Welcome to the AMM Law Blog, a tool to help you keep up to date on current legal developments over the broad spectrum of our practice areas. We welcome your comments and suggestions to create a dynamic forum that will be of interest to readers and participants.
Reprinted with permission from the April 16th edition of The Legal Intelligencer. (c) 2021 ALM Media Properties. Further duplication without permission is prohibited.
The American Rescue Plan Act of 2021 (ARPA), among other significant items, imposed new obligations for employers pursuant to the Consolidated Omnibus Reconciliation Act (“COBRA”). Specifically, ARPA requires employers to provide COBRA premium subsidies to certain employees from April 1, 2020 through September 30, 2021. The requirement comes with complicating definitions, retroactivity provisions, and new forms, creating a temporary compliance issue for employers. On April 7, 2021, the United States Department of Labor issued Model Notices and “FAQ’s” to assist with these compliance issues.
The COBRA subsidy is available from April 1, 2021 to September 30, 2021 to “assistance eligible individuals,” that is, individuals who are eligible for COBRA coverage as a result of an involuntary termination or a reduction in hours. The Act specifically excludes individuals who voluntarily terminate their employment. “Assistance eligible individuals” are not required to pay their COBRA premiums from April 1, 2021 through September 30, 2021. The employer or plan to whom the individual would normally pay premiums is entitled to a Medicare tax credit for the amount of the premium assistance. There is no guidance from the Department of Labor or the Internal Revenue Service regarding these tax credits.
Model Contract Clauses to Protect Workers in International Supply Chains, Version 2.0
A working group formed under the American Bar Association (ABA) Business Law Section has announced a revised set of model contract clauses for international supply chains. The 2021 Report and Model Contract Clauses, Version 2.0 (MCCs 2.0) from the Working Group to Draft Human Rights Protections in International Supply Contracts are now finalized and can be found on the ABA Center for Human Rights site. The MCCs 2.0 are one of several initiatives within the Business Law Section’s implementation of the ABA Model Principles on Labor Trafficking and Child Labor. The MCCs 2.0 are offered as a practical, contractual tool to assist inside and outside corporate counsel in efforts to reflect their clients’ commitment to stated human rights policies and desire to abide by international human rights soft and evolving hard law. Given the likely European Union and United Kingdom implementation of mandatory human rights due diligence, the mounting number of Withhold Release Orders in US ports, and growing investor concern with respect to environmental, social and governance (ESG) liability, the Model Contract Clauses should be of interest to all companies with complex supply chains and those that provide such companies legal services. Designed as a modular, practical tool for corporate counsel, the 2021 MCCs 2.0 are the first model contract clauses to implement “human rights due diligence” obligations in supply contracts. They attempt to integrate the principles contained in the UN Guiding Principles on Business and Human Rights (the “UNGPs”) and the OECD Due Diligence Guidance for Responsible Business Conduct into international contracts. The MCCs translate these principles into contractual obligations that require buyer and supplier to cooperate in protecting human rights and make both parties responsible for the human rights impact of their business relationship.
Reprinted with permission from the February 22nd edition of The Legal Intelligencer. (c) 2021 ALM Media Properties. Further duplication without permission is prohibited.
In Martinez v. UPMC Susquehanna, the United States Court of Appeals for the Third Circuit clarified the specificity required in pleading prima facie cases of discrimination in light of the holdings in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The Third Circuit held that an age discrimination plaintiff need not plead the exact age or duties of the plaintiff’s alleged replacement in order to survive a motion to dismiss.
The plaintiff in the Martinez case appealed an order issued by the United States District Court for the Middle District of Pennsylvania dismissing the case for failure to state a claim under Iqbal and Twombly. The defendant, UPMC Susquehanna, employed the plaintiff, Dr. Martinez, as an orthopedic surgeon. Dr Martinez alleged in his complaint that UPMC Susquehanna terminated his employment and advised him that it was “moving in a different direction and his services were no longer needed.” UPMC Susquehanna also told Dr. Martinez that his termination had “nothing to do with his performance.” Dr. Martinez pleaded that he was seventy (70) years old, and that UPMC Susquehanna hired two doctors after his termination. The Complaint alleged that one of the hired physicians took over some of Dr. Martinez’s job duties, and that the second doctor was hired in response to a job posting for an orthopedic surgeon. Relevant to the Court’s analysis, Dr. Martinez alleged that both doctors were “significantly younger”, “less qualified,” and “less experienced” than Dr. Martinez.
In 2021, entities formed in Pennsylvania and entities formed in other states that have registered to do business in Pennsylvania must file a Decennial Report with the Department of State. This requirement applies to business corporations, non-profit corporations, limited liability companies, limited partnerships, and limited liability partnerships. If a report is not filed, the entity will no longer have exclusive use of its company name or trade name and the name will become available for others to use it. While an entity can file after the December 31, 2021 deadline, a third party registering with the name during the gap period will have rights to the name, and the original entity will not be permitted to reinstate its exclusive rights to the name.
Earlier this year, the Department of State mailed notices to the registered address for each entity regarding its name, however, you should not rely on receiving such a notice to determine whether or not you have to file. All entities are required to file unless they made new or amended filings between January 1, 2012 and December 31, 2021.
The required forms can be found on the Department of State website at https://www.dos.pa.gov/BusinessCharities/Business/Resources/Pages/Decennial-Filing.aspx. There is a filing fee of $70, and the filing deadline is December 31, 2021.
If you are not sure whether you need to file this report for your entity, or if you have any questions regarding this requirement, feel free to contact us. We caution you not to rely upon the Pennsylvania Department of State’s website search feature to tell you whether or not your entity is required to file the decennial report.
While it is not yet Halloween, it is already time to starting thinking about your winter holiday custody schedule. Thanksgiving is only about a month away followed in December by Hanukkah, Christmas and Kwanzaa. Now is the time to take out your Custody Order to determine what the schedule is for this year. If you do not have a Custody Order or agreement, now is the time to start having a discussion with your child’s other parent to determine a holiday custody schedule. If you cannot resolve any disputes, now is the time to have the discussions and if necessary, file to have the courts assist in making a decision. If you wait until the eve of the holiday, it may very well be too late.
In addition to the actual schedule, now is also the time to start having discussions as to whether there will be any travel involved and who else will be at any holiday celebrations. While these may not be issues in most years, travel and who is at the holiday celebrations may very well be at issue in the age of COVID. These issues, along with the actual custody schedule, should be worked out well in advance of the holiday.
Finalizing the holiday custody schedule now will allow you all to have a much more enjoyable and less stressful holiday season.
National Estate Planning Awareness Week runs from October 19-25, 2020. First celebrated in 2008, this week highlights the importance of estate planning and its vital role in your overall financial health. By some estimates, up to 50% of Americans have not prepared any estate planning documents, which include documents effective both during life and after death. The uncertainty of this year only highlights the importance of creating or updating your estate planning documents.
Many people assume that estate planning documents are necessary only for individuals or families with a high net worth; however, everyone can benefit from having an estate plan. The most significant benefit is that estate planning documents, which can include a Will, Revocable Trust, and/or various types of Irrevocable Trusts, allow you to choose the beneficiaries of your estate, the amounts they receive, and how they receive those amounts. Without an estate plan, the intestacy laws of your state will determine to whom and how your estate will pass. It is entirely possible that intestacy laws may not distribute your estate how you would expect it would pass, or how you would want it to be distributed. An estate plan can also take into account various concerns involving the distribution of an estate, such as beneficiaries who may need time to develop prudent money management skills; those with special needs to ensure continued eligibility for various public benefits; or beneficiaries with significant wealth on their own or liability concerns who want to keep assets out of their own estates. Intestacy laws do not account for these scenarios.
Developing or updating an estate plan also ensures that your estate has accounted for the various taxes that may be assessed as a result of your death, or any changes in the law. In the last year alone a major new law with respect to the distribution of inherited qualified plans, the SECURE Act, took effect; and there may be accelerated changes with respect to the Federal Estate Tax on the horizon. Creating an estate plan or revisiting your older documents allows for your estate to be up to date with the current legal landscape.
Estate planning documents also include Powers of Attorney for both financial and medical decisions, as well as Advance Medical Directives (“Living Wills”) for end-of-life decisions. These documents are effective during your lifetime, and allow another individual (or individuals) to make decisions on your behalf if you are unable to do so. Financial and healthcare Powers of Attorney and an Advance Medical Directive clarify who may make these important decisions, as well as your wishes, before a true “need” arises.
Just as you regularly review your budget and meet with a financial adviser to discuss short- and long-term objectives, meeting with an attorney to update (or create!) your estate plan is an important step to ensure your personal and financial wellbeing.