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Accounting and Tax Planning

A Proactive Step That Adds Up

By Joe Lemay, CPA

I’m sure you’ve heard by now, but there were quite a few changes to the tax law in 2018. When the Tax Cuts and Jobs Act (TCJA) was signed into law into December 2017, it took an axe to many itemized deductions on your personal return.

Of these, the deduction for unreimbursed employee business expenses, such as business travel or car expenses, tolls, and parking, is one of significant note. However, despite the lost deduction, there may be an alternative solution that can be a win-win for employers and employees.

Prior to the TCJA, unreimbursed employee business expenses were deductible as a ‘miscellaneous’ deduction on an individual’s return. All miscellaneous deductions were deductible in excess of 2% of adjusted gross income (AGI).

For example, if your AGI was $100,000 in 2017, you could claim only a deduction for the amount of your total miscellaneous expenses that exceeded $2,000. If you had a total of $3,200 of unreimbursed employee expenses, you would have been able to deduct $1,200 on your personal return in 2017. Now fast-forward to 2018, and the $3,200 of unreimbursed employee expenses are not deductible at all on the individual return.

The Solution

You may be thinking the changes noted above sound unfair. However, a company can establish an ‘accountable plan,’ which may serve to remedy this change. An accountable plan is a reimbursement or other expense-allowance arrangement between an employer and employee, which reimburses employees for business expenses that are not recorded as income to the employee and are generally deductible by the employer as business expenses.

If the accountable plan is followed properly, the company reimburses an employee for substantiated business expenses, and then, in turn, the company deducts those business expenses on its income-tax return. The reimbursements are excluded from the employee’s gross income, not reported as wages or other compensation on the employee’s W-2, and are also exempt from federal income-tax withholding and employment taxes.

The company can negotiate with the employee to reduce the employee’s wages in exchange for the reimbursement, thereby saving the company payroll taxes, which includes Social Security tax of 6.2% on gross wages, capped at $132,900 (for 2018) and Medicare tax of 1.45%. By executing this transaction appropriately, the employee receives full reimbursement for business expenses, while seeing no change in their overall income, and the company benefits by saving on payroll taxes.

For example, Johnson Inc. has a sales team, which includes its ace salesman, Dave. During 2017, Dave earned $105,000 in base compensation and had $7,000 of unreimbursed business expenses. Assuming Dave’s base compensation of $105,000 is also his adjusted gross income, Dave would have been able to deduct $4,900 of his unreimbursed business expenses on his personal tax return in 2017. The remaining $2,100 of unreimbursed business expenses is a lost deduction.

Now let’s assume Johnson Inc. establishes and properly follows an accountable plan in 2018. During 2018, Dave earns the same $105,000 reduced by the elective expense allowance of $7,000 to a new taxable base of $98,000. Under the accountable plan, Dave is reimbursed in full for his business expenses; therefore, his net income, subsequent to reimbursements, remains the same as 2017 at $98,000. However, in this scenario, the company saves Social Security and Medicare tax in the amount of $535 (7.65% combined tax rate multiplied by $7,000 of reduced wages). While this savings may not seem like a lot, imagine a sales team of 25 employees; that is a potential savings of $13,375. Think about what you could do with that savings as a business owner.

How to Establish an Accountable Plan

The following criteria must be met for the plan to be accountable:

The accountable plan must prove the business connection for the reimbursements and/or allowances. The typical allowable deductions are travel, supplies, local transportation, meals incurred while away on business, and lodging.

The accountable plan must also have adequate support and records (such as itemized receipts) that substantiate the expense’s amount and purpose. The substantiation should be examined and approved by a manager or supervisor. The plan also requires the employee to return any advances back to the company which are not business expenses. Excess advances must be returned to the company within a reasonable period after the expense is paid or incurred. If excess advances to employees are pocketed by the employee, the excess advances are subject to federal income-tax withholdings and employment taxes.

The business-connection requirement is satisfied if a plan only reimburses employees when a deductible business expense has been incurred in connection with performing services for the company and the reimbursement is not in lieu of wages that the employees would otherwise receive. The company cannot simply shift taxable wages to the employee to non-taxable reimbursements without adequately proving the business connection.

There is no specific IRS form used to adopt an accountable plan, nor does the tax law require an accountable plan to be in writing; however, it would behoove employers to write down a formal plan.

Costs and Benefits of an Accountable Plan

The benefits produced from an effective accountable plan are clear. The employee is reimbursed in full for business expenses, and the company can save on payroll taxes, a win all around for everyone. However, the costs of implementing an accountable plan must also be factored in.

The company must have an organized process for tracking employee reimbursements, maintaining appropriate support that substantiates the business connection of employee reimbursements and is timely with reimbursements and requests for payback from its employees.

Companies with highly functioning accounting and/or human-resource departments will not have an issue with meeting these tasks; however, companies with low-functioning accounting and human-resource departments could struggle with appropriately maintaining an accountable plan.

Conclusion

Utilizing an accountable plan is an overall win for employers and employees. But consistency must be maintained throughout the year in order to yield the benefits.

Joe Lemay, CPA is a senior associate with the Holyoke-based public accounting firm Meyers Brothers Kalicka, P.C.; (413) 322-3520; [email protected]

Accounting and Tax Planning

When Experts Become Victims

By Julie Quink

Julie Quink

Julie Quink

As professionals who counsel clients on best practices relative to fraud prevention and detection techniques, we unfortunately are not immune to fraud attempts as well.

The schemes that individuals and companies have fallen victim to are many, but here are two schemes we feel are important to mention for which we have recent personal experience.

The Fake Check Scheme

In a fake check scheme, the fraudster can obtain a check for the company and replicate the check using software that can be acquired easily on the Internet. The replicated check may look like an authentic company check written to a legitimate vendor.

By creating a replica of a legitimate company check, the fraudster now can generate a check payable to themselves or another entity for any amount. The check is entered into the banking system, deposited or cashed like a normal, routine check. If the check is negotiated at an out- of-state bank, it can take longer to move through the clearing process, and the fraudster can get the funds before the company or bank, which the company uses, is notified.

In this scheme, the original, authentic check is kept intact, and a fake replacement is generated using the information from the original check with slight modifications.

The Forged Payee Scheme

The forged payee scheme is a scheme whereby a fraudster intercepts a company check paid to a vendor for a legitimate invoice and washes the check to remove the original payee, amount, and sometimes date. The washing is done through a chemical process that removes the unwanted information so that the check becomes ‘blank’ again and can be modified with the information that the fraudster includes.

“It is always best practice to keep blank checks secured and accessible to only those who need access, thereby limiting the opportunity to generate fake checks.”

The original, authorized check signer’s signature is still on the check, so on its face, the check appears authentic to the bank clearing the check, and the fraudster can negotiate the check through deposit or check cashing. On its face, most times the check does not look to be altered or modified, so visually it is difficult to determine that the check is not a valid, authentic check.

Effects of Fraudulent Checks

In addition to the possible loss of company funds to the fraud, a level of business interruption can occur as a result of these schemes. The fraudster now knows the company’s routing information, bank account, name, and other critical information on the check and can continue to attempt to perpetuate the fraud. It is best practice to change the bank account to assist in preventing the fraud from continuing to occur.

Changing a bank account may not seem a significant interruption, perhaps, but if you consider all the transactions that occur within that account, it can be significant. Many companies use outside payroll firms that automatically withdraw funds from their account. Clients or customers may pay their bills automatically through ACH transactions. Vendors may also be paid electronically through the bank account.

The changing of the bank account requires consideration of all the transactions and activities that occur within that account and making the appropriate notifications to those parties to ensure the correct bank account information is provided to ensure continued operations.

Detection and Prevention Techniques

It is always best practice to blank checks secured and accessible only to those who need access, thereby limiting the opportunity to generate fake checks. Internal controls over the check-processing and mailing functions within a company are preventive measures to assist in minimizing the risk of forged payees.

These techniques can include a segregation of duties in the check-disbursement process to allow for appropriate oversight and control over the process.

Keep in mind that potential fraudsters can exist within a company as employees. They can also be external to the company. Consider that it is difficult at best to contemplate when a check, which has been mailed to a legitimate vendor for a legitimate expense, will be intercepted from the time it is mailed to the time it reaches a fraudster and is then replicated. The fraudster could be employed by the vendor that is receiving the company check.

In the age of electronic banking and ease of access to information, it is critical that bank-account activity be reconciled on a recurring, consistent basis to identify any unusual items. In addition, the reconciliation will identify older checks that have not yet cleared through the account but normally would clear in a timely fashion.

Through routine and timely reconciliation of bank accounts, items such as unusual, unauthorized checks can be easily identified and quickly investigated.

Many banks offer a service, which is most commonly referred to as ‘positive pay.’ This service requires the company to send over a check-disbursement list to the bank indicating all checks written. The bank will use the list to determine which checks will clear the company bank accounts. It is a higher-level control that can assist in preventing unauthorized checks.

Bottom Line

A heightened sense of awareness and evaluation of internal controls in place, including reconciliations, in addition to feeling comfortable with your banking partners and their controls, is critical to ensuring that your accounts are protected.

Julie Quink, CPA is managing principal of the West Springfield-based accounting firm Burkhart Pizzanelli; (413) 734-9040.

Employment

Understanding PFML

John Gannon says there are always hot topics within the broad realm of employment law. And sometimes — actually quite often these days — there are what he called “sizzling hot” topics.

The state’s Paid Family and Medical Leave (PFML) law certainly falls in that latter category. Provisions of the bill, specifically the contributions to be paid by employers, go into effect on July 1. The actual law itself doesn’t take effect until Jan. 1, 2021, but the time between now and then will go by quickly, said Gannon, an employment-law specialist with Springfield-based Skoler, Abbott & Presser, adding that employers should do whatever they can to be ready. And there are things they can do, which we’ll get to in a minute.

First, the law itself. Gannon used the single word ‘scary’ to describe it, and he was referring to the reaction of employers large and small who simply don’t know how this piece of legislation, which makes the acronym PFML a new and important part of the business lexicon, will affect their business but have a good right to be scared because of how generous it is.

“This is a payroll tax at its core. So I think employers are going to have questions about how and whether they’re going to be billed, what their tax contributions are going to be, and other concerns.”

Gannon is expecting the Paid Family and Medical Leave Law to be among the main focal points of conversation at the firm’s annual Labor and Employment Law Conference, set for May 21 at the Sheraton Springfield. The conference is staged each year to help local businesses stay abreast of laws and regulations relating to labor issues, said Gannon, and this year there will certainly be a number of issues to discuss. Indeed, breakout sessions are slated on a host of topics, including PFML; wage-and-hour mistakes; harassment, discrimination, and why employers get sued; a labor and employment-law update, how to handle requests for reasonable accommodations (there will be a panel discussion on that topic); and how to conduct an internal investigation.

But Gannon told BusinessWest that paid family and medical leave will likely be the focus of much of the discussion and many of the questions, primarily because the law represents a significant change in the landscape, and business owners and human resources personnel have questions about what’s coming at them.

The first of these questions concerns the contributions to start July 1.

“This is a payroll tax at its core,” he explained. “So I think employers are going to have questions about how and whether they’re going to be billed, what their tax contributions are going to be, and other concerns.”

A 30-page set of draft regulations was recently released by the Executive Office of Labor and Workforce Development’s Department of Family and Medical Leave, and that same office has issued a toolkit for employers with information on everything from remitting and paying contributions to notifying their workforce to applying for exemptions.

There’s quite a bit to keep track of, said Gannon, adding that, under the new law, Massachusetts employees will be eligible to take up to 12 weeks of paid family leave (up to 26 weeks in certain circumstances) and up to 20 weeks of paid medical leave. In most cases, leave may be taken intermittently or on a reduced-schedule basis.

Family leave can be taken to bond with a new child, for qualifying exigency related to a family member on (or called to) active duty or to care for a family member who is in the service, or to care for a family member with a “serious health condition.” Medical leave can be taken for the employee’s own “serious health condition.”

 

John S. Gannon

John S. Gannon

“Someone has a medical impairment, and they need a new chair, or someone needs to change their schedule — they can’t work mornings anymore — or whatever the change in job structure they’re requesting … these matters can get complicated. How do companies handle these requests? Do they have to grant them? How do they work with employees? These are all questions this panel will address.”

In most cases, the annual cap for family leave is 12 weeks, 20 weeks for medical leave, and 26 weeks total cap for both, if needed.

The employee must give at least 30 days notice of the need for leave or as much notice as practicable. The weekly benefit amount maximum is $850 to start; in future years, it will be capped at 64% of state average weekly wage. The weekly benefits will be funded by contributions from payroll deductions into a state trust fund. The initial rate will be 0.063% of the employee’s wages. Employers may require employees to contribute up to 40% toward medical leave and up to 100% for family leave. Employers with fewer than 25 employees are exempt from paying the employer share of the contributions.

Employers must continue employee health-insurance benefits and premium contributions during any period of family or medical leave, said Gannon, and they must restore employees who return from leave to their previous, or an equivalent, position, with the same status, pay, benefits, and seniority, barring intervening layoffs or changed operating conditions.

There are many other conditions and bits of fine print, he told BusinessWest, adding that, while Jan. 1, 2021 is a long seven business quarters away, business owners and managers can and should start to prepare themselves for that day.

They can start by asking questions and getting answers, he said, adding that small businesses with fewer than 50 employees have not had to deal with federal family medical leave regulations and thus are treading into uncharted waters.

“They’re going to have to start thinking about how they’re going to manage this from a staffing perspective,” he said, adding that he is expecting a number of queries along these lines at the May 21 conference and the months to follow.

“Employers have to start thinking about this and getting ready for this now because of how generous the leave portion of this is,” he explained. “This is going to be a real challenge for employers.”

But overall, it’s just one of many challenges facing employers in the wake of the #metoo movement and other forces within employment law, all of which can have a significant impact on a business and its relative health and well-being.

Handling requests for reasonable accommodations is another area of concern, he noted, and that’s why the conference will feature a panel of experts addressing what has become a somewhat tricky subject for many business owners and managers.

“Someone has a medical impairment, and they need a new chair, or someone needs to change their schedule — they can’t work mornings anymore — or whatever the change in job structure they’re requesting … these matters can get complicated,” he explained. “How do companies handle these requests? Do they have to grant them? How do they work with employees? These are all questions this panel will address.”

For more information on the conference, visit skoler-abbott.com/training-programs.

— George O’Brien

Local Business Advice

The Wealth Technology Group

By: Gary F. Thomas, JD, LLM, CLU, ChFC, AIF, CDFA

 

Earlier this year, I was conducting a workshop for a small group of clients and their friends. Most had not retired yet, and the discussion turned to Social Security.

After the workshop, a guest of one of my clients approached me somewhat timidly. For example’s sake I’ll call her Mary. Mary left college to support her husband, who was in dental school. Almost immediately after his graduation and licensure, they started a family. She devoted her time to bringing up the children with the intention of finishing her education once the kids were in high school. Unfortunately, the marriage did not survive the stresses of a growing dental practice along with a growing family. The couple divorced. She received child support and additional alimony so that she could finish her education and rejoin the workforce. At 46 years old, she began her new life working for a non-profit social service agency at a very modest salary. Although she remained single, her ex-husband remarried shortly after the divorce was finalized. He continued to work in his practice even though he had also reached full retirement age (FRA).

Because of her shortened working career and modest salary, Mary’s Social Security benefit was $1,150 monthly at her FRA. Mary had decided to keep working and delay collecting benefits because she thought that this strategy would accumulate additional credits and would boost her Social Security benefit by a few hundred dollars a month.

I began to work with Mary in order to discover if delaying benefits would be beneficial.

We determined Mary’s ex-husband’s Social Security benefit at FRA was $2,950 per month.

She was surprised to learn that because they had both reached FRA, she could still claim the greater of her benefit or 50 percent of his benefit, even though they had been divorced for more than 20 years and one had a new spouse. Mary was immediately entitled to $1,475 per month.

Mary shared that she was in a committed relationship and was curious to learn whether, if she were to marry again to an individual with a modest salary history, she would lose the benefit earned from her prior marriage.

In Mary’s case, she would not, because she was over the age of 60. If one remarries before age 60, different rules apply.

Before she left, Mary asked whether her claiming the spousal benefit would reduce either her ex-husband’s benefit or that of his second spouse. The answer was no. Claiming on a former spouse’s account does not reduce their benefit, or that of their new spouse should they remarry.

There is plenty of information on the internet offering incorrect or conflicting advice about Social Security claims. There is no one-size-fits-all answer. Changes to Social Security claiming strategies that go into effect this year add still new twists.

Social Security rules affecting divorced couples can be confusing. The law governing divorce finance is complicated, and often not obvious, and making the right decisions about Social Security and other aspects of property division requires the services of a professional with specific training and experience.

Gary Thomas is an attorney and is the Registered Principal of The Wealth Technology Group. He holds a master’s degree in Tax Law and is a Chartered Life Underwriter (CLU), a Chartered Financial Consultant (ChFC), a Certified Divorce Financial Analyst (CDFA), and an Accredited Investment Fiduciary (AIF).

Social Security Informational Workshop: May 7 & 9th • 6:30 pm

Wealth Technology Conference Center – 130 Southampton Rd, Westfield, MA

 

 


Gary F. Thomas

JD, LLM, CLU, ChFC, AIF, CDFA

“Because it’s not what you make … it’s what you keep!”

Gary is the President of The Wealth Technology Group, with offices in Pittsfield and Westfield. His company serves over a thousand individuals and businesses in Massachusetts, Connecticut, and across the country, helping them reduce taxes, diversify their portfolios, and keep more of what they have.

Gary is a native of Pittsfield and is a graduate of the Massachusetts College of Liberal Arts and Western New England University Law School. He is a member of the Massachusetts Bar and holds the prestigious Master of Laws in Taxation degree from Boston University Law School. Gary is a Chartered Life Underwriter and a Chartered Financial Consultant. He is also certified as an Accredited Investment Fiduciary, having met the ethical and education standards of a prestigious network of forward-looking investment professionals dedicated to advancing fiduciary responsibility.

Gary has conducted courses on retirement planning, financial management, and estate planning at General Dynamics Corporation, Tubed Products, the Massachusetts Nurse’s Association, Plumbers and Pipefitters Locals 4 and 104, Westfield State University, Berkshire Community College and the Massachusetts College of Liberal Arts, and has lectured financial planning and insurance professionals throughout the U.S. and internationally on best practices and customer service. He specializes in education about safe money management and the maximization of pension and Social Security benefits, so that his clients enjoy a stress-free retirement.

Gary is a member of the Massachusetts Bar Association, the Financial Planning Association, the National Association of Insurance and Financial Advisors, and the International Association of Financial Planners; he sits on the Board of Directors of the MCLA Foundation. Last year, Gary was honored to be appointed a member of the Board of Trustees for Western New England University. He also underwrites programming for WHMP, Channel 57, and is a member of the Westfield Chamber of Commerce and the Better Business Bureau. He was chosen Outstanding Philanthropist of the Year for 2013 by the Western Mass Association of Fundraising Professionals.

Gary is a presence on local media and is sometimes called upon to comment on financial news. Every few weeks Gary also has some fun talking about financial topics with Bax & O’Brien on Rock102. His programs are available on the station websites, and are podcast on iTunes and at www.wealthtechnology.com. He has appeared nationally on Fox Business News, and has been quoted on the Forbes and CNN Money websites.

(800) 266-6793

[email protected]

www.wealthtechnology.com

Estate Planning

Preparing for the Next Stage

By Barbara Trombley, MBA, CPA, CDFA

Life — and business — can shift in unexpected ways, and an ownership transition can sneak up on even someone who expected to be at the reins for a long time. That’s why it’s good to start preparing for that possibility well in advance.

A succession plan is a vital part of a small business.

Most small businesses were built from the ground up, with a dedicated founder and owner, and it may be very hard for the owner to consider a succession plan. But retirement — or worse, sudden illness or death — can creep up on an owner and create havoc. Without a solid plan, a family may suddenly lose their income or the inheritance that was counted on, or the business may cease to exist.

“Many succession plans are not carefully planned out or are devised as a result of health event. A good succession plan is made when the owner can think rationally and formally devise a sort of buy-sell agreement.”

My personal experience with a succession plan is based on our financial- planning business. My father-in-law did what quite a few financial planners do. He brought my husband (his son) and myself into his business a few years before he retired. My mother-in-law had a bad health scare, and he could see that his years in the business were numbered.

In our case, my husband and I were good candidates to take over the family financial-planning business. We were both graduates of Duke University; I was a CPA, and my husband had recently retired from a first career in major-league baseball. We had the backgrounds and were ready to assume the responsibility of maintaining and growing the business that he started.

The transition wasn’t easy; my father-in-law’s mind knew that it was the best course of actions for his clients, but his heart wasn’t ready to leave. In hindsight, it was a great decision, because his health deteriorated quickly after we took over, and he passed away three years ago.

Many succession plans are not carefully planned out or are devised as a result of a health event. A good succession plan is made when the owner can think rationally and formally devise a sort of buy-sell agreement.

The buy-sell agreement is a legally binding contract that says what will happen if the owner passes away, falls ill, or wants to retire. It will formalize information like the company sales price, the value of each share in the business, and how the sale of the company could be funded.

 

Barbara Trombley

Barbara Trombley

“Many buy-sell agreements are funded with life insurance; the company or the individual co-owners buy policies on the other co-owners that allow them to buy shares in the company using the proceeds from the insurance after the owner or shareholder’s death.”

 

Perhaps the simplest example of a buy-sell agreement is if there is more than one owner. The agreement will state that the co-owners can purchase each other’s shares in the event the buy-sell agreement is triggered.

Many buy-sell agreements are funded with life insurance; the company or the individual co-owners buy policies on the other co-owners that allow them to buy shares in the company using the proceeds from the insurance after the owner or shareholder’s death. A term policy is often more inexpensive, but a permanent policy may be more suitable for a longer period of time.

What if you are the only owner? What makes a good succession plan?

A good succession plan will consider the human-resources side of the transition as well as the financial aspects. Do you want to keep the business in the family? Are your family members qualified and knowledgeable about your business? Do they desire and have the heart to keep your business going? Will you choose certain family members over others?

Most businesses do better with a single overall successor as opposed to splitting ownership of the business. It may be possible to appoint different heirs to manage separate departments. Many small-business owners assume their children want to take over. We have heard many stories about family in-fighting or entitled heirs assuming roles that they are not prepared for. Many a business has suffered or failed after a leadership change; a good succession plan will look with an objective view at different family relationships.

Another option to a family succession plan would be to have a key employee buy the business.

The buy-sell agreement could be executed over time, giving the other employees and customers time to get used to the idea, or it can be triggered by an event such as an illness or death of the owner. Of course, not many employees have the funds to purchase a company.

One idea would be to provide seller financing. A loan from the owner to the buyer could provide a stream of income to the owner as he enters retirement. Another option would be outside financing. This would be the best course if the owner desires his funds up front.

In our financial-planning business, we are constantly urged to set up a succession plan. This is mainly to ensure that a properly licensed advisor can quickly service our clients in the event of the death or disability of myself and my husband. Our plan is to set up a buy-sell agreement with another financial advisor that would be triggered in an emergency but fully changeable in case one of our qualified children would like to take over the business for a third generation.

Taking the time to consider the human-resource angle as well as the financial angle can ensure an agreement that is beneficial to all parties involved and ensure the business you have built will last for a long time.

Barbara Trombley, MBA, CPA, CDFA is an LPL financial planner with Trombley Associates Investment and Retirement Planning in Wilbraham; securities offered through LPL Financial; member FINRA/SIPC. The opinions voiced in this material are for general information only and are not intended to provide specific advice or recommendations for any individual. Trombley Associates and LPL Financial do not provide legal advice or services. Consult your legal advisor regarding your specific situation.

Law

A Sometimes Fine Line

By Marylou Fabbo, Esq.

There’s no doubt the #MeToo movement has brought positive change to the business world by creating a safer environment for women (and men) to come forward with accounts of sexual harassment. But what if the claims aren’t true, either because they don’t rise to the legal definition of harassment or they’re completely fabricated? The damage, to both individual and company reputations, can be significant.

Make no mistake. Subjecting an employee to sexual harassment in the workplace, at a company-sponsored event, or on a business trip is unacceptable and should be punished.

#MeToo has had a strong, positive impact on encouraging victims to come forward with valid claims that had been unreported or overlooked. Everyone who complains of sexual harassment should be heard, but should everyone be believed? Most people — men and women — are not sexual abusers, and yet most individuals would say they have experienced some form of sexual misconduct. Most also would agree that some sexual behavior, such as grabbing a co-worker’s breast, exposing oneself to another employee, or telling an employee that he or she will get a promotion if he or she sleeps with the boss are clear-cut cases of sexual harassment.

Marylou Fabbo, Esq

Still, even if sexual comments or behaviors are inappropriate for the workplace, not everything of a sexual nature rises to the level of illegal sexual harassment under the law. This leaves the door open to unfounded and/or, in some cases, intentionally false claims, which can have a damaging impact on company image and the accused person’s professional and personal life.

Sexual Harassment Defined

Title VII and Massachusetts law prohibit sex discrimination in the workplace, and sexual harassment is a form of sex discrimination. The harasser and the victim of sexual harassment can be the same or opposite gender and have the same or different sexual orientations.

Although this article addresses sexual harassment in the workplace, sexual harassment is also prohibited in places of public accommodation, educational facilities, and housing.

“Even if sexual comments or behaviors are inappropriate for the workplace, not everything of a sexual nature rises to the level of illegal sexual harassment under the law.”

There are two types of sexual harassment: ‘quid pro quo’ harassment and ‘hostile work environment’ harassment. Quid pro quo harassment includes sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when a term of employment or employment decision depends on whether an employee accepts or rejects those advances.

Many of the accusations asserted against producer Harvey Weinstein fall into the quid pro quo category. Actors have come forward stating that Weinstein promised them career advances in exchange for a positive response to his sexual advances; they also have stated that Weinstein failed to help them out if they chose not to meet his sexual demands. That’s unambiguous quid pro quo harassment.

In Massachusetts, employers are strictly liable for quid pro quo harassment, which means the business is on the hook for damages even if it did not know about the harassment.

The other type of sexual harassment is hostile work environment sexual harassment. Under Massachusetts law, illegal sexual harassment occurs when “requests for sexual favors and other verbal or physical conduct of a sexual nature unreasonably interferes with an individual’s work performance by creating an intimidating, hostile, humiliating, or sexually offensive work environment.”

Complaints about Matt Lauer and Charlie Rose’s actions fall into the sexually hostile work environment category. Lauer is accused of exposing himself to staff, and the accusations against Rose included making lewd phone calls and groping women’s breasts. In both cases, the individuals’ employers have been accused of knowing about the harassment and doing little to stop it.

Subjective and Objectively Offensive

An employee who is offended by sexual behavior may file a claim of harassment with the Mass. Commission Against Discrimination (MCAD), believing that the actions were illegal simply because they were of a sexual nature.

However, to constitute illegal sexual harassment in the workplace, the behavior must be offensive both to the recipient and the general public. Ask yourself this question: if an employee shows co-workers vacation pictures on his phone that include friends in bikinis, is that sexual harassment? What about the long-term manager who refers to women as ‘girls,’ gives hugs occasionally, and makes jokes about the lack of sex in his long-term marriage?

Some may find those comments and actions offensive, and others may not. Is the manager just ‘old school’? If an employee subjectively perceives the behavior as hostile, intimidating, humiliating, or offensive, then the conduct may constitute sexual harassment. But that’s not enough — the question becomes whether a reasonable person in the employee’s position would find the conduct offensive.

“To constitute illegal sexual harassment in the workplace, the behavior must be offensive both to the recipient and the general public.”

Conduct of a sexual nature also must be unwelcome in order to constitute illegal sexual harassment, but it is almost impossible to be absolutely sure whether the conduct is welcome or unwelcome. The fact that an employee appears to be a willing participant in sexual discussions about weekend conquests may suggest that the employee was not opposed to the sexual discussions by the water cooler on Monday mornings. Yet, the employee may have actually been cringing on the inside.

Under the law, even if an employee makes sexual comments or jokes, or engages in sexual conduct, those actions do not automatically mean that all behavior is welcome. A disgruntled employee who appeared to be a willing participant may later claim that behavior that was welcome was in fact unwelcome.

Nimrod Reitman, a former NYU graduate student, accused his school adviser, Avita Ronell, of sexually harassing him over a three-year period. He claimed that she referred to him in e-mails by names such as “my most adored one” and “sweet cuddly baby,” and kissed and touched him repeatedly and required him to lie in her bed, among other things. Ronell did not deny the behavior but denied the harassment and claimed that the behavior had been welcomed.

While that case doesn’t arise in the employment context, it provides an example of one reason employers should implement zero-tolerance policies when it comes to sexual banter in the workplace. What may have been considered welcome sexual commentary or behavior may have actually have been unwelcome and could subject them to a lawsuit.

False Accusations of Sexual Harassment

Why would one make a false accusation of having been sexually harassed at work? It cannot be disputed that some people fabricate claims of sexual harassment in the workplace because alleged victims have admitted to making up allegations against co-workers or management for many different reasons.

In some cases, sexual-harassment claims may be made to ward off terminations because employers are fearful of being accused of illegal retaliation if they take (warranted) disciplinary action after an employee has come forward with a sexual-harassment complaint. Disgruntled employees have been found to have made false accusations against someone they believe is responsible for an adverse personnel action the employee received, such as a demotion or termination from employment.

Employees have admitted that they have intentionally made sexual-harassment complaints against co-workers for vindictive reasons or for attention.

Unfortunately, it is often difficult to determine whether specific allegations are true or false, as there usually are no witnesses or hard evidence. Because of this, businesses may overreact or react harshly without having all of the facts.

Nev Shulman, star of MTV’s Catfish, was accused of sexual assault. He denied the claims, but the show was suspended anyway. Upon a later investigation, the claims were deemed not credible, and the show was reinstated. A Sacred Heart University student falsely reported having been raped by two school football players and has since faced criminal charges. The leader of the New York City Ballet was accused of sexual harassment and retired. He was later cleared of any wrongdoing.

Collateral damage follows baseless accusations of sexual harassment. Valid harassment claims are devalued and may be looked upon skeptically. When it becomes known that an accusation was false, it raises the possibility in individual’s minds that the next allegation of a similar nature may also not be credible.

Being falsely accused of sexual harassment is also a downfall to the accused’s career. Prior to having their names cleared, alleged harassers may quit or be required to resign, and they sometimes remain under suspicion even after the complaint is found to have been fabricated. The fact that a sexual harassment lawsuit has been filed against a company may be covered in the media, but when, years later, it is dismissed by the court before it gets to the jury stage because the case is without factual support, that information often is not made available to the public — perhaps forever leaving a bad mark on the employer in the eyes of its customers as well as employees. u

Marylou Fabbo is an attorney with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. She specializes in employment litigation, immigration, wage-and-hour compliance, and leaves of absence. Fabbo devotes much of her practice to defending employers in state and federal courts and administrative agencies. She also regularly assists her clients with day-to-day employment issues, including disciplinary matters, leave management, and compliance; (413) 737-4753; [email protected]

Estate Planning

Retirement-income Planning

By Greg Sheehan

Most working Americans have only one source of steady income before they retire: Their jobs. But when you retire, your income will likely come from a number of sources, such as retirement accounts, Social Security benefits, pensions, and part-time work.

When deciding how to manage your various assets to ensure a steady retirement-income stream, there are two main strategies to consider: the total-return approach and the investment pool — or bucket — approach.

The Total-return Approach

With the total-return approach, you invest your assets in a diversified portfolio of investments with varying potential for growth, stability, and liquidity. The percentage you allot to each type of investment depends on your asset allocation plan, time horizon, risk tolerance, need for income, and other goals you may have.

The objective of your investment portfolio generally changes over time, depending on how close you are to retirement.

• Accumulation phase: During this phase, your portfolio’s objective is to increase in value as much as possible, focusing on investments with growth potential.

• Approaching retirement-age phase: As you near retirement, your portfolio becomes more conservative, moving toward more stable and liquid assets in order to help preserve your earnings.

• Retirement phase: Once you retire, the idea is to withdraw from your portfolio at an even rate that allows you to enjoy a sustainable lifestyle.

A widely quoted withdrawal rate for the first year of retirement has usually been 4%. Ideally, that 4% should be equal to the amount left over after you subtract your yearly retirement income (e.g., pensions, Social Security) from your total cost of living, including investment-management fees. Each year, you will most likely increase your withdrawal percentage to keep up with inflation. Keep in mind, however, that the appropriate withdrawal rate for you will depend on your personal situation as well as the current economic environment.

The Bucket Approach

The bucket approach also begins with a diversified portfolio, following the total-return approach throughout most of the accumulation period. Then, as retirement approaches, you divide your assets into several smaller portfolios (or buckets), each with different time horizons, to target specific needs.

There is no ‘right’ number of buckets, but three is fairly common.

• The first bucket would cover the three years leading up to retirement and the two years following retirement, providing income for near-term spending. It would likely include investments that historically have been relatively stable, such as short-term bonds, CDs, money-market funds, and cash.

• The second bucket would be used in years three through nine of retirement. Designed to preserve some capital while generating retirement income, it would include more assets with growth potential, such as certain mutual funds and dividend-paying stocks.

• The third bucket, designated to provide income in year 10 and beyond, would contain investments that have the most potential for growth, such as equities, commodities, real estate, and alternatives. Although the risk profile of this bucket is typically higher than the other two, its longer time horizon can help provide a buffer for short-term volatility.

As you enter the distribution phase, you draw from these buckets sequentially, using a withdrawal rate based on your specific lifestyle goals in a particular year.

The Big Picture

Many people are familiar with the total-return approach, but the bucket approach has been gaining popularity, thanks in large part to its simplicity. It also accounts for different time periods during retirement, potentially allowing you to allocate money more effectively based on your personal situation.

Perhaps the greatest benefit of the bucket approach is that it can help provide a buffer during times of market volatility. If the value of the investments in buckets two and three fluctuates due to market conditions, your immediate cash income is coming from bucket one, which is likely to be less volatile. This may also alleviate the need to sell investments that have lost money in order to generate retirement income.

While the bucket approach has its advantages, some investors feel more comfortable using the total-return approach. The best strategy for your retirement is unique to you and your personal preferences and needs. However you choose to pursue your retirement dreams, it’s important to work with a financial professional who can help you create the most appropriate strategy based on your goals and situation.

Note that diversification does not assure against market loss, and there is no guarantee that a diversified portfolio will outperform a non-diversified portfolio. 

Greg Sheehan is an accredited investment fiduciary and partner at the Wealth Transition Collective, a Northampton-based financial-advisory and planning firm. The firm offer securities and advisory services as a registered representative and investment adviser representative of Commonwealth Financial Network, Member FINRA/SIPC, a registered investment adviser; (413) 584-1805; [email protected]

Estate Planning

Now Is the Time to Plan

By Gina Barry

In recent times, many committed couples are choosing not to get married, especially if they have been previously divorced or widowed.

Gina Barry

By Gina M. Barry, Esq.

Although these couples are not married, many present themselves as a married couple. They live together, while sharing their assets and debts. While this arrangement may allow the happy couple to live in bliss while each partner is alive and well, trouble begins when one of the partners loses their competency or passes away.

Your partner does not have the same legal rights as would your spouse. In fact, their legal rights are usually no more than a stranger would have. Fortunately, with proper planning, an unmarried partner can be provided with some legal rights.

The first potential issue to be addressed is incapacity. If you lose your capacity, your partner will have no power to handle your financial affairs unless you have executed a valid durable power of attorney. This is a document in which you designate someone to make financial decisions for you. At a minimum, naming your partner in this document will allow your partner to pay bills, manage real property and other assets, and deal with government agencies, such as MassHealth.

Similarly, if you lose your capacity, your partner will have no power to make medical decisions for you unless you have executed a valid healthcare proxy, a document in which you designate someone to make healthcare decisions for you in the event that you are incapacitated and unable to make your own healthcare decisions. Language addressing your end-of-life decisions, which is known as a living will, is normally included within the healthcare proxy.

This language usually states that you do not want extraordinary medical procedures used to keep you alive when there is no likelihood that you will recover. Having a living will in place lets loved ones know your wishes and should reduce conflict should such a situation arise.

“Although these couples are not married, many present themselves as a married couple. They live together, while sharing their assets and debts. While this arrangement may allow the happy couple to live in bliss while each partner is alive and well, trouble begins when one of the partners loses their competency or passes away.”

Further, if you have not properly planned your estate and you pass away, you may unintentionally disinherit your partner. Your probate estate consists of any assets held in your name alone at the time of your passing that do not have a designated beneficiary. When you die without a will, the heirs at law of your probate estate are your spouse and your blood relatives. As your partner is neither your spouse nor a blood relative, your partner would not receive any assets from your probate estate if you die without a will.

While your partner may receive assets held jointly with you or the assets on which you have named your partner as beneficiary, your partner will not receive anything from your probate estate unless you have a last will and testament naming your partner as your beneficiary. Another reason to establish a will is so that you may name your partner as the personal representative of your estate, which will give your partner the authority to handle your estate for you.

If you have a taxable estate, which at the present time in Massachusetts means an estate greater than $1 million, you will not be able to take advantage of estate-tax laws that favor married couples. The unlimited marital deduction allows a deceased spouse to leave assets of any amount to the surviving spouse without having to pay any estate tax. Since this deduction may be taken only with respect to assets left to a surviving spouse, it is not available to your estate if you leave assets to a partner.

As such, it may be necessary for you to address your tax issues in other ways, such as by gifting, using the annual gift-tax exclusion of $15,000 per person in 2019, or by establishing an irrevocable trust that owns life insurance meant to replace the wealth that will be lost on estate tax.

Even though you may have committed to your partner, if you have not taken the legal steps necessary to protect your partner’s interests should you lose your capacity or pass away, you have overlooked a very important aspect of your relationship.

Once you have lost your capacity or passed away, it is too late to protect your partner. For the love of your partner, plan now, and ensure their legal rights.

Gina M. Barry is a partner with the law firm Bacon Wilson, P.C.. She is a member of the National Assoc. of Elder Law Attorneys, the Estate Planning Council, and the Western Mass. Elder Care Professionals Assoc. She concentrates her practice in the areas of estate and asset-protection planning, probate administration and litigation, guardianships, conservatorships and residential real estate; (413) 781-0560; [email protected]

Law

Attention to Details Matters

By Timothy Netkovick, Esq.

As attorneys, we often hear comments like these: ‘we don’t need you to draft our handbook, we got one online,’ or ‘we got one from a third party.’

We also hear the same thing about employee trainings: ‘we don’t need an attorney to do our employee trainings; our HR department conducts our trainings,’ or ‘we’re having an outside contractor conduct the trainings.’

I could go on for hours talking about the importance of up-to-date employment trainings and making sure your employment policies are concise, to the point, and tailored to your company. But a recent case from Maine underscores this point better than I could.

By now you may have heard about the so-called ‘Oxford comma case,’ more formally known as O’Connor v. Oakhurst Dairy, which was filed in the U.S. District Court for the District of Maine. In the case, employees of Oakhurst Dairy filed suit against their employer alleging they were due unpaid overtime pay.

Timothy M. Netkovick

Timothy M. Netkovick

Oakhurst Dairy claimed that it did not have to pay overtime wages due to a qualifying exemption in the Maine overtime law. The entire case boiled down to the placement of a comma in the Maine overtime law. If Oakhurst Dairy was correct, it would incur no further expenses other than the time, expense, aggravation, and attorney’s fees incurred in defending the case. If the employees were correct, that meant that Oakhurst Dairy was in violation of the Maine overtime law, and could have had to pay the employees a substantial sum of money.

The case has reportedly settled for $5 million, an extremely hefty sum to pay based upon differing interpretations of the placement of a comma.

While the Oxford comma case dealt with the interpretation of a law, the lesson for employers is simple — attention to detail matters. In this age of cost cutting in HR departments and legal departments (both in-house counsel and the use of outside counsel), providing trainings for employees and having clear, concise employment policies can save your company immeasurably in the long run.

The Oxford comma case shows that even misplaced or missing punctuation could end up costing your company dearly. Trained legal counsel can provide comprehensive training that will help guide your employees, aid in defending your company in the event of litigation, and also review your handbook policies and give quality advice regarding updates that may be needed in the ever-changing world of employment law.

Holding off on trainings and handbook updates may save your company money in the short term; however, doing so invites the risk of unnecessary litigation based upon both naïve employees and outdated policies. Litigation can last for several years and can be a tremendous drain on your company, not only in terms of legal fees, but also in business disruption caused by the need to gather documents and comply with other discovery requests, including employee depositions.

A company’s managers are its first line of defense. Having regular trainings can help your managers identify potential issues and resolve them before the situation gets out of control. Likewise, having an annual review of your employee handbook can help ensure that all of your company’s policies are up to date and in compliance with applicable laws.

As the old saying goes, an ounce of prevention is worth a pound of cure.

Timothy M. Netkovick, an attorney at Royal, P.C., has more than 15 years of litigation experience, and has successfully tried several cases to verdict. In addition to his trial experience, he has specific experience in handling labor and employment matters before a variety of administrative agencies. He also assists employers with unionized workforces during collective bargaining, at arbitrations, and with respect to employee grievances and unfair labor practice charges; (413) 586-2288; [email protected]

Technology

Attack the Problem

By Sean Hogan

Over the course of my time as a business owner, I’ve been asked many times, ‘what keeps you up at night?’

In the early days, I would have said ‘payroll, employees, and sales,’ and maybe not necessarily in that order. Today my answer would be ‘cybersecurity.’

As things have advanced in technology, the web, connectivity, and social media, we have created an easy avenue to our data. Our exposure to hacking is one port away on your firewall, and in some cases, someone may have already breached that firewall.

Security practices in the past do not hold up to complex hacking attacks that are constantly barraging the internet. It used to be adequate to have complex passwords and updated computers with all the patches and security updates. The hackers have concentrated on the lowest-cost and easiest way to infect your computers.

Sean Hogan

Sean Hogan

In most cases, it’s a phishing attack. Phishing attacks are e-mails disguised as a reputable company with a clickable link or some embedded malware. The cyberthieves send out thousands of these attacks and lie in wait until some innocent victim opens the e-mail and clicks on the link or attachment. The malicious robot servers automatically churn out these e-mails, and before they know it, their device and network are infected.

Many of these attacks are designed to install ransomware or access all your critical data. The ransomware will lock down the machine and encrypt your data. They will contact you and request bitcoin to then release your data. Some hackers will pull your data, including contacts and personal information, and post or sell your data to the dark web.

Hacking has evolved greatly within the past few years. In the early days, we would receive a letter from the Nigerian prince, looking to transfer $7 million to you just for good measure. Modern-day hacks and phishing e-mails are very complex; they quite often mimic FedEx, UPS, and customer e-mails so you are more prone to click on the bait.

“As things have advanced in technology, the web, connectivity, and social media we have created an easy avenue to our data. Our exposure to hacking is one port away on your firewall and in some cases, they may have already breached that firewall.”

The most successful program to prevent phishing attacks is training. There are several services that offer security-awareness training (SAT). When you sign up for this type of training, you will be taught what to look for in phishing e-mails and how to respond. The SAT will also include a ‘fake attack’ so you can measure the results at your business and use it as a teaching aid to prevent against future attacks.

Businesses need to embrace a cybersecurity strategy. There are three categories to cybersecurity: Protect, detect, and respond.

Protect

Ask yourself, do you lock your car? Do you lock your front door? Think of your connection (router) as your front door to the web.

Securing this device is the first step in preventing hackers from getting in. Not only should you have the best-in-class router, you also need to maintain the patches and security updates, so the unit does not fall to the constant attacks from the internet.

Beyond the firewall, you need to secure your ethernet switches and your wireless access points. Access points are an easy target for rogue hackers; they often log into a weakly secured access point, and once they have entered, they can navigate your entire network.

Most often, malicious attacks are delivered via e-mail. Logically, it is critical to have very updated anti-spam software, as well as antivirus and malware protection.

It is also critical to have current backups; best practices recommend a full on-site backup with a virtual cloud backup. It is crucial to know that your backups are tested; if you are backing up corrupted data, then your backups are useless.

Detect

Early detection can save lots of time and potential loss of data. Most breaches are not detected for more than 100 days after the breach. Once you detect a breach, you can contain and react to that breach. This begs the obvious question: how can you detect a breach?

There are several ways to go about detecting a breach within your system. First is to engage in a dark-web monitoring service. These services have ‘crawlers’ that are constantly scanning the dark web. They will scan your company and your personal information. When they find your data on the dark web, the service will alert you and let you know what that information is and where it came from, but don’t get your hopes up; you cannot remove your information once it is on the dark web. For instance, LinkedIn was breached more than 10 years ago, and if you had a LinkedIn account in that time frame, your username and password are available on the dark web.

Respond

It’s not a matter of if, but when you are a victim of a cyberattack. Rapid response to a breach or infection is critical, and the faster you respond, the faster it will reduce your exposure. In some cases, you will need a support team to assist in cleansing machines, loading backups, and scanning your network.

The proactive approach is to engage a security operations center. This is a team of security professionals that will monitor your network and device. In the case of an infection or breach, the team will jump into recovery mode and secure your data.

Bottom Line

Above all, it’s important to stress that cybersecurity is more of a culture than a service. Cyberattacks cannot be prevented, but they can be avoided by having the proper procedures and training. Cybersecurity requires awareness and the ability to eliminate your personal and company exposure. All the tools in the world won’t prevent someone from clicking on malware in an e-mail. It is important for a company to have a stable cybersecurity policy and program in place.

Don’t wait until you are hacked to implement a cybersecurity prevention and awareness program.

Sean Hogan is president of Hogan Technology, a full-service managed IT, structured cabling, and cloud-services provider; (413) 779-0079.

Opinion

Opinion

By Tricia Canavan

United Personnel Services is a staffing company specializing in professional, information technology, and manufacturing placement throughout Massachusetts and Connecticut. We experience firsthand the impact of the achievement gap on our young people and their ability to succeed at work and in post-secondary education. We also clearly understand how these educational deficits contribute to the significant skills gap that exists between the jobs available in the Commonwealth and the qualifications of many of our residents.

Many young adults are entering the job market without the knowledge and skills needed to secure living-wage jobs, never mind the high-wage, high-potential jobs that would move them and their families on an upward trajectory. This disconnect impedes our economy, limits opportunities for future economic development, and, most importantly, is a real injustice to our kids here in Massachusetts. In our gateway cities in particular, student achievement and mastery of key skills lag behind those of their peers at a sometimes-staggering rate through elementary and high school.

Consider the fact that 72% of jobs will require a career certificate or college degree by 2020. In Springfield, 23% of our kids don’t graduate from high school in four years. Only 17% of our ninth-graders earn a post-secondary degree or credential within six years of high-school graduation, in part because many graduate unprepared for post-secondary success. For those students who do pursue higher education, a huge number require remedial classwork, wasting valuable time and financial aid on classes that don’t get them closer to a degree.

Massachusetts needs to build upon its long tradition of educational excellence to ensure that all of our kids have the education they need to pursue the good jobs that exist in Western Mass. and throughout the Commonwealth. These are jobs like nurses, advanced manufacturing machine operators, web developers, and physical therapists — all sectors with hiring demands that exceed the supply of candidates — and all jobs that provide wages beyond the region’s median income.

The disconnect between the qualifications of our young adults and the jobs our employers need filled is the reason I co-chair Springfield Business Leaders for Education and serve on the boards of directors of the Springfield Regional Chamber and Associated Industries of Massachusetts. Like so many of my colleagues throughout the state, I am deeply committed to our kids and our Commonwealth and want to be part of the solution to these urgent issues.

We know that the way communities spend state education money has a direct impact on student knowledge acquisition and achievement. It is imperative, then, that any infusion of funding is tied to results — for our kids, their futures, and the economic strength of Massachusetts. We also know that innovative reforms, such as the Springfield Empowerment Zone model that has potential to be expanded statewide, must be accompanied by renewed investment in education.

But we must be cautious as we pursue increased financial resources for our schools. Springfield public schools have received large boosts in funding before, through the introduction of federal grant programs like Race to the Top. But these infusions have not translated to sufficient progress that adequately addresses all that our students need. If we are successful in changing the current funding for our schools without using it as a leverage to do better for our kids, we will have failed.

The cost of the status quo — the achievement gap, the failure to maximize our kids’ promise, the inability of businesses to find the workers they need — is huge. Additional money needs to be used strategically, informed by data and evidence, to accomplish specific goals. We deserve to know what those goals are and whether our schools are meeting them — and, if not, why.

Tricia Canavan is president of United Personnel Services in Springfield. This article first appeared in the blog of Associated Industries of Massachusetts.

Insurance

Culture of Coverage

Gov. Charlie Baker announced that the Massachusetts Health Connector completed Open Enrollment with the highest membership in the 13-year history of the state’s health-insurance exchange, covering more than 282,000 people with health insurance.

“The Health Connector just completed its most successful Open Enrollment since the start of the Affordable Care Act, signing up more than 65,000 new people with health insurance coverage,” Baker said. “Massachusetts leads the way with the best insured rate in the country, with over 97% of our residents covered due in part to the Health Connector’s strong efforts to create a culture of coverage in the Commonwealth.”

Lt. Gov. Karyn Polito added that “the Health Connector plays an important role in ensuring communities across the Commonwealth have access to affordable, high-quality healthcare. Over the last four years, the Connector has worked tirelessly to transform the exchange into a functional and reliable service, as is evident by its current milestone enrollment figures.”

“Massachusetts shines as a model for the rest of the nation when it comes to getting people enrolled in health insurance — and maintaining coverage. That success is built off outreach and education efforts that effectively and efficiently target the state’s underinsured communities and get more people covered. This year, the Connector made inroads in these tough-to-reach uninsured groups.”

The Health Connector held Open Enrollment from Nov. 1 to Jan. 23, twice as long as the federal government’s Nov. 1 to Dec. 15 open period, to ensure Massachusetts residents had as much time as possible to shop for affordable coverage. Throughout Open Enrollment, Massachusetts residents were encouraged to get covered or stay covered, provide security for their health and financial well-being, and comply with the state’s individual mandate. Assistance was available through community-based health navigators around the state.

“Massachusetts shines as a model for the rest of the nation when it comes to getting people enrolled in health insurance — and maintaining coverage,” said Health and Human Services Secretary Marylou Sudders, the Connector board chair. “That success is built off outreach and education efforts that effectively and efficiently target the state’s underinsured communities and get more people covered. This year, the Connector made inroads in these tough-to-reach uninsured groups.”

As of March 1, 282,114 people were enrolled in health insurance, including 209,973 people in ConnectorCare, the state’s innovative affordability program, through which state subsidies are made available on top of federal tax credits, resulting in lower premium costs for members — including $0 premiums for the lowest-income enrollees — while also offering no or low co-pays and no deductibles. Overall, Health Connector membership rose 13%, compared to a 4% enrollment decrease through the federal healthcare.gov platform. In addition, 18,000 individuals receive dental insurance through the Connector.

“With stable operations and a clear message to get covered and stay covered, this was our most successful Open Enrollment to date, with high retention rates and strong new enrollment,” said Louis Gutierrez, executive director of the Massachusetts Health Connector. “We are going to keep working to ensure that everyone in Massachusetts is covered.”

The Health Connector placed extra focus on outreach and public education about affordable coverage options in communities with higher rates of uninsurance and worked to raise public awareness about coverage generally. At the close of Open Enrollment, the Connector had enrolled more than 65,000 people who did not have coverage at the start of Open Enrollment, about 22% more than last year.

Banking and Financial Services

Understanding Section 199A

By Kristina Drzal-Houghton, CPA, MST

Kristina Drzal Houghton

Kristina Drzal Houghton

At the close of every year, most individuals and business owners begin to think about taxes. Currently, many are anxious to find out what their liability will look like considering the law change known as the Tax Cuts and Jobs Act (TCJA).

One major provision is a new tax deduction for passthrough entities (S-corporations, partnerships, and sole proprietorships) under Sec. 199A. The deduction generally provides owners, shareholders, or partners a 20% deduction on their personal tax returns on their qualified business income (QBI). Various limitations apply based on the type of business operated and the amount of income the business has.

While the calculation of the deduction amount is beyond the scope of this discussion, a summary follows of the limitations that apply to specified service trades or businesses (SSTBs) and other benefits which may be available.

The Internal Revenue Code has historically treated professional service businesses more harshly than any other type of business, and this continues with the Sec. 199A deduction. For example, before the TCJA, professional service corporations were taxed at a flat 35% tax rate rather than the graduated tax rates applicable to other C-corporations. Under the new rules, the same corporations will benefit from a flat 21% tax. Pass-through entities did not fare as well; the 20% deduction does not apply to certain enumerated SSTBs if the taxpayer’s taxable income is above certain threshold amounts.

The threshold amounts are $315,000 for taxpayers filing jointly and $157,500 for all other taxpayers, with a deduction-phaseout range, or limitation phase-in range, of $100,000 and $50,000, respectively, above these amounts.

SSTBs are broken into two distinct categories:

1.Trades or businesses performing services in the fields of health, law, accounting, actuarial science, performing arts, consulting, athletics, financial services, brokerage services, or any trade or business where the principal asset of that trade or business is the reputation or skill of one or more of its employees (specifically excluded are engineering and architecture); or

2. Any trade or business that involves the performance of services that consist of investing and investment management, trading, or dealing in securities, partnership interests, or commodities.

QBI also does not include compensation, even compensation paid to the shareholders of an S-corporation, or any guaranteed payments paid to a partner for services rendered with respect to the trade or business, or any payment to a partner for services rendered with respect to the trade or business. As a result, if your practice is a partnership that pays out all of its income in guaranteed payments, you may want to switch to a model that instead specially allocates that income to the partners, as a special allocation of income is eligible for the 20% deduction, while the guaranteed payments are not.

This could allow individual partners whose income falls below the above thresholds to benefit from the QBI deduction even if the activity is otherwise an SSTB.

What happens if a trade or business has multiple lines of businesses, where one of the lines is an SSTB? The regulations include a de minimis rule for this situation. If a taxpayer has $25 million or less in gross receipts for the tax year from SSTB activities, it will not be considered an SSTB if less than 10% of the receipts are generated by the SSTB activity. If the taxpayer has more than $25 million in gross receipts, it will not be an SSTB if less than 5% of those receipts are generated by the SSTB activity.

The regulations do provide a couple of anti-abuse provisions to prevent taxpayers from incorrectly trying to take advantage of the tax law. The first relates to a common question I am often asked at networking functions where an employee now desires to be treated as an independent contractor to take advantage of this new tax deduction. The regulations provide that former employees are presumed to still be employees even if subsequently treated as an independent contractor. The IRS provides several tests and factors to consider if a worker is an independent contractor or employee which should be considered by an employer before changing a worker’s classification.

The second anti-abuse provision has to do with related party businesses. Here the IRS has stated that, if a business that otherwise wouldn’t be considered an SSTB has 50% or more common ownership with an SSTB (including related parties) and is providing substantially all its property or services to the related SSTB, it will be considered an SSTB. ‘Substantially all’ is defined to be 80% or more of its total property or services to the related SSTB. This is designed to prevent taxpayers from shifting income to non-SSTB businesses by adjusting the purchase price on related party sales to take advantage of the tax break.

There are several other provisions of the TCJA that benefit all businesses regardless of form. These provisions are all effective Jan. 1, 2018 unless otherwise indicated and include:

• The maximum amount allowed to be expensed under Code Section 179 is increased to $1 million, and the phaseout threshold is increased to $2.5 million. These amounts are indexed for inflation after 2018.

• The definition of qualified real property under Code Section 179 is expanded to include certain depreciable personal property used in the lodging industry, as well as certain improvements to nonresidential real property after the date such property was placed in service, such as roofs; heating, ventilation, and air-conditioning property; fire protection and alarm systems; and security systems.

• For property acquired and placed in service after Sept. 27, 2017 and before Jan. 1, 2023, the first-year deduction is increased to 100%.

• After 2022, the deduction percentage phases down by 20% per year until it sunsets after 2026.

• Most states, including Massachusetts, have decided to decouple from the new bonus-depreciation rules.

• No deduction is allowed for entertainment, amusement, or recreation; membership dues for a club organized for business, pleasure, recreation, or other social purposes; or a facility used in connection with any of the above.

• Costs for entertainment expenses such as tickets to sporting events, taking clients to play golf, and similar activities are no longer deductible.

• Meals provided for the convenience of the employer, through an eating facility or other de minimis food and beverage, are no longer 100% deductible, but now fall into the 50% category. They become non-deductible after 2025.

• Qualified transportation fringe benefits provided to employees continue to be excluded from the employees’ income but are no longer deductible by the business.

• Between Jan. 1, 2018 and Dec. 31, 2019, the TCJA allows a credit of 12.5% of the amount of wages paid to qualifying employees during any period during which such employees are out on family and medical leave, provided that the rate of payment is 50% of the wages normally paid to an employee. The credit increases by 0.25% (but not above 25%) for each percentage point by which the wages exceed 50%.

• Wage expense is reduced when the credit is taken as an alternative.

On Jan. 18, the IRS released guidance on many Sec. 199A issues when it issued final regulations. The IRS noted that the final regulations had been modified somewhat from the proposed regulations issued last August as a result of comments it received and testimony at a public hearing it held. The final regulations apply to tax years ending after their publication in the Federal Register; however, taxpayers may rely on the proposed regulations for tax years ending in 2018.

The combination of the proposed regulation and final regulations has altered some of the planning techniques originally thought to increase the tax benefits available to SSTBs under the provisions of Sec. 199A. If your business previously adopted planning techniques before the August and January regulations, you should revisit the projected benefits with your tax adviser.

Kristina Drzal-Houghton, CPA, MST is a partner at Holyoke-based Meyers Brothers Kalicka and director of the firm’s Taxation Division; (413) 535-8510.

Employment

Ready or Not…

By Timothy M. Netkovick, Esq. and Daniel C. Carr, Esq.

Paid Family and Medical Leave is on the way in Massachusetts.

In order to implement the new program, the newly created Department of Family and Medical Leave has released drafts of the regulations that will govern this new type of leave. Public listening sessions are now being held to allow members of the public to provide input on the draft regulations.

Timothy M. Netkovick

Timothy M. Netkovick

Daniel C. Carr

Daniel C. Carr

Although there will undoubtedly be changes to the current draft before they are officially adopted, Massachusetts employers should be aware of the draft regulations so they can start planning for the implementation of Paid Family and Medical Leave now.

All employers will be covered by the new Massachusetts law. Although there are some similarities between the federal Family and Medical Leave Act (FMLA) and the new Massachusetts law, some provisions of the new Paid Family and Medical Leave will require all employers to modify elements of their current practices. For example, if your company already qualifies for federal FMLA, it will also qualify for Massachusetts Paid Family and Medical Leave.

However, you should not assume that your company will automatically be in compliance with the new law just because you already have policies and practices in place to comply with the federal FMLA. You will need to review your policies now because employers required to make contributions must begin doing so on July 1, 2019.

On Jan. 1, 2021, all employees in the Commonwealth will be eligible for Paid Family and Medical Leave. Paid leave will be funded by employee payroll contributions and required contributions from companies with an average of 25 or more employees.

If you are a seasonal business with a fluctuating workforce, how do you know if your company has an average of 25 employees for purposes of this law? The current draft regulations make it clear that the average number of employees is determined by counting the number of full-time, part-time, seasonal, and temporary employees on the payroll during each pay period and then dividing by the number of pay periods. If the resulting average is 25 or greater, your company will need to pay into the Family and Employment Security Trust.

“Although there will undoubtedly be changes to the current draft before they are officially adopted, Massachusetts employers should be aware of the draft regulations so they can start planning for the implementation of Paid Family and Medical Leave now.”

In one major variation from federal FMLA, Massachusetts Paid Family and Medical Leave will be administered by the state, unless an employer applies for an exemption to use a ‘private plan’ to administer the leave themselves or through a third-party vendor. If an employer wants to utilize a private plan, the employer will need to apply, and be granted the exemption, annually.

At this point, the only requirement for a private plan is that it must provide for the same or greater benefits than the employee would have if the program was being administered by the state. The required logistics of implementing a private plan are unclear. The logistics of implementing a private plan will likely be addressed in the final regulations and advisory opinions as the 2021 start date draws closer.

In addition to paid leave, there are also several other major variations from federal FMLA law. One major variation is the amount of leave available to employees. While federal FMLA allows for a total of 12 total weeks of job-protected leave during a 12-month period regardless of the qualifying reason, the Massachusetts law differentiates between types of leave.

For instance, under the Massachusetts law, employees are allowed up to 20 weeks for an employee’s own serious health condition; up to 12 weeks to care for a family member’s serious health condition; up to 12 weeks for the birth, adoption, or foster-care placement of a child; and up to 26 weeks in order to care for a family member who is a covered service member. While an employee is out on leave, the amount of their benefit is based upon the employee’s individual rate of pay, but with a cap of 64% of the state average weekly wage. This cap will initially be $850 per week.

Employers will need to begin assessing their responsibilities under this program as well as the steps necessary to comply with these requirements. Employers that are required to make contributions to the Family and Employment Security Trust will want to start the process of deciding whether they intend to utilize a private plan, and if so, they should consult with employment counsel as they prepare their plan to insure compliance with the unique provisions of the new Massachusetts law.

Paid Family and Medical Leave will continue to be a hot-button topic for the foreseeable future. It is important for employers to continually monitor the progress of the law as it is being implemented to ensure they will be ready to continue business with minimal disruption on Jan. 1, 2021.

Timothy M. Netkovick, an attorney at Royal, P.C., has more than 15 years of litigation experience, and has successfully tried several cases to verdict. In addition to his trial experience, he has specific experience in handling labor and employment matters before a variety of administrative agencies. He also assists employers with unionized workforces during collective bargaining, at arbitrations, and with respect to employee grievances and unfair labor practice charges; (413) 586-2288; [email protected]

Daniel C. Carr specializes exclusively in management-side labor and employment law at Royal P.C. He has experience handling a number of labor and employment matters in a variety of courts and administrative agencies. He is also a frequent speaker on a number of legal areas such as discrimination law, employee handbook review, investigation strategies, and various employment-law topics; (413) 586-2288; [email protected]

Employment

Checking the Rearview

By Erica E. Flores, Esq. and John S. Gannon, Esq.

Erica E. Flores

Erica E. Flores

John S. Gannon

John S. Gannon

The world of labor and employment law is constantly in flux. As attorneys who practice in this area, our business is to learn and help our clients solve problems in this increasingly complex environment.

So when we reflect on the past year, we ask ourselves how the law has changed for our clients, what new challenges were introduced, and what new guidance we can offer to help businesses navigate these ever-changing waters.

With that in mind, we bring you a summary of last year’s most significant employment-law changes for Massachusetts employers.

Paid Family and Medical Leave Insurance Program

If there is one takeaway from 2018, it is that Paid Family and Medical Leave (PFML) will be a game changer for businesses across the Commonwealth. The new program, which will require tax contributions from employers starting in July 2019, will allow employees to take considerable paid time off — up to 26 weeks per year in the aggregate — in connection with their own medical condition or to care for family members who are suffering from a serious health condition.

Paid family leave is also available to bond with an employee’s newborn or newly adopted child. Employees can begin claiming PFML benefits in January 2021. Employees will be able to collect weekly wage replacement benefits that will vary depending on their average weekly wage. The maximum weekly benefit amount is currently capped at $850 per week, but will be adjusted annually.

“A lot has changed for employers over the past year. Business should be reviewing their practices, policies, and employment-related documents now to be sure they are in compliance with these new laws and regulations.”

Businesses will face substantial new burdens under the new law. In addition to planning for more frequent employee absences, businesses are required to fund the program through a new payroll tax. Employers will have the option to pass a portion of this tax contribution to employees, and smaller employers (fewer than 25 employees) are not responsible for contributing the employer’s share of the tax. A visual breakdown of how the tax will work can be found at www.mass.gov/info-details/family-and-medical-leave-contribution-rates-for-employers. We suspect that this program will be most burdensome for small businesses, which are not well-equipped for extended employee absences.

For those wondering where this significant new legislation came from, the genesis was a bill known as the grand bargain that was passed by the Massachusetts Legislature in June 2018. The bill not only creates the Paid Family and Medical Leave program, but also increases the minimum wage every year for the next five years, gradually eliminates mandatory overtime for retail employees who work on Sundays, and establishes an annual sales-tax holiday weekend.

Non-compete Reform

Also this year, the Massachusetts Legislature passed comprehensive non-compete reform. The law substantially narrows the circumstances under which employers can enter into non-competition agreements with employees, limits all such agreements to a maximum term of one year, and requires that non-competition agreements entered into with existing employees be supported by consideration beyond continued employment. The law also mandates that courts apply certain presumptions that have the effect of narrowing the scope of services and geographic territories employers can seek to protect with a non-compete.

Pay Equity Becomes Law

The amended Massachusetts Pay Equity Law took effect this past July, imposing significant responsibilities on businesses to ensure equal pay to employees of different genders for “comparable” work. And the first lawsuit alleging violations of the amended law was filed just a few days later.

Most importantly, the amended statute provides a broader definition of “comparable work” and limits the acceptable reasons for paying people of different genders differently to just six — bona fide seniority, merit and productivity systems, geographic location, job-related education, training and experience, and required travel. It also prohibits employers from seeking information regarding the salary history of job applicants. Employers hoping to reduce their risk of liability under the pay-equity law can earn the protection of a statutory affirmative defense if they complete a “good faith” self-evaluation of their pay practices, but they must demonstrate “reasonable progress” toward eliminating any wage differentials in order to avoid liability completely, and the defense is only good for three years.

Pregnancy and Related Conditions Are Now Protected Classes

In April 2018, the Pregnant Workers Fairness Act became law in Massachusetts. In addition to adding pregnancy and conditions related to pregnancy (including lactation) as protected classes under the state’s anti-discrimination law, the statute also requires employers to provide reasonable accommodations for an employee’s pregnancy or conditions related to pregnancy unless doing so would pose an undue hardship to the business; prohibits employers from taking adverse action against or refusing to hire someone because she needs, requests, or uses such an accommodation; and prohibits employers from requesting documentation to support certain types of accommodations — specifically, more frequent breaks, seating, lifting restrictions, and a private, non-bathroom space to express breast milk.

As you can see, a lot has changed for employers over the past year. Business should be reviewing their practices, policies, and employment-related documents now to be sure they are in compliance with these new laws and regulations.

John S. Gannon and Erica E. Flores are attorneys with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. Gannon specializes in employment litigation and personnel policies and practices, wage-and-hour compliance, and non-compete and trade-secrets litigation. Flores devotes much of her practice to defending employers in state and federal courts and administrative agencies. She also regularly assists her clients with day-to-day employment issues, including disciplinary matters, leave management, and compliance.

Accounting and Tax Planning

Items That Add Up

By Kathryn A. Sisson, CPA, MST

There are many changes that businesses and individuals should be aware of under The Tax Cuts and Jobs Act (TCJA), the most significant tax legislation in the U.S. in more than 30 years. Here are the 10 changes that will have the most significant impact this tax season.

Individuals

1. Tax Rates. The 2018 tax brackets have changed, resulting in lower tax rates for most individuals. For example, the 15% tax bracket has been reduced to 12% and the 25% bracket to 22%.

2. Income-tax Withholding. As a result of the lower taxes rates, income-tax withholding during 2018 also decreased for most individuals. This could result in underpayment of taxes for 2018, depending on your tax situation. Taxpayers should carefully review their withholding going into 2019 and discuss it with their tax professional.

3. Itemized Deductions. TCJA made several changes to itemized deductions as noted below.

Medical Expenses: TCJA lowered the threshold for the medical-expense deduction to 7.5% of AGI for 2017 and 2018. The threshold for 2019 is 10% for most taxpayers.

State and Local Taxes: TCJA limits the deduction for state and local taxes to $10,000 per year. This includes payments for state income tax, property tax, and excise tax. The same $10,000 limit applies regardless of whether you are a single taxpayer or if you are married and file a joint return. The deduction for taxpayers who are married and filing separate returns is limited to $5,000.

Kathryn A. Sisson

Kathryn A. Sisson

Mortgage Interest: Interest is generally deductible on original home acquisition debt up to $750,000. Home-equity interest is deductible only if the funds were used to improve the mortgaged property.

Charitable Donations: Donations are generally deductible up to 60% of AGI, up from 50%, for most donations. You could also consider giving directly from your IRA if you are over age 70 1/2 or gifting appreciated stock directly to a charity. Discuss with your tax professional in order to maximize your benefit.

Miscellaneous Itemized Deductions: TCJA has eliminated miscellaneous itemized deductions. These include deductions for unreimbursed employee business expenses, tax-preparation fees, and investment-advisory fees.

4. Increased Standard Deduction. One of the most significant provisions of TCJA is the near-doubling of the standard deduction for all taxpayers. For 2018, the standard deduction amounts are $24,000 for joint filers, $18,000 for head of household, and $12,000 for all other filers. The limitations on itemized deductions as noted above and the increased standard deduction amounts may make it less advantageous to itemize deductions.

5. Personal Exemptions. TCJA eliminated personal exemptions for 2018. For 2017, taxpayers received a personal exemption deduction of $4,050 per person. Therefore, a family of four received a deduction of $16,200 in 2017 that is no longer available under the new tax act.

Businesses

6. Tax Rates. A flat tax rate of 21% replaces the graduated tax rate brackets for C corporations that ranged from 15% to 39% in prior years.

7. Qualified Business Income (QBI) Deduction. A deduction of up to 20% of business income may be available to owners of pass-through entities. There are limitations based on several factors, including income of the taxpayer as well as the type of trade or business. The purpose of the deduction is to provide some parity between the new flat 21% corporate rate and the tax rates paid by owners of pass-through entities on their individual income-tax returns.

8. Depreciation. TCJA made significant changes to encourage businesses to expand and invest in new property; 100% bonus depreciation is now available for federal purposes, and the limitation on expensing certain assets has been increased to $1 million, with a $2.5 million investment limitation.

9. Business Credits. TCJA created a Family Leave Credit for employers making family-leave payments to employees. The credit is available only to employers who have a written policy in place for the payment and credit.

10. Deductions. Previously, the deduction for meals and entertainment was limited to 50% of expenses incurred. For 2018, 50% of meals are still deductible; however, entertainment expenses are no longer deductible.

Many of these changes are significant and warrant your full attention. As you approach tax season this year, seek the assistance of tax professionals, and do not follow your neighbor’s tax advice.

Kathryn A. Sisson, CPA, MST is a tax manager in the Commercial Services Department of Melanson Heath in Greenfield. She has 20 years of experience in public accounting and has been with Melanson Heath for 10 years. She has extensive experience in corporate and individual income-tax planning and review as well as financial-statement compilations and reviews. Her corporate experience includes working with businesses doing business in multiple states. She is also a QuickBooks ProAdvisor assisting many clients with general ledger systems and software training.

Law

Knowledge Is Power

By John S. Gannon, Esq.

John S. Gannon, Esq

John S. Gannon, Esq

As an employment attorney, my job is to help businesses comply with the myriad laws that govern the workplace. No business is immune from workplace problems, and for those who violate employment laws, hefty penalties and damages await.

In order to help businesses avoid these problems, I’ve put together a list five costly employment-practice mistakes we frequently come across, with tips for correction and prevention.

Misclassifying Employees as Exempt from Overtime

Employers are sometimes shocked when they learn that salaried employees might be entitled to overtime when they work more than 40 hours in a week. The shock quickly goes to panic when they are told the salaried non-exempt employee is due several years’ worth of unpaid overtime, and that this unpaid wage amount can be doubled and potentially tripled under state and federal wage laws.

Misclassifying employees as exempt is a common mistake. This is because many employers associate paying a salary basis with no overtime obligation. True, paying employees a salary is typically one part of the test, but there are several other factors to consider during your exemption analysis.

We recommend you work with legal counsel to audit your exempt employee classifications. While you’re at it, consider doing a pay-equity audit to help protect against equal-pay discrimination claims.

Leave-law Headaches

When an employee is out for a medical condition, there are a series of complex and challenging employment laws that need to be navigated. This includes the Americans with Disabilities Act (ADA), the federal Family Medical Leave Act (FMLA), workers’ compensation laws, the Massachusetts Earned Sick Time law, and, coming soon, the Massachusetts Paid Family and Medical Leave law.

These laws have a plethora of traps for the unwary. What do you do when an employee continually calls out in connection with a medical condition? Do your supervisors know what to do if an employee requests several weeks off for surgery? The answers are not always easy, so make sure you know how these laws interact with one another.

Outdated Handbooks and Employment Agreements

Recently, I was reviewing whether a non-compete agreement would be enforceable in court. It turned out the agreement was signed roughly 10 years ago. To make things worse, the last update to the document was pre-Y2K.

The point here is that employment agreements and handbooks should not grow cobwebs. Changes in the law require changes to these documents. For example, Massachusetts enacted significant legislation in October 2018 changing the entire landscape of non-compete law in the Commonwealth. The state also saw the Pregnant Workers Fairness Act take shape in April last year. This new law included a notice requirement that meant an update to the employee handbook was in order.

Having your employment agreements and handbook regularly reviewed by counsel is a good way to stay on top of the constant changes in the employment law world. Remember, if you have not updated these employment documents in a few years, they are probably doing more harm than good.

Failure to Eradicate Harassment at Work

Last year was dominated by headlines spotlighting sexual-harassment scandals and cover-ups. But was the #metoo movement just another fad? The answer unequivocally is ‘no.’

To prove it, late last year the Equal Employment Opportunity Commission (EEOC) published data on workplace harassment claims that revealed a 50% increase in sexual-harassment lawsuits filed by the EEOC when compared to 2017 numbers. The EEOC also recovered nearly $70 million for the victims of sexual harassment in 2018, up from $47.5 million in 2017.

You’ve heard it before, but it bears repeating: businesses need to take proactive steps to create a workplace free from harassment. This involves updating anti-harassment policies and practices, adequately training your workforce, and promptly investigating all harassment complaints.

Lack of Supervisor Training

Most of the mistakes listed above are fertile ground for supervisor slip-ups. Whether they fail to report harassment (or, worse yet, engage in harassing behavior themselves) or discipline an employee who has taken too much sick time, supervisors who don’t know any better are in a position to do considerable damage to your business.

Proper training can alleviate this risk. Plus, a supervisor who spots an issue before it spirals out of control could prevent a costly lawsuit from being filed.

John S. Gannon is an attorney with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. He specializes in employment litigation and personnel policies and practices, wage-and-hour compliance, and non-compete and trade-secrets litigation; (413) 737-4753; [email protected]

Accounting and Tax Planning

2018 Tax Planning (in 2019)

By Brendan Healy, CPA

Brendan Healy

Even though we’re into 2019, there are still tax-saving opportunities available for the 2018 tax year.

This article summarizes a number of options that businesses and taxpayers should consider to help minimize their tax burden when they file their 2018 tax returns. As with any tax-savings strategy, you should discuss these post-2018 year-end planning techniques with your tax advisor before implementing them.

Retirement-plan Contributions

Although some retirement plans needed to have been in place before Dec. 31 to be used for the 2018 year, there are plans that could be set up in 2019, funded, and then used as deductions for the 2018 tax return.

A simplified employee pension (or SEP) IRA, for example, can be set up after year-end and funded up to the due date (including extensions) of the taxpayer’s business.

New Opportunity-zone Funds

The new tax law created a significant tax incentive to encourage capital investment in certain locations that need development. If you sell an asset with a large capital gain, you may be able to defer that gain if you essentially reinvest that gain into an “opportunity-zone fund” within six months of that sale. If done properly, you wouldn’t recognize the tax gain until the latter of when your new investment is sold or Dec. 31, 2026. You can also get up to 15% of the deferred gain forgiven entirely for holding the investment for specified time period. And if you held the investment for an additional 10 years, you’d pay no tax on subsequent capital gains.

Capital-expenditure Tax Writeoff

The new tax law allows businesses to write off (or expense) larger amounts of fixed-asset purchases. The new law not only applies to personal property (machinery, equipment, computers, office furniture, etc.) but also increases the ability to write off certain real-estate improvements. It also increases the amount of tax deduction available for business-owned automobiles. These capital-expense writeoff elections are made at the time you file the tax return.

State Tax Planning

If you ship product to different states or if you sell over the internet across the country, there may be state tax-planning strategies available for your business. Certain businesses can take advantage of apportioning their revenue across several states. And if they do not have to file tax returns in those states, that apportioned revenue may never be subject to state income tax.

There have been significant changes this past year in the way states are allowed to (or not allowed to) tax out-of-state shipments entering their state. You should review your state income tax plan as well as your state sales tax reporting process in light of these new and significant changes.

Tax Credits

The tax law provides certain incentives to businesses by offering tax credits. The research and experimentation tax credit, for example, allows a business to convert a dollar of deduction into a dollar of tax credit. Since tax credits reduce taxes on a dollar-for-dollar basis, a tax credit is more valuable to the business than a tax deduction. So if the business is allowed to convert an expenditure into a credit, the tax savings could be substantial.

Many businesses (such as manufacturers or software companies) are not taking advantage of this tax credit that may be available to them.

Estate Planning and Gifts During Lifetime

The new tax law significantly increases the ability for families to transfer wealth upon death as well as allowing gifts during lifetime on a tax-free basis. Although estate and gift planning can get very complicated, the limits available today (which will expire in about seven years) are substantially higher than they have been in the past and allow for great flexibility in wealth-transfer planning.

Bottom Line

Just because 2018 is over does not mean we should stop thinking about tax-planning strategies for 2018 tax returns that will be filed over the next several months.

There are many tax incentives written into the tax law to encourage business and individual taxpayers to reinvest. It is up to you to make sure you are taking advantage of every one available to you and your business.

Brenden Healy, CPA, a partner at Whittlesey, is an expert in state and federal tax matters who consults with businesses and individuals and focuses his practice on closely held businesses in the real-estate, manufacturing and distribution, and retail industries.

Accounting and Tax Planning

Life in the Cloud Age

By Rebecca J. Connolly, CPA

Rebecca J. Connolly

Rebecca J. Connolly

If you’re anything like me, you wonder what a cloud is, besides the one I see when I look out my office window.

Most people resist change because they don’t know what it truly is, but let’s take a moment to ignore our instinct of ‘no’ and think about what this truly is and if it is right for your business. The cloud is not something you touch, but it is a tool in your corporate toolbox that you should consider using.

For business owners, the true questions are, what is cloud computing? How do I use it? Is it safe? And, why would I spend the money?

The true definition of cloud computing is confusing to most, but the information element is ease of use and availability. Many small-business owners need frequent access to their office network, and what if that office was fully accessible at your home computer?

There are many options that allow a business owner or worker to access their office computer, but cloud computing offers your business software to not be stored not on your laptop or desktop, but on an online solution that can help save the costs and late nights spent in the office.

I was skeptical as to how cloud computing would work and the true speed and efficiency of it, but I can travel all over the Northeast part of the U.S. for my clients and have everything available to me from any computer, including my laptop. How many of us are stuck carrying a laptop and waiting 15 minutes a day to load due to how large our software is? My laptop takes a minute or less to load due to minimal software being loaded on it because our office uses cloud computing.

You might ask, is cloud computing safe for my business? Nowadays we hear so often about data breaches that they are not shocking anymore, but just a thing of the times. So, let’s take a step back and think about how secure we are with our work computers, company data, and Internet access.

If you practice the gold standard of security, you don’t store any company files on your laptop itself, the laptop is backed up every day, and you do not use the internet except for required business activities. How many people do all three of these items? If you are part of the general population of business owners and workers, you put systems in place the best you can using your knowledge or your hired consultants’ suggestions. You then attempt to follow those processes and procedures, but again, you’re human, so maybe the local drive on your laptop is backed up only once at month at best.

Cloud computing could be your answer, or at least make you think about where your business stands and determine if you are losing time with your current work setup. Cloud computing has layers of security most people never think about, including frequent backups, two-factor authentication, and audit logs.

Another question people have once they partially understand the aspects of cloud computing is price. Now, I ask you, what is the price you are willing to pay to allow yourself and your workers access into your software securely at any time from any location?

The next question you should ask yourself is how much time, effort, and money are you losing using your current platform. Do you wait for your system to boot up for a long period of time every day, and so do all your employees? Is your current system secure, or do you just tell yourself it is so that you can sleep at night?

There are so many questions to ask here, but the first item to resolve when looking at how to move your company into the next phase of information technology is realizing that we know our business inside and out, whether it is making a product or providing a great service to our community. Just because we’re not experts in the field of cloud computing or technology in general does not mean that we couldn’t save time, money, and frustration, while also enhancing security, by looking into new technology to help the business grow.

Working in public accounting with many small-business owners allows me to realize there isn’t enough time in the day or week to allow for everything that needs to get done. Losing data and hard work because of a computer glitch or a bad information-technology setup is not only unacceptable, but also costly to businesses beyond price tags.

I’m not saying everyone needs to be using the cloud, because each business and every business owner is different. I am saying that it is prudent to take the time to access your current system, no matter how much time and effort it costs you, and evaluate if you are doing yourself and your business a disservice by not using cloud computing or a similar technology.

Rebecca J. Connolly, CPA is audit manager for the West Springfield-based accounting firm Burkhart Pizzanelli, certified public accountants; (413) 734-9040.

Employment

One Year Later

By John S. Gannon, Esq. and Amelia J. Holstrom, Esq.

The #MeToo movement began making national headlines just over a year ago.

Since then, more than 200 prominent individuals have been accused of harassment. From Harvey Weinstein to Matt Lauer to newly appointed Supreme Court Justice Brett Cavanaugh, new allegations of sexual harassment have been appearing in the news almost weekly, and sometimes daily, over the last year.

John S. Gannon, Esq

John S. Gannon, Esq

Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

It should not come as any surprise that employers are feeling the impact of the #MeToo movement. The number of sexual-harassment lawsuits filed increased drastically from 2017 to 2018. In October 2018, the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing federal discrimination and harassment laws, released preliminary data for fiscal year 2018 showing that, for the first time since at least 2010, the number of sexual-harassment charges filed with the EEOC increased.

Additionally, the EEOC reported that it had filed 41 lawsuits alleging sexual harassment, more than a 50% increase over the previous year, and that it had collected close to $70 million on behalf of sexual-harassment victims in fiscal year 2018. The number of lawsuits is not the only thing on the rise; juries seem more willing to issue large damage awards to plaintiffs alleging sexual harassment. Just a few months ago, a jury in Massachusetts awarded a plaintiff more than $3 million in damages in a sexual harassment lawsuit.

Best Practices for Employers

Businesses that want to avoid being another #MeToo statistic need to take a hard look at their culture and ask: What are we doing to provide a workplace free from harassment? With allegations of harassment and lawsuits on the rise, now is an important time for employers to revisit best practices and take proactive steps aimed at protecting employees and reducing legal risk.

First, employers must have an anti-harassment policy, which should clearly outline the internal complaint and investigation procedure. State law requires employers of six or more employees to have a written sexual-harassment policy that is distributed at time of hire and annually to all employees. Among other things, the policy must include a notice that sexual harassment is unlawful and that it is unlawful to retaliate against someone who reports sexual harassment or participates in an investigation. 

The policy should also outline where and how employees can bring internal complaints of harassment and what the investigation procedure is. If either of these processes are unclear at your workplace, now is the time to revisit them and develop a complaint process and investigation procedure.

Second, employers should be doing annual sexual-harassment training. Although Massachusetts law only encourages training, implementing effective harassment training into your workplace culture demonstrates that you care about the issue. It also can protect you against a costly lawsuit.

Under the law, if a supervisor harasses a subordinate or knows about harassment but fails to take prompt steps to report, investigate, and stop the conduct, the supervisor has created significant legal risk for the employer. As a result, it is important that supervisors receive periodic training on what constitutes sexual harassment and what to do if they receive a sexual-harassment complaint or observe potential harassment in the workplace. A few hours of training per year could save an employer from a costly lawsuit. Further, annual training for all employees can be beneficial because it highlights what is not acceptable and outlines the serious repercussions, including termination, for harassing behavior.

Preventing Costly Litigation

As noted at the outset, juries are issuing multi-million-dollar awards in harassment cases. At the same time, employment-discrimination cases are also seeing record-setting jury verdicts. Earlier this year, a jury in Massachusetts awarded a plaintiff $28 million in a discrimination and retaliation case. Read that sentence again.

Having solid policies and engaging in regular training can get employers only so far. In order to avoid the risk of a runaway jury, employers may want to consider requiring employees to enter into agreements calling for private arbitration of employment disputes. Commonly referred to as arbitration agreements, these employment agreements require that employee and employer submit all disputes to a neutral arbitrator, as opposed to filing a lawsuit in court and having the case decided by a jury.

The arbitration process is typically less costly and time-consuming than court actions. Plus, the arbitration decision is usually final, as there are only limited opportunities for either side to appeal.

Bottom Line

The #MeToo movement is undoubtedly bringing positive changes to the workplace. Still, businesses need to be proactive and take steps to create a culture free from harassment. This starts with an effective workplace policy against harassment and regular training for employees.

If a culture change is necessary, it has to start at the top. Leaders lead by example, and these folks must be more committed than anyone to creating an environment free from harassing behavior.

John S. Gannon and Amelia J. Holstrom are attorneys with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. Gannon specializes in employment litigation and personnel policies and practices, wage-and-hour compliance, and non-compete and trade-secrets litigation; (413) 737-4753; [email protected] Holstrom specializes in employment litigation, including defending employers against claims of discrimination, retaliation harassment, and wrongful termination, as well as wage-and-hour lawsuits. She also frequently provides counsel to management on taking proactive steps to reduce the risk of legal liability; (413) 737-4753; [email protected]

Features

It’s That Time of Year

By Kristina Drzal-Houghton, CPA, MST

Year-end planning for 2018 takes place against the backdrop of a new tax law — the Tax Cuts and Jobs Act — that makes major changes in the tax rules for individuals and businesses.

Kristina Drzal Houghton

Kristina Drzal Houghton

For individuals, there are new, lower-income tax rates, a substantially increased standard deduction, severely limited itemized deductions and no personal exemptions, an increased child-tax credit, and a watered-down alternative minimum tax (AMT), among many other changes. For businesses, the corporate tax rate is cut to 21%, the corporate AMT is gone, there are new limits on business interest deductions, and significantly liberalized expensing and depreciation rules. And there’s a new deduction for non-corporate taxpayers with qualified business income from pass-through entities. The following is a brief synopsis of these and other changes.

Businesses and Business Owners

• For tax years beginning after 2017, taxpayers other than corporations may be entitled to a deduction of up to 20% of their qualified business income. For 2018, if taxable income exceeds $315,000 for a married couple filing jointly, or $157,500 for all other taxpayers, the deduction may be limited based on whether the taxpayer is engaged in a service-type trade or business (such as healthcare), the amount of W-2 wages paid by the trade or business, and/or the unadjusted basis of qualified property (such as machinery and equipment) held by the trade or business.

The limitations are phased in for joint filers with taxable income between $315,000 and $415,000 and for all other taxpayers with taxable income between $157,500 and $207,500.

• Deferring income to the next taxable year is a time-honored year-end planning tool. If you expect your taxable income to be higher in 2018 than in 2019, or if you operate as anything except a C corporation and you anticipate being in the same or a higher tax bracket in 2018 than in 2019, you may benefit by deferring income into 2019. With the passage of tax reform largely going into effect in 2018, new considerations may need to be made for the end of 2018. Of course, if an individual is subject to the alternative minimum tax, standard tax planning may not be warranted. The rules are quite complex, so don’t make a move in this area without consulting your tax adviser.

• Businesses should consider making expenditures that qualify for the liberalized business property expensing option. For tax years beginning in 2018, the expensing limit is $1,000,000, and the investment ceiling limit is $2,500,000. Expensing is generally available for most depreciable property (other than buildings), and off-the-shelf computer software.

For property placed in service in tax years beginning after Dec. 31, 2017, expensing also is available for qualified improvement property (generally, any interior improvement to a building’s interior, but not for enlargement of a building, elevators or escalators, or the internal structural framework), for roofs, and for HVAC, fire protection, alarm, and security systems. The generous dollar ceilings that apply this year mean that many small and medium-sized businesses that make timely purchases will be able to currently deduct most if not all their outlays for machinery and equipment.

What’s more, the expensing deduction is not prorated for the time that the asset is in service during the year. The fact that the expensing deduction may be claimed in full (if you are otherwise eligible to take it) regardless of how long the property is held during the year can be a potent tool for year-end tax planning. Thus, property acquired and placed in service in the last days of 2018, rather than at the beginning of 2019, can result in a full expensing deduction for 2018.

• Businesses can also claim a 100% bonus first-year depreciation deduction for machinery and equipment bought used (with some exceptions) or new, if purchased and placed in service this year. The 100% write-off is permitted without any proration based on the length of time that an asset is in service during the tax year. As a result, the 100% bonus first-year write-off is available even if qualifying assets are in service for only a few days in 2018.

• A charitable-donation deduction is available to businesses, but the actual deductibility depends on the business form. A corporation is allowed a deduction of up to 10% of its taxable income, whereas a pass-through entity is subject to an individual’s limitations. Specific types of assets may also have limited deductibility or may need to meet certain requirements. In addition, the substantiation and reporting regulations for charitable donations were recently updated. While most of the changes were relatively minor, qualified appraisals and qualified appraisers must now meet particular requirements. You should contact your tax advisor before making charitable donations, particularly inventory items, to ensure you meet the deduction requirements.

• Beginning in 2018 and until 2025, taxpayers other than C corporations are limited in their ability to deduct business loss. The excess business loss that is disallowed is instead carried forward as part of the taxpayer’s net operating loss in succeeding years.

Individuals

• As a general reminder, there are several ways in which you can file an income-tax return: married filing jointly, head of household, single, and married filing separately. A married couple, which includes same-sex marriages, may elect to file one return reporting their combined income, computing the tax liability using the tax tables or rate schedules for ‘Married Persons Filing Jointly.’

If a married couple files separate returns, in certain situations they can amend and file jointly, but they cannot amend a jointly filed return to file separately once the due date has passed. A joint return may be filed even though one spouse has neither gross income nor deductions. If one spouse dies during the year, the surviving spouse may file a joint return for the year in which his or her spouse died.

Certain married persons who do not elect to file a joint return may be entitled to use the lower head-of-household tax rates. Generally, in order to qualify as a head of household, you must not be a resident alien, you must satisfy certain marital status requirements, and you must maintain a household for a qualifying child or any other person who is your dependent.

• Higher-income earners must be wary of the 3.8% surtax on certain unearned income. The surtax is 3.8% of the lesser of net investment income (NII) or the excess of modified adjusted gross income (MAGI) over a threshold amount. As year-end nears, a taxpayer’s approach to minimizing or eliminating the 3.8% surtax will depend on his estimated MAGI and NII for the year. Some taxpayers should consider ways to minimize (e.g., through deferral) additional NII for the balance of the year, others should try to see if they can reduce MAGI other than NII, and still other individuals will need to consider ways to minimize both NII and other types of MAGI.

• The 0.9% additional Medicare tax also may require higher-income earners to take year-end actions. It applies to individuals for whom the sum of their wages received with respect to employment and whose self-employment income is in excess of an unindexed threshold amount ($250,000 for joint filers, $125,000 for married couples filing separately, and $200,000 in any other case). Employers must withhold the additional Medicare tax from wages in excess of $200,000 regardless of filing status or other income. Self-employed persons must take it into account in figuring estimated tax.

• Long-term capital gain from sales of assets held for over one year is taxed at 0%, 15%, or 20%, depending on the taxpayer’s taxable income. The 0% rate generally applies to the excess of long-term capital gain over any short-term capital loss to the extent that it, when added to regular taxable income, is not more than the ‘maximum zero-rate amount’ (e.g., $77,200 for a married couple). If the 0% rate applies to long-term capital gains you took earlier this year — for example, you are a joint filer who made a profit of $5,000 on the sale of stock bought in 2009, and other taxable income for 2018 is $70,000 — then before year-end, try not to sell assets yielding a capital loss because the first $5,000 of such losses won’t yield a benefit this year. And if you hold long-term appreciated-in-value assets, consider selling enough of them to generate long-term capital gains sheltered by the 0% rate.

• Postpone income until 2019 and accelerate deductions into 2018 if doing so will enable you to claim larger deductions, credits, and other tax breaks for 2018 that are phased out over varying levels of adjusted gross income. These include deductible IRA contributions, child tax credits, higher-education tax credits, and deductions for student-loan interest.

Postponing income is also desirable for those taxpayers who anticipate being in a lower tax bracket next year due to changed financial circumstances. Note, however, that in some cases, it may pay to actually accelerate income into 2018. For example, that may be the case where a person will have a more favorable filing status this year than next (e.g., head of household versus individual filing status), or expects to be in a higher tax bracket next year.

• Beginning in 2018, many taxpayers who claimed itemized deductions year after year will no longer be able to do so. That’s because the basic standard deduction has been increased (to $24,000 for joint filers, $12,000 for singles, $18,000 for heads of household, and $12,000 for marrieds filing separately), and many itemized deductions have been cut back or abolished. No more than $10,000 of state and local taxes may be deducted, miscellaneous itemized deductions (e.g., tax-preparation fees, moving expenses, and investment expenses) and unreimbursed employee expenses are no longer deductible, and personal casualty and theft losses are deductible only if they’re attributable to a federally declared disaster.

You can still itemize medical expenses to the extent they exceed 7.5% of your adjusted gross income, state and local taxes up to $10,000, your charitable contributions, plus interest deductions on a restricted amount of qualifying residence debt, but payments of those items won’t save taxes if they don’t cumulatively exceed the new, higher standard deduction.

• Some taxpayers may be able to work around the new reality by applying a ‘bunching strategy’ to pull or push discretionary medical expenses and charitable contributions into the year where they will do some tax good. For example, if a taxpayer knows he or she will be able to itemize deductions this year but not next year, the taxpayer may be able to make two years’ worth of charitable contributions this year, instead of spreading out donations over 2018 and 2019.

• If you’re age 70½ or older by the end of 2018, have traditional IRAs, and particularly if you can’t itemize your deductions, consider making 2018 charitable donations via qualified charitable distributions from your IRAs. Such distributions are made directly to charities from your IRAs, and the amount of the contribution is neither included in your gross income nor deductible on Schedule A, Form 1040. But the amount of the qualified charitable distribution reduces the amount of your required minimum distribution, resulting in tax savings.

• Make gifts sheltered by the annual gift-tax exclusion before the end of the year and thereby save gift and estate taxes. The exclusion applies to gifts of up to $15,000 made in 2018 to each of an unlimited number of individuals. You can’t carry over unused exclusions from one year to the next. Such transfers may save family income taxes where income-earning property is given to family members in lower income-tax brackets who are not subject to the kiddie tax.

• For tax years beginning after Dec. 31, 2017, the unearned income of a child is subject to ordinary and capital-gains rates applicable to trusts and estates. The earned income of a child is taxed according to an unmarried taxpayer’s brackets and rates. The kiddie tax is not affected by the tax situation of the child’s parents or unearned income of any siblings. The kiddie tax applies to: (1) children under 18 who do not file a joint return; (2) 18-year-old children who have unearned income in excess of the threshold amount, do not file a joint return, and who have earned income, if any, that does not exceed one-half of the amount of the child’s support; and (3) children between the ages of 19 and 23 if, in addition to the above rules, they are full-time students. Investment earnings in excess of $2,100 will be taxed at the rates that apply to trusts and estates.

These are just some of the year-end steps that can be taken to save taxes. Again, by contacting your tax advisor, he or she can tailor a particular plan that will work best for you.

Kristina Drzal-Houghton, CPA, MST is the partner in charge of Taxation at Holyoke-based Meyers Brothers Kalicka, P.C.; (413) 536-8510.

Work/Life Balance

Survey Says

While salary is still the most important aspect of a job for most, a new survey from the Employers Associations of America (EEA) notes that lifestyle factors are a significant consideration as well.

In its 2019 National Business Trends Survey, the EEA aimed to determine the top five most important factors prospective employees are looking for, with the goal of assisting employers with recruitment and retention. The top five factors included, in order, competitive pay (named by 82% of respondents), good work/life balance (69.2 %), flexibility in work hours (56.1%), opportunities for advancement (55.4%), and competitive health benefits (49.9%).

“The shortage of labor will be a key factor for employers in 2019,” said Phil Brandt, who chairs the EAA board of directors. “How employers will fill those new jobs is the real story. Employers will need to be even more creative in their recruitment and retention efforts than ever before.”

And if employees are prioritizing balance in their lives, companies should take notice, if only to assess the well-being of their workforce.

“These days, work-life balance can seem like an impossible feat. Technology makes workers accessible around the clock. Fears of job loss incentivize longer hours,” business writer Deborah Jian Lee noted in Forbes recently, noting that, according to a Harvard Business School survey, 94% of working professionals reported working more than 50 hours per week, and nearly half said they worked more than 65 hours per week. “Experts agree: the compounding stress from the never-ending workday is damaging. It can hurt relationships, health, and overall happiness.”

Still, this year’s EEA survey indicates a fair amount of optimism on the part of business executives for 2019. Nearly 74% describe their projected 2019 business outlook as a slight to significant increase in sales and revenue.

“The shortage of labor will be a key factor for employers in 2019. How employers will fill those new jobs is the real story. Employers will need to be even more creative in their recruitment and retention efforts than ever before.”

Supporting that optimistic outlook is the fact that 54% of executives surveyed plan to hire permanent staff in 2019. When asked the primary reasons for their 2019 hiring plans, 72% said their hiring will be to fill newly created jobs. 

When asked which strategies executives are using to overcome recruitment and retention challenges, respondents identified, as the three top strategies, adjusting pay ranges upward, providing additional training and development for existing staff, and increasing starting salaries.

Executives were also asked to identify their top five serious challenges over the next year. The top five were talent acquisition (54%), talent retention (41%), ability to pay competitive wages (33%), ability to pay for benefit costs (28%), and competition in general (28%).

When that question shifted to their serious concerns over the long term — within the next five years — respondents cited talent acquisition (57%), talent retention (48%), ability to pay for benefit costs (43%), ability to pay competitive wages (40%), and competition in general (34%).

Finally, the survey also indicated the top five measures executives say they have been implementing — or are planning to continue to implement in 2019 — to strengthen business. These are investing in technology (52%), investing in equipment (50%), increasing recruiting emphasis (38%), increasing training budget (30%), and increasing total rewards education (22%).

The EAA is a not-for-profit national association that provides this annual survey to business executives, arming them with insights and trends for business outlooks, business-investment plans, staffing levels, hiring plans, job creation, pay strategies, and business challenges. The 2018 survey included 1,295 participating organizations throughout the U.S.

Workforce Development

The Overlooked Management Tool

By Kate Zabriskie

‘I sit right next them. We don’t need to have a staff meeting.’

‘I used to have staff meetings, but we stopped having them. Nobody had anything to talk about.’

‘We have enough meetings. We certainly don’t need another.’

For a myriad of reasons, many managers don’t hold regular staff meetings. Furthermore, most who do don’t get the most they could from them, and that’s too bad. Good staff meetings can focus a team, energize employees, and engage them in ways ad-hoc interactions don’t.

So how do you turn a halted or ho-hum approach to staff meetings into a high-functioning management tool?

STEP ONE: Connect Daily Work with Your Organization’s Purpose

In addition to distributing information, staff meetings present an opportunity to connect your team’s daily work to your organization’s purpose. If you’re thinking, ‘My people know how their work fits into our overall goal,’ you would be wrong. In fact, if you ask your group what your organization’s purpose or your department’s purpose are, don’t be surprised when you get as many answers as there are people in the room. (And you thought you had nothing to talk about in a staff meeting. A discussion about purpose is a good one to have.)

Purpose is why you do what you do. You connect the work to it by explaining how what people did aligns with the greater goal. For example, the head of housekeeping at a busy hotel might hold a meeting with the cleaning staff. In that meeting, the managers might recognize a team that received a perfect room score from all guests who took a survey and then talk about purpose.

The purpose of the hotel is to provide people a safe and comfortable place to spend the night. Having a clean, welcoming, and functioning room is one of the ways a cleaning staff achieves that goal.

“Purpose is why you do what you do. You connect the work to it by explaining how what people did aligns with the greater goal.”

By regularly connecting such activities as cleaning toilets, making beds, and folding towels to the guest experience, the manager highlights why each of those activities is important.

No matter what they do, employees usually enjoy their jobs more when their organization’s leaders talk about the importance of their work. They also tend to make better choices if they receive frequent reminders about purpose and what types of activities support it.

STEP TWO: Highlight Relevant Metrics

Connecting work to purpose usually works best when a team focuses on both anecdotal and analytical information. If you don’t currently track statistics, start. What you track will depend on your industry. However, whatever you decide should have a clear line of sight to the larger goal.

For instance, a museum that holds events to attract new members might track the number of events held, contact information collected, memberships sold, and the percentage of new memberships that come as a result of attending the free event. With regular attention placed on the right metrics, the team is far more likely to make good choices as to where it should focus its efforts.

STEP THREE: Follow a Formula and Rotate Responsibility

Successful staff meetings usually follow a pattern, such as looking at weekly metrics, sharing information from the top, highlighting success, a team-building activity, and so forth. By creating and sticking with a formula, managers help their employees know what to expect.

Once employees know the pattern of the meeting, many are capable of running it because they’ve learned by watching. Managers then have a natural opportunity to rotate the responsibility of the meeting to different people. By delegating, the manager is able to free up his or her time and provide employees with a chance to develop their skills.

STEP FOUR: Celebrate Successes

In many organizations, there is a huge appreciation shortage. Staff meetings provide managers and employees with regular intervals to practice gratitude.

“I’d like to thank Tom for staying late last night. Because he did, I was able to attend a parent-teacher conference.”

“Maryann’s work on the PowerPoint presentation was superb. I want to thank her for preparing me with the best slides shown at the conference. The stunning photos outshined the graphics others used. Maryann’s work really made our company look good.”

A steady drip of sincere gratitude can drive engagement. Note the word: sincerity. Most people have an amazing capacity to identify a false compliment. Real praise is specific. Well-delivered praise also ties the action to the outcome. Whether it’s being able to attend a conference, looking good in front of others, or some other result, people appreciate praise more when they understand how their actions delivered results. A praise segment in your staff meetings ensures you routinely take the time to recognize efforts.

STEP FIVE: Focus on Lessons Learned and Continuous Improvement

Staff meetings that include an opportunity to share lessons learned help drive continuous improvement. At first, people may be reluctant to share shortcomings. However, if you follow step four, you should begin to develop better communication and a sense of trust with your team. Modeling the process is a good place to start.

“I learned something this week I want to share with you. I had a call with a client that could have gone better. I’m going to tell you what happened and then I’ll discuss some ideas about how I would handle something similar in the future.”

The more you practice this exercise, the greater the gains you should experience.

STEP SIX: Develop a Schedule and Stick with It

Almost anyone can follow the first five steps some of the time, but those who get the most out of staff meetings hold them consistently. They publish a meeting schedule, and they stick with it. They may shorten a meeting from time to time or reschedule, but they don’t treat their chance to gather the team as the least important priority.

Good staff meetings aren’t perfunctory activities that add little value. On the contrary, when used to their full capacity, they are a dynamic management tool. Now what are you going to do about yours? u

Kate Zabriskie is the president of Business Training Works Inc., a Maryland-based talent development firm. She and her team help businesses establish customer service strategies and train their people to live up to what’s promised; www.businesstrainingworks.com.

Workforce Development

The Truth About Employee Disengagement

By Brad Wolff

Most companies struggle with employee disengagement. It’s costly in productivity, profitability, and stress. Gallup’s engagement survey data published in 2017 found that two thirds of U.S. workers are not engaged.

American companies have invested billions of dollars per year for many years to solve this problem. The results? The needle still hasn’t moved. How much has your experience been similar? Could this data simply reveal a general misunderstanding of the true causes of disengagement?

The Acme Corporation was suffering a 41% turnover rate. A recent survey showed that 85% of their workforce was disengaged. The general attitude of apathy, complaining, and cynicism permeated the culture. This was puzzling to management since they attempted multiple efforts to improve engagement.

These were well-planned and executed programs such as team-building exercises, social events, and pay raises. All showed early enthusiasm and positive survey results that generated optimism. Unfortunately, the magic always wore off within a few weeks. In despair, Acme engaged a firm with a very different philosophy than their other advisors. This firm focused on helping executive leadership understand the root causes and solutions. Within nine months, disengagement improved from 71% to 26% and turnover dropped to 19%.

The door to solving this dilemma opened when Acme management acknowledged that since their previous solution attempts were ineffective, their current way of seeing the problem must be flawed. This wisdom, humility, and openness paved the way to learn the true root causes of their disengagement. Once root causes are clearly understood, the solutions usually become obvious.

Fixing engagement issues: What works?

The first step is for the company leaders to take an honest, objective view of the company culture (beliefs and behaviors that determine how people interact and do their work) that impacts and drives the way people think and behave.

That’s why lasting change occurs when focusing at the culture level rather than specific individuals. Below are the relevant human psychological needs that are the actual root causes of people’s engagement level. Examples of mindsets/philosophies that effectively address these needs follows each need. Engagement will improve when management’s actions align with people’s psychological needs.

• To feel valued and understood. Management earnestly listens to employees’ concerns, opinions, and ideas with the intent to understand and consider their merits before responding. This replaces the common responses of defending positions or punishing employees for expressing contrary viewpoints. Management isn’t required to agree with the employees. What’s important is the sincere effort to listen, understand and consider their inputs.

• To express our gifts and talents. Management puts a focus on aligning roles and responsibilities with the gifts and talents of the individuals. We all bring a substantially higher energy and engagement (and productivity) when we do work that we like and are good at. As legendary management consultant Peter Drucker said, “A manager’s task is to make the strengths of people effective and their weaknesses irrelevant.”

• Meaning/purpose in what we do. This means that employees have a clear understanding of how their work impacts the mission and vision of the organization. Don’t expect them to figure this out on their own. People are much more motivated when they realize that their efforts truly matter.

• Internal drive for progress or development. Employees are at their best when there is “healthy tension” (not too low, not too high) to meet clear and reasonable standards. This means fair and consistent accountability and consequences based on performance relative to agreed-upon standards. Being too nice and lax harms engagement since people inherently desire growth and realize that standards and consequence help them do this. People are motivated when they focus on: “What did I achieve today?” What did I learn today?” How did I grow?”

What doesn’t work:

In short, anything that doesn’t authentically address the root causes of disengagement is doomed to fail. If the message is ‘look at this nice thing we just did for you’ rather than ‘this is how we value you as human being,’ it’s highly likely to fail.

Examples of the ‘nice thing we just did for you’ include most team-building events, social mixers, company newsletters, upgraded office environments, etc. Even pay and benefit increases have an initial rush soon followed by the familiar “right back where we were” rebound effect. That’s not to say companies should not do these things. They’re nice add-ons after the day to day essentials of human psychology are authentically addressed.

In summary, it’s understandable that we gravitate toward easy, quick-fix solutions to our problems. There are plenty of people to make these suggestions and sell them to us. They also don’t require us to identify our own personal contributions to the problems which we’d prefer to avoid. However, as in most things in life, there is no substitute for working at the cause-level and creating new habits of thinking and behavior.

If you’re serious about creating the high engagement level lead to more profits with greater ease and personal satisfaction, this is what it takes. As a bonus, openly addressing personal challenges that make you human will increase your effectiveness and fulfillment in every area of your life.

Brad Wolff specializes in workforce and personal optimization. He’s a speaker and author of, People Problems? How to Create People Solutions for a Competitive Advantage. As the managing partner for Atlanta-based PeopleMax, he specializes in helping companies maximize the potential and results of their people to make more money with less stress; www.PeopleMaximizers.com.

Employment

(And Also Be at Least Reasonably Happy Doing It)

By John Graham

Most everyone has figured out that performance expectations keep going up. To put it bluntly, we face the challenge of doing more in less time. And it’s not about to change anytime soon.

In the past, those with lots of experience fared well. But not today. Experience can hold us back, like running against a strong wind. Experience is about what we’ve done in the past, and it has value in an ever-changing environment. On the other hand, expertise prepares us for what we must do next so we can face the future with confidence.

The question, then, is how to transition from experience to expertise, from looking backward for answers to looking forward with solutions. Here are 17 ways to do it.

1. Have the right mindset. Experience short-circuits the thinking process. We go from zero to 60 in a split second. We tear into tasks because we’ve been there before and know what to do. It takes an analytical mindset when entering uncharted territory.

2. Figure out what you need to know. More often than not, problems, misunderstandings, and confusion occur because we didn’t ask enough questions — or, more likely, any questions. We get off on the wrong foot by not knowing what we need to know.

3. Give yourself time. Some say they do their best work in a crisis or at the last minute. It’s also easy to deceive ourselves. Where does that leave us when we run out of time? The answer: in trouble and making excuses. And feeling overwhelmed.

4. Work on it and let it sit. The best solutions rarely, if ever, occur on the first attempt, whether it’s writing a report or working on a project. The human mind needs ‘noodling’ time to work in the background without pressure. Remember, everything can be improved.

5. Avoid confrontations. It isn’t easy, particularly since we seem to possess an urge to be right, a gyroscope of the mind. When coming into contact with an opposing view, the mind pushes back to regain its balance. It helps to view it as a signal to take a closer look before having a confrontation.

6. Never assume things will go smoothly. Why do we never get over being surprised when things go wrong? It’s as if someone is playing cruel jokes on us or deliberately throwing us curveballs to cause us grief. It’s best to be prepared by anticipating what might go wrong.

7. Second-guess yourself. To avoid getting blindsided, ask yourself ‘what if’ questions to foresee possible outcomes. Then, when asked about alternatives, you can say you considered various options and why you chose this one.

8. Learn something new. If you can do your job without thinking about it, you’re probably bored and underproductive. The human mind gets moving and stays active by coming up with new ideas, making improvements, and solving problems.

9. Go beyond what’s expected of you. It’s easy to put up a ‘I’ve reached my limit’ or a ‘I’m not paid to do that’ sign. Everyone feels that way at times. If we do, we can count on dismal days ahead.

10. Be present. It’s easy to be at work and not be present. The average employee spends just under eight hours a week on personal stuff, most of it on e-mail and social media. For those ages 18 to 34, add two hours a week, according to a staffing firm Office Team survey. That’s a day each week of not being present.

11. Ask questions. Have you started on a task and get into it only to discover you’re on the wrong track? Most of us have — too many times. It occurs when we’re too sure of ourselves or reluctant (or embarrassed) to ask questions. Asking the right questions is a sign that you’re thinking about what you’re doing.

12. Look for possibilities. Instead of just doing your work each day, take it to another level and interact with it so you get feedback from what you’re doing. Ask yourself: is it clear? Is it complete? Will the recipient understand it? Is it necessary? Will it make the right impression? What have I missed? Should I start over? Is it time for another set of eyes?

13.Take a chance. It’s invigorating to try something new. You may have been thinking about it for a long time, and it doesn’t really make any difference what it is. By taking your mind off all the annoying daily irritations, it can help invigorate your outlook and improve your productivity.

14. Have clear goals. Tedium sets in on any job. One day you realize that what was interesting and challenging is now tiring and unpleasant — perhaps even intolerable. If so, it’s ‘goal think’ time. Start by asking what you want to accomplish today, then add another goal for the coming month, and so on. When you know where you’re going, the tedium fades away.

15. Eliminate confusion. We may not be in a position to control the confusion around us, but we can avoid adding to it. We can make sure our messages are accurate and complete so there’s no misunderstanding, our address book and other files are current so we don’t need to bother others, we meet deadlines so we don’t leave others waiting, and so on.

16. Raise your standards. Others respond to us based on how they view us. How do they see you? Someone who get things done, who takes quality seriously, and who demands a lot from yourself? Make a conscious decision as to how you want to be perceived.

17. Take on a challenge. Nose around to see what you can find, drop a few hints, and even raise your hand. But be sure it’s something you want to sink your teeth into. If it is, you’ll have a great time doing it.

Follow this advice, and not only will you get your work done, but it will be more than you thought possible, and you’ll be happier at the same time. Better yet, your employer and your customers will be happier, too.
As it turns out, happiness doesn’t depend on what others do for us, but what we do for ourselves.

John Graham of GrahamComm is a marketing and sales strategy consultant and business writer. He is the creator of “Magnet Marketing,” and publishes a free monthly e-bulletin, “No Nonsense Marketing & Sales Ideas”; [email protected]

Law

A Clear Roadmap

By Kimberly A. Klimczuk

Kimberly A. Klimczuk

Kimberly A. Klimczuk

The National Labor Relations Act (NLRA) is a federal law that protects employees’ right to engage in concerted activity. Although the NLRA is commonly thought of as protecting employees’ right to form a labor union, which it does, it also protects the right to engage in other concerted activities that may have nothing to do with unions. ‘Concerted activity’ is a broad term and refers to any action employees take together for their mutual aid and protection, such as when two employees go together to HR to complain about their supervisor, or when an individual employee speaks on behalf of himself and his coworkers to demand they all get a raise. The NLRA applies to all employers, whether unionized or not.

The National Labor Relations Board (NLRB) is the federal agency responsible for enforcing the NLRA. It has long held that employer policies or rules that interfere with the right to engage in concerted activity violate the NLRA. In 2004, however, the board, in its Lutheran Heritage decision, expanded the NLRA’s protections by ruling that work rules not intended or used to target concerted activity would nevertheless be unlawful if an employee could “reasonably construe” the rule to prohibit concerted activity.

Under the Obama administration, the board relied on the ‘reasonably construe’ standard to declare unlawful a number of commonplace rules. For example, the NLRB found that policies asking employees to refrain from negative comments about co-workers and managers and asking employees to represent the company in the community in a positive and professional manner were unlawful because employees could interpret the policies to restrict their rights to discuss the terms and conditions of their employment. At the same time, the board held similar rules to be lawful, such as a rule prohibiting “disloyal, disruptive, competitive, or damaging conduct.”

These decisions created confusion for employers. Without a clear standard as to when a rule would be considered legal, employers wondered whether common-sense rules that had long been part of company culture would be declared illegal by the NLRB.

NLRB members are appointed by the president, and, unsurprisingly, the members appointed by President Trump have been friendlier to employers. Late last year, the NLRB issued a decision (The Boeing Company, 365 NLRB No. 154) that established a new standard for evaluating the legality of employer rules. Under this new standard, the board will weigh the interests of the employer in maintaining work rules against the impact of those rules on employees’ right to engage in concerted activity.

In its decision, the board noted that, “over the past decade and one-half, the board has invalidated a large number of common-sense rules and requirements that most people would reasonably expect every employer to maintain.”

The board’s general counsel also issued a memorandum this past June that provides further guidance to employers on how handbook rules should be interpreted under the new standard. The general counsel instructed that the board’s regional directors and other officers should not be interpreting general work rules “as banning all activity that could conceivably be included.” He then went on to group common handbook policies into three categories:

1. Rules That Are Generally Lawful to Maintain

• Civility rules;

• Rules prohibiting photography or recording;

• Insubordination, non-cooperation, and refusal-to-cooperate rules;

• Disruptive-behavior rules;

• Rules protecting disclosure of confidential, proprietary, and customer information (as long as they don’t reference wage or employee information);

• Rules against defamation or misrepresentation;

• Rules prohibiting use of employer’s logos or intellectual property;

• Rules requiring authorization to speak on behalf of the company; and

• Rules banning disloyalty, nepotism, or self-enrichment.

2. Rules That Warrant Individual Scrutiny

These rules are not clearly lawful or unlawful. Instead, the lawfulness of these types of rules must be determined on a case-by-case basis:

• Broad conflict-of-interest rules;

• Confidentiality rules that encompass ‘employer business’ or employee information;

• Rules preventing disparagement of the employer;

• Rules prohibiting or regulating use of the employer’s name (as opposed to employer’s logo or trademark);

• Rules restricting employees from generally speaking to the media;

• Rules banning off-duty conduct that would harm the employer; and

• Rules prohibiting making false statements (as opposed to defamation).

3. Rules That Are Unlawful to Have

• Confidentiality rules regarding wages, benefits, or working conditions; and

• Rules that prohibit joining outside organizations or that require employees to refrain from voting on matters concerning the employer.

Bottom Line

The memo is good news for employers because it provides a clear roadmap to evaluate the legality of employer handbook rules and reverts to a more common-sense standard. It also declares several policies lawful that had been declared unlawful by the prior board.

Employers that shied away from enacting handbook policies like no camera recording or respect/civility rules, or changed handbook policies to ensure compliance with the Obama board’s crackdown, may want to revisit those decisions.

Kimberly Klimczuk is a partner with Springfield-based Skoler Abbott. An employment-law attorney, she specializes in labor relations and collective bargaining; employment litigation; employee handbooks, personnel policies, and practices; and other labor and employment matters; [email protected]; (413) 737-4753.

Opinion

Opinion

By Cheryl Fasano

Workplaces that welcome the talents of all people, including people with disabilities, are a critical component in efforts to build an inclusive community and a strong economy. In my role as president and CEO of MHA, I see the impact that doing meaningful work can have on those we serve. Our participants include people with developmental or intellectual disabilities, people dealing with the life-changing effects of a stroke, people struggling with their mental wellness, and those with other disabilities.

This topic is timely because October is National Disability Employment Awareness Month. This annual observance educates the public about disability employment issues and celebrates the many and varied contributions of America’s workers with disabilities. The U.S. Department of Labor’s Office of Disability Employment Policy leads the observance nationally, but its true spirit grows from local communities through the individual determination of people who overcome barriers and do meaningful work. It also grows from the vision of employers who provide access and reasonable accommodations so persons with disabilities can contribute to their organizations and our economy as part of the workforce.

As a local, nonprofit provider of residential and support services, MHA works with people who are impacted by mental illness, developmental disabilities, substance use, and homelessness. For those whose disabilities are not so severe and medically challenged, MHA does its part to ensure that participants who want to work are ready to work. Consider two examples.

Erik, who suffered brain injury as a child, works at the CVS store in Ludlow. He has a job coach who guides him, but Erik does the work himself — as he has consistently and reliably more than 20 years. Work is part of his identity, and he will tell you he is proud to have a job. Erik resides at an MHA residential home. Our staff ensures he is well rested, eats a healthy breakfast, and is dressed in his work clothes and ready for his shift at CVS.

After Allen sustained a serious injury, he was prescribed opioid pain killers. He became addicted, and when couldn’t get more pills, as too often happens, he resorted to heroin. An overdose left him with acquired brain injury, but with support from MHA, he is making steady progress. In time, he may be able to ‘graduate’ from residential care and live independently. That is the goal. One step toward that goal is a job. Allen is just a few short weeks away from starting to work again, something he has not done in recent years. He is ready to work.

MHA also has participants who work for nonprofits as volunteers, serve meals at Lorraine’s Soup Kitchen, and clean at East Longmeadow Public Library and the Zoo in Forest Park. While they are not paid, they do meaningful work. They also make social connections, learn transferable skills, and contribute to organizations that gain from having committed, loyal, pleasant, and productive workers.

MHA encourages local businesses to consider offering employment opportunities to those we serve. Our program participants are ready to work — are you ready to hire? If your organization can provide an opportunity for someone who is ready to work, contact Kimberley Lee, MHA’s vice president of Resource Development and Branding, at (413) 233-5343 or [email protected]

Cheryl Fasano is president and CEO of MHA.

Accounting and Tax Planning

Five Hot Tax Topics

The Tax Cuts and Jobs Act represents a seismic shift within the broad realm of accounting and tax planning, and some of the aftershocks may not be felt, and fully understood, for some time. But some things are known, and individuals and businesses should understand their implications.

By Teresa Judycki

For better or worse, the Tax Cuts and Jobs Act was the most significant tax-law overhaul since the Reagan Administration, and there’s potential for more change on the way. With the breadth and depth of this law, it can be hard to determine what might be meaningful to you and your business.

This article will highlight five hot tax topics that may be particularly meaningful for this tax year.

Qualified Opportunity Funds

Taxpayers with large gains from sales of property to an unrelated person should be aware of Qualified Opportunity Funds. Enacted as part of the Tax Cuts and Jobs Act, a new Opportunity Zone program encourages investment in low-income community businesses.

Terri Judycki, CPA, MST

Terri Judycki, CPA, MST

The program allows individual and corporate taxpayers to defer tax on gains from the sale of stock or other assets by investing in an Opportunity Fund, which invests in businesses in Opportunity Zones. The tax is deferred until the earlier of Dec. 31, 2026 or the date the new investment is sold. To defer a gain, the taxpayer must invest within 180 days of the sale.

For example, if a taxpayer sells appreciated securities for $1 million at a $700,000 gain, tax on the $700,000 could be deferred until Dec. 31, 2026 (or earlier if the investment is sold prior to that date) by investing $700,000 in a Qualified Opportunity Fund within 180 days of sale. Capital gains on the new investment are exempt from tax if the investment is held for more than 10 years. Opportunity Funds may be a multi-investor fund or a single-investor fund established by a taxpayer to invest in projects he or she selects.

While there are a few multi-investor funds, many are hesitant to promise tax deferral until the IRS issues proposed regulations in this area, but September news is that the proposed rules are being reviewed and should be issued soon.

Foreign Accounts

For taxpayers with unreported income from foreign accounts, the Streamlined Filing Procedures (SFP) are still available. The Offshore Voluntary Disclosure Program ended Sept. 28, 2018.

Under SFP, taxpayers who can certify that the failure was non-willful can file amended returns and pay a reduced penalty. The IRS also has procedures in place for filing delinquent information returns reporting the existence of a foreign account when there has been no unreported income.

For example, a life-insurance policy with Sun Life may have a cash value that’s now increased to more than $10,000. That is a ‘foreign account’ that must be reported or could be subject to penalties. Consider reviewing any asset that is a foreign account and ensuring that tax filings are current, because penalties are confiscatory and may include criminal penalties.

The civil penalties for willful violations are capped at the greater of $124,588 or 50% of the amount in the account.

Employee Parking

I hoped to be able to provide you with specifics related to employee parking, but that guidance has not been issued as of the date of this writing. Perhaps there will be guidance by the time you are reading this article.

As a reminder, the Tax Cuts and Jobs Act provides that no deduction is allowed for the expense of a qualified transportation fringe, which includes van pools, transit passes, and qualified parking. Qualified parking is parking provided to an employee on or near the business premises of the employer or on or near a location from which the employee commutes to work by commuter highway vehicle or carpool. Tax-exempt organizations are subject to tax on the expense. But what is the ‘expense’ of qualified parking? At the 2018 AICPA Not-for-Profit Industry Conference, a speaker said that guidance had not yet been issued, because those in Treasury could not agree on the meaning of the law.

The cost of a parking permit is easy to quantify, but the law encompasses all expenses of providing parking. There are some practitioners who think a portion of depreciation on a parking lot owned by the business could be disallowed. Some others think the IRS may require apportioning office rent if the lease entitles the tenant to a certain number of parking spaces. As the law applies to amounts paid or incurred after Dec. 31, 2017, it affects computation of taxable income for entities with fiscal years ending in 2018. There are many practitioners hoping for retroactive repeal or postponement.

State and Local Tax Itemized Deduction

In August, the IRS issued proposed regulations in response to state legislation intended to circumvent the $10,000 limit on the state and local tax itemized deduction. A few states have enacted or considered enacting programs permitting state residents to make contributions to state agencies or charities in exchange for state and local tax credits that could be applied to income or property taxes.

In the proposed regulations, IRS restates the general rule that charitable deductions must be reduced by anything of value received in return for the charitable donation. The proposed rules, applicable to contributions made after Aug. 27, 2018, provide that, if a taxpayer receives a tax credit in return for a donation, the tax credit is a benefit to the taxpayer that must reduce the charitable contribution deduction.

It is important to note that these rules apply to programs created in response to the Tax Cuts and Jobs Act as well as to pre-existing programs, such as the Massachusetts program that provides tax credits in exchange for gifts of conservation land.

There has been no response from the IRS to the Connecticut strategy; Connecticut now imposes tax on a pass-through entity instead of on the individual partner or shareholder, which should result in shifting the deduction away from the individual who is subject to the $10,000 limit. The shareholder or partner should now be able to report his or her share of the entity’s income net of the state tax.

Trusts that pay taxes are also subject to the $10,000 limit, but a trust does not have to share the beneficiary’s $10,000 limit, providing a potential benefit.

Alimony

Finally, for those who will be divorced soon, the tax consequences of alimony differ for payments under instruments finalized after Dec. 31, 2018.

Before the Tax Cuts and Jobs Act, alimony was deductible by the payor and taxable to the payee. This resulted in shifting income from the higher-earning spouse paying the alimony to the former spouse who may be in a lower tax bracket. Alimony payments finalized after Dec. 31, 2018 will no longer be deductible by the paying spouse and no longer included in the income of the recipient spouse. There are some workarounds such as division of property where the spouse in the lower tax bracket receives property with the greatest unrealized gain or by using a Qualified Domestic Relations Order to shift retirement assets (along with the tax burden) to the lower-income spouse.

While this change will not affect pre-2019 alimony instruments, it may apply if the parties modify the pre-2019 agreement and state in the modification that the new rules are to apply. If this law change will impact you, be sure to discuss its effects with your attorney.

If you have any questions about the material featured in this article or how it might apply to you specifically, be sure to consult your tax professional or CPA.

Terri Judycki is a senior tax manager with Holyoke-based public accounting firm Meyers Brothers Kalicka, P.C.; (413) 322-3510; [email protected]

Accounting and Tax Planning

New Rules of the Road

By Julie Quink, CPA

Tax-IncentivesIn 2018, nonprofit organizations face implementation of the first major overhaul of accounting standards in two decades. The goal of the overhaul is to improve the communication of financial results for donors and other outside stakeholders and to emphasize transparency in financial reporting.

With these changes, nonprofit organizations can expect significant changes in financial reporting practices. Donors and outside stakeholders can expect enhanced information on liquidity, access to cash and endowments.

What are the significant financial reporting changes for nonprofits?

Some of the major changes in the new standards encompass net asset classification, liquidity and availability, investment returns, reporting of functional expenses, and presentation of statement of cash flows.

Net Assets

The new accounting standards focus on the existence or absence of donor restrictions as opposed to the type of restriction. The new rules provide for two classes of ‘net assets’ — with donor restrictions and without donor restrictions. Previously, nonprofits have reported three required classes of net assets — unrestricted, temporarily restricted, and permanently restricted.

Julie Quink, CPA

Julie Quink, CPA

For underwater endowments, in which the fair value of the endowment at the reporting date is less than the original gift or the amount required to be maintained by the donor or by law, the cumulative amount of losses is netted in assets with donor restrictions under the new classifications. Previously, the accumulated losses were included in unrestricted net assets.

Disclosures relative to underwater endowments now encompass the aggregate amount of original gifts required to be maintained, endowment spending policies, and discussion of actions taken or strategy relative to the underwater status of the endowment. For the nonprofit, a concern may be that the status of and strategy of managing underwater endowments is highlighted in the new financial-statement disclosures.

The goal of the change is to simplify tracking and reporting of donor restrictions and also to enhance disclosures on the nature, amounts, and types of donor restrictions.

Liquidity and Availability

Quantitative and qualitative information is required under the new standards relative to liquidity and availability of liquid assets, which are typically cash and investments.

The qualitative disclosures require analysis of how the organization manages its liquid assets to meet cash needs for expenditures within one year of the statement of financial-position date. The quantitative information regarding the liquid assets and their availability to meet the current-year needs can be presented on the face of the financial statements or in the notes to the financial statements.

Donors, grantors, creditors, and other stakeholders want to understand that these nonprofit organizations that they are evaluating have adequate financial resources to meet obligations as they become due. For the nonprofit organization, a concern is that this liquidity information can highlight potential liquidity shortfalls, which may affect future donations and grants.

Investment Returns

Investment income is to be reported net of internal and external investment expenses. This has been an optional presentation under current standards. The requirement to disclose investment expenses net in investment income has been removed. The netting of fees against income does not suggest that nonprofits should not still manage and monitor investment fees, but assists in eliminating the burden of trying to identify embedded investment fees.

Functional Expenses

Currently, only health and welfare organizations are required to report expenses by function. Under the revised standards, all nonprofits must report expenses by function and must disclose the methodology used for the allocations to program and overhead expenses in the notes to the financial statements.

Nonprofit organizations should have been allocating expenses to programmatic and administrative expenses even though not required to detail the expenses by function. The requirement for functional reporting and disclosures may require nonprofits to review their allocation policies for consistency.

Statement of Cash Flows

The new rules continue to allow nonprofits to choose the method, direct or indirect, by which they present operating cash flows. The new guidance does eliminate the need to add an indirect reconciliation if using the direct method in presenting operating cash flows.

By streamlining the requirements, it is believed that the statement of cash flows will be a more useful statement and result in a reduction of costs to the nonprofit to prepare the financial statements.

Conclusion

The new accounting and reporting standards are intended to provide more transparency to donors and other stakeholders. These changes may, however, have a significant time and financial impact on nonprofit organizations as they implement the new requirements.

Julie Quink, CPA is the managing principal of Burkhart, Pizzanelli, P.C., specializing in the accounting and consulting aspects of the practice. She is also a certified fraud examiner.

Banking and Financial Services

Expanding the Footprint

Glenn Welch

Glenn Welch

Although many Freedom Credit Union members have ties to West Springfield, Glenn Welch said, the institution has never had a physical branch there.

But that will soon change, following the announcement that Freedom has agreed to a merger with West Springfield Federal Credit Union (WSFCU), bringing the West Side institution under the Freedom umbrella.

“This is a tremendous opportunity to extend our products and services to West Springfield, an area where we do not have a branch but where many of our members live and work,” said Welch, Freedom’s president and CEO. “We promise our members accessibility to us, whether it’s at a branch location or through mobile banking. This merger delivers on that promise.”

Freedom, which is headquartered in Springfield and serves members in the four counties of Western Mass. with 10 branches, was originally chartered as the Western Massachusetts Telephone Workers Credit Union in 1922 and renamed in 2004. It currently has $491 million in assets with 28,000 members who live, work, or attend school in Hampden, Hampshire, Franklin, or Berkshire county.

West Springfield Federal Credit Union, which was initially chartered in 1960 as the West Springfield Municipal Employees Credit Union before its name change in 2003, has nearly 3,000 members and more than $29 million in assets.

Welch noted that WSFCU members will have access to many new products and services, including member business lending, use of 55,000 surcharge-free ATMs across the worldwide Allpoint Network, and robust mobile-banking products and services. All employees of WSFCU will become part of the Freedom Credit Union family. The West Springfield Federal Credit Union location will remain open at 58 Union St. and conduct business as Freedom Credit Union.

“This is a tremendous opportunity to extend our products and services to West Springfield, an area where we do not have a branch but where many of our members live and work. We promise our members accessibility to us, whether it’s at a branch or through mobile banking.”

“The additional products, services, and opportunities available to both our members and the employees who serve them is a win-win proposition,” said Ann Manchino, manager of West Springfield Federal Credit Union. “We are excited for a new chapter in our history and to be part of the Freedom Credit Union family.”

The merger will require regulatory and member approvals, and is anticipated to be complete by the end of 2018.

Pending regulatory approval, Freedom Credit Union will have 11 total branches, including three offices in Springfield and locations in Feeding Hills, Ludlow, Chicopee, Easthampton, Northampton, Turners Falls, and Greenfield.

Credit unions are cooperative financial institutions owned by their members. As a not-for-profit organization, Welch noted, Freedom Credit Union returns its profits to its members in the form of high rates on deposit accounts, low rates on loans, and low or no fees for its services.

Opinion

Opinion

By Cheryl Fasano

Last year alone, drug overdoses killed 72,000 Americans. According to the Centers for Disease Control and Prevention, that record number reflects a 10% increase from the year before. In Massachusetts alone, there were more than 2,000 deaths due to overdose in 2017. It’s an epidemic that we, as a community, must fight.

Gov. Charlie Baker recently signed into law new legislation that expands opioid-addiction treatment in Massachusetts. The new law has been described as “the most aggressive and progressive” in the country, and, given the crisis of opioid abuse in the Bay State, this approach is most welcome.

One aspect of the law that Mental Health Associates (MHA) believes deserves special recognition is a new set of standards and an established credentialing process for recovery coaches. A recovery coach is someone who has received specialized training to provide guidance and support for people who are just beginning their recovery and are especially vulnerable to relapse. Importantly, a recovery coach also has lived experience with addiction and is in long-term recovery.

When it comes to getting clean and staying clean, a recovery coach has ‘been there’ and ‘gets it’ in a way only someone who has experienced addiction understands. A recovery coach is a critical resource for an individual in recovery.

“You’ve got to find some way to help people stay in the game and stay clean once they get clean,” Baker said. “Creating a credentialing framework and making it possible for services to be reimbursed [by insurance] is a huge part of how we ultimately win this fight.”

MHA applauds the governor and state Legislature on the passage of this crucial new legislation. It makes us even more hopeful for the people we are helping through our recovery-support programs, which, for years, have included the very type of recovery coaches state law now recognizes and standardizes with regard to training and credentialing. The law’s provisions should help make the services of a peer recovery coach available to more people struggling to overcome their addiction.

So, overall this is great news, but it doesn’t mean we are in the clear. To win the war against opioid addiction, we must fight every battle relentlessly. We must improve education so people of all ages understand the life-threatening risks involved with opioids.

We must help people struggling with addiction to get the help they need to get clean and stay on their road of recovery. By working collaboratively, we can challenge the opioid epidemic and prevail — but we can’t let up.

Cheryl Fasano is president and CEO of Mental Health Associates.

Banking and Financial Services

Giving Some Insight

By Terri Judycki

Terri Judycki, CPA, MST

Terri Judycki, CPA, MST

The Tax Cuts and Jobs Act (TCJA) has resulted in many changes for taxpayers. One area in particular is charitable giving.

For those who regularly make charitable contributions, changing philanthropic giving habits may result in greater tax benefits. This article will explore various strategies for maximizing the tax benefit of charitable giving under the new law.

The TCJA increases the standard deduction to $12,000 for a single taxpayer and $24,000 for a married couple filing a joint tax return. In addition, the itemized deduction for taxes has been capped at $10,000 for all combined state and local tax payments. The Congressional Budget Office estimates that these changes will reduce the number of taxpayers who itemize deductions by more than half.

To maximize the benefit of the higher standard deduction, consider bunching charitable contributions in alternating years. For example, if a married couple with no mortgage ordinarily gives $12,000 to charity each year, they will likely take advantage of the $24,000 standard deduction ($12,000 to charity plus $10,000 in state and local states is less than the $24,000 standard deduction). If, instead, they give $24,000 every other year, they will use the $24,000 standard deduction in the ‘off’ year and $34,000 in itemized deductions in the year with the gifts ($24,000 charitable contributions plus $10,000 state and local taxes), resulting in lower taxable income without any increase in cash expenditures.

From the charity’s perspective, though, this could leave some budget challenges.

Another way to bunch deductions without bunching the charities’ income is through the use of a donor-advised fund (DAF). DAFs are funds controlled by 501(c)(3) organizations in which the person establishing the fund has advisory privileges as to the ultimate distribution to charities.

In our example above, the married couple might establish a DAF with $24,000 in one year and direct or ‘advise’ that donations be made to specific charities over time. Amounts used to establish the DAF are deductible charitable contributions when transferred to the sponsoring organization.

“For those who regularly make charitable contributions, changing philanthropic giving habits may result in greater tax benefits.”

Whether the idea of bunching appeals to you or not, don’t overlook the benefits of gifting appreciated stock to charity. The stock must have been held for more than a year to take advantage of this planning opportunity. The charitable deduction is the fair market value on the date gifted. Gifting the stock instead of cash avoids income tax on the appreciation.

For example, if a taxpayer wants to make a gift of $10,000 to a charity and sells stock worth $10,000 for which he paid $7,000, he would have a $10,000 deduction and $3,000 taxable gain. If, instead, he directs his broker to transfer the stock to the charity, he is still entitled to a $10,000 deduction, but does not report the $3,000 gain.

Finally, taxpayers age 70½ or older have another option available. An individual who is 70½ or older on the transfer date can direct the trustee of his IRA to distribute directly to a qualified public charity. The distribution is called a qualified charitable distribution (QCD). The amount transferred counts as a distribution for purposes of meeting the minimum distribution requirement but is not included in the taxpayer’s income.

There are a few requirements. The charity cannot be a private foundation or a donor-advised fund. No more than $100,000 can be donated by an account owner each year. The gift to the charity must be one that would have been entirely deductible if made from the taxpayer’s other assets — for example, the donor should obtain adequate substantiation from the charity, and the donation should not be one that entitles the donor to attend a dinner, play golf, or receive any other benefit.

In our example above, the couple who makes a QCD from IRAs for the $12,000 each year reduces taxable income by $12,000 and still uses the standard deduction.

Another possible advantage is the effect the reduction may have on other taxable items. Depending on the taxpayer’s total income, reducing adjusted gross income could result in reduction of the amount of Social Security benefits that are taxed, an allowed loss from certain real-estate rentals, or a reduction in the net investment income tax (if the amount of excess AGI exceeds the net investment income).

Reducing income may also result in lower Medicare premiums that are based on income for higher-income taxpayers. In addition, some states do not provide deductions for charitable donations, but do follow the federal treatment of excluding the QCD from income.

These changes may result in tax savings that could be used to make an even larger donation to a favorite charity.

Terri Judycki is a senior tax manager with the Holyoke-based public accounting firm Meyers Brothers Kalicka, P.C.; (413) 322-3510; [email protected]

Employment

Talking Pot

By Erica E. Flores, Esq.

It took almost two years, but Massachusetts regulators have finally started to issue licenses to businesses looking to grow, manufacture, distribute, and sell recreational marijuana products in the Commonwealth.

The first license went to a cultivation facility in Milford back in June; since then, the Cannabis Control Commission has issued licenses to six other businesses, including provisional licenses for retail locations in Northampton and Easthampton.

Erica E. Flores, Esq.

Erica E. Flores, Esq.

Despite this progress, however, retailers cannot open their doors just yet — retail marijuana products must be tested for various contaminants before they can be sold, and the commission has yet to issue a license to a testing facility. But with the licensing process finally picking up steam, and public pressure on the commission to allow the voter-approved industry to take root, Western Massachusetts employers may be wondering how these changes will affect their workplace and what they can or should be doing to prepare.

Here’s what you need to know now:

Marijuana in the breakroom?

The recreational marijuana law specifically provides that it “shall not require an employer to permit or accommodate conduct otherwise allowed by [the law] in the workplace,” and further, that it “shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.”

This means that employers who pre-screen job applicants for marijuana, have drug-free workplace policies that prohibit employees from working under the influence of drugs or alcohol, and who conduct other lawful drug tests of employees may continue their current practices, and need not accommodate an employee’s use of marijuana for recreational purposes, even when they are off duty.

That being said, the availability of marijuana products for sale at retail locations (and, eventually, at so-called “cannabis cafes”) will likely drive an increase in marijuana use by adults across the state. This means that employers may see a rise in positive drug-test results by applicants and those who are subject to random testing. Employers may also see an uptick in employees arriving to work impaired and/or using marijuana products on the job.

To combat these potential problems, employers who have drug-free workplace policies might consider issuing reminder notices to employees making clear that their policies apply to marijuana just like they do to alcohol, which is also legal.

Employers may also want to adopt a reasonable-suspicion drug-testing program, if they do not have one already, and train their managers and human resources professionals about how to recognize the signs and symptoms of marijuana impairment and how to properly document their observations. Such evidence, in combination with a positive test result, can help an employer prove that its reasons for disciplining or terminating an employee were legitimate should the employee challenge that decision in a legal forum, particularly given the fact that currently available drug-testing methods do not measure current impairment; they can only detect that the drug is in an employee’s system.

Drug-testing Considerations

Employers may also want to reconsider the scope of their pre-employment drug-testing programs. Such tests are legal in Massachusetts, but a 2016 decision out of the Mass. Superior Court suggests that employers who screen applicants for non-safety-sensitive positions run the risk of being sued for an invasion of privacy. Accordingly, employers can reduce their risk of a privacy claim (and possible liability) by eliminating marijuana from the testing panel for non-safety-sensitive positions or even doing away with drug screens for such positions altogether.

“… employers who have drug-free workplace policies might consider issuing reminder notices to employees making clear that their policies apply to marijuana just like they do to alcohol, which is also legal.”

Finally, employers should be prepared to address requests by prospective and current employees to tolerate the use of marijuana as a reasonable accommodation for a disability. Last year, the Supreme Judicial Court ruled that Massachusetts employers have a legal obligation to accommodate a disabled employee’s off-site, off-duty use of medical marijuana, pursuant to a valid prescription, unless there is an “equally effective alternative” or the employer can demonstrate that the accommodation would be unduly burdensome.

The decision relied, in part, on the language of the medical marijuana law, which guarantees to registered users the continued benefit of all “rights and privileges.” But many disabled employees may choose to bypass the medical marijuana registration process when they are able to obtain the drug at a recreational shop, potentially at a lower cost, while avoiding the cost, time and potential stigma associated with becoming a registered medicinal user. Must these employees also be accommodated?

Technically, the SJC’s decision applies only to employees who have registered as part of the medical marijuana program. Additionally, both the legislature and the Cannabis Control Commission may seek to keep it that way. To be sure, it may not be such a good idea for doctors and other healthcare providers to be able to recommend marijuana as a treatment for a medical condition without going through the process that would enable them to actually prescribe the drug.

Further, it may be bad public policy to encourage disabled persons to self-medicate by using marijuana products that are designed for recreational use as medication. On the other hand, if an employee can demonstrate a disabling condition and the absence of an equally effective alternative to marijuana, allowing employers to deny the accommodation just because the employee obtained the drug at a recreational shop seems somewhat arbitrary.

Bottom Line

These competing considerations are not likely to be resolved all at once, and certainly not right away. So employees who do not want to risk becoming the test case should give some thought to the pros and cons of accommodating such employees and devise a strategy that makes the most sense for their unique business.

When in doubt, employers should consider retaining employment counsel to help them navigate these difficult and ever-changing legal issues.

Erica E. Flores is an attorney at the firm Skoler, Abbott & Presser, P.C.; (413) 737-4753 or [email protected]

Employment

Language Course

 By Timothy M. Netkovick, Esq.

Big changes may be on the horizon regarding non-competition agreements. For the first time, there may be legal restrictions on the terms of those agreements, and, in a major development, employers may be required to pay former employees during the non-compete period.

This is the result of a bill passed by the Massachusetts state legislature that, if signed by Gov. Baker, will mandate the timing of non-competition agreements, the employees who can enter into those agreements, and certain language within the agreement.

Timothy M. Netkovick, Esq

Timothy M. Netkovick, Esq

Employers use non-competition agreements in order to protect their business interest in the event an employee leaves the company and begins to work for a competitor. In that scenario, the now former employee could be motivated to entice clients to their new place of business or to use confidential information of the former employer for the benefit of a competitor.

Historically, there has been little restriction on the contents of a non-competition agreement other than what terms would be enforced by a court in the event of a dispute. However, that may be about to change. If signed by Gov. Baker, the bill states that a non-competition agreement will need to include:

• A reasonable geographic reach in relation to the interest sought to be protected;

• A reasonable scope of the activities prevented;

• That the agreement be supported by a garden-leave clause (more on that later); and

• That the agreement comply with public policy.

The new bill is the result of the Legislature’s perception that non-competition agreements have become overused in the Commonwealth. As such, the bill requires that certain steps be taken at each stage of the employment process. At the outset, the bill mandates that non-competition agreements are unenforceable against:

• Nonexempt employees under the Fair Labor Standards Act (hourly workers);

• Interns;

• Employees terminated without cause or due to layoff; and

• Employees under 18 years old.

In a typical scenario, non-competition agreements are entered into at the beginning of the employment relationship, and can be included as part of the employee’s ‘on boarding’ documents, along with a copy of the Employee Handbook and other standard documents.

The Legislature’s apparent concern is that an employee could sign a non-competition agreement without understanding what they are signing.

In order to protect employees, the bill requires that a non-competition agreement must be entered into by the earlier of a formal offer of employment or 10 business days before the start of employment. In addition, the agreement must be signed by both the employer and the employee and, further, must include a statement that the employee has the right to consult with counsel of their choosing prior to entering into the agreement. In effect, this makes a non-competition agreement the subject of a separate negotiation well prior to the first day of employment.

In the event the agreement is entered into after employment has started, the bill requires that there be a 10-day waiting period before the agreement becomes effective, and that it include the same statement that the employee has the right to consult with counsel of their choosing prior to entering into the agreement.

The bill further requires that “fair and reasonable consideration” be exchanged in order to support the agreement. The bill doesn’t state what “fair and reasonable consideration” is, however, it specifically states that “fair and reasonable consideration” must be more than just the employee’s continued employment.

Since there is no definition of “fair and reasonable consideration,” there can be a variety of potential interpretations as to what that phrase means. Could it be a raise for the employee to support the agreement? A bonus? Unfortunately, the legislation is silent. However, it is clear from the overall text of the legislation that the intent is for more than just nominal consideration, i.e. $1.00.

For the most part, once the agreement is signed, the bill adapts the standards typically used by Massachusetts courts in enforcing non-competition agreements in terms of duration and scope. For instance, Massachusetts courts have typically held that non-competition agreements are enforceable so long as they are reasonable in time and scope.

Courts have also typically interpreted non-competition agreements narrowly in terms of enforcing the agreement for a short period of time and limited to the areas where the employee actually performed services for the former employer. In addition, several professions are exempt from non-competition agreements due to public policy reasons, such as doctors and lawyers.

The major potential change is the requirement for employers to pay their former employees during the non-compete period. Under the bill, the agreement must be supported by a “garden leave clause” or other mutually agreed upon consideration. The bill defines a “garden leave clause” as 50% of the employee’s highest annualized salary within the two years preceding termination. In effect, employers will be required to pay the former employee not to work during the non-compete period.

In addition to the other provisions put in place, it seems that the Legislature’s goal is to provide an additional disincentive for an employer to enter into a noncompetition agreement unless the employer views it as absolutely necessary for a legitimate business interest. Given the other restrictions in terms of the category of employees specifically excluded from entering into non-competition agreements, it’s clear that the Legislature intends for non-competition agreements to apply to only executive or upper level management.

If enacted, these new requirements will require employers to review and modify their existing non-competition agreements. Employers will want to monitor the situation and consult their employment counsel regarding any revisions that may be necessary before they seek to enter into new agreements, or run the risk that those agreements will be unenforceable when the employer needs them the most.

Timothy M. Netkovick, an attorney at Royal, P.C., has 15 years of litigation experience. He has successfully tried several cases to verdict. In addition to his trial experience, he has specific experience in handling labor and employment matters before a variety of administrative agencies including the Mass. Commission Against Discrimination, Equal Employment Opportunity Commission, National Labor Relations Board, and Department of Industrial Accidents. He also assists employers with unionized workforces during collective bargaining, at arbitrations, and with respect to employee grievances and unfair labor practice charges; (413) 586-2288.

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