability? (4/17/20)

Yes, if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee has a “disability” as defined by the ADA (a physical or mental impairment that substantially limits a major life activity, or a history of a substantially limiting impairment).

4th UPDATE: DOL Again Updates Question & Answers Page for FFCRA

Published: April 20, 2020

by James Kachmar
The Labor & Employment Law Blog

We have previously written about the US Department of Labor issuing a Question & Answers webpage, and subsequently updated it, to address numerous issues arising out of the passage of the Families First Coronavirus Response Act (“FFCRA”). (Click here, here and here.) On April 6, 2020, the DOL again updated the “Questions and Answers” webpage, adding 9 new questions and answers (##80-88) that largely clarify prior guidance from the Department. Here is a summary of the issues addressed by the DOL’s fourth update to the Q&A page:

For Employers:

Clarifying the manner for calculating the number of hours of paid sick leave and expanded family and medical leave due an employee who works irregular hours. (##80-81)
Providing a detailed explanation as to how to compute an employee’s average rate of pay for purposes of FFCRA, including those employees on a fixed salary each workweek. (##82-83)
Allowing employers to use rounding when computing the number of hours of sick leave due provided that employers do so consistently among all employees and in accordance with typical time increments (i.e. if employer general uses quarter-hour increments, employer may use quarter-hour increments for purposes of rounding here). (#84).
Stating that an employer must only use one six-month period of time (calculated from when the employee first takes FFCRA leave) for determining the regular rate of pay rather than doing a six-month calculation each time an employee takes FFCRA leave if it is intermittent. (#85)
Explaining the interplay between paid sick leave under the FFCRA with employer-provided leave plans, specifically whether an employer can require an employee to take employer-provided leave before taking FFCRA leave. (#86)

For Employees:

Clarifies that a “shelter in place” or “stay home” order from a federal, state or local agencies qualifies as a quarantine or isolation order for purposes of FFCRA leave, provided the employer has work for the employee and the “shelter in place” or “stay home” order prevents the employee from performing the work, either in person or via telework. (#87)
Explains that an employee is entitled to the full amount of unpaid leave due to them under the FFCRA, instead of just the federal minimum wage of $7.25 per hour, if the Department is required to bring an enforcement action on their behalf against their employer for violating the FFCRA. (#88)

California employers should continue to monitor our blog for future updates concerning the FFCRA and other employment developments as a result of the COVID-19 pandemic. We also advise employers to seek legal advice to determine whether the FFCRA applies to their business, and if so, what steps to take to ensure compliance.

Burbank High School Jumps with Glee over Copyright Victory

Published: April 17, 2020

by James Kachmar
The IP Law Blog

Burbank High School runs a music program that reportedly provided the inspiration for the hit TV show, Glee. It is nationally known for the competitive show choirs its students participate in as part of the program. To defray the costs of fielding several choirs, a non-profit booster club was formed to help fundraise for the music education program. The booster club puts on a couple of annual fundraising shows, Burbank Blast and Pop, which include both the Burbank High School choirs as well as a number of other competitive choirs. The choirs’ music director serves as the liaison between the school’s choirs and the booster club.

The music director hired an arranger to create custom sheet music for two shows to be performed at the fundraisers: Rainmaker and 80’s Movie Montage. In creating these performances, the arranger used snippets from the following songs: Magic (originally performed by Olivia Newton John) and (I’ve Had the) Time of My Life (by Bill Medley and Jennifer Warnes) as well as Hotel California and Don’t Phunk with my Heart. After several performances, Tresona Multimedia, LLC, sued the music director, the booster club and parent-members of the booster club for copyright infringement. Tresona Multimedia alleged that it owned the copyrights to the above songs and that its copyright interests were infringed upon because no licenses were obtained to allow the use of the above songs in the performances.

Weintraub Attorney Jo Dale Carothers Named to San Diego Super Lawyers® 2020 List

Published: April 15, 2020

SAN DIEGO, CA (April 10, 2020) – Weintraub Tobin, a leading California full-service law firm, is pleased to announce that Jo Dale Carothers, Ph.D. is a 2020 San Diego Super Lawyers honoree.

Jo Dale Carothers is a shareholder and chair of the firm’s Intellectual Property Group. Her practice emphasizes intellectual property litigation, licensing, contract disputes, and issues related to proceeding before the United States Patent and Trademark Office (UPSPTO) in all fields. She has represented companies in litigation in numerous federal district courts and state courts across the country, the Federal Circuit Court of Appeals, and in Section 337 investigations in the United States international Trade Commission (ITC). Jo Dale is an in-demand speaker and panelist on IP topics and a frequent contributor to the Intellectual Property Law Blog.

Super Lawyers recognizes outstanding attorneys who have attained a high degree of peer recognition and professional achievement in more than 70 practice areas. Each year, no more than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.

Coronavirus-Related Tax Relief for the Real Estate and Agricultural Industries

Published: April 13, 2020

Through various mechanisms, the federal government has issued several forms of tax relief to real estate and agricultural businesses impacted by the current COVID-19 pandemic. The majority of the tax relief was included in the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). However, the Internal Revenue Service has also issued guidance providing additional relief. This discussion is intended to serve as a high-level summary for professionals in the real estate and agricultural industries seeking tax relief.

a. Net Operating Loss Carrybacks. When a taxpayer’s total deductions exceed its gross income for a given year, the taxpayer has a net operating loss (or NOL). Taxpayers who incurred NOLs in tax years 2018 and 2019 were not permitted to carryback those losses to generate a refund of taxes paid during previous tax years. Now, under the CARES Act, taxpayers will have a 5-year carryback of NOLs incurred in 2018, 2019 or 2020. Accordingly, if your business generated an NOL in 2018 or 2019 and had earned taxable income in prior years, you may be able to amend your tax returns and receive an immediate tax refund. Similarly, any 2020 NOL can be used to generate a refund of prior year taxes when tax returns are filed next year. Note that, by separate guidance, the IRS is permitting amended returns for certain partnerships which were previously precluded from filing amended returns.

b. Retail Glitch / Qualified Improvement Property Fix. “Qualified Improvement Property” is essentially any improvement made to an existing non-residential building. The 2017 Tax Cuts and Jobs Act (“TCJA”) inadvertently eliminated bonus depreciation for Qualified Improvement Property. To remedy this, the CARES Act includes a technical correction reinstating the bonus depreciation deduction for taxpayers effective as of tax year 2018. Taxpayers can immediately amend their 2018 and/or file 2019 tax returns and claim these additional deductions to produce a tax refund.

c. Modification of Limitation on Business Interest. Current tax law limits taxpayers’ net interest expense deduction to 30% of adjusted taxable income. “Electing real property trade or businesses” (“ERTBs”) are exempt from this 30% limitation. However, electing ERTB status decreases the amount of depreciation available to such business for income tax purposes.

The CARES Act modified the 30% limitation for tax years 2019 and 2020. For partnerships, the 30% limitation continues to apply for the 2019 tax year. However, partners of the partnership may deduct 50% of the 2019 disallowed excess business interest expense on their 2020 returns without regard to the applicable percentage limitations. Additionally, the partnership’s 2020 limitation is increased from 30% of adjusted taxable income to 50% of adjusted taxable income. For taxpayers other than partnerships, the 30% limitation is increased to 50% for tax years 2019 and 2020.

Additionally, the IRS has issued guidance allowing businesses to withdraw a previous election to be treated as a real property trade or business, thereby allowing the business to potentially optimize the amount of interest expense deductions and depreciation deductions.

d. Extensions of Time-Sensitive Actions (Section 1031 Exchanges and Qualified Opportunity Zones). As you may be aware, the deadline to file and pay 2019 federal income taxes has been extended to July 15, 2020. Additionally, in recent guidance, the IRS is permitting certain taxpayers engaged in active section 1031 exchanges to extend the 45-day identification period or the 180-day period to complete the exchange until July 15, 2020. If you are engaged in an exchange and either the 45-day period or the 180-day period falls between April 1 and July 14, 2020, the applicable period is automatically extended to July 15, 2020.

Similarly, the Qualified Opportunity Zone tax incentive program permits taxpayers to reinvest capital gains within 180 days of realizing such gains into a Qualified Opportunity Fund and thereby defer recognition of the realized gains. If your 180-day investment period falls between April 1, 2020 and July 14, 2020, you have until July 15, 2020, to invest any realized capital gains into a Qualified Opportunity Fund and realize the full benefits of the Qualified Opportunity Zone tax incentive program.

e. Losses incurred by Owners of Pass-through Entities. The TCJA imposed limits on the amount of business losses non-corporate taxpayers could use to offset non-business income for tax years starting in 2018. The CARES Act has withdrawn these limits, allowing owners of businesses conducted through pass-through entities generating large losses to offset unlimited amounts of personal non-business income through 2020. Taxpayers who incurred significant business losses in 2018 or 2019 which exceeded the permitted limits should file amended returns to claim refunds. This provision may be of particular importance to individuals with large real estate portfolios.

f. Employee Retention Tax Credits. Eligible employers will receive a refundable credit against payroll taxes. To be eligible, the employer must have (i) had its business operations fully or partially suspended by governmental order or (ii) suffered a 50% reduction in year-over-year gross receipts (comparing calendar quarters). The credit can be as much as $5,000 per employee. This credit cannot be used by certain SBA loan recipients.

g. Deferral of Employer’s Share of Payroll Taxes. Employers and self-employed individuals will be permitted to defer payment of the employer share of social security taxes for the remainder of the year. One-half of deferred payroll taxes must be paid by the end of 2021 and the remainder must be paid by the end of 2022. Recipients of loan forgiveness under the SBA Paycheck Protection Program will not be permitted to defer payment of payroll taxes.

Patent, Trademark, and Copyright Deadlines Extended Due to COVID-19

Published: April 10, 2020

by Audrey A. Millemann
The IP Law Blog

On March 31, 2020, the U.S. Patent and Trademark Office announced that, pursuant to the Coronavirus Aid, Relief, and Economic Security Act, certain deadlines for patent and trademark applications would be extended. The CARES Act authorizes the PTO to toll, waive, or modify any patent or trademark deadline in effect during the COVID-19 emergency. The announcements were made in written Notices of Waiver, one each for patents and trademarks, posted on the PTO’s website.

In order to exercise the power under the CARES Act, the PTO Director must determine that the COVID-19 pandemic materially affects the functioning of the PTO; prejudices the rights of patent applicants, trademark registrants, or patent/trademark owners; or prevents patent applicants, trademark registrants, or patent/trademark owners from making a filing or paying a fee in the PTO.

The President declared a national emergency on March 13, 2020. The PTO Director has determined that the emergency has prejudiced the rights of applicants, registrants, and owners, and has prevented applicants, registrants, and owners from making filings and paying fees in the PTO. The Director has found that “the spread of the virus has significantly disrupted the operations of numerous businesses, law firms, and inventors.” The Director specifically noted that small businesses and independent inventors are especially likely to face difficulties.

The Director has extended for 30 days certain patent deadlines that were due between March 27, 2020 and April 30, 2020. The deadlines include the due dates for replying to a PTO notice or office action; paying a patent issue fee or maintenance fee; filing a trademark statement of use or affidavit of use; filing a notice of opposition; and filing a notice of appeal, appeal brief, or reply brief.

In order to obtain an extension under these provisions, the applicant/registrant/owner must file a statement that the delay was due to the COVID-19 pandemic. The statement may properly be submitted if the applicant/registrant/owner, attorney, or other person associated with the filing was personally affected by the COVID-19 pandemic, such as because of office closure, inaccessibility of documents, cash flow problems, or illness.

Applicants/registrants/owners may also request that the PTO, PTAB, or TTAB grant extensions of other deadlines that are not covered in the Notices of Waiver.

At this time, the PTO’s offices are closed to the public, but are open for the filing of documents and payment of fees, and the examiners are continuing to work. Filings and fee payments maybe made as usual, by the PTO’s electronic filing system, U.S. mail, fax, or hand delivery. However, the Director has noted that these practices could change.

The U.S. Copyright Office has also similarly extended deadlines under the same authority.

It is possible that the PTO may further extend deadlines beyond May 30. Any further extensions are expected to be announced on the PTO website.