Delay in Affordable Care Act Health Coverage Reporting Requirements Announced

On Monday, December 28, 2015, the IRS issued Notice 2016-4. The Notice announced that the IRS extended the due dates for reporting the information required under Sections 6055 and 6056 of the Internal Revenue Code for the 2015 tax year as follows:

• the due date for furnishing to individuals the 2015 Form 1095-B and the 2015 Form 1095-C is extended from February 1, 2016 to March 31, 2016; and
• the due date for filing with the IRS the 2015 Form 1094-B, the 2015 Form 1095-B, the 2015 Form 1094-C, and the 2015 Form 1095-C is extended from February 29, 2016 to May 31, 2016 (the electronic filing deadline is also extended from March 31, 2016 to June 30, 2016).

The IRS indicated that it is prepared to accept the filing of these information returns, but decided to extend the deadlines for 2015 only following consultation with stakeholders that caused the Service to conclude that employers and other coverage providers needed additional time to take the necessary actions to report this information. The IRS explicitly encouraged employers and other coverage providers to furnish the statements and file the information returns as soon as they are ready.

The IRS further indicated that, for 2015, it was suspending the provisions regarding automatic and permissive extensions of time for furnishing these forms to individuals and filing them with the Service. In other words, the extended deadlines for 2015 cannot be further extended. The IRS encourages employers and other coverage providers not meeting the extended deadlines to nevertheless furnish and file the forms, and indicated that the Service would take such actions into consideration when determining whether to abate penalties for reasonable cause.

The Notice also provided limited transition relief to individual taxpayers that file their 2015 tax returns before receiving either their 2015 Form 1095-B or 2015 Form 1095-C and whose eligibility for a premium tax credit was affected as a result of the extension.

Please contact us if you have any questions or concerns.

For more information about this announcement and other employee benefi ts law matters, contact Jason Mettley, Richard Kennedy, Levi Logan, or any other Meyer, Unkovic & Scott attorney with whom you have worked.

Judge Rules City of Pittsburgh Did Not Have Authority to Enact Paid Sick Leave Ordinance

Elaina Smiley
412.456.2821
es@muslaw.com

On August 3, 2015 the Pittsburgh City Council passed the Paid Sick Leave Ordinance, which was signed into law by Mayor Peduto on August 13, 2015. The ordinance required employers to provide paid sick leave to most employees working within the geographical boundaries of the City of Pittsburgh.  Under the ordinance, employees would accrue one hour of paid sick time for every 35 hours worked for up to 40 hours of paid sick time for employers with fifteen or more employees, and 24 hours of paid sick time for employers with fewer than fifteen employees. The ordinance was initially scheduled to be effective on January 11, 2016.

The ordinance was challenged by the Pennsylvania Restaurant & Lodging Association and various other businesses operating in the City.  They argued that the City of Pittsburgh is a home rule charter municipality governed by state law which places limitations on the City's authority to enact any ordinance determining any duty, responsibility, or requirement of a business or private employer.  The Judge disagreed with the City's argument that it was empowered to adopt the ordinance by the Disease Prevention and Control Law.

The court agreed with the Pennsylvania Restaurant & Lodging Association and found that the City of Pittsburgh did not have the statutory authority to enact the Ordinance.  By Order dated December 21, 2015, the Judge ruled that the Paid Sick Leave Ordinance is invalid and unenforceable.  Therefore, employers have no legal obligation to provide any paid sick time for employees working in the City of Pittsburgh.

For more information about this decision and other employment law matters, contact Elaina Smiley, or any other Meyer, Unkovic & Scott attorney with whom you have worked.

Good Faith Not Enough On Patent Infringement

David Oberdick’s article, “Good faith not enough on patent infringement, Supreme Court says” recently appeared in the Pittsburgh Post-Gazette. You can access the online version here.

Proposed Rule for F-1 Nonimmigrant Students with STEM Degrees

On October 19, 2015, the U.S. Department of Homeland Security ("DHS") published a proposed rule to amend its F-1 nonimmigrant student visa regulations with respect to students in Science, Technology, Engineering or Math ("STEM").

F-1 students may apply for Optional Practical Training ("OPT") that permits the student to remain after graduation to work with an American business for 12 months. In 2008, rules were promulgated that allowed STEM students to pursue an additional 17 month OPT extension to work for an employer that uses E-verify. These 2008 rules were recently invalidated on procedural grounds. However, the Court gave the DHS until February 12, 2016 to promulgate a new rule. In response to the Court order, DHS has promulgated new proposed rules on OPT STEM extensions, including the following noteworthy changes:

(1) students who would have previously been eligible for participation in the 17-month OPT STEM extension would be eligible for a 24-month extension;

(2) the proposal addresses which fields of study may serve as a basis for OPT STEM extensions based on the U.S. Department of Education's published definitions;

(3) employers would be required to implement formal programs to mentor and train students in their selected STEM study;

(4) an F-1 student participating in OPT in a field that is not STEM based, but holding a previously obtained STEM degree, may still seek an OPT STEM extension utilizing their prior degree in STEM;

(5) the employer will have to attest that it will not terminate U.S. workers as a result of offering OPT to students;

(6) STEM eligibility will be limited to students with degrees from accredited schools and DHS will have discretion to conduct on-site visits to verify whether employers are meeting program requirements; and

(7) DHS would temporarily extend an F-1 student's duration of status and employment authorization if the student is a beneficiary of a timely filed H-1B petition (the so call "Cap-Gap Extension").

If the Final Rule does not take effect prior to February 13, 2016, there will be uncertainty for those currently on their OPT STEM extension or those applying for extensions. DHS noted that if the Rule is not finalized in time, it will lack authority to approve applications, and is evaluating options to address pending applications such as returning them and requiring re-filing upon completion of a final rule.

For more information about F-1 Student Visas and other immigration matters, please contact Joel Pfeffer, Elaina Smiley, or Gary M. Sanderson.

High Court Gives Relief on Insurance Loophole

Andrew Noble’s article, “High court gives relief on insurance loophole” recently appeared in the Pittsburgh Post-Gazette. You can access the online version here.

Export Basics Seminar

Josh Lorenz will be presenting at the Export Basics seminar tomorrow at Duquesne University. The 4-hour course, sponsored by the U.S. Commercial Service - Pittsburgh Office, will provide attendees with a basic understanding to exporting in the U.S.

Topics include:

• Recognizing and Identifying Export Opportunities
• Shipping and Payment
• Legal and Regulatory Aspects of Exporting
• Sources of Information and Assistance
• Cultural Issues

Use this link for more information.

The Small Business Regulatory Compliance Workshop

Elaina Smiley, Jason Mettley and Tony Thompson of Meyer, Unkovic & Scott LLP will be speaking at SMC’s seminar entitled, The Small Business Regulatory Compliance Workshop, on December 3 at the Rivers Club. Topics covered will include: City of Pittsburgh Paid Sick Days Act, Affordable Care Act Requirements, 401k Plans, FLSA (Exempt vs. Non-Exempt), Protection Based on Sexual Orientation, Pregnancy Accommodations, and Dress & Appearance Policies.

Visit their Agenda Page for more information or the Registration Page to RSVP.

After Lexmark – Is International Patent Exhaustion on the Horizon?

Please join us for the next ABA Intellectual Property Roundtable scheduled for Thursday, December 3rd from 12:00 – 1:00 p.m.  The program will be held in the offices of Meyer, Unkovic & Scott LLP and lunch is provided.  The topic is After Lexmark – Is International Patent Exhaustion on the Horizon?

Feel free to share this invitation with others in your organization who may have an interest in this topic.  

Please RSVP to:  rsvp@muslaw.com.

Tools to Run Your Business From Anywhere

A couple of helpful tools for running your business can be found in this article, "Use These 24 Tools to Run Your Business From Anywhere in the World".

Meyer, Unkovic & Scott Participates in Jeans for Justice

Meyer, Unkovic & Scott is participating in Allegheny County Bar Foundation’s Jeans for Justice today! The funds raised will benefit the Bar Foundation’s Pro Bono Center and its programs, which match volunteer attorneys with low-income individuals in desperate need of legal help.

Subsurface Oil and Gas Rights: Oral Argument to PA Supreme Court

Ronald Hicks, Jr., recently presented an oral argument to the Pennsylvania Supreme Court in the case of Herder Spring Hunting Club v. Keller. This case discusses the question of whether recorded subsurface oil and gas rights can be divested through subsequent tax sales in the name of the unimproved surface estate owner. You can use this link to view his argument beginning at 1:53 on the PCNTV recording.

Tips for Creating a "Friendly" Workplace

Here is an article offering a few suggestions for avoiding workplace discrimination and harassment, "Tips for Creating a "Friendly" Workplace".

Women in Business: October 2015

Congratulations to Karla Villatoro de Friedman who is featured in Pittsburgh Magazine’s “Women in Business: October 2015”. Use this link to read the full article.

Practical Tips: How to Comply with Recent Changes to Employment and Immigration Policies

Hosted by:  

MUS's Employment Law and 

Employee Benefits Group

Date - Thursday, October 15
Time - 8:30 - 10:30 am
Location - The Rivers Club

This seminar will discuss the following topics in employment and immigration laws, and what you and your company need to do to ensure you are in compliance:

• Affordable Care Act Reporting Requirements 
• New Standards for Fiduciaries of 401(k) Plans 
• FLSA Proposed Amendments 
• Expanded Protections Based on Sexual Orientation
• Handling Transgender Issues 
• Pregnancy Accommodations 
• Dress and Appearance Policies 
• City of Pittsburgh Paid Sick Leave Ordinance 
• Practical Tips for Employing Foreign Nationals

Please join us to learn tips necessary for your company to keep up with the most recent changes to employment and immigration laws.

RSVP by October 8

Please register early, as space is limited to 50 attendees

To register, email us at:

rsvp@muslaw.com

Presenting Attorneys

Elaina Smiley 

es@muslaw.com

Jason Mettley

jm@muslaw.com

Joel Pfeffer

jp@muslaw.com

Kathryn M. Kenyon

kmk@muslaw.com

Tony J. Thompson

tjt@muslaw.com

Antoinette C. Oliver

aco@muslaw.com

Lance A. Woods

law@muslaw.com

Take Advantage of ‘E’ Investor Visas

Gary Sanderson’s article, “Take advantage of ‘E’ investor visas” recently appeared in the Pittsburgh Post-Gazette. You can access the online version using this link.

ABA Intellectual Property Roundtable

Please join us for the next ABA Intellectual Property Roundtable scheduled for Thursday, October 1 from 12:00 – 1:00 p.m. The program will be held in the offices of Meyer, Unkovic & Scott LLP and lunch is provided. The topic is Home Legend, LLC v. Mannington Mills, Inc. – An Analysis of Copyright Separability by the Eleventh Circuit.

Please feel free to share this invite with others in your organization who may have an interest in this topic. RSVP to:  rsvp@muslaw.com.

Local, State and Federal Taxes Affecting Real Estate Transactions

Frank Kosir, Jr. will be speaking at The Pennsylvania Bar Institute’s (PBI) upcoming continuing education program entitled, “Local, State and Federal Taxes Affecting Real Estate Transactions” in Pittsburgh on Friday, September 25, 2015 from 8:30 am - 12:45 pm.  For additional information, please visit the PBI website.

Boards and Officers Need Cybersecurity Insurance

Andrew Noble’s article, “Boards and Officers Need Cybersecurity Insurance” recently appeared in The Legal Intelligencer. You can use this link to read it.

Non-Traditional & Same-Sex Estate Planning

Estate planning can be complicated for anyone, let alone if you are in a non-traditional or same-sex relationship. It is so important to take the steps to ensure your loved ones will be protected when you're no longer here.

Michele Conti, Estate Planning attorney with Meyer, Unkovic & Scott, will lead this workshop, sponsored by The Musuneggi Financial Group, and help non-traditional couples and families make sense of their estate planning. Michele will discuss estate planning challenges often faced by people in non-traditional or same-sex relationships, and she will share proactive strategies for protecting yourself, your partner or spouse, your family, and your estate.

Date: Wednesday, September 9
Time: 6:00 p.m.
Location: 1910 Cochran Road, Manor Oak Two, Suite 520
RSVP: By September 4 to Chrissy Gipko at ChrissyG@MFGPlanners.com

No Discrimination Based on Sexual Orientation

Elaina Smiley’s article, “No Discrimination Based on Sexual Orientation” recently appeared in the Pittsburgh Post-Gazette. You can access the online version using this link.

Radio Show

Tune in tomorrow at 11:30 a.m. to 101.5 WORD-FM as Michele Conti continues her discussion from last week with Wendy Long, Senior Care Advisor with Solutions for Independence. They will review why it is so important for families with elderly loved one to stay focused, work together, and seek guidance when making decisions for a loved one. Michele and Wendy will discuss why navigating the state benefits system can be confusing and overwhelming to family members and suggest the family working as a team when dealing with long-term placement for a loved one.

2015 Lawyers on the Fast Track

Congratulations to Antoinette Oliver on being selected by The Legal Intelligencer as one of the "2015 Lawyers on the Fast Track".

Transferring L-1B Workers Easier with New Guidance

Joel Pfeffer’s article, “Transferring L-1B Workers Easier with New Guidance” recently appeared in the Pittsburgh Post-Gazette. You can access the online version here.

Third Party Acting As Fiduciary

Tune in tomorrow at 11:30 a.m. to 101.5 WORD-FM to hear Michele Conti talk with Wendy Long, a Senior Care Advisor with Solutions for Independence, about the importance of an unbiased third-party acting as a fiduciary. This is very important in situations when an individual does not have a spouse, children, or the closest loved ones lives out of town. They will focus on how preplanning in this type of situation is so important.

Bruno Brings Broad Changes to Construction Law

Jason Yarbrough’s article “Bruno Brings Broad Changes to Construction Law” recently appeared in the Legal Intelligencer. You can access the online version using this link.

Next Radio Show

Tune in Saturday at 11:30 a.m. to 101.5 WORD-FM to hear Michele Conti continue her discussion from last week about gift tax rules with a focus on personal gifts such as gifts for newlyweds, college tuition, medical bills and how each are taxed.

Landlords Not Entitled to Municipal Lien Notice

Frank Kosir’s article “Landlords Not Entitled to Municipal Lien Notice” recently appeared in the Legal Intelligencer. You can access the online version here.

Radio Show - Gift Tax Rules

Tune in Saturday at 11:30 a.m. to 101.5 WORD-FM to hear Michele Conti discuss 2015 gift tax rules and how the annual exclusion and unified credit effect one’s estate planning strategies.

Vacant or Occupied?

Frank Kosir’s article, “Vacant or Occupied?” recently appeared in the Pittsburgh Post-Gazette. You can access the online version by clicking this link.

"E" Category Trader or Investor Visas

By: Elaina Smiley, Joel Pfeffer, Gary M. Sanderson

Foreign nationals seeking to sell products in the U.S. market or investing in a U.S. business need to consider whether they qualify for the “E” visa category. E visas are available to nationals of one of 82 countries that have treaties with the U.S. for either trading or investing.

The trading visa is available to companies owned by a national of a treaty country and planning to sell goods and/or services in the U.S. An investor visa is available to nationals of a treaty country who invest in a U.S. enterprise or who manage a U.S. enterprise for an investor of the same nationality. The investment must be significant with a potential for a return on the investment that goes beyond the investor’s salary for working the investment.

In the case of a company selling its products to the U.S. market, the application will require a business plan that outlines the company’s history, product, sales force and how it will develop trade to the U.S. It is often helpful to supply letters or purchase orders from U.S. customers.

In order to apply for an E investor visa, the applicant must be in the process of investing in or establishing a U.S. business or office. A detailed business plan is critical to the process. The business plan will show how the business will make money; how the foreign national applicant is qualified to manage the business; and how the investment will generate more income than the applicant needs to make a living through growth in value or employment of U.S. workers. The business plan must include financial projections for at least three years. The process also requires a showing that funds have been transferred to the U.S. If an existing business is being purchased the funds may be deposited to an escrow account with the condition that it will be returned if the visa is not issued. One question that needs to be considered is how much money must be invested. There is no single answer. The required amount is what is normal for the type of business that is being started or purchased. If it is a manufacturing business it will require a greater investment than a service or retail business. An expert opinion may be necessary.

For most countries, the E visa can be approved for up to five years. Often the consulate will approve a start-up business for less time and the applicant will need to apply again for another visa after a few years. At that time the consulate will want to see U.S. tax returns as evidence of the profit and health of the business. The visa can continue to be renewed as long as the applicant is managing the business and the business is profitable. This visa does not lead to a green card or permanent status in the U.S. Other types of investment visas are available for permanent (green card) status for investments of $500,000 or $1,000,000. E visas can be obtained for smaller investments.

Proposed Amendments to FLSA Overtime Exemptions

Elaina Smiley
es@muslaw.com
412.456.2821

On June 30, the Department of Labor (DOL) issued proposed amendments to the Fair Labor Standards Act (FLSA) overtime exemption tests that will make more employees eligible for overtime pay.

Under the FLSA, employers must pay workers time-and-a-half wages for time worked in excess of 40 hours in a work week. Currently, workers are exempt from the overtime pay requirement if their job duties fit the FLSA’s definitions of executive, administrative, and professional categories, and the employer pays a minimum salary of $455 per week or $23,660 per year. The DOL amendments propose to change the salary requirement to $921 per week, but the DOL footnotes that by the time of publication of the final rule the salary requirements will likely be $970 per week or $50,440 annually.

The FLSA also exempts “highly compensated employees” from overtime pay. To qualify as a “highly compensated employee,” employees perform non-manual duties of an executive, administrative or professional worker and are paid at least $100,000 annually. The DOL’s proposed amendments would increase the total annual compensation requirement to $122,148 per year.

The DOL also proposes to establish a method for automatically updating the salary levels on an annual basis based on economic considerations.

The DOL did not make any specific proposals to modify the standard duties tests for the exemption categories, but is seeking comments on whether the tests are working as intended and whether the tests should be modified. Specifically, the DOL requests comments on whether it should adopt a test similar to California’s which requires 50% of an exempt employee’s time to be spent performing exempt duties. The DOL expressed concern that the current test may allow employers to classify certain employees as exempt even though they spend a significant amount of their time performing nonexempt tasks. In particular, the DOL is concerned about lower level managers in the retail and restaurant industries who are currently exempt from overtime pay requirements because they supervise two or more full time employees. Despite their supervisory responsibilities, these managers perform a substantial amount of non-exempt work such as running cash resisters, stocking shelves, cleaning and filling in for non-exempt workers.

There is a 60-day comment period for the proposed regulations. The DOL has not said when it will issue the final rule, but it will most likely not take effect until mid-2016. Employers should start reviewing their employee classifications now to determine whether they will need to reclassify employees or increase salary levels.

For more information contact Elaina Smiley.

Employers Must File Amended Petition Every Time H-1B Worker Moves

Joel Pfeffer’s article "Employers Must File Amended Petition Every Time H-1B Worker Moves" recently appeared in the Pittsburgh Post-Gazette.

Top Court Gives Firms New Class-Action Shield

"Top Court Gives Firms New Class-Action Shield" by Ronald Hicks recently appeared in the Pittsburgh Post-Gazette.

Minimum Wage Coverage

Stephen Chesney’s article “Minimum Wage May Cover More Ground Than Thought” recently appeared in the Pittsburgh Post-Gazette. You can access the online version here.

Radio Show Tomorrow

Tune in tomorrow at 11:30 a.m. to 101.5 WORD-FM to hear Michele Conti discuss strategies to avoid the net investment income tax for high net worth individuals, estates and trusts.

Net Investment Income Tax

Tune in tomorrow at 11:30 a.m. to 101.5 WORD-FM to hear Michele Conti discuss the basics of understanding the 3.8% net investment income tax on individuals, estates and trusts.

Venture Capital Pitch Tips

This article provides a few helpful tips if you’re a startup getting ready for your next VC pitch, "5 Ways to Improve Your Venture Capital Pitch".

Federal Fiduciary Income Tax Workshop

Michele Conti will be speaking on “Applying the New Medicare Surtax to Trusts and Estates” at the Foxmoor Continuing Education program, Federal Fiduciary Income Tax Workshop. The seminar takes place on June 25 at the Double Tree Hotel in Greentree.

Michele's presentation will cover the Medicare surtax on net investment income, Active vs. passive activities, and planning considerations and strategies. Use this link for more information.

Animal Rescue League Shelter & Wildlife Center

Congratulations to Joseph Vater on his recent election as president of the Animal Rescue League Shelter & Wildlife Center.

Who Needs An Estate Plan

Michele Conti’s article “Who Needs An Estate Plan” recently appeared in Biz570 by the Northeast Pennsylvania Business Journal. You can access the online version using this link.

Plans for Meritas

Dennis Unkovic was recently named chairman of the nonprofit attorney network Meritas. This Post-Gazette article looks at his plans for the network, “Dennis Unkovic, chairman of Meritas, has big plans for the 7,000 attorney network”.

2015 Lifetime Achievement Awards

Congratulations to Managing Partner, Patricia Dodge, who was recently selected by the Legal Intelligencer for the 2015 Lifetime Achievement Awards. Use this link to read the full article.

Thinking Outside the Voluntary Benefits Box

This article by the Society for Human Resource Management (SHRM) looks at why customized voluntary benefits programs don't have to overwhelm employees with choices, "Thinking Outside the Voluntary Benefits Box".

Accommodating Pregnant Employees

Elaina Smiley’s article “Accommodating Pregnant Employees” recently appeared in the Pittsburgh Post-Gazette. You can access the online version using this link.

Immigration Law Update

On April 9, 2015, the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS) issued a decision in the Matter of Simeio Solutions, LLC, overruling prior USCIS practice permitting employers to file a new Labor Condition Application (LCA) when an employee changed work locations. An LCA, certifying the prevailing wage for each work location, must be filed with all H-1b petitions.

The AAO ruled that it is no longer acceptable to file an LCA containing the new work location that is not covered in the original H-1b petition. The employer must file an amended H-1b petition and pay the filing fees, when the employee's place of employment changes to an area that was not covered by the original petition and LCA.

In this case, which involved a company providing information technology services, the employer represented that the job was an "in-house project" at the employer's facilities in Long Beach, California, and submitted an LCA for the Long Beach area. Two months after the start date of the employee's H-1b employment, the employer left the Long Beach facility and the USCIS showed up for a site visit and found that no company existed at the address indicated on the H-1b petition. The employer filed a new LCA indicating that the employee was working out of his home address, in a different area of California, and a client address in New Jersey. Both of these new work locations had a wage of over $9,000 more than the wage indicated on the H-1b petition and certified in the original LCA. The AAO footnotes that the new LCA "had to be submitted to the USCIS as part of an amended or new petition before the beneficiary would be permitted to begin working in those places of employment."

The AAO ruled that the change in the employee's places of employment constituted a material change to the terms and conditions of employment as specified in the original H-1b petition. Because the employer failed to file an amended petition with a corresponding LCA, the H-1b petition was revoked.

This decision could have significant impact on companies that move employees to various projects, with new work locations, and previously relied upon the filing of a new LCA to cover these work-sites. Under this AAO ruling, this practice is no longer sufficient and an employer should file an amended H-1b petition for the new work sites.

For more information about H-1b visas and other immigration matters, contact Joel Pfeffer, Elaina Smiley, or Gary M. Sanderson.

3-D Printing Creates New Dimension of IP Concerns

Michael Monyok’s article “3-D Printing Creates New Dimension of IP Concerns” recently appeared in the Legal Intelligencer.

Commercial Real Estate Women (CREW) Event

Andrea Geraghty is moderating a panel discussion on “The Effects of the Energy Industry on Western Pennsylvania” at next week’s CREW Pittsburgh event. Use this link for a description of the program and to register.

Planning An Exit Strategy

Patricia Farrell and Joshua Hoffman recently wrote this article, “Worst Time To Plan Exit Strategy Is When You Need To Exit”, for The Legal Intelligencer.