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RETIREMENT FOR OLDER WORKERS DELAYED BY COVID-19

Coronavirus (Covid-19) will likely create a perfect storm for older workers. Not only are they at a greater risk for contracting the virus, but their retirement plans may be put on hold due to what most certainly will be a drop in the value of their investments, and the necessity of using funds set aside for retirement to sustain themselves if the country enters a recession.

Despite the doom and gloom of these predictions, there is one bright spot. The U.S. House of Representatives has passed bill H.R. 1230, the Protecting Older Workers Against Discrimination Act (POWADA). The bill awaits passage by the Senate, but it encouragingly received bipartisan support in the House.

In 2009 the U.S. Supreme Court issued a decision, Gross v. FBL Financial Services, 557 U.S. 167 (2009), that made it much more difficult for people who face age discrimination in the workplace to successfully challenge such bias in court. The Gross decision required employees to prove that their age was the “decisive factor” in an employment decision. This is in contrast to the standard that is used in other types of discrimination, which requires employees to prove that their protected characteristic – such as race or gender – was merely part of an employer’s “mixed motive” in making an employment decision.

This “decisive factor” standard, which is also called the “but-for” standard, is much more difficult to prove as compared to the “mixed motive” standard. As a result, despite an increase in age discrimination complaints filed with government agencies, fewer age discrimination cases are actually filed in court, and fewer still are actually won by the plaintiffs. The passage of POWADA would restore the “mixed motive” standard and would make it easier for employees to win age discrimination cases.

What difference does it make to our economy if age discrimination against older workers is minimized? Here are some interesting statistics about older workers:

  • Older workers make vital contributions to society and to their workplaces, and their numbers are growing. 41 million workers will be age 55 or older in 2024, and will occupy a larger share of the nation’s workforce.
  • As people live longer and healthier lives, a multigenerational workforce is becoming the norm. There are 117 million people 50 and older in the U.S., and the number of workers age 50-plus has increased 80 percent over the past 20 years.
  • Workplace age discrimination has a negative impact on the entire economy. The U.S. economy missed out of $850 billion in economic activity in 2018 dues to biases against older workers. An AARP study divided the loss into 57% based on involuntary retirement, 27% based on underemployment, and 15% based on unemployment. This amount could reach $3.9 trillion in 2050. In 2018 age discrimination may have cost the U.S. 8.6 million jobs and $545 billion in lost wages and salaries.

The passage of POWADA would challenge workplace policies that discriminate against older workers and ensure that society continues to benefit from the wealth of experiences and perspectives offered by businesses that employ older workers. And, productive older workers will continue to have the resources available to consume products and services, pay taxes and be contributing members of society.

We all win as a society when that happens.

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If you think you have been discriminated against due to your age (gender, race, religion, national origin, disability) talking to a knowledgeable lawyer can bring clarity to the situation and determine whether you’re entitle to restitution. Faye Riva Cohen is the founder and managing attorney of Faye Riva Cohen, P.C. in Philadelphia, PA. She represents residents of PA and NJ who are involved in employment-related disputes with their employers. Her office is located in Philadelphia, PA. She can be reached at 215-563-7776 or at frc@fayerivacohen.com.

You can find this post here on my blog as well.

Michigan Will Allow Secular Marriage Celebrants

This is from religionclause.blogspot.com which you can find here:

In an April 2 press release, the Center for Inquiry reports:

Secular celebrants are now permitted to officiate and solemnize marriages in Michigan, after the state attorney general reversed the government’s opposition to a lawsuit brought by the Center for Inquiry (CFI). Promising that the state considers CFI-trained and certified Secular Celebrants to be covered by existing statutes regarding marriage solemnization, the presiding federal court brought the case to a close.

You can learn more about this issue here.

The impact of Covid-19 has caused the government to extend tax filing deadlines.

Due to the impact of Covid-19, governments at all levels are offering more flexibility in tax filings for 2019 taxes.

At the Federal Level:

  1. Any person with a federal income tax return or payment normally due on April 15, 2020, is eligible for relief.  The payment due refers to both 2019 Federal income tax payments and 2020 estimated Federal income tax payments, regardless of the amount owed. The return or payment must be due on April 15, 2020 for tax year 2019.
  2. No extension is provided for any other type of Federal tax, or the filing of any Federal information return, or payments due on any other date.
  3. If you have not yet filed your 2019 income tax return that would have been due on April 15, you don’t need to file any additional forms or permission of the IRS to qualify for this automatic relief.
  4. If you expect a refund, you should file your return as soon as possible as there may be delays in processing refunds. The quickest way to receive your refund is to file electronically and request your refund as a direct deposit.
  5. The relief does not apply to estate and gift taxes and return deadlines.
  6. If you need to file an extension, because you would not be able to file by April 15, 2020 or July 15, 2020 for tax year 2019, you may file an automatic extension via IRS Form 4868.
  7. If you intend to file an extension, the tax still must be paid by July 15, 2020 or interest and penalties will accrue. You must request the automatic extension by July 15, 2020.
  8. The deadline for first quarter 2020 estimated income tax payments due on April 15, 2020 is postponed to July 15, 2020.
  9. The second quarter 2020 estimated income tax payments are still due on June 15, 2020.

For Pennsylvania:

  • The Pennsylvania Department of Revenue has elected to follow the IRS with the above listed extensions applying to the Pennsylvania income tax returns for individuals.

For Philadelphia and localities:

  1. Each county and locality have different taxes and deadlines.
  2. For Philadelphia:
  • Real Estate Tax due date extension to April 30, 2020; but this not appear to apply to the early pay discount.
  • Business Income & Receipts Tax and Net Profits Tax filing and payment extensions – The City will follow the IRS and extent filing and payments to July 15, 2020 for payments and returns due April 15, 2020 for tax year 2019. This policy includes estimated payments. No action is required from businesses to take advantage of this extension policy in Philadelphia.

Please be sure to contact my office to help you with all of your tax needs and ensure you remain compliant with the law during this ever changing time.

Thanks to Adam S. Bernick, Esquire for his assistance in drafting this post.

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Faye Riva Cohen, Esquire is the founder and managing attorney of the Law office of Faye Riva Cohen, P.C. in Philadelphia, PA. Her office can help people from both Pennsylvania and New Jersey with their tax issues. Her office is located at 2047 Locust Street in a historic Philadelphia brownstone. She can be reached at 215-563-7776 or at asb@fayerivacohen.com.

You can find this post on Faye’s blog here.

10th Circuit Reverses Dismissal Of Inmate’s 1st Amendment Claims

This is from religionclause.blogspot.com which you can find here:

In Khan v. Barela, (10th Cir., March 26, 2020), the U.S. 10th Circuit Court of Appeals in a 35-page opinion reversed a New Mexico federal district court’s sua sponte dismissal of a federal pre-trial detainee’s pro se 1st and 4th Amendment claims. Erik Khan was a pre-trial detainee for some four years. His 1st Amendment free speech claims involved a prohibition on his reading hard-cover books, newspaper and newspaper clippings. His 1st Amendment free-exercise claims revolved around prison chaplains’ refusal to allow him a clock, prayer schedule, and Muslim calendar to track the timing of Ramadan, and his inability to obtain Ramadan-compliant meals.

You can learn more about this issue here.

Tips for Working with the Coronavirus

Covid-19 will be a serious wake-up call for every worker, whether they work for large businesses and institutions or small businesses, and whether they are independent contractors and/or gig economy workers.

  • Employees of Large Companies and Institutions— currently it is unclear how long employees who are being asked to work from home can sustain their jobs. Being permitted to work from home is a band aid solution to a huge problem. A limited number of jobs lend themselves to working from home, and the ability to work from home usually depends on access to specific technology and data maintained and updated by others in a central location. If Covid-19 restrictions continue, businesses will be affected and layoffs and terminations will result.
  • Small Businesses—Although federal and state governments may be able to provide some aid for small businesses, the aid being discussed is are temporary tax relief measures or loans that require repayment. This aid presumes that businesses will continue to operate. Small business are generally fragile and do not sit on large cash reserves, unlike many large companies, who have greater benefitted from the bull economy. W-2 and 1099 workers for small businesses may see their hours reduced, or they may be terminated.
  • Independent Contractors and Gig Economy Workers—It is unlikely that government measures will assist workers who have several part-time jobs, and are not eligible to receive unemployment compensation and other benefits being discussed as assistance. These workers run the greatest risk in crises situations, and the Covid-19 pandemic will likely cause them to rethink their goals and career paths.

If these scenarios (or issues) look familiar to you, it may be time to talk to a lawyer. An employment lawyer can help you identify what’s happening—and decide what to do about it.

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Attorney Faye Riva Cohen has 46 years of experience in labor and employment law. Please contact her for advice and guidance. She can help you navigate the dangerous shoals of our economy created by Covid-19.  Her office is located at 2047 Locust Street in a historic Philadelphia brownstone. She can be reached at 215-563-7776 or at frc@fayerivacohen.com.

(Also posted to her blog Toughlawyerlady here and linkedin here).

Court Interprets Defenses Under Illinois RFRA and Right of Conscience Act

This is from religionclause.blogspot.com which you can find here:

In Rojas v. Martell, (IL App., March 6, 2020), an Illinois state appellate court answered four certified questions on the state’s  Health Care Right of Conscience Act and its Religious Freedom Restoration Act. The court held that neither the analytic framework not the reasonable accommodation defense of Title VII should be read into these state statutes. It also concluded that transfer of an employee to a job that does not include the religiously objectionable duties may be permissible under the Right of Conscience Act. The issues arose in a case in which a county health department nurse claimed that the health department discriminated against her after she asserted that her Catholic religious beliefs prevented her from providing birth control, from providing Plan B emergency contraception, and from making abortion referrals.

You can learn more about this issue here.

The Internet is Not a Legal Expert and Other Musings

The Internet and the Law

The Internet is a two edged sword when it comes to the law. On the one hand, I am often pleasantly surprised to learn how much knowledge a current or potential client has received from the many hours they have surfed the Internet.  On the other hand, much of that knowledge is not relevant to their issue, raises expectations of their case beyond what the facts of their case would deliver in a court of law, and often has no relevancy to the laws of Pennsylvania, where I practice and where my clients generally live or do business.  Inquirers are often surprised to learn that the cases they have reviewed and sent to me to review have absolutely no relevancy to Pennsylvania or, quite often, their issue.

Lawyers generally know how to conduct legal research and hone in on effective and relevant law, so if a client wants me to read through many cases they feel are relevant which they have pulled from the Internet, I will do so, but I will charge them for doing so. I think their money is better spent on me conducting the research.

For instance, I recall a situation where a lawyer in another state achieved what my client thought was a remarkable result in the field of education law. I called the lawyer who told me the results of her case were “one in a million,” was entirely based on the unique facts of the situation, that her client was given significant help from some employees who worked for the school she was suing, and other fluky factors. Although the universe combined in that instance to create a unique result, and that is what it was—unique to the facts of the case- it was totally unrelated to the law as it stands in Pennsylvania.

Remember that the Internet has no controls, so anything can be mentioned. This does not mean that the things mentioned are even true. I am always surprised to learn that clients feel that if something is on the Internet, it is gospel. The Internet is not a font of knowledge.  

So, There is Nothing I can Do…

It always astonishes, and sometimes angers me, when I have spent time my time, often free of charge, giving a potential client my opinion on their legal options, and they conclude by saying “so, there is nothing I can do” or “you don’t sound optimistic.” I did not say that!  I gave the potential client choices and possible results.

The disconnect between what I say and what a client often hears or wants to hear, comes because many people today, especially those who want or need to spend their hard earned dollars on legal representation, want a guarantee of excellent results. The law, and lawyers, cannot usually provide guarantees. In fact, I tell clients if they meet with a lawyer who guarantees a result, I would run the other way. There are so many factors which enter into a case, not the least of which is the opposing party, the opposing lawyer, the judicial system, the facts, the law, etc., that a result can’t be guaranteed.  The law is not a shirt whose collar frays and one can demand their money back.

What disturbs me even more is that the same people who are concerned about whether they have a 100% winnable case, and want a guarantee of same, have often spent considerable money on things related to the case for which they will not receive any benefit. They have done this without consulting a lawyer, or they have consulted everyone besides a lawyer, such as a real estate agent, an accountant, their neighbors, their family, their friends, and anyone else who is not a lawyer, who have given them poor and quite often damaging and misleading advice. If one were to do a cost benefit analysis, the amount they would have spent on a lawyer to handle the matter effectively is usually far less than what they have spent in this round-about fashion of avoiding lawyers and the legal system.

For example, I had an elderly woman consult me once who had paid $40,000 in back taxes and bringing a mortgage current after it had fallen in arrears, on a house which was owned by her niece. Yet, she did not want to pay a fraction of that amount to undertake the process of placing the house into her name.  Under the law she made a gift to her niece, and has no legal basis to recoup it if the niece sells the house or encumbers it. She doesn’t own the house.  And, this is not an unusual situation. Not only had she not consulted a lawyer prior to spending this amount, but she said she didn’t have the money to pay a lawyer to do what was necessary to give her the benefit of her investment, for a couple of thousand dollars.  I wish someone would come along and pay my bills.

I have said this before in my blogs. Do not be pennywise and pound foolish. Consult a lawyer and keep an open mind and do not expect a guarantee under the law. But, if you have a fighting chance, lawyers perform small miracles daily, and they can certainly give you better advice about the law than people who aren’t lawyers.

By: Faye Riva Cohen, Esquire on her blog “Toughlawyerlady”

Justice Department Sides With Wedding Photographer In District Court Case

This is from religionclause.blogspot.com which you can find here:

The Department of Justice announced yesterday that it has filed a Statement of Interest (full text) in Chelsey Nelson Photography, LLC v. Louisville/ Jefferson County Metro Government, (WD KY, filed 2/27/20).  As previously reported, in the case the owner of a wedding photography business seeks a preliminary injunction to prevent enforcement of Louisville’s public accommodation ordinance against her. Plaintiff “only accepts requests for services which are consistent with her editorial, artistic, and religious judgment.”  This precludes her from providing photography and social media services for same-sex weddings. DOJ sides with the photographer, arguing in part:

Most commercial transactions will not involve requiring an unwilling speaker to participate in someone else’s expressive activity. But where public accommodations laws do intrude on expression in this way, they are subject to heightened scrutiny….

Photography—and particularly the bespoke wedding photography in which Ms. Nelson engages—is inherently expressive…. By … compelling her to engage in expression promoting and celebrating a ceremony in violation of her conscience, Defendants infringe upon the fundamental “principle of autonomy to control one’s own speech.”

… That is not to say that every application of a public accommodations law to protected expression will violate the Constitution. In particular, laws targeting race-based discrimination may survive heightened First Amendment scrutiny….  The Supreme Court has not similarly held that classifications based on sexual orientation are subject to strict scrutiny or that eradicating private individuals’ opposition to same-sex marriage is a uniquely compelling interest.

You can learn more about this issue here.

Who is an Independent Contractor?

A “hot button” topic these days is whether a worker is an independent contractor or an employee. This topic arises both in work and tax arenas, and is not a simple issue.  In the work arena the issue often arises when someone applies for unemployment compensation benefits. In Pennsylvania someone who is an independent contractor is not eligible for unemployment compensation benefits, and is considered self-employed.

Pennsylvania Courts use a two-part test to make this distinction. It is: (1) whether the worker was free from control and direction in the performance of the work; and (2) whether the business is one that is customarily engaged in as an independent trade or business. If the alleged employer opposes a claim for benefits based on an independent contractor defense, the alleged employer generally has the burden to prove that the worker was not an employee.

To determine whether a worker is free from the control and direction of an employer in the performance of work, Pennsylvania Courts frequently consider and weigh eight factors. 1. How the job was performed? Does a worker set his own hours, create his own work/task agenda, and/or decide how many other workers are needed for a particular task? 2. Whether there was a fixed rate of pay, who decides the cost of the services being provided, and who decides when/if raises are granted? The amount of money a worker earns is not significant in the analysis. 3. Whether taxes are deducted from the worker’s pay, or is a W2 or a 1099 issued? 4. Whether the alleged employer supplies the tools necessary to carry out the services being provided? 5. Does the alleged employer offers on-the-job training? 6. Whether there were regular meetings with the alleged employer? 7. If the business fails, will the worker only lose his job, or will he have the responsibility to satisfy the business’s potential creditors? 8. Does the worker work exclusively for one employer, or is he free to accept other jobs at the same time?

Ultimately, all of the above factors can be reduced to two words: The first is FREEDOM. Does the worker have the freedom to set his own schedule, to establish his own pay rate, to compete with the business?  The second is RESPONSIBILITY. Does the worker pay his own taxes, use his own tools, and/or bear the risk and burden of financial loss in the business?

Generally under the IRS regulations, a worker is deemed to be an independent contractor rather than employee if the employer has the right to control or direct only the result of the work and not the means or methods by which the results are accomplished.  A worker is classified as an employee if the employer has the right to control what will be done and how the services will be performed.

The IRS regulations focus on (1) relationship of the worker and the business, (2) the degree of control exercised by the business on the worker, and (3) the worker’s degree of independence. The IRS also has regulations specific to certain jobs and salespeople, drivers, and other persons who generally don’t work in an office setting and has further criteria to determine if federal taxes should be withheld for them. In some cases although W 2’s versus 1099’s are provided, some taxes need not be withheld and some expenses can still be deducted by the worker.

The IRS seeks to qualify as many workers as possible as employees rather than independent contractors, so that taxes can be collected. IRS regulations take into account the behavioral control, financial control, and the type of relationship of the parties in making this analysis. Many of these factors are the same ones as discussed above in the unemployment compensation context, so they won’t be repeated. Other factors which are considered in determining the relationship between a worker and an employee are: whether there is a written employment contract; whether the worker is provided any benefits such as insurance, pension plan, vacation pay, or sick pay; and whether there is a finite end date for employment of the relationship.

If a worker is erroneously classified as an independent contractor rather than an employee, the employer will be held liable for all of the employment taxes, but if the employer has a reasonable basis for misclassifying a worker, they will not be held liable.  Such relief is only provided if the employer filed all required federal information returns on a basis consistent with the treatment of the worker, such as showing that all workers in a substantially similar position were classified in the same manner.

Businesses should consider reviewing their current payroll practices.  Documentation and record-keeping procedures should be reviewed and updated if necessary. Even if a worker is found to be misclassified by the employer, the employer may still be entitled to partial relief from federal employment taxes if they participate in the Voluntary Classification Settlement Program (VCSP). There are specific requirements for participation which I won’t delve into here. SUFFICE IT TO SAY THAT THE QUESTION OF EMPLOYEE CLASSIFICATION IS QUITE COMPLICATED AND BECOMING MORESO.  

By: Faye Riva Cohen, Esquire on her blog “Toughlawyerlady”

No 1st Amendment Violation In Requiring Parolee To Live At Christian Homeless Shelter

This is from religionclause.blogspot.com which you can find here:

In Janny v. Gamez, (D CO, Feb. 21, 2020), a Colorado federal district court dismissed an inmate’s First Amendment challenge to his arrest for parole violations. Mark Janny’s parole officer directed him to stay at a Christian homeless shelter in order to meet the parole requirement that he establish a residence of record. Janny was expelled from the shelter’s program when he refused to attend chapel religious services. The court held that plaintiff’s Establishment Clause rights were not infringed because there was a secular purpose for the homeless shelter requirement. The court also accepted defendant’s qualified immunity defense to an assertion of free exercise violations, saying that it was not clearly established that a parole officer violates a parolee’s rights by requiring him to reside at a facility that provides religious programming.

You can learn more about this issue here.

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