U.S. Supreme Court Rules FICA Tax Applies to Severance Pay

On March 25, 2014, the U.S. Supreme Court ruled 8-0 in United States v. Quality Stores, Inc. that severance payments made to involuntarily terminated employees are taxable “wages” subject to FICA taxes.  This decision resolved a split among lower federal courts which left some employers uncertain whether to withhold and pay FICA taxes on severance payments.

As a result of the decision in Quality Stores, employers and employees now know that their severance payments will be subject to FICA taxes.  In addition, severance payments – like all wage payments – will be subject to income tax withholdings.

Income tax withholdings on severance payments are usually a flat-rate 25% withholding. This is because the severance pay are considered “supplemental” wages rather than ordinary wages.  However, if the employee receives supplemental wages exceeding $1,000,000, the income tax withholding increases to a flat-rate 39.6%.

For 2014, the total FICA tax is 2.9% for Medicare and 12.4% for Social Security.  An additional 0.9% Medicare tax is added for individuals making over $200,000/year.  The total FICA tax is paid equally by the employer and employee – with half being paid by the employee through automatic withholdings.  The other half is paid by the employer as payroll tax.

The bottom line:  severance payments just got more expensive for both employer and employee.

You can find the Supreme Court’s opinion in Quality Stores here.

Leave a Comment

Filed under Uncategorized

“Halo Report” Shows Increasing Angel Investment

Silicon Valley Bank, the Angel Resource Institute, and CB Insights just released their Q3 2013 “Halo Report.”   This report generally confirms that angel investment is increasing, but the median round size ($520K) is down from the Q1 2013 peak ($700K).  Other notable findings include:

  1. Healthcare deals enjoyed the largest increase in round size, increasing to $1.50M from $1.10M in 2012;
  2. The median pre-money valuation of early-stage angel deals held steady at $2.5M;
  3.  Most angels invest close to home, with 74% of all deals closing in their home state;
  4.  Internet, healthcare, and mobile deals constitute the “lion’s share” of all deals closed;
  5.  The New England region leads all other regions in total angel dollars invested; and
  6.  California leads all other regions in terms of the overall share of angel deals closed.

You can find the full report here.

Leave a Comment

Filed under Startups & Entrepreneurs

NLRB Rules College Football Players on Scholarship are Employees and Can Form Unions

Earlier today, the National Labor Relations Board (“NLRB”) Regional Office 13 issued a groundbreaking decision in Northwestern University v. College Athletes Players Association (Case No. 13-RC-121359) which could fundamentally alter the relationship of college football players to their schools and to the N.C.A.A.

The NLRB’s Regional Office ruled that:

(1) College football players on scholarships at Northwestern University are “employees” within the meaning of the National Labor Relations Act; and

(2) As a result of being “employees,” these college football players are entitled to hold a secret-ballot election, under the direction of the NLRB’s Regional Director for Region 13, on whether or not to form a union.

The NRLB’s decision was based on a simple and indisputable premise — that college football players perform valuable services for their universities.  These valuable services generated revenues of approximately $235,000,000 from 2003-2012 through ticket sales, television contracts, merchandise sales, and licensing agreements.  The universities were able to capture this revenue and utilize it in any manner they saw fit.  In return, the players receive scholarships that function essentially as “compensation,” thus confirming the employer-employee relationship.

You can read the NLRB’s decision here.  Northwestern University will now have until April 9, 2014 to request a review of the decision by the full NLRB in Washington, D.C.

Note:  Interestingly, today’s decision comes only a week after a federal lawsuit was filed alleging that the N.C.A.A. and the five “power conferences” have made billions of dollars off college athletes by effectively restraining their compensation and competition.  You can read more about this lawsuit, filed by famed sports lawyer Jeffrey Kessler, here.

Leave a Comment

Filed under Employment & HR, General Business

U.S. Supreme Court Expands Whistleblower Liability

The Sarbanes-Oxley Act of 2002 (“SOA”) included protections for whistleblowers at public companies.  Section 806 of the SOA states that no publicly-traded company, or any officer, employee, contractor, subcontractor, or agent of such public company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee for whistleblowing or engaging in other protected activities.  See 18 U.S.C. §1514A.  

But this language left open a very big question — that is, are the employees of privately-owned “contractors” and “sub-contractors” of the public company also protected by  §1514A’s whistleblower protections?  The answer is “Yes,” according to the U.S. Supreme Court in its 6-3 decision in Lawson v. FMR LLC (Case No. 12-3, 2014 BL 57948).

The Facts of the Case

The plaintiffs in Lawson were employed by an investment advising firm (“FMR”) that provided advisory and management services to the Fidelity family of mutual funds.  The Fidelity funds were publicly-traded companies; however, they had no employees of their own because they contracted with investment advising firms (like FMR) to handle their day-to-day operations.

One plaintiff worked for FMR for 14 years.  She alleged that, after she raised concerns about certain cost accounting methodologies (believing that they overstated expenses associated with operating the mutual funds) she suffered a series of adverse actions, ultimately amounting to constructive discharge.  A second plaintiff worked for FMR for 8 years.  He alleged that he was fired in retaliation for raising concerns about inaccuracies in a draft SEC registration statement concerning certain Fidelity funds.

Both plaintiffs sued FMR alleging illegal retaliation in violation of §1514A.

The Lower Courts’ Decisions

FMR moved to dismiss the case, arguing that plaintiff could not bring an action because she was not an employee of a “public” company as required by SOA.  The District Court rejected FMR’s interpretation of §1514A and denied FMR’s motion.  The First Circuit Court of Appeals then reversed the District Court’s decision, ruling that only employees of a public company are protected by §1514A.

Continue reading

Leave a Comment

Filed under Employment & HR

Can an Employee Who Uses Fake Social Security Card to Get Hired Later Sue for Discrimination?

Well, we’re going to have the answer to that question soon from the California Supreme Court.

The case is entitled Salas v. Sierra Chemical (Case Number S196558).  The issue in Salas is whether an employee’s claims for discrimination under California’s FEHA can be dismissed on grounds of “after-acquired evidence” and “unclean hands” when that employee provided false documentation in order to get hired. 

Back in 2011, the California Court of Appeal issued its decision in the case, ruling that the employee’s discrimination claims were, in fact, barred.  You can read the appellate court’s opinion here.

The California Supreme Court set oral argument in the case for Wednesday, April 2, 2014 at 9:00 a.m. in Los Angeles.   I expect the Court’s decision in Salas around July 1, 2014 — so stay tuned!

For more information about the case and its docket in the California Supreme Court, go here.

Leave a Comment

Filed under Employment & HR

Mayor Lee Signs “Ban the Box” Ordinance

As predicted, on February 17, 2014 San Francisco Mayor Ed Lee signed the San Francisco Supervisors’ “Ban the Box” ordinance.  This means that employers, contractors, and affordable housing providers will have very limited use of criminal background checks in vetting employees or tenants in San Francisco.

This new law goes into effect on March 19, 2014.

If you want more information on the new law, you can read my prior blog post here.

Leave a Comment

Filed under Employment & HR

SF Board of Supervisors Unanimously Passes “Ban the Box” Ordinance

On February 11, 2014, the SF Board of Supervisors unanimously passed a new ordinance barring most employers and housing providers from (1) asking applicants to disclose their criminal background in the application process, and (2) using criminal background history or records in the employment or housing selection process.

This so-called “Ban the Box” law is intended to prevent employers and housing providers from asking applicants to check boxes on an application disclosing whether or not they have a criminal background.  The goal of the ordinance is to prevent employers and housing providers from discriminating against ex-offenders who have paid their debt to society and taken the necessary steps to rehabilitate themselves.

Mayor Lee now has 10 days to decide whether or not to sign the ordinance.  If signed, it will become effective within 30 days.

If passed, the new law would covers businesses that are:  (1) located or doing business in San Francisco, (2) that employ at least 20 employees, whether located in San Francisco or anywhere else, and (3) offering employment that is physically located, in whole or in part, in San Francisco.

Continue reading

1 Comment

Filed under Employment & HR

Deadline — Cal/OSHA Form 300 Due Today

The California Department of Industrial Relations (“DIR”) requires most employers with 11 or more employees to post by February 1st a summary of job-related illnesses and injuries that occurred in the prior year.

The posting, which is often referred to as Form 300A or the Cal/OSHA Log 300 summary, must be posted wherever employee notices are usually posted. Even companies with no recordable injuries or illnesses in the previous year must post the summary.

If the employer has multiple locations, a separate Form 300A summary must be posted in each separate facility that is expected to remain in operation for at least another year.

A company executive must certify the accuracy and completeness of the information contained in the summary; therefore, it is critical that employers comply and provide accurate information.

You can find downloadable PDF or Excel versions of Cal/OSHA Form 300 and 300A on the DIR’s “Publications” section of its website, which can be found here.  Just scroll down to where you see “Recordkeeping,” and links to all forms, in all formats, can be downloaded from there.

Leave a Comment

Filed under Employment & HR, General Business

MoneyTree Reports VC Investment Up 7% — Internet Investments Highest Since 2001

According to the MoneyTree report by PricewaterhouseCoopers LLP (“PwC”) and the National Venture Capital Association (“NVCA”), venture capitalists invested $29.4 billion in 3,995 deals in 2013.  This represents a 7% in dollars invested and a 4% increase in deals compared to 2012.

Internet-specific companies captured $7.1 billion in investments in 2013, according to the report.  This marks the highest level of internet investment since 2001.

Software companies captured $11.0 billion in investments, which marks the highest level of software investment since 2000.  Additionally, dollars going into software companies accounted for 37% of all VC investments in 2013.  This is the highest percentage ever recorded by the MoneyTree report, which began in 1995.

You can find PwC’s press release here.  You can find the MoneyTree website, with full current and historical VC investment data, here.

Leave a Comment

Filed under General Business, Startups & Entrepreneurs

NLRB Gives Up — No More Notice Posting Rule

According to its Office of Public Affairs, the National Labor Relations Board (“NLRB”) has decided not to seek Supreme Court review of two U.S. Court of Appeals decisions invalidating the NLRB’s Notice Posting Rule, which would have required most private sector employers to post a notice of employee rights in the workplace.  This decision by the NLRB, which can be found here, effectively ends one of many posting requirement for employers.

Notwithstanding this decision, the NLRB announced that the workplace poster that was at issue in the two U.S. Court of Appeal cases can still be “viewed, displayed, and disseminated voluntarily.”  The NLRB even provides a link to the poster, which can be found here.

Leave a Comment

Filed under Employment & HR, General Business

AB 370 Requires New Privacy Disclosures on Commercial Websites

A recent amendment to California’s Online Privacy Protection Act of 2003, which already requires owners and operators of commercial websites to post conspicuous privacy policies, now requires even more –

As a result of AB 370, which took effect on January 1, 2014, owners and operators of commercial websites that collect “personally identifiable information” about an consumer’s online activities must disclose in their privacy policies how the owner/operator responds to browser “do not track” signals or other mechanisms that provide consumers with choice regarding the collection of such information.  As an alternative, AB 370 allows the website owner/operator to provide a hyperlink to a webpage that details the program or protocol the website owner/operator follows.

Importantly, the amendment does not require a website owner/operator to respond to “do not track” signals.  It also does not require a website owner/operator to honor a consumer’s choice not to be tracked.

Website owners/operators who receive a non-compliance notice will have 30 days to update their privacy policies.  Those who are still non-compliant after 30 days will face penalties of up to $2,500 per violation.  Note that the CA Attorney General’s office has said that it considers each download of a non-compliant website or app to be a single violation.

Bottom line:  if you own or operate a commercial website that collects “personally identifiable information” from visitors, you should review your website’s posted privacy policy to ensure that it includes a full and proper discussion of how you respond to “do not track” signals.

You can find the text of the AB 370 amendment here.  For the full text of California’s Online Privacy Protection Act, which is codified at Cal. Bus. & Professions Code §§22575-22579, click here.  

Leave a Comment

Filed under General Business

New IRS Mileage Rates for 2014

Beginning January 1, 2014, the new standard IRS mileage rates are:

  1. $0.56/mile for business miles driven;
  2. $0.235/mile for medical or moving purposes; and
  3. $0.14/mile for service to charitable organizations.

Employers that use the standard IRS rates for employee reimbursement purposes should review and adjust their expense reimbursement policies to be consistent with these new guidelines.

You can find the IRS’ announcement about the new rates here.

Leave a Comment

Filed under Employment & HR, General Business