HR White Papers

White Papers from leading HR experts provide great insight and research on timely relevant HR topics.

California Sets Standards for Tribal Subsidiaries’ Sovereign Immunity

March 16, 2017

California is home to 100+ tribes. Tribal corporations will find difficulty in asserting sovereign immunity as a result of the recent court decision. The California Supreme Court issued a major sovereign immunity decision in December 2016 that directly impacts California tribes. The Court identified five factors that should be considered to determine whether an entity is an arm of the tribe entitled to share the tribe’s immunity. It also clarified the burden of proof that applies when a tribal corporation asserts sovereign immunity. This decision will likely influence other courts as well.Brian Pierson is a shareholder with Godfrey & Kahn, S.C. As leader of the firm's Indian Nations team, his primary objective is to draw on the knowledge and experience of Godfrey & Kahn's attorneys to assist tribes in formulating and implementing strategies that strengthen tribal sovereignty, with a particular focus on business development, environmental protection, renewable energy and housing development. Mr. Pierson frequently advises tribes on tribal constitutional, ordinance and governance matters. He has extensive experience representing developers, lenders and others who partner with tribes to pursue Indian country business opportunities.

The Top 10 Labor and Employment Issues Retailers Will Face in 2017

March 14, 2017

It is a new year and a new administration. 2017 will bring change for retail employers but just how much and in what areas is yet to be seen. Employment issues are not new to retail employers. Each new year holds the potential for new rules and regulations to navigate. This year retailers are faced with many unknowns that could range from rolling back previous executive orders and rules to the uncertainty of the ever increasing state and municipal laws. No one knows what the future will hold but this author has compiled a list of 10 issues in labor and employment that all retailers will want to keep an eye on. Diane Saunders is a Shareholder in the Boston office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Ms. Saunders is the co-chair of the firm’s Retail Practice Group, and a member of the firm’s Steering Committees for the Class Action Practice Group and Professional Development. She has been helping employers with their labor and employment issues and business disputes for over 20 years.

Report Underscores Importance of Whistleblower Rewards and Protections for Internal Auditors

March 10, 2017

Many auditors feel pressure to suppress or make changes to their audit findings. In North America the pressure is greater than the global average. Auditors find themselves in the ultimate role to find and disclose fraud. Auditors find themselves protected against retaliation for blowing the whistle on possibly illegal and unethical activities. However, many auditors also find themselves faced with pressure to not report their audit findings. In a recent study 25% of auditors surveyed in North America are feeling that pressure. Considering that laws in the U.S. offer auditors strong protection and robust incentives, that statistic is alarming. Rewards for whistleblowers and protection for auditors is more vital than ever. Jason Zuckerman litigates whistleblower retaliation and rewards, wrongful discharge, and other employment-related claims, and authors the Whistleblower Protection Law Blog. His broad experience includes serving as Senior Legal Advisor to the Special Counsel at the U.S. Office of Special Counsel, the federal agency charged with protecting whistleblowers in the federal government. In 2012, the Secretary of Labor appointed Zuckerman to serve on the Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA’s administration of federal whistleblower protections. Matthew Stock is an associate at Zuckerman Law, where his practice focuses on representing whistleblowers in whistleblower rewards and whistleblower retaliation cases. Mr. Stock has audited a broad range of industries, both domestically and internationally, including large public companies and financial institutions. He uses his auditing experience to help IRS, CFTC and SEC whistleblowers investigate and disclose complex financial frauds to the government.

OSHA Whistleblower Update: Curious Case of Expanding Agency

January 12, 2017

Did you know that the Occupational Safety and Health Administration (OSHA) enforces and investigates claims under 22 different federal whistleblower laws, ranging from Section 11(c) of the OSH Act to the Clean Air Act, the Consumer Financial Protection Act of 2010, the Safe Drinking Water Act, Sarbanes-Oxley and the Surface Transportation Assistance Act? Given the number of laws that fall within OSHA's purview, it should come as no surprise that the agency has sought to expand its reach of late in ways that may leave employers scrambling to understand the risks and obligations they face when a whistleblower comes forward. In 2009, OSHA awarded $13.25 million in damages from whistleblower complaints. By 2013, that number exceeded $25 million – an 89% increase. In fiscal year 2016, the awards have been eye-popping: a Michigan janitor was awarded $193,139, an Alaskan aviation company was ordered to pay a pilot over $500,000 and a railroad conductor received over $250,000 in punitive damages alone. Download this white paper to continue reading … Elliot G. Cole is an Associate in the Chicago office of Vedder Price and a member of the firm’s Labor & Employment practice group. He focuses his practice on representing management in collective bargaining negotiations with public worker unions and ADA, FMLA and Title VII cases. He also administers client trainings on employee discipline and corrective action plans, hiring employees with disabilities and performance evaluations. Aaron R. Gelb is a Shareholder at Vedder Price and a member of the firm’s Labor and Employment practice area. He represents employers in all aspects of equal employment opportunity, wrongful discharge and labor relations litigation before federal and state courts and federal, state and local fair employment and administrative agencies such as the EEOC, Illinois Department of Human Rights, Cook County Civil Rights Commission, Department of Labor, National Labor Relations Board and OSHA.

Endorsements - ALTA Owners’ and Lenders’ Policies

December 8, 2016

Endorsements issued by the title insurer or title agent are designed to delete, add to, or modify any number of provisions of the commitment for title insurance and policies of title insurance. Endorsements are not available as stand-alone documents, but invariably refer to an underlying commitment or policy that predated or was issued simultaneous with the endorsement. Although it is usually the case that endorsements enhance or expand upon coverage, in some instances endorsements will be issued to reduce or revoke coverage. Several basic features of or considerations relating to endorsements should be mentioned: - Endorsements are of two types: Standardized and transaction specific. - Endorsements where standardized will be promulgated by the ALTA, the CLTA or other state title association or board, or designed by individual insurers. - Endorsements, where transaction-specific, will be issued to reflect or respond to requests (e.g.”Exception No. 14 is hereby deleted.”). - Endorsement availability will depend upon whether the endorsement form is, in the discretion of the title insurer, appropriate to owners, lenders or both. Download this white paper to continue reading … Duane H. Wunsch is the vice president and state counsel for Fidelity National Title Group, Inc.’s Wisconsin office. He has 30 years of experience as in-house underwriting and claims counsel. Mr. Wunsch is a frequent lecturer to both attorney and nonattorney customer groups. He regularly conducts training sessions for title and escrow staff.

Role of the Board and Fiduciary Duties - An Overview

December 7, 2016

Charities play a significant role in our society. They provide services and grants in a wide variety of areas that are of importance to the community, ranging from hospitals to educational institutions to museums to organizations dedicated to assisting those in need. The purpose – or mission – of these organizations drive the activities it carries out and the board of directors is responsible for overseeing management to ensure that this occurs. Governance, transparency and accountability are critical issues for all charities. Effective governance, transparency and accountability leads to increased public trust in the organization and a greater willingness to donate funds and services. The ultimate goals should be an active and engaged board. In this respect, the experience of boards in the for-profit world provides a useful point of comparison. Boards of for-profit organizations have worked to restore public confidence and increase investment in the wake of several highly public governance failures. Download this paper to continue reading … Anita Pelletier is of counsel in the Rochester, NY, office of Nixon Peabody LLP. She has represented organizations ranging from the very small to the very large on all matters relating to nonprofit governance and related issues; also worked with several organizations to guide them through IRS and regulatory audits; assisted numerous charities navigate the various rules regarding charitable solicitations in a market that necessitates the use of social media and electronic communications.

Why Non-Taxpaying Entities Should Care About Allocations of Taxable Income

November 23, 2016

Even before the advent of P3s (public-private-partnerships), it was not uncommon for a governmental entity or a 501(c)(3) to enter into a joint venture with a for-profit, taxpaying entity. Sometimes these joint ventures take the form of either a state law partnership or a state law limited liability company (“LLC”). Most LLCs are taxed as partnerships for federal income tax purposes, which generally means that they are pass-through entities. In other words, the partnership itself does not pay tax on its taxable income (like a corporation would). Rather the taxable income flows through to the partners who are required to pick up their respective distributive shares of the partnership’s items of income and loss on their own separate federal income tax returns. Why would a non-taxpaying entity care about allocations of taxable income? Because the manner in which “taxable income” is determined, and its allocation among the various partners in the partnership could impact the amount of cash flow available to be distributed to the partners in the partnership. Download this white paper to continue reading … Cynthia Mog focuses her practice on federal income tax matters. She has experience working on corporate, partnership and real estate transactions including acquisitions, reorganizations, restructurings and tax-free exchanges.

75 Best Questions to Close More Business

November 9, 2016

“Have you ever faced a situation where the sale seemed to be just about sealed, only to stall at the last minute? Or you had great rapport with your contact, but at the last minute another influence came in and derailed the whole thing? Or your prospects decide they simply don’t need change right now? How do you make them see the value of your service, not just the price tag? You do it by asking questions that expand your customer’s mindset, which in turn helps him to realize the value of your solution - BUT how will you know what to ask? Why do we ask questions, anyway? More to the point, why don’t we ask enough questions — important questions? Like many salespeople, you may be nervous about asking questions for fear of asking the wrong ones, or worse, getting answers you don’t want to hear. You don’t always know what to ask, and silence makes you even more nervous.” Download this white paper to continue reading … Paul Cherry is the founder and president of Performance Based Results ( He has worked with more than 1,200 clients including Johnson & Johnson, BlueCross, Philips, DOW, Hilton, Wells Fargo, US Department of Energy. 92% of clients realize a 10 times return-on-investment. Mr. Cherry is recognized as the leading authority on client engagement strategies.

ACA Information Reporting - Ensuring Big Data Analyses Do Not Lead to Big Penalties

October 21, 2016

“As employers prepare the Affordable Care Act information reporting filings for the 2016 year that will be due in 2017 (notably the 1094/1095 B&C), the good faith standard of compliance, and the potential for inaccuracies, is no longer available. In order to seek a waiver of penalties for the 2016 filings made in 2017, an employer will need to meet a standard of reasonable cause and no willful neglect. With this standard, an employer must show that there are significant mitigating factors or the failure was due to certain events outside their control and the filer acted responsibly. While “responsibly” remains subjective, the employer must be able to demonstrate that the same level of quality assurance and audit rigor that is applied to other governmental reporting must be applied to the 1095 and 1094 IRS reporting processes. Also, at this time, anticipate that the filings will need to be made with the government, and to the employees (and other recipients), under the regular schedule without extensions: (i.e., the disclosures to employees will be due the last day of January following the calendar year in which coverage was provided; forms must be filed with the IRS by the last day of February if filing on paper or March if filing electronically (which is required for employers with 250 plus returns)). Failure to timely file the Forms with the IRS and provide them to employees can lead to significant penalties (for example, currently large businesses are subject to a penalty of $260 per return up to a maximum of $3,178,500, as adjusting in successive years); this is not tax deductible.” Download this white paper to continue reading … Michelle Capezza is a member of Epstein Becker Green in the Employee Benefits and Health Care and Life Sciences practices, and co-leads the firm's Technology, Media, and Telecommunications (TMT) service team. She practices law in the areas of ERISA, employee benefits, and executive compensation.

The Law of Easements in Pennsylvania

October 5, 2016

“Understanding the Legal Concept of Easement 1. An easement is a nonpossessory interest in land differing from an estate in which the holder can possess and occupy the entire land. An easement holder may use the land within the scope of the easement only. 2. Easements are irrevocable as opposed to licenses which permit a licensee to use the land, but may be revoked at any time. While similar in nature and in drafting easements distinguish from licenses through nature of creation, duration of use, amount of consideration, and reservation of the power to revoke. 3. Leases grant the lessee a possessory interest in another’s land for a period of time. 4. Easements create both dominant estates, which retain the right to use, and servient estates, which are subject to the use. Dominant estates need not abut servient estates such as in the case of access easements. 5. Affirmative easements provide the dominant estate the right to utilize the land for the purpose of the easement, preventing what would otherwise be trespass. Negative easements provide the dominant estate the right to prohibit use of the servient estate, such as a light and air easement. Negative easements cannot be acquired by prescription.” Download this white paper to continue reading … Matthew J. Carl, Esq. is a Partner in the office of Blumling & Gusky, LLP. His practice emphasizes all aspects of real estate development and title, including mineral interests.