Friday, August 29, 2014

Transferring Real Estate To Your Children

Tune in this Saturday to hear Michele Conti discuss transferring real estate to your children. Michele will explain the Capital Gains Tax rules along with considerations when transferring other assets to your children The broadcast begins at 11:30 a.m. on 101.5 WORD-FM.

Thursday, August 28, 2014

Employing Foreign Workers: What US Companies and Counsel Need to Know

Joel Pfeffer will be presenting “Employing Foreign Workers: What US Companies and Counsel Need to Know” for members of the Association of Corporate Counsel. The webcast is scheduled for Thursday, September 11 at 3:00 pm. More info below:

While Congress continues to debate immigration reform, there are three key issues that US companies employing foreign nationals need to know about and recommendations on how to address them.

  • The H-1b Visa: This highly sought after visa is critical to US companies employing foreign professionals, such as engineers, business managers and analysts, or software professionals.  Employers need to work with counsel to develop generously detailed explanations about why the employee qualifies for this visa.
  • The L-1b Program: This program permits multi-national companies to transfer executives, managers or certain employees with specialized knowledge of the company's operations to the US.  The Department of Homeland Security carefully examines every petition in this visa category and employers must be aware of the issues that are important to DHS immigration officers.
  • Green Card Quotas: Companies employing foreign nationals need to understand the interplay between green card availability and employee retention. Learn how to  work with outside counsel to best complete the applications, understand the pros and of each, and steps to take when applications are challenged to ensure business runs smoothly.

Use this link to RSVP.

Wednesday, August 27, 2014

Tuesday, August 26, 2014

Non-Compete Agreements: When Can They Be Enforced Against Advisors?

Brian J. Sommer
Although departing financial advisors who comply with the Protocol for Broker Recruiting (the "Protocol") are, generally speaking, free to solicit customers that they serviced at their former firms after they join their new firms regardless of any non-compete agreement they may have signed with their former employer, rightly or wrongly they may nevertheless find themselves having to defend a lawsuit alleging that they have breached any such agreement if there is any question regarding the departing advisor soliciting customers to move their accounts before he or she has left their former firm.

Under such circumstances, the departing advisor is left with no real option but to defend the claim because the alternative, whether by choice or by court order, will require the advisor to not contact or service their clients. Fortunately, and aside from any factual arguments over whether or not there is a breach of the Protocol, there are circumstances under which a non-compete can be determined to be unenforceable.

First, a non-compete is unenforceable if it lacks adequate consideration. Consideration is something of value given by both parties to a contract that induces them to enter into the agreement to exchange mutual performances. While generally speaking courts do not examine the adequacy of the consideration when determining the validity of a contract, non-competes are the exceptions to that rule. If the consideration is not adequate then the non-compete will not be enforced. Examples of adequate consideration include a new job, additional benefits, a bonus, a raise, and/or a promotion. Recently, the Pennsylvania Superior Court affirmed this rule and further held a mere recital in a non-compete agreement that the parties intend to be legally bound to the terms is insufficient consideration. Consequently, any non-compete agreement containing such language and nothing more is unenforceable. See Socko v. Mid-Atlantic Systems, 2014 Pa. Super. LEXIS 702 (Pa. Super. 2014). Interestingly, Socko refutes a decision by a Pennsylvania federal court that held the opposite in a case involving a financial advisor and a non-compete with their former employer. See Latuszewski v. Valic Financial Advisors, 2007 WL 4462739 (W.D. Pa. 2007).

Second, and even if the court finds there is adequate consideration, it may nevertheless decline to enforce the non-compete if it finds the burdens placed upon the departing advisor are too great and burdensome. For example, courts have more recently begun to consider the employee's specific circumstances and in particular the negative impact enforcing the non-compete will have on them. Thus, courts may be less inclined to enforce a non-compete on a highly specialized 60 year-old who is unlikely to start anew in another industry, or on employees who are the sole means of income for their family. See Shepherd v. Pittsburgh Glass Works, LLC, 25 A.3d 1233 (Pa. Super. 2011).

While Socko and Shepherd are the law of Pennsylvania, many non-compete agreements have clauses requiring interpretation and enforcement pursuant to another state's laws. While parties are free to choose what law is to be applied, there is nevertheless a question as to whether or not an agreement otherwise unenforceable under Pennsylvania law will still be enforced due to the governing law of the chosen state. Under such circumstances, Pennsylvania courts will enforce a choice of law provision unless (a) the chosen state has no substantial relationship to the parties or transactions and there is no reasonable basis for the parties' choice, or (b) application of the law of the chosen state would be contrary to a fundamental policy of Pennsylvania which has a materially greater interest than the chosen state in the determination of the particular issue and which would be the state of the applicable law in the absence of an effective choice of law by the parties. See Miller v. Allstate Ins., 763 A.2d 401, 403 (Pa. Super. 2000).

Prior to Socko, Pennsylvania courts enforced non-compete agreements that under Pennsylvania law lacked adequate consideration, but did not under the governing law of the chosen state, reasoning that the existence of consideration did not result in an application contrary to a fundamental Pennsylvania policy. cfn. Perma-Liner v. US Sewer & Drain, 630 F.Supp.2d 516, 522-523 (E.D. Pa. 2008). However, Socko's emphasis that, unlike other contracts, the adequacy of consideration is critically important to enforcing a non-compete agreement suggests that adequate consideration for non-compete agreements is indeed a fundamental Pennsylvania policy. Consequently, pre-Socko decisions enforcing non-compete agreements that lacked consideration merely on the basis of another's states laws as chosen by the parties may no longer be good law. Similarly, Shepherd's holding may also rise to the level of fundamental policy thereby requiring the application of Pennsylvania law notwithstanding a choice of law clause involving the application of another state's laws.

For all these reasons it is important for advisors to consult with counsel before changing firms in order to, among other things, prepare for any lawsuit over existing non-compete agreements.

This material is for informational purposes only.  It is not and should not be solely relied on as legal advice in dealing with any specific situation.

Thursday, August 21, 2014

Tuesday, August 19, 2014

The Ins and Outs of Green Leasing

The GBA and the Pittsburgh 2030 District Partners is hosting “The Ins and Outs of Green Leasing” tomorrow. Kevin McKeegan is participating in a panel discussion on what a green lease is, how to incorporate it, and what approaches you need to consider. Use this link for more event information.

Friday, August 15, 2014

Radio Show - Gifting and Tax Implications

Tune in this Saturday at 11:30 a.m. to 101.5 WORD-FM. Michele Conti will discuss the pros and cons of gifting and how gifts may be subject to potential tax implications with regard to PA Inheritance Tax, Federal Estate Tax and applying for Medical Assistance.

Thursday, August 14, 2014

Wednesday, August 13, 2014

EEOC Issues New Pregnancy-Related Protections

Beth A. Slagle
In response to the steadily rising rate of pregnancy-related claims of workplace discrimination, the Equal Employment Opportunity Commission (EEOC) has issued new guidance that gives more protection to employees who are pregnant, have recently had children or want to take leave to care for a new child.

The first part of the EEOC's guidance addresses the Pregnancy Discrimination Act (PDA) in the first update since it was enacted in 1978. The PDA is an amendment to Title VII of the Civil Rights Act of 1964, which prohibits employers with 15 or more employees from discriminating against employees on the bases of race, color, religion, sex or national origin. The PDA clarifies that prohibited discrimination based on sex extends to matters related to pregnancy, childbirth or related medical conditions. Thus, employers may not fire, refuse to hire, reduce pay, demote or otherwise negatively affect the working conditions of an employee because of matters related to pregnancy or childbirth.

The EEOC's new guidelines use a variety of scenarios and examples to illustrate employers' actions that it considers discriminatory in relation to current, past or possible future pregnancies. Examples include:

  • A janitor tells her boss that she is pregnant. Despite her assertions that she can still perform her job, her boss is concerned that the physical demands of the job are bad for the baby and forces the worker to take leave right away. By the time the employee gives birth, she has exhausted her leave and is fired.
  • A nurse is fired shortly after returning from maternity leave, even though her supervisor assured her that her job would be safe. Although her employer claims that it had to eliminate her position because of over-staffing, it did not dismiss any other workers, nor is there evidence that there is not enough work to do.
  • An executive tells her supervisor that she is thinking about having a second child. Her manager has a negative reaction, and voices concerns that she won't be able to handle her job responsibilities. Two weeks later, the woman is demoted to a lower-paid position with less demanding job duties.

The EEOC requires employers to offer the same protections to men as women when requesting leave to care for a child. For example, if an employer offers new mothers six months of paid leave to bond with their new babies, they must offer the same benefit to new fathers.

The second part of the EEOC's guidance addresses for the first time how impairments related to pregnancy and childbirth may be covered by the Americans with Disabilities Act (ADA) in certain situations. While pregnancy itself is not a disability under the ADA, medical conditions related to pregnancy may qualify as a protected disability.

The ADA requires employers to provide reasonable accommodations to employees with disabilities. For pregnant employees, the most commonly requested accommodation is a light duty, which may mean that the employee does not have to lift heavy objects or perform certain physically-taxing tasks. The EEOC does not require employers to accommodate pregnant workers' requests for light duty. If the employer provides light duty jobs to employees in other circumstances, however, such as those with an injury or recovering from surgery, it must also provide light duty options to pregnant women.

In most cases, the most important aspect of a light duty request is whether it affects the primary function of the job. For example, a pregnant woman who works in a warehouse may not be able to perform primary job functions if she cannot lift more than 20 pounds. Unless the employer accommodates other warehouse workers who cannot lift heavy weights, such as a worker with a broken arm, the employer may have the right to dismiss the pregnant employee. A contrary example may be an administrative assistant who lifts heavy boxes only when the office receives its paper supply every other month. Because heavy lifting is a very small part of her job, it would be little hardship to the company to work around her restriction.

The key theme in the EEOC's new guidance is that employers must treat employees who are pregnant, have recently had a child or may have children in the future equally with workers in comparable scenarios. Employers must make decisions based solely on employees' ability to perform the functions of their job, and not apply any stereotypes about the expectations about what an employee may or may not be able to do.

For more information about non-compete agreements and other matters related to employment law, contact Beth Slagle at or 412-456-2890.

Beth Slagle has practiced law for more than 20 years and focuses her practice on business disputes and employment law. Beth's work has earned her a spot in Best Lawyers in America since 2010, and she is the chair of the firm's Insurance Coverage Litigation Group. She can be reached at or 412.456.2890. 
This material is for informational purposes only.  It is not and should not be solely relied on as legal advice in dealing with any specific situation.

Tuesday, August 5, 2014

Seven Attorneys Name Rising Stars 2014

Meyer, Unkovic & Scott recently had seven attorneys as "Rising Stars 2014” by Super Lawyers. Congratulations to Frank Kosir, Jr., Joshua Lorenz, Chad Michaelson, Antoinette Oliver, Brian Sommer, Tony Thompson and Jason Yarbrough!

You can see the full release here, "7 Attorneys Named Rising Stars 2014".

*About Rising Stars
Super Lawyers®, a Thompson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.  The annual selections are made using a patented multiphase process that includes a statewide survey of lawmakers, an independent research evaluation of candidates and peer reviews by practice area.  The result is a credible, comprehensive and diverse listing of exceptional attorneys.

Lawyers are asked to nominate the best attorneys who are 40 or under, or who have been practicing for 10 years or less.  They are instructed to nominate lawyers they have personally observed in action - whether as opposing counsel or co-counsel, or through other firsthand courtroom observation.

Please click here to learn more about Rising Stars.

Friday, August 1, 2014

Radio Show - Wills & Trusts

Tune in tomorrow at 11:30 a.m. to 101.5 WORD-FM.  Michele Conti will discuss the difference between a will and a trust along with how each can assist with your estate planning needs. She will also review the importance of naming a guardian as well as how and why to contest a will.