Estate Planning and Elder Law Seminar To Discuss Wills, Trusts & Elder Law Featuring PK Law Attorneys Kimberly Battaglia and Cheryl Jones

March 19, 2015

PK Law attorneys Kimberly L. Battaglia and Cheryl A. Jones host monthly estate planning and elder law seminars on the third Thursday of each month in the PK Law Seminar Room located at the Towson office. Both are members of the firm’s Wealth Preservation Group and have years of experience helping families and individuals with their estate planning and elder law needs.

There is no fee for the seminar. Simply reserve a spot at least one week in advance. The seminars begin at 10:00 a.m. and last approximately one hour. Your questions will be answered and informational materials will be given out.

Estate Planning Attorney Cheryl A. Jones will discuss:

  • Trusts vs. Wills
  • Who Needs a Will?
  • Estate Tax Issues
  • Estate Planning Questions

Elder Law Attorney Kimberly L. Battaglia will discuss:

  • Protecting Your Assets From The Nursing Home
  • Creative Estate Planning Strategies
  • Tax Law Changes
  • Powers of Attorney
  • Healthcare Directives
  • Probate Avoidance

To make a reservation contact:

Rhonda King at rking@pklaw.com or 410.938.8800 at least one week in advance of the next scheduled seminar. To learn more about PK Law’s Estate Planning and Elder Law Services visit our website at pklaw.com.

Can You Be “Served” or “Notified” Electronically?

Two recent cases produced what appear to be different answers to the question posed above.  In the first case, a U.S. District Court in Gardner v. Detroit Entertainment, (Case No. 12-14870, October 15, 2014, USDC, E. Mich.) ruled in favor of an employee who failed to open her employer’s email asking that the employee “recertify” her medical condition under the Family and Medical Leave Act (the “Act”).  The Court denied the employer’s motion for summary judgment on the issue of whether the employee had failed to provide such recertification.

The Act requires an employee to “certify” their medical condition.  An employer may ask for recertification of the employee’s health status.  Failure to supply the recertification is grounds for denial of leave under the Act.  If leave under the Act is denied the employee might be terminated in accordance with the employer’s “unexcused absence” policy.

In Gardner, the employee claimed a wrongful denial of leave under the Act.  An increased level of unanticipated absenteeism on the part of the employee aroused the employer’s concerns.  A letter was sent to the employee by the employer requesting a recertification of the employee’s health condition.  When the employer failed to receive a response, the employer denied leave under the Act.  The leave was intermittent based on the employee’s medical condition so while the employee was available to discuss her condition with the employer while at work, no employer representative did so.

Having failed to receive the recertification it requested, the employer treated the absence of the employee as “unexcused” and imposed a sanction of termination.  The employee’s appeal of the denial of leave under the Act to the employer’s administrator was unsuccessful.

The employee denied that she had ever indicated that notices sent to her were to be sent by “email only” as reflected on the employer’s administrator’s records.  She denied having received her employer’s email, and, therefore contended that the notice to her sent via email was insufficient to trigger recertification.  The Court opined that oral communication guaranteed “actual notice” to the employee, if given, and as permitted by regulation, but an email to the employee when she preferred correspondence by mail was insufficient, particularly in the absence of proof that the email was opened and the notice actually received.  The dispute over a material fact in the case, e.g. whether the employee had designated “email only” for notices, resulted in a ruling in favor of the employee, for summary judgment purposes.

The result may have been different had the employer been able to show that it notified the employee orally for the need for recertification pursuant to the decision of the U. S. Court of Appeals for the Sixth Circuit’s in Graham v. BlueCross BlueShield of Tennessee (No. 12-5309, April 3, 2013, 6th Cir.)   That case, also an FMLA “recertification case”, turned on facts which revealed, through the employee’s deposition, that she was told her initial medical certification was inadequate and that she had subsequent conversations with her supervisors inquiring as to whether she had obtained appropriate information from her doctors.

It seems clear that the Courts in Gardner and Graham want an employer to provide some proof that notice was actually received by the employee or that the employee was sufficiently on notice as to the Act’s requirements to compel the employee’s attention to notices which might pertain to recertification.  As most attorneys and human resource personnel are aware, there is no substitute, at present, for an acknowledgment by a notice recipient of notice sent to him or her, by hand delivery against a receipt or some type of signature-required postal mail.

Having read these cases one would assume that logging into one’s Facebook® page would be insufficient to provide actual notice.  But in In the Matter of a Support Proceeding, Noel B, Petitioner v. Anna Maria A. (Sept. 12, 2014, NY Richmond County Family Court) a New York Family Court allowed service of process in a child support modification matter via Facebook® when it was claimed that personal service “was not practical”. 

In the Noel B. case, attempts at ordinary means of service on the respondent had failed.  The petitioner was unable to locate the respondent.  When the petitioner presented evidence of the respondent’s “active social media account on Facebook” and that service by ordinary means proved “impractical”, the Court permitted service by Facebook® by “messaging” notice to the respondent with the traditional means of mailing notice to the respondent’s last known address.  The Court felt that the “best chance” for actual notice to the respondent.

The focus in the electronic delivery of notice cases is proving receipt and reading.  Bearing in mind that electronic delivery is still an alternative means of service, one might wonder if electronic communication is less worthy than the traditional alternatives of “courthouse door” posting or publication in a somewhat obscure local newspaper.  Neither of those means of service or notice seem to be more reliable than messaging or posting.  While certified mail might prove receipt by someone living at a location, unless the item is restricted to the addressee that means of delivery does not guarantee that the item was actually received and/or read by the addressee.

Florida now permits service by e-mail, but only in those instances in which the rules mandate that one or more email addresses be provided, such as in the case of attorneys representing parties to the matter, or upon those parties who may be unrepresented but designate an email address with the court.  The Florida rules do not address email service, either alone or in combination with some other method, in those situations in which service upon a respondent has proven impossible or “impractical”.

The issue of service of process or notice by electronic means has not been fully addressed in Maryland.  However, in Griffin v. State of Maryland (419 Md. 343, 19 A.2d 414 (2011)) the Maryland Court of Appeals held that the State had failed to properly “authenticate” a MySpace® page it sought to introduce into evidence.  The Court cited the general unreliability of showing that the person against whom the evidence is sought to be used actually created the electronic “page”.  The Court could apply a similar view in the notice or service of process cases.

The cases seem to indicate that this discussion and debate over the use of electronic and “social media” resources to notify or serve process upon those affected will continue to be played out in the courts and in rules committees.  Until then, caution should be used in opening unplanned electronic communications because the recipient of an email or social media message may be subjecting themselves to the jurisdiction of a court.

For additional information contact one of PK Law’s Labor and Employment or Healthcare Facilities Attorneys or contact information@pklaw.com.

This information is provided for general information only.  None of the information provided herein should be construed as providing legal advice or a separate attorney client relationship. Applicability of the legal principles discussed may differ substantially in individual situations. You should not act upon the information presented herein without consulting an attorney of your choice about your particular situation. While PK Law has taken reasonable efforts to insure the accuracy of this material, the accuracy cannot be guaranteed and PK Law makes no warranties or representations as to its accuracy.

Tax Scam Redux, 2014

Recent headlines regarding the submission of fraudulent tax returns underscores the need for vigilance when filing any tax return.  Most news accounts indicate that it is the “online” filing that is most at risk.  This means that the fraudulent returns have primarily arisen from the use of return preparation software which is not downloaded onto a computer.  Rather, the software is made available for use directly through the internet and the identities of the users, including their passwords and other crucial filing data, is compromised.  That filing technique is different from using software on a computer to prepare a return which is then sent electronically to the IRS and state tax authorities, as is now widely mandated by governmental authorities.

In IR-2014-16, Feb. 19, 2014, the IRS released its annual “Dirty Dozen” list of tax scams, reminding taxpayers to use caution during tax season to protect themselves against a wide range of schemes ranging from identity theft to return preparer fraud.  Unfortunately, the list has not changed much from 2013:

  1. Identity Theft is the number one problem with fraudulent tax returns.  “Taxpayers who believe they are at risk of identity theft due to lost or stolen personal information should contact the IRS immediately so the agency can take action to secure their tax account. Taxpayers can call the IRS Identity Protection Specialized Unit at 800-908-4490. More information can be found on the special identity protection page.”
    1. Telephone scams in which callers pretend to be connected to the IRS (and even to local tax authorities) are pervasive.  They often threaten some sort of action against the recipient of the call if information is not provided or action not taken.  “If you get a phone call from someone claiming to be from the IRS, here’s what you should do: If you know you owe taxes or you think you might owe taxes, call the IRS at 800-829-1040. The IRS employees at that line can help you with a payment issue – if there really is such an issue.  If you know you don’t owe taxes or have no reason to think that you owe any taxes (for example, you’ve never received a bill or the caller made some bogus threats as described above), then call and report the incident to the Treasury Inspector General for Tax Administration at 800-366-4484.  If you’ve been targeted by these scams, you should also contact the Federal Trade Commission and use their “FTC Complaint Assistant” at FTC.gov.  Please add “IRS Telephone Scam” to the comments of your complaint.”
    2. 3.      Phishing.  Phishing is the result of a taxpayer responding to a fake email or website that appears legitimate.  “If you receive an unsolicited email that appears to be from either the IRS or an organization closely linked to the IRS, such as the Electronic Federal Tax Payment System (EFTPS), report it by sending it to phishing@irs.gov.” And PK Law reminds you to remember that the IRS states: “It is important to keep in mind the IRS does not initiate contact with taxpayers by email to request personal or financial information. This includes any type of electronic communication, such as text messages and social media channels.”
    3. False Promises of “Free Money” from Inflated Refunds is used to gain information for identity theft and filing of fraudulent returns.  If the promise is too good to be true, seek out another return preparer.  Most legitimate return preparers will make no such promises.
    4. Return Preparer Fraud due to someone who does not routinely prepare returns or does so without regard to applicable laws and regulations.  Choose a trustworthy preparer to complete your return(s).
    5. Hiding Income Offshore may not be legitimate.  While there may be good investment and estate planning reasons for the use of “offshore” investments it is important that be done for legitimate reasons in accordance with applicable tax law.
    6. Impersonation of Charitable Organizations, particularly after a natural disaster, to obtain contributions from taxpayers which are not deductible.  Also, help may be offered to file “casualty loss” claims for bogus tax refunds by unauthorized persons in an attempt to garner personal information from the taxpayer.
    7. False Income, Expenses or Exemptions may be claimed to avoid tax or obtain a refund of tax.  This may lead to the imposition of significant penalties against the taxpayer.
    8. Frivolous Arguments may be counseled by promoters of schemes designed to avoid tax or claim large refunds.  While contesting taxes legitimately is quite acceptable, the use of arguments that have been rejected repeatedly by the courts is unacceptable.
    9. Falsely Claiming Zero Wages or Using False Form 1099 which results in the wrongful lowering of taxes or inflated refund claims could result in a serious penalty.
    10. Abusive Tax Structures which claim to “eliminate” or “substantially reduce” tax liability may be the product of a scam.  These are frequently identified when multiple entities are used in the process of creating the structure.
    11. Misuse of Trusts which promise reduced income, inflated deductions and reduced taxes.  PK Law is familiar with tax and estate planning trusts which may be legitimately used to foster legitimate tax planning and estate planning goals, including legitimate tax savings.

To contact a PK Law Attorney for additional information or to schedule an appointment click here or go to information@pklaw.com

This information is provided for general information only.  None of the information provided herein should be construed as providing legal advice or a separate attorney client relationship. Applicability of the legal principles discussed may differ substantially in individual situations. You should not act upon the information presented herein without consulting an attorney of your choice about your particular situation. While PK Law has taken reasonable efforts to insure the accuracy of this material, the accuracy cannot be guaranteed and PK Law makes no warranties or representations as to its accuracy.

Testing the “Joint Employer” Waters

PK Law recently reported on the filing of a complaint by the General Counsel for the National Labor Relations Board (“NLRB”) against McDonald’s Corporation to the effect that McDonald’s was a “joint employer” with its franchisees and could be held liable for intimidating or terminating workers for union activities or protesting low wages.  Now, one of the first “private” actions to test that theory has surface in the United States District Court for the Western District of Virginia in Betts, et. al. v. McDonald’s Corporation, et. al.

The plaintiffs in the lawsuit are nine African-American and one Hispanic workers.  They were longtime employees of McDonald’s during which time they claimed they were subjected to “rampant racial and sexual harassment” by supervisors at three restaurants as well as “wrongful termination” by the defendants.  The defendants are McDonald’s, Soweva Company and Michael Simon.  The franchise owner of the restaurants is Soweva Co. whose sole shareholder and “highest ranking manager”, according to the lawsuit, is Michael Simon.

The workers allege that they complained to McDonald’s Corporation about their treatment, but that the Corporation did nothing to address their complaints.  The 41 page complaint filed in court describes the alleged pervasive nature of control McDonald’s exercises over its franchisees.  That control, the lawsuit contends, is sufficient to warrant McDonald’s liability for the acts of its franchisees.

Lawsuits against McDonald’s are pending in other jurisdictions.  The common theme of those actions, much like the NLRB General Counsel’s complaint, is that the “McDonald’s system” represents a degree of control over franchisees that is tantamount to an employer-employee relationship with the franchises’ employees.  The result of such an arrangement with its franchisees is one of “joint” employment by McDonald’s and the franchisee.

PK Law will continue to monitor these cases for further developments in its maintenance of its active labor and employment practice.  PK Law’s Labor and Employment Group stands ready to answer questions regarding employment issues including wage and hour, discrimination and wrongful termination claims and defenses.

This information is provided for general information only.  None of the information provided herein should be construed as providing legal advice or a separate attorney client relationship. Applicability of the legal principles discussed may differ substantially in individual situations. You should not act upon the information presented herein without consulting an attorney of your choice about your particular situation. While PK Law has taken reasonable efforts to insure the accuracy of this material, the accuracy cannot be guaranteed and PK Law makes no warranties or representations as to its accuracy.