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At Hamilton Faatz, we are revolutionizing the way people think about attorneys. As one of Colorado’s oldest law firms founded in 1955, HF has the expertise and wisdom to accommodate your legal needs. Our broad experience in our practice areas allows us the breadth to cover almost all legal matters, while our size and personal approach allows us to have a close touch with every client.
We are attorneys who believe our clients’ goals have the same priority as our own. We view each clients' problem as a challenge waiting to be solved and work with each client on a proactive level to ensure that small issues stay small. Our HF team knows the value of your most recent contract, product or acquisition and we want to do everything in our power to help you develop it, protect it and capitalize on your opportunity from it. When you work with HF, you can look to us as a resource to help you in all aspects of your business. Our clients' consider us their trusted advisor, whether it is in the courtroom, the boardroom or the living room. Welcome to Hamilton Faatz, PC.
For more information about the firm’s areas of practice, please visit the practice areas page.
October 12, 2015
President Obama recently unveiled a proposed rule that would more than double the salary threshold under the Fair Labor Standards Act (“FLSA”) for overtime pay. The U.S. Department of Labor proposed an update to the FLSA’s definitions of exemption for white-collar workers that would increase the salary threshold from $23,660 per year ($455 per week) to $47,892 per year ($921 per week). Those figures take into account the 2013 averages for full-time salaried workers but the adjusted salary threshold for 2016 may be as high as $50,440.
These changes, if implemented, will make about 5 million more workers eligible for overtime pay. The FLSA is also considering whether the new rules should mirror California’s 50 percent standard, requiring more than 50 percent of a worker’s time be spent on managerial duties or other overtime-exempt work in order for the position to be classified as exempt.
By, Megan Kelly
September 15, 2015
Genetic information Nondiscrimination Act (GINA”)
Employers who employee fifteen or more employees should be aware of the impact of the federal Genetic Information Nondiscrimination Act of 2008 (“GINA”). Under Title II of GINA, it is illegal to discriminate against employees or applicants because of genetic information. Employers are prohibited from using genetic information to make employment decisions. GINA also restricts employers and other entities covered by Title II, including employment agencies, labor organizations, and joint labor-management training and apprenticeship programs, from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.
The United States Equal Employment Opportunity Commission enforces Title II of GINA (dealing with genetic discrimination in employment). The Departments of Labor, Health and Human Services and the Treasury have responsibility for issuing regulations for Title I of GINA, which addresses the use of genetic information in health insurance.
Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members; information about the manifestation of a disease or disorder in an individual’s family members; family medical history; requests for or receipt of genetic services; the genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual; and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.
The law forbids discrimination on the basis of genetic information when it comes to any employment decision, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. Under GINA, it is also illegal to harass a person because of his or her genetic information and illegal to fire, demote, harass, or otherwise “retaliate” against an applicant or employee for filing a charge of discrimination, participating in a discrimination proceeding (such as a discrimination investigation or lawsuit), or otherwise opposing discrimination.
There are six exceptions in which it is acceptable for an employer to obtain or access genetic information: (1) inadvertent acquisition; (2) as part of health or genetic services, including wellness programs, offered by the employer on a voluntary basis, if certain specific requirements are met; (3) as part of the certification process under the Family and Medical Leave Act, similar state or local laws, or pursuant to employer policy, where an employee is asking for leave to care for a family member with a serious health condition; (4) acquisition via commercially and publicly available documents like newspapers, as long as the employer is not searching those sources with the intent of finding genetic information or accessing sources from which they are likely to acquire genetic information; (5) acquisition via a genetic monitoring program that monitors the biological effects of toxic substances in the workplace where the monitoring is required by law or, under carefully defined conditions, where the program is voluntary; (6) when employees engage in DNA testing for law enforcement purposes as a forensic lab or for purposes of human remains identification.
It is unlawful for employers to disclose genetic information about applicants, employees, or members and genetic information must be maintained confidentially and in a separate medical file.
By, Megan M. Kelly
May 18, 2015
On April 15, 2015, the EEOC published guidelines regarding the structure of employer wellness programs. While this has been a long-time coming, the guidelines now provide some guidance for employers in implementing and running a wellness program. The guidelines may get more detailed as the public comment period on the guidelines is open through June 19, 2015.
Generally, the EEOC has been pursuing suits against companies from the standpoint that a wellness program violates Title I of the ADA. The EEOC’s view has been less than favorable of the programs, often fraught with issues related to equal access and incentives that are found to be discriminatory. While that viewpoint of the EEOC may not shift, as it generally looks to find a problem, there is now some guidance on what the EEOC is concerned about. The guidelines are published on the EEOC’s website http://www.eeoc.gov/laws/regulations/facts_nprm_wellness.cfm, which generally adopt provisions of the Affordable Care Act and HIPAA. Besides being voluntary programs without penalties, incentives offered by employers to reduce premiums cannot exceed 30% of the value of employee-only premiums, unless an employee is quitting tobacco use, which incentive can be up to 50%. It is unlikely this incentive applies to cannibus use as that is already illegal under federal law. Importantly, the incentives are not just premium reductions. The EEOC considers all incentives, including gift cards and prizes as the employee is receiving a monetary benefit for participating in the program. As well, the requirement of employers under the ADA to provide reasonable accommodations, absent undue hardship, still applies to make the wellness program available to all employees. This necessarily means that requirements for eligibility and requirements for rewards and prizes may require reasonable accommodation.
If you have questions or would like to discuss the implantation of a wellness program, please contact us.
March 26, 2015
In response to the recent Supreme Court decision ruling that the Defense of Marriage Act (DOMA) is unconstitutional, the Department of Labor has amended its definition of “spouse” under the Family Medical Leave Act (FMLA) to include same-sex spouses. The FMLA provides eligible employees with leave to care for a seriously ill spouse. Under the new ruling, same-sex spouses now qualify for leave to the same extent as spouses previously eligible. Along with other FMLA provisions, the new rule applies to public sector employees or to those employed by businesses employing fifty people or more. ALERT: With this change in the law, your employment policies and manuals should be reviewed for compliance. Please contact Attorney Megan Kelly at 303-830-0500 to set up an appointment.
November 17, 2014
By: Andrew Iverson, Attorney at Law
Colorado is an employment “at-will” state. Regardless of the reason for employment termination, or if there is no reason, all terminations require that wages be paid to the employee.
>> Termination by the Employer:
If the employer elects to terminate employment, those wages are due immediately. With certain and limited exceptions the employer may delay paying these wages for up to 6 hours the next work day or up to 24 hours. This is dependent upon the employer’s accounting unit and availability to deliver payment. There also are specific requirements prescribed by statute about where payment is to be delivered.
>> Employee’s Resignation:
The dynamic of timing for payment changes when the employee resigns. Payment of wages are due upon the next regular pay day. Statute also dictates where payment is to be made.
>> Non-Payment of Wages Due:
Prior to January 1, 2015, the employee or their agent (i.e.: attorney) could make a written demand for payment of wages within 60 days of the date of separation exposing the employer to penalties. This includes identifying where payment is to be received. Within 14 days after the demand for payment, the employer should make payment of all undisputed amounts which are due. If done properly and in good faith, the employer is not liable for any penalty. As an employer, if you pay less than the total wages demanded, there is risk that the employee may sue for the difference. If the employee is awarded more than what was tendered, the employer is subject to statutory penalties.
If payment is not made at all or not postmarked within 14 days after the demand, the employer will be liable for penalties. Of significance, if the employee can establish that the non-payment was willful, the penalty increases. Evidence of prior payments over the past 5 years may be admissible to establish the willful nature of the non-payment.
>> January 1, 2015 Changes:
Effective January 1, 2015, an employee can pursue a cause of action for the wages in a court of law, as well as in an administrative proceeding. However, the employee is no longer limited by the 60 day requirement, pursuant to statutory amendments effective January 1, 2015. Depending on the employment relationship this could mean that an employee has up to 3 years, if not 6 years, in accordance with the governing statute of limitations, to file suit.
Also, a lawsuit in court is no longer the only means of recovery that triggers the penalties. An administrative proceeding is also being allowed. Additionally, but limited to a court action, if the employer has not received the written demand for payment 14 days prior to being served with a complaint in a court action, the complaint now serves as the demand. As such, the employer would have 14 days to make payment from the date of being served with the complaint. If payment is made in full, then the case must be dismissed. If full payment is not made, the employer may be subjected to penalties, as before, if the employee is awarded more than what was actually paid.
>> Trends in Wages Demands:
With the creation of the ability for employees to pursue administrative actions to recover wages, it is expected that more claims for unpaid wages will be made. The avenue of the administrative procedure will make recovery easier and less expensive for employees, in most cases. Likewise, the extended time periods for making a demand will likely mean more claims are made at later dates, dramatically increasing the employer’s exposure to written demands. The leverage some employers used, under the old law, to force a more expensive lawsuit and have the employee incur attorneys’ fees, is diminished. While there is an apparent move by the legislature to protect employees, the ability to negotiate a settlement cannot be overlooked in these situations. For assistance in understanding the legal issues of your particular situation, handling the non-payment of wages or partial payment of wages and what constitutes an earned wage, please call me to discuss your situation.
October 22, 2014
The federal gift and estate tax rules have changed significantly in recent years. The unified exemption has increased to $5 million indexed for inflation. Hence, you may now transfer the exemption amount of $5 million+ during your life or at death without incurring a gift or estate tax. As under prior law, to the extent you use some or all of your exemption for transfers during your life (gifts), your estate’s exemption will be reduced by that amount. Also, for married couples, the unused portion of a deceased spouse’s exemption may be available to the surviving spouse (portability). For example, if one spouse only uses $3 million of his or her exemption, the $2 million+ unused amount is potentially available to the surviving spouse, giving her or him the potential of a $7 million+ exemption.
While many think the new rules mean they no longer have to be concerned about these taxes, this may not necessarily be the case. First, portability is not available unless an estate tax return is actually filed for the deceased spouse’s estate and an election is made on that return. Further, there are certain situations where it may be better not to elect portability. Finally, portability may not be available to the surviving spouse if he or she remarries.
The new rules establish higher transfer tax exemption levels than in the past and create some planning opportunities. However, you need to carefully plan to take advantage of those opportunities and carefully draft your documents to provide flexibility wherever possible. We are available to help you navigate the estate tax rules and counsel you regarding your estate planning objectives.
By: James H. Marlow