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  • Do You Have a Wrongful Termination Case?

    Do You Have a Wrongful Termination Case?

    In the United States, employment relationships are presumed to be “at-will” in all states except Montana. Our country is one of only a handful where employment is predominantly at-will.  Most countries throughout the world allow employers to dismiss employees only for cause.   Some of the reasons given for our retention of the at-will presumption include respect for freedom of contract, employer deference, and the belief that both employers and employees favor an at-will employment relationship over job security.

    At-Will Defined

    At-will means that an employer can terminate an employee at any time for any reason—except an illegal one—or for no reason without incurring legal liability. Likewise, an employee is free to quit a job at any time for any or no reason with no adverse legal consequences.

    At-will also means that an employer can change the terms of the employment relationship with no notice and no consequences. For example, an employer can alter wages, terminate benefits, or reduce paid time off. In its unadulterated form, the U.S. at-will rule leaves employees vulnerable to arbitrary and sudden dismissal, a limited or on-call work schedule depending on the employer’s needs, and unannounced cuts in pay and benefits.

    North Carolina law generally presumes that you are employed at-will unless you can prove otherwise, usually through written documents relating to your employment or oral statements your employer has made. Normally you are at-will unless there is a contract for a specific period of time or you work for a governmental employer or in a union shop where just cause is required for termination.

    Were You Wrongfully Terminated?

    To be able to sue for wrongful termination, you’ll need to show your termination violated a specific law or terms of a contract, not just that it was unfair. If your employer fires you for discriminatory reasons, in violation of an employment contract, or in retaliation for exercising your rights, you may have a legal claim against your employer for wrongful termination.

    There are several ways you can bring a wrongful termination lawsuit in North Carolina:

    Discrimination (Federal)

    Discrimination is prohibited by federal laws including Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA). These protect classes of individuals from termination based on their membership in that class.

    Title VII covers discrimination based on race, color, religion, sex, and national origin. The ADA and ADEA cover disability-based and age-based discrimination, respectively. All complaints under any of these laws must be filed with the United States Equal Employment Opportunity Commission (EEOC) within 180 days of the discriminatory event.

    The Civil Rights Act of 1866 only covers race-based discrimination, but has the advantage of a four-year statute of limitations and no EEOC filing requirement. This is helpful if you miss your filing deadline with the EEOC on a racial discrimination case.

    Family Medical Leave Act (Federal)

    The Family Medical Leave Act (FMLA) covers private employers with 50 or more employees. To qualify, an employee must have worked for his or her employer for at least 12 months (although not consecutively) and must have worked 1,250 hours for that employer in the preceding 12 months.

    The FMLA grants employees up to 12 weeks in any 12-month period. This leave can be used for taking care of a serious health condition, family military leave, or expanding the employee’s family.

    If the employee is able to return to work before his or her FMLA time is exhausted, he or she must be returned to the same or a nearly identical position. If the company does not allow this and tells the employee that he or she cannot return, the employee may bring suit under the FMLA.

    North Carolina Retaliatory Employment Discrimination Act

    North Carolina’s Retaliatory Employment Discrimination Act (REDA) protects employees from retaliation when they participate in certain activities. The main activities covered are filing, participating in, or testifying in a worker’s compensation claim or a complaint relating to the state’s Occupational Safety and Health Act.

    REDA complaints are brought to the Department of Labor. The complaint must be filed within 180 days and will result in action by the Department or the issuance of a right to sue letter. This letter allows you to bring your case to court.

    North Carolina Public Policy Exception

    North Carolina recognizes a public policy exception to its at-will employment doctrine. No employer is allowed to fire an employee in violation of state public policy. Employers are not allowed to terminate their employees for complying with a legally-required duty such as jury duty giving truthful testimony in court. Several laws which have been recognized as expressing North Carolina public policy are the North Carolina Workers’ Compensation Act, the North Carolina Wage and Hour Act, and the North Carolina Constitution.

    The North Carolina Equal Employment Practices Act (EEPA) acts as a miniature Title VII, stating that it is against North Carolina public policy to discriminate based on “race, religion, color, national origin, age, sex, or handicap” if an employer has 15 or more employees. This is enforced by bringing a public policy claim with the EEPA as the public policy basis.

    What’s Not Considered Wrongful Termination?

    Unfortunately, at-will employment protects your boss’s right to fire you for any reason (or no reason at all) including that he’s simply in a bad mood, she doesn’t like you, or you made a one-time mistake. Unless your contract or the law specifically prohibits your boss from firing you for a specific reason, your termination is probably completely legal—no matter how unfair it may seem, no matter how long you’ve worked for them, and no matter how good you are at your job.

    If your employer’s not being discriminatory, she can handle your employment however she wants. That may be bad business, but it’s not illegal. The following examples are completely legal:

    • Asking you to work overtime or weekend hours.
    • Making unreasonable demands or requiring you to complete projects you don’t have sufficient time to complete.
    • Requiring you to complete tasks you dislike.
    • Denying a promotion when the reason for the denial is not discriminatory.
    • Being difficult to work with; such behavior is only illegal when it rises to the level of harassment or becomes so threatening that it’s covered under other laws, such as laws against assault or stalking.

    It’s important to remember that, in many instances, a wrongfully terminated employee can recover lost wages, other incidental related monetary damages, attorney’s fees, and costs of court. Of course, not outcome is guaranteed, so working closely and cooperatively with your attorney is crucial.

    If you’re not sure if you’ve been the victim of an unlawful dismissal, it’s time to talk to an attorney who specializes in employment law. Whether you want to get your job back, negotiate a settlement, or file a lawsuit, Oliver & Cheek, PLLC can help you assert your legal rights. For more information, call (252) 633-1930 or visit www.olivercheek.com.

    (Sources: North Carolina Bar Association; North Carolina State Human Resources; North Carolina Justice Center; North Carolina Department of Labor; National Conference of State Legislatures; United States Department of Labor, and Craig Patrick Hensel.)

    wrongful termination, business law, hiring, human resources, law firm of oliver and cheek, new bern NC
  • Don’t Leave Anything to Chance: Why a Will is So Important

    A poll conducted by Gallup in 2016 revealed that only 44% of Americans have a will—a percentage much lower than those discovered in polls conducted in 2005 (51%) and 1990 (48%). Why do so many of us ignore such an important document?

    Gallup says the likelihood of having a will depends largely on a person’s age and socioeconomic status: Sixty-eight percent of those aged 65 and older have a will, compared with just 14% of those younger than age 30. Of those who report an annual household income of $75,000 or greater, 55% have a will, compared with 31% of those with incomes of less than $30,000. And while 61% of those with a post-graduate education have a will, only 32% with a high school education or less do.

    Given the relationships between age and income and having a will, Gallup says the percentage who say they have a will rises to 75% among upper-income Americans aged 55 and older.

    No matter your age, education level, number of assets, or income, you should have a will in place to ensure those you love are taken care of after you’re gone. No one wants family members to be dragged through legal battles in the months after a significant loss. Make a difficult time for those you love easier by leaving detailed instructions of your wishes after death.

    Why So Important?

    It can all come down to a ridiculous argument over a ridiculous item.

    “When a member of your family dies there’s a lot of emotion involved, and I have seen families split apart over a spoon,” says Tim Estes, CEO and founder of Estes Financial Services. Two sisters wanted possession of a single spoon that had been in their family for generations. “One sister got the spoon, and the other didn’t. They haven’t spoken for 15 years.”

    Let’s face it: Life is complicated and sometimes messy. With blended families, second marriages, adopted children, pets, etc., distribution of assets can become tricky. Be honest about the makeup of your family, their future needs, and where assets should really be going.

    What Happens in North Carolina?

    When someone dies intestate—without a legal will—the estate goes into probate, a judicial proceeding that decides the rightful heirs and the distribution of holdings. Going through probate can eat up more money than the cost of creating a will, or result in a less fair distribution of assets.

    If you die without a will in the state of North Carolina—after the payment of your debts, funeral expenses, probate, and administrative fees—the remainder of your possessions will be divided based on statutory law found in the Intestate Succession Act. Under North Carolina statutes, if you are survived by:

    No spouse or children, with parent(s) living: Your entire estate will pass to and be divided equally among your parents. If only one parent is still living, then everything will pass to the living parent.

    Your spouse and parents, but no children: Your spouse will receive the first $50,000.00 of personal property, one-half of the remaining personal property and one-half of all real estate.  Your parent(s) will receive one-half of the remaining personal property and one-half of all real estate.

    Your spouse only, no children or parents living: Your spouse will receive all property which could pass under a will.

    Your spouse and one child: Your spouse will receive the first $30,000.00 of personal property, one-half of the remaining personal property and one-half all real estate. Your child will receive one-half of the remaining personal property and one-half of all real estate.

    Your spouse and two or more children: Your spouse will receive the first $30,000.00 of personal property, one-third of the remaining personal property and one-third of all real estate. Your children will evenly split the remaining two-thirds of personal property and real estate.

    One or more children, no spouse surviving: All of your property and possessions will be divided evenly among your children.

    Neither spouse, nor children, nor parents surviving: The intestacy laws provide additional rules for distributing your assets to more remote relatives. In the event you have no other legal heirs (blood relatives), your assets will pass to the State of North Carolina (this is referred to as “escheat”).

    As you can see, the Intestate Succession Act is very mechanical and orderly, but estate planning should never be a “one size fits all” proposition. Every family is unique and what works well for your loved ones won’t be the solution for just any other family.

    Get Busy

    The bottom line is this: You should have a current will in place to protect your loved ones and ensure your wishes are carried out—no matter your age. Even with no relatives to benefit, wouldn’t you rather be able to leave assets to your favorite school or local charity rather than to an account for the state of North Carolina?

    A living will is also an important document to have on file as it lets family and health officials know your wishes about end of life care if you are unable to speak for yourself. You can even give a friend or family member the authority to make any healthcare decision for you (for a set time or indefinitely) with a power of attorney. As always, speak to your legal counsel to learn all your options.

    For more information or to schedule a consultation, please contact Oliver & Cheek, PLLC by calling (252) 633-1930 or visiting www.olivercheek.com.

     

    (Sources: North Carolina General Assembly; Forbes; Gallup News; Money Crashers; CNN Money; Nolo Network; and Huffington Post.)

    estate planning, estate law, family law, will, update your will, NC law, new bern NC, law firm of oliver and cheek
  • Trump’s New Tax Code and Your Paycheck: Will You See More or Less?

    Beginning today, Thursday, February 15, employers are required to start complying with new tax withholding tables released recently by the U.S. Department of the Treasury. We should all begin to see changes in our paychecks as soon as late February or early March.

    “With this guidance, most American workers will begin to see bigger paychecks. We estimate 90 percent of wage earners will experience an increase in their take home pay,” said U.S. Treasury Secretary Steven T. Mnuchin.

    The new guidance, developed jointly by the Office of Tax Policy and the IRS, was designed to work within the constraints of the existing payroll withholding system to deliver the benefits of the tax cuts as soon as possible and with as little disruption as possible. Specifically, the new withholding tables are designed to work with the W-4 forms already filed by employees for 2018 to hopefully minimize the burden on taxpayers and employers.

    The new law makes a number of changes for 2018 that affect individual taxpayers. The new withholding tables reflect the increase in the standard deduction, repeal of personal exemptions, and changes in tax rates and brackets.

    As the IRS makes clear in their release, the new tables are designed to produce the correct amount of tax withholding. The tables are also aimed at avoiding over- and under-withholding of tax as much as possible.

    What Kind of Changes Will You See?

    As with most of the tax changes made by the recently passed tax-reform bill, the answer is, “it depends,” advises The Motley Fool. If you’d like to calculate how much you can expect your paycheck to increase, follow these steps:

    Locate your most recent pay stub and determine how much was withheld for federal income taxes. Keep this number handy.

    Start with your gross (before tax) income. You can find this on your pay stub, or by dividing your annual salary by the number of times you get paid each year.

    Subtract the number of allowances you claimed on your W-4 times the appropriate payroll-frequency factor, which you can find on the front page of the new withholding tables. (If you aren’t sure how many allowances you claimed, your payroll department should be able to tell you.) This is the amount of wages you’ll use to determine your new withholding amount.

    Use this number with the table that corresponds to your filing status and payroll frequency in the new withholding tables to calculate your new per-paycheck withholding amount.

    Subtract this number from your current per-paycheck withholding, which you determined in step one. This number is how much your paycheck could increase.

    Let’s Look at the Numbers

    The Motley Fool sets up this scenario: Say you’re a single taxpayer and you earn $50,000 per year, paid bi-weekly. For each pay period, you earn $1,923.08 before any taxes are withheld. When you filled out your employment paperwork, you claimed two allowances.

    For each withholding in 2017, a bi-weekly paid employee’s wages are reduced by $155.80. This reduces the $1,923.08 figure to $1,611.48, which is the number used to determine your withholding. Using 2017 withholding tables, $264.53 should have been withheld from each paycheck for federal income taxes. (Note: If you’re calculating your own, you can probably skip this entire step. Just look on your recent pay stub to see how much is being withheld for federal taxes.)

    With the changes for 2018, each allowance reduces your wages for withholding purposes by $159.60, so your income is reduced to $1,603.88. Using this amount, along with the 2018 withholding tables based on the new tax brackets, your per-paycheck withholding should drop to $168.09. Your paychecks should go up by about $96.44 because of the lower federal withholding called for by the tax-law changes.

    New W-4s Are on the Way

    The IRS has also announced the agency is in the process of designing a new W-4 form, which will more accurately reflect changes in the tax law that could impact workers’ appropriate withholdings, such as the increased child tax credit and changes to itemized deductions. And for 2019, the IRS “anticipates making further changes involving withholding.”

    In short, while your federal withholdings are likely to change shortly, there’s a good chance they’ll change again in 2019 once forms and procedures are better adapted to the new tax law.

    The IRS says the new tables should result in approximately 90% of workers seeing an increase in take-home pay. Other adjustments to taxes should result in roughly 80% of tax filers getting a cut in 2018, according to the Tax Policy Center. The organization also says the size and percentage of Americans getting a cut will decrease over time.

    For more information, or to receive assistance preparing your personal or business taxes, please contact the respected attorneys at Oliver & Cheek, PLLC by calling (252) 633-1930 or visiting www.olivercheek.com.

     

    (Sources: U.S. Department of the Treasury; Internal Revenue Service; Business Insider; USA Today; The Motley Fool; and Tax Policy Center.)

    Taxes, Trump, Tax law, business law, state taxes, federal taxes, withholdings, IRS, law firm of oliver and cheek, new bern NC
  • Can You Take Your Online-only Business to a “Physical” Level?

    Many small companies say brick-and-mortar space allows them to communicate their brand and create a seamless customer experience. But is setting up shop in a physical space right for every business?

    In the last few years, some 20 online companies in the U.S. have launched a physical presence to better market their wares, forge closer customer relations, and boost online traffic and sales.

    “Industry research shows that three out of four customers want to interact online,” says Bryan Gonterman, vice president and general manager of AT&T New York/New Jersey Market, “and 56 cents of every dollar of sales are impacted by the digital medium. At the same time, however, 35% of online customers actually want to pick up their purchases in the store.”

    Steve Wilson of the New Jersey Business & Industry Association says common denominator can be summed up in one word: Convenience. Stores and websites should work together seamlessly to make it easy for the customer to make a purchase. It’s why Starbucks lets customers order coffee with an app. It’s why online giant Amazon is creating physical distribution centers, while successful retail stores like Nordstrom are investing heavily in digital distribution.

    But those are large, billion-dollar companies. How does the small business owner determine when to make the move to a brick-and-mortar location?

    Is Brick-and-Mortar the Next Step?

    Choosing between offline and online retail is a challenge, but the key is to understand who your target audience is and how best to reach them. That should help guide your business development and always be at the forefront of any major decision.

    When making such a monumental decision, the staff at ShipStation offer these key questions to ask:

    • Can you give customers a sensory, in-person experience, such as touching a cashmere sweater, trying out an antique sofa, or listening to music?
    • Would customers enjoy trying things on, such as clothing, shoes, or makeup?
    • Would a face-to-face conversation make the purchasing decision easier for the customer?
    • Can the use of social media, a new app, or in-store promotions build the brand on a local level, while also enhancing customer loyalty and reaching new prospects?

    If you answer “yes” to these questions, perhaps you should consider the practical aspects of opening a traditional store by analyzing the market and developing a solid business plan.

    But what does the process of moving an online store into a physical space look like? What are the legal and business considerations to be aware of when expanding?

    Now What?

    A number of business, legal, and taxation issues will need to be considered. Among them: The type of business formation; federal and state income tax issues; sales and use tax issues; company terms and policies; privacy policies; data protection policies; geographical limitations; and other rules and regulations.

    LLCs are the most popular business formations and the process is something only an attorney will be able to execute for you. Working with an attorney is the best way to ensure your business plan is up to date on the various real estate regulations, legal rules, and necessary permits ahead of time so when it comes time to open your store, you don’t run into any serious hurdles. Good legal expertise will be invaluable throughout the process, especially when it comes to negotiating, preparing, and entering into any contracts.

    If managing your financials is not your strong suit (and, if it isn’t, know you aren’t alone), work with an accountant to help formulate a budget and have him or her go over your business plan.

    Merging Physical and Digital Stores

    Online stores should be positioned so that they complement a physical store—not replace it. The key lies in bringing together the best of two worlds to offer a unique shopping experience. Brick-and-mortar stores can create mobile apps, which can make locating the store easy when a potential customer is looking for options in the area. The app should also offer details such as the clothing range, prices, working hours, etc.

    Statistics indicate 55% of buyers like to interact with both the digital and physical world when shopping. Being able to pick up an item ordered online from a physical store results in more shopping, at least for 23% of shoppers. Also, 20% of buyers are likely to buy at a physical store if they can return a product bought online at the particular store.

    Set in Stone

    Having a physical presence allows you to curate a unique environment for prospective customers, as well as your existing fans. It doesn’t necessarily have to be huge endeavor, but a brick-and-mortar location can provide the opportunity to offer something that resonates with consumers more than any online discount code ever could—value beyond the transaction. Just remember: As you build your physical space, don’t neglect your website.

    Oliver & Cheek, PLLC, is ready to help your small business get a strong start. We can be your partner, offering expert legal and business advice. Our attorneys are excellent problem solvers and highly skilled at developing and selling ideas. Our team will work to help you solve problems, recognize emerging problems, and set your company on the path to success. For more information, call (252) 633-1930 or visit www.olivercheek.com.  

    (Sources: Rutgers University School of Business; Forbes Magazine; ShipStation; New Jersey Business & Industry Association; Bond Street Marketplace, Inc.; Grand Rapids Opportunities for Women; and The Guardian.)

    Business, small business, storefront, online business, business law, business planning, law firm of oliver and cheek, new bern NC
  • The Season of Giving Can Last Much Longer Than You Think

    Charitable giving can help you minimize taxes while also supporting causes are meaningful to you.

    Christmas is a season of giving—giving gifts to friends and loved ones; giving notes of thanks and tips to the trash collectors, mail delivery persons, landscapers, hair stylists, and all those who make our lives a bit easier; and giving our time or money to various charities asking for help this time of year. The last few months of the year make up what is commonly called the “Giving Season” for the non-profit community. As the holidays near, people feel encouraged to give more generously than during the rest of the year.

    According to Steve MacLauglin, a director of product management for Blackbaud Index, approximately 34% of all charitable giving is done in the last three months of the year. Of those donations, nearly 18% are given in December alone.

    In truth, we should feel the need to donate in some way to charities throughout the year. Non-profits operate all 12 months of the year and need assistance continually. For many, charitable giving is a way of life. Whether it’s to support an organization that’s touched your life in a meaningful way, a school or university that put you on the road to success, or simply a cause that you feel passionate about, charitable giving not only offers emotional benefits, but practical ones as well.

    Giving Now…And After You’re Gone

    For many donors, the big question is how much to give throughout your lifetime and what to leave as charitable gifts in a will or trust. For those who are not concerned about the use of assets during their lifetime—for care, or enjoyment—a charitable gift may be a regular occurrence. Some may choose to pass on assets after death, in addition to, or sometimes in place of, passing on assets to family members.

    The options for charitable giving within an estate plan are varied. Before you choose a way to give, it’s important to understand the tax implications of your decisions. Giving as much as you want to charity during your lifetime and after you’re gone may help to reduce federal estate and gift taxes significantly.

    Gifts made to charities, specifically, are exempt from gift tax.

    Giving Throughout Your Lifetime

    Generally speaking, lifetime gifts to charities can result in an income tax deduction for you, according to Fidelity Investments. But before you make a large gift, be sure to seek tax advice from an experienced attorney. You’re eligible for itemized deductions for charitable contributions up to a certain percentage of your adjusted gross income for cash contributions. Another limit applies for contributions of appreciated securities or property in any one year. You may be able to carry forward amounts that exceed the limit and deduct them over the next five years.

    Highly-appreciated securities may be good candidates to give to charity during your lifetime; in addition to the income tax deduction, you bypass the capital gains tax that would be owed if you cashed them in yourself.

    Know Your Options

    Whether you choose to give during your lifetime or in your will, donor-advised funds are charitable giving programs generally run by public charities or financial institutions. They allow you to give on a basis intended to maximize your income tax situation and help meet the needs of the causes meaningful to you.

    If you have the means and desire to play an active role in philanthropy, you might also consider establishing a private foundation. Foundation managers retain control over the investment of their foundation assets, as well as which charities will receive grants from the foundation. In addition to charities, foundation grants can be used to support individuals for hardship reasons and even scholarship programs. Along with this flexibility, however, is a significant amount of administration.

    Creating Trusts

    A charity can be the beneficiary of a relatively simple revocable trust or irrevocable trust. Other giving strategies using charitable trusts can provide benefits to charity as well as to your family or yourself.

    A charitable lead trust lets you provide a payout to a charitable cause during your lifetime (or a term of years) and preserve assets for other beneficiaries, such as children or grandchildren. The value of the remainder gifted to your descendants will be a taxable gift if the trust is funded during your lifetime, or subject to estate tax, if the trust is funded at your death.

    If you have substantially appreciated assets (real estate or stocks), you can reduce current capital gains tax on the assets by contributing the assets to a charitable remainder trust. You may also give a portion of the current value of your assets to charity, and generate a payout from the trust to yourself or someone else during your lifetime, or for a specific term.

    Ensure your beneficiaries are up to date on other assets that have provisions for naming them, including investment and bank accounts with transfer on death designations. This is especially important for beneficiaries outside your immediate family, as assets don’t usually go to such beneficiaries by default or outside of the probate process if they’re not named properly.

    Retirement Accounts

    Retirement assets may be good candidates for charitable bequests because they can be among the highest taxed assets in any estate. Fidelity Investments reveals that leaving your retirement assets to a charity has two distinct advantages:

    • Increasing the impact of your bequest—the charity would not have to pay income taxes on your donation when it receives assets from your retirement account.
    • Decrease the estate tax burden for your family—your assets would pass directly to the charitable organization, so your estate would be eligible for a federal estate tax charitable deduction on the account’s value.

    Of course, make sure your beneficiary designations are up to date. If you have missing or incorrect designations, your assets may not be distributed as you intend or your charitable beneficiaries may have to wait to take ownership and incur costs due to probate.

    The rules for 401(k)s and other qualified retirement plans are similar to those for IRAs. If you’re married and want to designate beneficiaries other than your spouse, you may need written consent from your spouse. Otherwise, such plans follow roughly the same guidelines for what is taxable, but other features will vary from plan to plan. Be sure to contact the plan’s administrator for specific rules governing yours.

    Let Oliver & Cheek, PLLC guide you in planning for charitable donations now and in the future. For more information, call (252) 633-1930 or visit www.olivercheek.com.

    (Sources: Fidelity Investments; Investment News; T. Rowe Price; Vanguard Charitable; The Street; Morgan Stanley; Real Simple; and USA Today.)

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